Williams v. Langford

1

MICHAEL WILLIAMS, Petitioner, v. DON LANGFORD, Respondent.

No. 22-3081-JWL

United States District Court, D. Kansas

March 24, 2023

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, United States District Judge.

Petitioner and state prisoner Michael Williams filed his pro se petition for writ of habeas corpus in this matter on April 21, 2022. (Doc. 1.) After determining that the petition was timely filed, the Court examined the petition, which contained four grounds for relief, as required by Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts. (See Doc. 14.)

The Court concluded that Ground Four failed to state a claim on which federal habeas relief can be granted and that Grounds Two and Three appeared unexhausted. (Doc. 14.) Petitioner later advised the Court that he wished to delete Ground Three, so Ground Three is no longer at issue. (Doc. 17.) Ground Two alleges the denial of Petitioner's constitutional right to appellate counsel. (Doc. 1, p. 9.) With respect to Ground Two, although Petitioner raised ineffective assistance of direct appeal counsel in his first K.S.A. 60-1507 proceeding in state district court, the district court denied relief and, on appeal, Petitioner restricted his ineffective-assistance-of-counsel arguments to trial counsel. See Williams v. State, 2018 WL 4939421, *4-5 (Kan.Ct.App. 2018), rev. denied July 22, 2019.

As part of the Rule 4 review, this Court considers whether the claims in a federal habeas petition are exhausted. See Fontenot v. Crow, 4 F.4th 982, 1018 (10th Cir. 2021) (“‘A threshold question that must be addressed in every habeas case is that of exhaustion.'”) (citation omitted); Pavatt v Carpenter, 923 F.3d 906, 924 n.7 (10th Cir. 2019) (noting that courts have the authority to consider exhaustion of state remedies sua sponte). Because Ground One of Petitioner's federal habeas petition appeared exhausted but Ground Two did not, the petition was what is referred to as a “mixed petition,” meaning that it contains both exhausted and unexhausted claims. See Grant v Royal, 886 F.3d 874, 891-92 (10th Cir. 2018). If it appears that state remedies may remain available for the unexhausted claims, a federal court has multiple options.

Thus on August 17, 2022, this Court ordered Petitioner to inform the Court whether he wished to (1) delete the unexhausted grounds for federal habeas relief or (2) ask the Court to stay this matter and hold it in abeyance while he exhausted state-court remedies. (Doc. 14.) At Petitioner's request, the Court stayed this matter on September 14, 2022 pending resolution of a second K.S.A. 60-1507 proceeding that appeared to provide an avenue by which Petitioner could exhaust the arguments contained in Ground Two of his federal habeas petition. (Doc. 16.) Ultimately, however, that proceeding did not involve the arguments made in Ground Two. (Doc. 18.) Accordingly, on October 3, 2022, this Court directed Petitioner to either identify another procedural avenue by which he could exhaust those arguments in the state courts or show cause why this Court should consider them despite the procedural default. (Doc. 19.)

Petitioner then advised the Court that he intended to file in the Kansas Court of Appeals (KCOA) a motion to recall the mandate in the appeal of his first 60-1507 proceeding. (Doc. 21.) Theoretically speaking, if Petitioner were able to reopen that case, it could potentially provide an avenue by which he could argue to the KCOA the ineffectiveness of direct appeal counsel and thereby exhaust the arguments in Ground Two of his current federal habeas petition. In light of that information and because this Court cannot predict litigants' success in the state courts, this Court continued the stay of this federal habeas matter and directed Petitioner to file a status report updating this Court on the progress of his motion to recall mandate. (Doc. 22.)

On January 11, 2023, Petitioner advised the Court that the KCOA had denied his motion on December 12, 2022, but he had only learned of the denial in a letter dated December 27, 2022. (Docs. 25 and 25-1.) Petitioner further informed this Court that he intended to file a petition for review of the denial in the Kansas Supreme Court (KSC). (Doc. 25.) This Court then directed Petitioner to file a status report containing certain information about the state appellate court proceedings. (Doc. 26.)

On February 17, 2023, Petitioner filed a status report, including a copy of the KCOA order denying his motion to recall the mandate, and he advised the Court that he “will issue another request to Recall the Mandate at the Kansas Supreme Court level.” (Doc. 28.) The Court reviewed the online records of the Kansas appellate courts, which reflected that there had been no activity in the relevant case since the December 12, 2022 order denying Petitioner's motion to recall the mandate. Thus, it appeared that Petitioner had taken no further action in the state courts. Moreover, it does not appear that any procedural avenue remains by which Petitioner may seek to withdraw the mandate in that action.

When arguments raised in a federal habeas petition were not and now cannot be exhausted in the state courts, an anticipatory procedural bar applies and generally prevents the federal court from considering the merits of those arguments. Applied to this case, because the arguments in Ground Two were not and now cannot be presented to the KCOA, this Court must follow the general rule that it cannot consider them as a basis for federal habeas relief unless Petitioner demonstrates that he is entitled to one of the rare exceptions to that rule. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007). Accordingly, this Court issued a notice and order to show cause (NOSC) lifting the stay of this matter, setting forth the applicable law on anticipatory procedural bars, and directing Petitioner to show cause why this Court should consider the merits of Ground Two despite the anticipatory procedural bar that applies to the arguments raised therein. (Doc. 29.) This matter comes before the Court on Petitioner's response to the NOSC. (Doc. 30.)

Petitioner does not dispute this Court's understanding that there no longer exists a procedural avenue by which he could raise his Ground Two claims to the KCOA. He also does not assert that he has ever argued the merits of those claims to the KCOA. Thus, in order for this Court to consider the merits of Ground Two as a possible basis for federal habeas relief, Petitioner must overcome the anticipatory procedural bar by either showing cause and prejudice or showing a fundamental miscarriage of justice.

As explained in the NOSC, to show cause and prejudice, Petitioner must demonstrate sufficient cause for his failure to raise the arguments in state court in a procedurally appropriate manner and he must demonstrate that he suffered actual prejudice as a result of the alleged violation of federal law. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). In this context, “cause” is some objective factor external to the defense that impeded Petitioner's ability to raise the Ground Two arguments on appeal from the denial of Petitioner's first 60-1507 motion. See Murray, 477 U.S. at 488. In the alternative, Petitioner may demonstrate that a “fundamental miscarriage of justice” will occur if this Court does not consider his claims despite the anticipatory procedural bar. See Coleman, 501 U.S. 722; Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). To proceed under this exception, he “must show that “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'” See House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Even liberally construing the response, as is appropriate since Petitioner proceeds pro se, it fails to make either showing. Petitioner devotes a large portion of his response to asserting that he did not get a fair opportunity to file a petition for review of the KCOA's order denying his motion to recall the mandate in his first 60-1507 proceeding, based on the timing of his learning that the motion had been denied, and the limitations he suffers as a prisoner. (Doc. 30, p. 1-5.) He also alleges that the KCOA erred by denying his motion to recall the mandate and he contends that “if the state's procedural bar prevents federal court[s] from reviewing the issue . . . it stands to reason that the state's procedural bar is reviewable to determine whether the state's procedural bar itself was unreasonably decided.” Id. at 4-5.

But the Tenth Circuit prohibits this Court from considering whether the KCOA erred by denying the motion to withdraw mandate. “A federal habeas court does not have license to question . . . whether the state court properly applied its own law.” Finlayson v. State, 6 F.4th 1235, 1240 n.6 (10th Cir. 2021). Moreover, the KCOA's recent denial of the motion is not the only reasons Petitioner did not present the arguments in Ground Two to the KCOA. Petitioner made the arguments now in Ground Two to the state district court in his first 60-1507 motion and could have properly raised them to the KCOA in the ensuing appeal. Had he done so at that time and had the KCOA rejected those argument on their merits, the claims would be exhausted for purposes of federal habeas review. But he did not do so and, in his response, he does not articulate sufficient cause for his failure to do so, nor does he make a colorable claim that he is factually innocent of the first-degree premeditated murder of which he was convicted in 2012.

Petitioner contends that this Court should not consider the procedural...