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Balcar v. Kentucky State Reformatory

United States District Court, W.D. Kentucky, Louisville

September 22, 2017

YALE LARRY BALCAR PETITIONER
v.
KENTUCKY STATE REFORMATORY RESPONDENT

          MEMORANDUM OPINION

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner Yale Larry Balcar filed this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. The Court reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review, the Court directed Balcar to show cause why his petition should not be dismissed as time-barred under the applicable one-year statute of limitations. Balcar responded to the Court's Show Cause Order. Upon review, for the reasons set forth below, the Court will dismiss t he petition as untimely.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         According to the petition, Balcar was convicted in “Dec. 2013” of “Bad Checks over 10, 000.00” and sentenced to “10 years - PFO - 2[.]” The petition indicates that he pleaded guilty and that he did not file an appeal from the judgment of conviction. It further shows that Balcar did not file any post-conviction motion in state court challenging his conviction. Balcar filed the instant petition for writ of habeas corpus in this Court on January 10, 2017.[1]

         II. ANALYSIS

         Because Balcar's petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the provisions of the AEDPA apply. Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000). The AEDPA sets forth a statute of limitations for state prisoners seeking release from custody. The statute provides as follows:

(d)(1) -- A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1) and (2).

         In the present case, Balcar did not file a direct appeal of his conviction. Therefore, the one-year limitations period began to run at “the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Assuming for the purposes of this preliminary screening that Balcar was convicted on December 31, 2013, his conviction became final on January 30, 2014, at the expiration of the thirty-day period for filing an appeal. See RCr 12.04. Thus, Balcar had until January 30, 2015, to file a petition for writ of habeas corpus in this Court unless there was a time-tolling collateral attack pending in state court. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001) (holding that the one-year statute of limitations may be tolled “for that amount of time in which ‘a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.'”) (quoting 28 U.S.C. ...


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