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Moss v. Akers

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

October 22, 2019

CHARLES ROBERT MOSS PETITIONER
v.
DANIEL AKERS RESPONDENT

          MEMORANDUM OPINION

          Thomas B. Russell, Senior United States District Judge.

         Petitioner Charles Robert Moss filed this pro se 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 Moss to show cause why his petition should not be dismissed as time-barred under the applicable one-year statute of limitations. Moss responded to the Court's Show Cause Order. Upon review, for the reasons set forth below, the Court will dismiss the petition as untimely.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The petition and attachments show that Moss was convicted on June 7, 2002, upon pleading guilty in Ballard Circuit Court to three counts of use of a minor in a sexual performance, three counts of unlawful transaction with a minor, three counts of sexual abuse, and two counts of criminal abuse. He was sentenced to 50 years' imprisonment.

         According to the Kentucky Court of Appeals opinion in Moss v. Commonwealth, No. 2006-CA-2096-MR, 2008 Ky. App. Unpub. LEXIS 221 (Ky. Ct. App. Feb. 8, 2008), Moss did not file a direct appeal. He filed a motion to vacate his sentence pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 on June 10, 2005, which the trial court denied on September 5, 2006. Moss appealed, and the Court of Appeals affirmed the denial on February 8, 2008. Id. at *11. Thereafter, Moss filed numerous post-conviction motions in state court, including a motion for shock probation, five Kentucky Rule of Civil Procedure 60.02 motions, and a petition for writ of mandamus. See Moss v. Commonwealth, No. 2017-CA-212-MR, 2018 Ky. App. Unpub. LEXIS 262, at *2 (Ky. Ct. App. May 4, 2018).

         Moss filed the instant petition for a writ of habeas corpus in this Court on March 27, 2019.[1]

         II. ANALYSIS

         Because Moss'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 ...

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