United States District Court, W.D. Kentucky, Paducah
B. Russell, Senior United States District Judge.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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).
filed the instant petition for a writ of habeas corpus in
this Court on March 27, 2019.
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 ...