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Mash v. Litteral

United States District Court, W.D. Kentucky, Paducah Division

April 18, 2018

BILLY C. MASH PETITIONER
v.
WARDEN KATHY LITTERAL RESPONDENT

          MEMORANDUM OPINION

          Thomas B. Russell, United States District Court Senior Judge

         Petitioner Billy C. Mash filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (DN 1). On preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court directed Petitioner to show cause why his petition should not be denied and his action dismissed as untimely. Petitioner has responded (DN 10). For the following reasons, the petition will be dismissed.

         I.

         Petitioner was convicted in McCracken Circuit Court on May 19, 2010, on one count of first-degree sodomy. He appealed. On March 22, 2012, the Kentucky Supreme Court affirmed.

         According to the petition, on April 21, 2011, Petitioner filed a RCr 11.42 motion in the McCracken Circuit Court, which was denied. He appealed, and on January 18, 2013, the Kentucky Court of Appeals affirmed that denial. Petitioner filed the instant § 2254 petition in this Court on December 9, 2017.[1]

         The Antiterrorism and Effective Death Penalty Act of 1996 (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).

         Here, Petitioner's conviction became final, for purposes of the AEDPA's statute-of-limitations period, on June 20, 2012, 90 days after the Kentucky Supreme Court affirmed his conviction when the 90-day time period for filing a petition for a writ of certiorari to the United States ...


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