Greene v. Kansas, State of

Filing 13

ORDER ENTERED: Plaintiff's applications 2 , 4 & 12 to proceed without prepayment of fees are granted and he is assessed the full filing fee of $350.00 for this case to be paid in installments. This action is dismissed and all relief is denied, without prejudice, for failure to state a claim upon which relief may be granted. Any habeas corpus claims raised in the First Amended Complaint are dismissed, without prejudice, as improperly brought in a 1983 complaint and for failure to exhaust state remedies. Plaintiff's other pending motions 7 , 8 , 10 & 11 are denied as moot. Signed by Senior District Judge Sam A. Crow on 8/27/2012. (Mailed to pro se party Andrew Greene by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANDREW GREENE, a/k/a,
ANDREW GREEN,
Plaintiff,
v.

CASE NO.

12-3003-SAC

STATE OF KANSAS,
Defendant.
O R D E R
On
filed

January

herein

27,

and

2012,

issued

this

a

court

Memorandum

screened
and

the

Order

complaint

in

which

it

dismissed habeas claims because such claims may only be raised
in

a

habeas

corpus

petition

and

state

court

obviously not been exhausted on these claims.

remedies

had

The court further

found that plaintiff had failed to allege facts to show his
entitlement

to

an

order

by

this

court

requiring

that

he

be

provided with DNA evidence from his state criminal trial for
testing,
facts.

but

gave

him

time

to

allege

sufficient

additional

In addition, plaintiff was ordered to satisfy the filing

fee by either paying the fee in full or submitting a Motion to
Proceed without Prepayment of Fees.
Plaintiff has since filed two Motions for Leave to Proceed
without

Prepayment

Complaint

(Doc.

5);

of

Fees

Motion

(Docs.
to

4

Appoint

1

&

12);
Expert

First
and

Amended
to

Order

Examination and Testing (Doc. 7); Motion for Summary Judgment
(Doc. 8); Motion to Appoint Counsel (Doc. 10); and Motion to
Inspect Evidence (Doc. 11).
matters

together

authority,

the

with
court

the

Having considered each of these
entire

determines

file
the

and

relevant

pending

legal

motions

and

Greene

has

dismisses this action.

FACTUAL BACKGROUND
The

court

takes

judicial

notice

that

Mr.

previously filed three habeas corpus petitions in federal court
challenging

his

state

conviction

that

were

each

dismissed,

without prejudice, for failure to exhaust state remedies.

In

prior federal habeas petitions, Mr. Greene has alleged that he
was convicted by a jury in the District Court of Johnson County,
Kansas, of rape and sentenced on April 15, 2011, to life in
prison.

The court also takes judicial notice of the on-line

Kansas Appellate Court docket for State v. Greene, App. Case No.
106640.

This docket indicates that Mr. Greene sought and was

granted extensions of time to file his appellate brief, which he
filed on April 4, 2012; and that the State has been granted
extensions to file its brief up to September 5, 2012.
The

few

facts

alleged

include the following.

in

the

First

Amended

Complaint

“In connection with the investigation of

the case the Johnson County Criminalistic Laboratory conducted”
2

DNA testing on fluid collected from the victim’s “vagina swab”
and

“found

examiner

the

presence

divided

spermatozoa

the

and

of

seminal

material

taken

from

“The

(the

victim)

subject to polymerase Chain Reaction ‘PCR’ (DNA) testing.”

“The

(PCR)

were

inconclusive.

The

on
test

the

which

into
then

results

fractions,

medical

were

test

non-spermatozoa

fluid.”

spermatozoa

could

fractions

not

the

amplify

spermatozoa

fractions; therefore, it was unable to ascertain the identity”
of

the

person

who

left

the

fluid

in

the

victim.

It

is

reasonable to infer that the person whose seminal fluid was
found in the victim was the perpetrator.

Plaintiff

further

states that in his case “then-existing DNA testing methods were
technologically inferior to recent DNA testing methods.”

AMENDED COMPLAINT
Plaintiff may amend his complaint once as of right.
First

Amended

Complaint

(Doc.

5)

completely

supersedes

His
the

original complaint, so that the original complaint is no longer
considered.

The court is required by statute to screen the

First Amended Complaint

and to dismiss the complaint or any

portion thereof that is frivolous, fails to state a claim on
which relief may be granted, or seeks relief from a defendant
immune from such relief.
U.S.C. § 1915(e)(2).

28 U.S.C. § 1915A(a) and (b); 28

Having screened all materials filed, the
3

court finds the First Amended Complaint also fails to state a
claim for relief under 42 U.S.C. § 1983.
Plaintiff’s Amended Complaint is not upon court-approved
forms as required by local court rule, and he again names State
of Kansas as the only defendant in the caption despite being
informed that he must name all parties in the caption and that
the State of Kansas is not a proper defendant because it enjoys
absolute immunity.
Ashley

Clark,

a

Elsewhere in the complaint Mr. Greene lists
forensic

scientist,

as

defendant

but

then

alleges that Clark was not acting under color of state law.
acts

or

inactions

of

Clark

are

described

in

the

No

complaint.

Thus, it appears that plaintiff still fails to name a proper
defendant in the caption of his complaint.
In the Amended Complaint, the court is asked to (1) grant
plaintiff’s “(1983) claim request for funds” from the federal
court for DNA retesting; (2) order the “custodians” to “make the
evidence available . . . for testing” or retesting; and (3)
order “the Johnson County District Court,” the clerk of that
court, and “the State agencies”
evidence.

The

evidence

is

to preserve

described

as

and retain this

“the

seminal

fluid

retrieved from the alleged victim’s body” that “was taken and
preserved”

including

“any

bodily

fluids

collected

from”

the

victim that pertain to her rape and Andrew Greene’s prosecution.
In the body of the complaint, plaintiff refers to the “Johnson
4

County Sheriff, Criminalist Laboratory” as the “custodians of
the evidence.”
As legal authority for his requests

for orders by

this

court, plaintiff claims that 21 U.S.C. § 848(q)(9) “authorizes a
district

court

to

provide

funding

for

services

which

are

reasonably necessary to support” a habeas corpus petition.

He

further claims that this federal district court is required by §
848(q) “to provide for the furnishing of investigative and other
services”

including

funds

for

testing

or

discovery

“upon

a

showing that such services are reasonably necessary to a habeas
petitioner’s development of his case.”
Plaintiff contends that he has demonstrated that the DNA
re-testing sought by him is “reasonably necessary” to support
his

claim

of

actual

innocence

and

to

show

that

resulted from his counsel’s ineffective assistance.

prejudice
Plaintiff

“argues” in his complaint that “his trial counsel violated his
Sixth Amendment right to the effective assistance of counsel”
and

that

he

would

ineffectiveness.”
cross-examine
independent

have

been

exonerated

“but

for

such

He claims that counsel failed to effectively

the
expert

state’s
to

forensic

rebut

the

pathologist,
pathologist’s

obtain

an

testimony

concerning the test results, and to “secure evidence that may
have demonstrated that he did not rape” the victim.

He states

that these allegations “may amount to error warranting federal
5

habeas relief.”

He seeks the new DNA test evidence to “make a

truly persuasive showing of innocence” and constitutional error
in his trial.
Plaintiff

has

reasonably necessary

not

demonstrated

in his case.

that

DNA

testing

is

Instead, he merely makes

several speculative, conclusory statements.

He baldly states

that he “has made a preliminary showing of constitutional error”
and that a new DNA test is reasonably necessary” to support his
claims.

He states that new DNA evidence could provide support

for his claim that he is actually innocent, but provides no
facts indicating what new testing could be performed or what
results or impacts are likely.

He alleges only that new DNA

tests “could possibly prove what the original test could not” his “potential innocence.”

He baldly states that the retesting

“could

conclusive

possibly

procure

evidence”

which

“may

ultimately exonerate” him of rape, and “could substantiate” his
habeas claims.

These statements are not facts about all the

evidence at his trial or the DNA testing process showing that
re-testing is reasonably necessary.
Even if plaintiff had alleged facts showing re-testing is
“reasonably necessary,” he still alleges no facts providing this
federal court with the authority to order DNA testing at this
juncture in his pending state criminal proceedings.
assertion that this court is authorized or
6

Plaintiff’s

required under §

848(q) to provide him with funding and issue orders regarding
DNA

testing

is

legally

frivolous.

21

U.S.C.

§

848(q)

was

repealed in 2006, but similar provisions can be found at 18
U.S.C. § 3599(a)(1) and (2).

Both federal statutes expressly

apply to defendants subject to a sentence of death.

See 21

U.S.C. § 848(q)(4)(A),(B); 18 U.S.C. § 3599(a)(1),(2).
Greene was not sentenced to death.

Mr.

It follows that neither the

predecessor § 848(q) nor the current statute applies to him.
Plaintiff’s citations to Kansas statutes do not establish his
right to relief in federal court.

Instead, they suggest that he

has state remedies that must be pursued.
In its prior screening order, the court discussed Skinner
v. Switzer, 562 U.S. ___, 131 S.Ct. 1289 (Mar. 7, 2011) and
District Attorney’s Office for the Third Judicial District v.
Osborne, 557 U.S. 52 (2009).
Supreme

Court

decided

that

It noted that in Skinner, the
a

postconviction

claim

testing can properly be pursued in a § 1983 action.
131 S.Ct. at 1293.

for

DNA

Skinner,

However, the Supreme Court also held that in

order to bring such an action under § 1983 in federal court, the
prisoner must “show that the governing state law denies him
procedural
already

due

process.”

directly

appealed

Id.
his

The

prisoner

conviction,

pursued state postconviction remedies.

and

in

Skinner

had

unsuccessfully

Mr. Greene has completed

neither direct nor collateral proceedings in the state courts.
7

Skinner

had

already

specifically

sought

postconviction

DNA

testing of vaginal swabs and other evidence recovered at the
crime scene.

The State of Texas where Skinner was convicted had

enacted a statute that allowed prisoners to obtain DNA testing
“in limited circumstances.”

Id. at 1295.

Skinner had twice

moved in state court under the Texas statute for DNA testing of
the

yet-untested

biological

evidence,

appealed the denials of those motions.

and

unsuccessfully

Mr. Greene does not

allege facts indicating that he ever sought DNA testing in the
state courts.

He alleges no facts to refute the findings in

this court’s prior order that he has thus far only been tried
and convicted in state district court, and has yet to exhaust
even his direct criminal appeals.

He makes no attempt to show

that available discovery procedures in either his state criminal
trial

or

state

inadequate.

claim

appears,

“attempting
lawsuit.”

proceedings

are

constitutionally

Thus, Mr. Greene is technically not even making a

postconviction
plainly

collateral

to

for

like

sidestep

DNA
the
state

re-testing.

Instead,

petitioner

in

process

through

he

Osborne,
a

new

still
to

be

federal

Osborne, 129 S.Ct. at 2321.

Since Mr. Greene “utterly fails to allege facts showing
that he availed himself of any state procedure for obtaining DNA
evidence for testing, he also clearly fails to describe how any
such

state

procedure

was

so

inadequate
8

that

he

was

denied

federal

due

process.”

As

the

Supreme

Court

pointed

out

in

Osborne, “[i]t is difficult to criticize the State’s procedures
when Osborne has not invoked them.”
was

notified

the

inadequacy of state-law procedures for seeking DNA testing.

Id.

that

he

procedures

has

and

it

was

still

makes

his

not

no

burden

completed

attempt

to

Mr. Greene

demonstrate

Given

that

Id. at 2321.

the

available

whatsoever

“to

state

adequately

describe any constitutional inadequacy in those procedures,” he
“can hardly complain that they do not work.”

Id.

In short, the

First Amended Complaint like the original complaint “presents no
facts

whatsoever

from

discovery

procedures

concludes

that

Mr.

which
in

this

Kansas

Greene

court

are

still

might

determine

inadequate.”

fails

to

that

The
any

allege

court
facts

showing that he is entitled under § 1983 to have this court
order that the state official having custody of remaining DNA
evidence, if any, must provide him with that evidence for retesting.
Plaintiff’s bald assertions of 14th Amendment due process
claims of actual innocence, denial of access to the courts, and
denial

of

equal

punishment;

and

process

not

do

protection;
6th

8th

Amendment

include

any

Amendment

cruel

confrontation

reference

to

and

facts

and

unusual

compulsory
in

support.

Accordingly, they are dismissed as completely conclusory.

9

Mr.

Greene

additional
action

was

warned

that

facts

within

sufficient

would

be

dismissed

if

he

the

failed

time

pursuant

to

to

allege

allotted,
28

this

U.S.C.

§§

1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim
upon which relief may be granted and that he would be assessed a
strike.

This action counts as a strike against Mr. Greene.

The court reiterates that plaintiff’s allegations regarding
ineffective

assistance

of

counsel

and

that

he

is

actually

innocent are claims that may only be raised in a petition for
writ

of

habeas

corpus

filed

pursuant

to

28

U.S.C.

§

2254.

Greene has already been informed that he may not have these
habeas claims adjudicated in a § 1983 action and multiple times
that he may not have these claims reviewed in federal court
until he has fully and properly exhausted all available state
court remedies.

It remains clear that he has not exhausted his

state remedies on any of his habeas claims since his direct
appeal is currently pending (Kan.App. Case No. 106640).

The

court repeats that if Mr. Greene fails to fully present any of
his claims

in state court, those claims could be considered

waived for purposes of federal habeas corpus.

FULL FILING FEE ASSESSED
Plaintiff’s motions to proceed without prepayment of fees
are granted, based upon the court’s finding from his financial
10

information that he does not have funds to pay the full fee
upfront.

Mr.

Greene

has

previously

been

informed

that

the

statutory fee for filing a civil action in federal court is
$350.00.

He has also been forewarned that under § 1915(b)(1),

being granted leave to proceed without prepayment of fees does
not relieve him of the obligation to pay the full amount of the
filing fee, but instead merely entitles him to pay the fee over
time

through

payments

automatically

deducted

from

his

inmate

ORDERED

that

plaintiff’s

account as authorized by § 1915(b)(2).
IT

IS

THEREFORE

BY

THE

COURT

Applications to Proceed without Prepayment of Fees (Docs. 2, 4 &
12) are granted, and he is assessed the full filing fee of
$350.00 for this case to be paid in installments.

The Finance

Office of the Facility where plaintiff is currently confined is
directed to collect from plaintiff’s inmate account and pay to
the clerk of the court twenty percent (20%) of the prior month’s
income each time the amount in plaintiff’s account exceeds ten
dollars

($10.00)

until

plaintiff’s

obligation has been paid in full.

outstanding

filing

fee

Plaintiff is directed to

cooperate fully with his custodian in authorizing disbursements
to

satisfy

the

filing

fee,

including

but

not

limited

to

providing any written authorization required by the custodian or
any future custodian to disburse funds from his account.

11

IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied, without prejudice, pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim
upon which relief may be granted.
IT IS FURTHER ORDERED that any habeas claims raised in the
First

Amended

Complaint

are

dismissed,

without

prejudice,

as

improperly brought in a § 1983 complaint and for failure to
exhaust state remedies.
IT

IS

FURTHER

ORDERED

that

plaintiff’s

other

pending

motions (Docs. 7, 8, 10, and 11) are denied as moot.
The

clerk

is

directed

to

send

copies

of

this

Order

to

plaintiff, to the court’s finance office, and to the finance
office

of

the

institution

in

which

plaintiff

is

currently

confined.
IT IS SO ORDERED.
Dated this 27th day of August, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

12