Walker v. Geither

1

CARRIE EARLENE WALKER, Petitioner, v. GLORIA GEITHER, Respondent.

No. 21-3245-JWL

United States District Court, D. Kansas

August 19, 2024

MEMORANDUM AND ORDER TO SHOW CAUSE

JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Petitioner Carrie Earlene Walker, a state prisoner incarcerated at Topeka Correctional Facility in Topeka, Kansas. It was stayed in May 2022 so that Petitioner could return to state court to pursue unexhausted grounds for relief. (Doc. 14.) In April 2024 Petitioner advised that her state appeal was final. (Doc 18.) Thereafter, she advised that she saw no reason the stay of this matter should not be lifted and that she declined the opportunity to file an amended petition. (Doc. 20.) The Court therefore continued the initial review of the petition required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner asserts four grounds for relief from her state-court criminal convictions:

(1) trial counsel provided ineffective assistance by failing to advise her of the consequences of pleading no contest and by failing to correct her understanding of the potential sentence she faced; (2) trial counsel provided ineffective assistance by “encourag[ing] her to turn down a 13 year sentence” offered during plea negotiations; (3) the state district court abused its discretion by not granting her motion for a downward sentencing departure; and (4) the judge presiding over her criminal case had a conflict of interest but did not recuse himself and Petitioner's counsel did nothing about the conflict. Id. at 5 7-10.

(See Doc. 21, p. 2 (citing Doc. 1, p. 5, 7-10).)

During the Rule 4 review, this Court concluded that Grounds Three and Four are subject to dismissal, so on June 12, 2024, this Court issued a notice and order to show cause (“the NOSC”) directing Petitioner to show cause, in writing, why Grounds Three and Four of this matter should not be dismissed. (Doc. 21.) Petitioner filed her response on August 14, 2024. (Doc. 24.)

Ground Three

In the petition, Ground Three asserts: “Due to the lack of criminal history, the court abused its discretion by not granting a downward departure after it failed to appropriately weigh competing information, lack of criminal history should justify a more lenient sentence.” (Doc 1, p. 8.) In the attachment to the petition, Petitioner cites Kansas state caselaw and further asserts that the state district court “abused its discretion by not granting a downward departure after it failed to appropriately weigh competing information, lack of criminal history should justify a more lenient sentence. [sic]” (Doc. 1-1, p. 10.) The NOSC advised Petitioner that “Ground Three . . . is subject to dismissal because it fails to state a claim on which federal habeas relief can be granted” since it “does not identify any federal Constitutional right that was violated by the denial of her motion for a departure sentence.” (Doc. 21, p. 3-4.)

In her response, Petitioner states:

If [the district judge] had recused himself and a different judge had been overseeing my case without the prior knowledge of the 2007 dismissal, discretion may have been used in my sentencing. Excessive sentencing on my first conviction of drugs has violated my [Eighth] Amendment right, resulting in a cruel and unusual punishment.

(Doc. 24, p. 2.) To the extent that Petitioner refers to recusal by the state district judge, that argument is addressed in the analysis of Ground Four, below. Liberally construed, Petitioner advises in her response that Ground Three is intended to assert that the Eighth Amendment's prohibition of cruel and unusual punishment by the denial of her downward sentencing departure motion, which resulted in an excessive sentence.

This Court is unaware of any legal authority that supports the position that a sentencing judge's denial of a downward departure motion implicates the Eighth Amendment. In any event, it does not appear from the records now before the Court that Petitioner ever raised to a state court any federal constitutional argument based upon the denial of her motion for downward sentencing departure or the length of the sentence imposed upon her.

“For a federal court to consider a federal constitutional claim in an application for habeas [relief], the claim must be ‘fairly presented to the state courts' ....” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Thus we recognize that we must afford state courts “the ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights,” which those courts cannot do unless they have been “alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 609). A petitioner “need not cite ‘book and verse on the federal constitution.'” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quoting Picard, 404 U.S. at 278, 92 S.Ct. 509). But [s]he must do “more than present[] ‘all the facts necessary to support the federal claim' to the state court or articulat[e] a ‘somewhat similar state-law claim.' Id. (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam)). At bottom, “the crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast, 699 F.3d at 1184 (emphasis added) (citations omitted).

Honie v. Powell, 58 F.4th 1173, 1184 (10th Cir. 2023).

The online records of the Montgomery County - Independence District Court reflect that Petitioner challenged her sentence in her pro se K.S.A. 60-1507 motion as follows:

I feel that due to lack of criminal history the court abused its discretion by not granting a downward departure after it failed to appropriately weigh competing information, lack of criminal history should justify a more lenient sentence. I found in State v. Spencer[,] 291 Kan. 796, 815-16, 248 P.3d 256 (2011), an appellate court reviewed and granted a sentence departure motion for an abuse of discretion on a single mitigating factor alone.”

Montgomery County - Independence District Court Case No. 2018-CR-00386, Motion filed Aug. 9, 2021.

Nothing in that argument, even liberally construed, indicated to the state district court that Petitioner believed a federal constitutional right was violated by the denial of her downward sentencing departure motion or the resulting sentence. Moreover, it does not appear that the length of Petitioner's sentence was argued to or considered by the KCOA in the subsequent appeal. See Appellant's Brief, State v. Walker, available at 2022 WL 2898662; see also State v. Walker, 2023 WL 2344620 (Kan.Ct.App. Mar. 3, 2023) (unpublished), rev. denied Mar. 19, 2024.

Thus, Petitioner has not presented in the state courts an Eighth Amendment claim related to the denial of her downward sentencing departure motion or the length of her sentence. As explained above, this Court generally cannot consider claims in a federal habeas matter that were never presented to the state courts; such claims are unexhausted. Yet, as noted in the NOSC, Grounds One and Two of the petition appear to be exhausted. Thus, the Court is faced with a “mixed petition,” meaning that the petition contains exhausted and unexhausted claims. When state-court remedies are still available for the unexhausted claims in a mixed petition, the federal court generally should dismiss the matter “without prejudice so that the petitioner can pursue available state-court remedies.” Grant v. Royal, 886 F.3d 874, 891-92 (10^th Cir. 2018) (internal citations and quotation marks omitted).

But when a petitioner fails to present a claim in the state courts and would be procedurally barred from presenting it if she now returned to state court, there is no reason to allow the petitioner the opportunity to return to state court; instead, there is an anticipatory procedural bar which prevents the federal court from addressing the claim. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007). A claim that was unexhausted and is now procedurally barred from being raised and exhausted in the state courts is referred to as being barred by anticipatory procedural default.

At this point, if Petitioner returned to state court to file a K.S.A. 60-1507 motion and attempt to exhaust this claim, her efforts would likely be procedurally barred. Petitioner has already sought relief under K.S.A. 60-1507. Subsection (c) of that statute provides: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60-1507(c). This Court has long recognized that “[t]he successive motion rule is firmly established and is regularly followed in Kansas courts. This is an independent and adequate state procedural ground which bars this Court's reconsideration of [a] claim.” Gleason v. McKune, No. 11-3110-SAC, 2012 WL 2952242, at *11 (D. Kan. July 19, 2012) (unpublished). Thus, Ground Three appears barred by anticipatory procedural default.

A petitioner's unexhausted claim that is barred by anticipatory procedural default cannot be considered in habeas corpus unless she establishes cause and prejudice for her default of state court remedies or establishes a fundamental miscarriage of justice. Gray v Netherland, 518 U.S. 152, 162 (1996); Fontenot v. Crow, 4 F.4th 982, 1028 (10th Cir. 2021) (q...