Manning (ID 51070) v. Deere

Filing 8

MEMORANDUM AND ORDER ENTERED: Petitioner's motion 5 for stay of action is dismissed as moot. Petitioner's motion 6 to reinstate proceedings and motion 7 showing cause why petition should not be dismissed for failure exhaust are deni ed because he is not entitled to the actions requested. This petition for a writ of habeas corpus will be dismissed due to petitioner's failure to exhaust state court remedies as to all claims unless within thirty (30) days of this order petitioner files a complete Second Amended Petition upon court approved forms presenting only exhausted claims. Signed by Senior District Judge Sam A. Crow on 9/17/2013. (Mailed to pro se party Everett Manning by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EVERETT MANNING,
Petitioner,
v.

CASE NO.

12-3254-SAC

DEPUTY WARDEN
KYLE DEERE,
Respondent.
MEMORANDUM AND ORDER
This matter is before the court to determine petitioner’s
compliance with prior orders of the court and upon petitioner’s
pending motions.

Having considered all materials filed, the court

finds that the petition remains mixed and that petitioner has failed
to comply with orders of the court.

Petitioner is given twenty (20)

days to submit an Amended Petition containing exhausted claims only
or this action will be dismissed.

BACKGROUND AND CLAIMS
Mr. Manning was convicted by a jury in Wyandotte County District
Court of aggravated battery of one victim and battery of another and
sentenced to 154 months in prison.
of Appeals (KCA), which affirmed.

He appealed to the Kansas Court
State v. Manning, No. 98,051, 2008

WL 4291504 (Kan.App. 2008)(unpublished), rev. denied 288 Kan. 834
(Kan. 2009).

His Petition for Review was denied by the Kansas

1

Supreme Court (KSC) on February 13, 2009.
On February 4, 2010, Mr. Manning filed a post-conviction motion
pursuant to K.S.A. § 60-1507, which the district court summarily
dismissed.
10, 2012.

Manning appealed to the KCA, which affirmed on August
Manning v. State, 281 P.3d 1146, *1-*2 (Kan.App. 2012).

The instant federal petition was executed on December 12, 2012.
Mr. Manning presented four1 grounds in his federal petition: (1)
ineffective assistance of appellate counsel on direct appeal, (2)
ineffective assistance of trial counsel, (3) that the trial court
erred in failing to instruct the jury on the lesser included offense
of

battery,

and

adjudications.2

(4)

improper

use

of

defendant’s

juvenile

He did not raise grounds (1) and (2) on direct appeal

but raised them in his 60-1507 petition.

He raised grounds (3) and

(4) on direct appeal and in his 60-1507 petition.

Mr. Manning

claimed that he had exhausted state court remedies on all four grounds
raised in his federal petition.
After reviewing the petition, the court entered a Memorandum
and Order in which it agreed that grounds (3) and (4) had been
exhausted.

However, the court found that his two claims of

1
In its prior Memorandum and Order the court mistakenly found that petitioner
had presented only 3 grounds in his petition but he presented all 4 grounds.
2
With respect to this claim, Mr. Manning does not allege sufficient facts
in support. In his petition, he generally claims improper use of his juvenile
convictions, but alleges that his mother forced him to enter pleas in the juvenile
proceedings. However, in his memorandum in support he cites cases regarding
improper person/nonperson classification of prior convictions and claims his
criminal history score was erroneously marked. In his Amended Petition, Mr.
Manning must make clear the factual basis for this claim and show that the facts
he relies upon have been fairly presented to the state courts.

2

ineffective assistance of counsel had not been fully exhausted. 3
This finding was based on the fact that Mr. Manning had not filed
a timely Petition for Review by the Kansas Supreme Court in his
60-1507 proceedings and thus had not presented these two grounds to
the highest state court.

Because the initial petition included

unexhausted claims, the court held it was subject to being dismissed
as “mixed.”
In addition, the court found that if this case is dismissed in
its entirety, the applicable statute of limitations expired 22 days
after its file date.

Thus, Mr. Manning was warned that if in the

future he manages to exhaust his two currently-unexhausted claims
in state court, any attempt to thereafter file a second federal habeas
corpus petition raising those claims will likely face the obstacles
3

28 U.S.C. § 2254(b)(1) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
unless it appears that B- (A) the applicant has exhausted the remedies
available in the courts of the State. . . .

Alternatively, the applicant must show that State corrective process is either
unavailable or ineffective. 28 U.S.C. § 2254(b)(1)(B). “A state prisoner must
give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). Generally, the exhaustion prerequisite is not satisfied unless
all claims asserted have been presented by “invoking one complete round of the
State’s established appellate review process.” Id. at 845. In this district,
this means that petitioner’s claims must have been “properly presented” as federal
constitutional issues “to the highest state court, either by direct review of the
conviction or in a post-conviction attack.” Dever v. Kansas State Penitentiary,
36 F.3d 1531, 1534 (10th Cir. 1994). It follows that any claims not raised on direct
appeal, must be presented to the highest state court by way of state post-conviction
proceedings. In other words, claims not presented on direct appeal must be
presented in a post-conviction motion to the state district court, and if relief
is denied by the district court, they must be appealed to the KCA. Then, if the
KCA denies relief, the claims must be raised in a Petition for Review to the Kansas
Supreme Court, the highest state court.

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of being time-barred and “second and successive.”

The court also

mentioned the likelihood that federal habeas review of petitioner’s
two unexhausted claims is barred by procedural default.
As noted,

Mr. Manning

was ordered

in the court’s prior

Memorandum and Order to file an “Amended Petition” upon forms that
were transmitted to him.

He was also notified that the Amended

Petition would be dismissed as mixed if it included unexhausted
claims unless he showed that those claims had been properly presented
to the Kansas Supreme Court.

In addition, he was forewarned that

if he failed to comply with these orders within the time allotted,
this action could be dismissed without further notice.
Eight days after the court’s Memorandum and Order was entered,
Mr. Manning filed a “Motion for Stay of Action” (Doc. 5).

Therein,

he requested that this case be stayed “pending the final judgment”
of the KSC in State vs. Manning (Appeal No. 105,699).

He alleged

in support that a stay would allow him to exhaust his state remedies,
that he had been misadvised about taking his ineffective assistance
of counsel claims to the KSC, and that his federal habeas claims would
be time-barred if this action were dismissed.

Before this court

ruled on the motion to stay, petitioner filed a “Motion to Reinstate”
these proceedings (Doc. 6), in which he alleges that he received a
reply from the KSC and “is ready to restart the proceedings.”

He

also filed a “Motion Showing Cause Why Petition Should not be
(Dismissed) for Failure to Exhaust,” which was docketed as his
4

Response (Doc. 7).

FAILURE TO COMPLY WITH COURT ORDER
Petitioner has not complied with the court’s order to file an
Amended Petition.

Instead, he has filed motions in which he alleges

facts and makes arguments from which he apparently expects the court
to find that his original petition should not be treated as mixed.
The court rejects petitioner’s arguments.
Mr. Manning argues that state court remedies are no longer
available to exhaust his two ineffective assistance of counsel
claims.

In support, he alleges that since the court’s Memorandum

and Order, he attempted to exhaust these two claims but found that
remedies were unavailable.

He exhibits a letter dated April 8, 2013,

from “The Appellate Courts of Kansas” noting that the Clerk’s Office
received his “petition for review concerning Appeal No. 105,699” on
April 5, 2013.

He was informed in the letter that his petition for

review could not be filed because “[j]urisdiction over this matter
was returned to the district court on September 13, 2012.”

Based

on these facts, he argues that “jurisdiction can be retained by
Federal Courts” because “there is an absence of available State
corrective process” or “circumstances exist that render such process
ineffective to protect the rights of the applicant” citing 28 U.S.C.
2254(b)(1)(B)(i)-(ii).

Rather than showing that petitioner’s state

remedies are absent or ineffective, these allegations and exhibits
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confirm that petitioner did not present his claims of ineffective
assistance of trial and appellate counsel to the Kansas Supreme Court
in a timely and proper manner.

Petitioner alleges no facts to

suggest that state remedies would not have been available had he
pursued them in a timely manner.

The exhaustion prerequisite is not

excused because petitioner’s failure to timely pursue state remedies
resulted in their unavailability.

If that were the law, the

exhaustion requirement would be rendered useless.

The Petition for

Review filed by Mr. Manning was rejected because the KSC no longer
had jurisdiction over his appeal.

This effort did not amount to

exhaustion of state remedies and does not show that state remedies
were ineffective.
Petitioner also claims that his failure to exhaust two of his
claims should be excused because it was due to incorrect advice from
his appellate counsel in his state post-conviction proceedings.

In

support he claims that after the KCA denied relief in those
proceedings, counsel representing him on that appeal misinformed him
that his case did “not fit into any” of the categories of cases
accepted for review by the KSC.

As proof, petitioner exhibits a

letter from his attorney, which contains the following advice:
[T]he (KCA) stated the jury instructions were correct,
juvenile adjudications are properly counted for criminal
history, and the argument regarding bloodstains on the
porch is too speculative. All of the Court’s conclusions
are based on fairly clear case law.
The Kansas Supreme Court accepts a limited number of cases
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for review within 30 days of the Court of Appeals decision.
. . . The Court considers: (1) the general importance of
the question presented; (2) the existence of a conflict
between the decision sought to be reviewed and a prior
decision of either the Supreme Court or the Court of
Appeals; (3) the need for exercising the supervisory
authority of the Supreme Court; and (4) the final or
interlocutory character of the judgment, order, or ruling
sought to be reviewed. (K.S.A. 20-3018[b]). Your case,
unfortunately, does not fit into any of those categories.
As such, I do not believe there are any issues that could
be properly brought to the Kansas Supreme Court, and I do
not plan on filing a petition for certiorari with the
Kansas Supreme Court.
Mr. Manning alleges no facts or authority showing that this advice
was incorrect in any fashion.

Moreover, he makes no effort to

explain why he did not proceed to file a Petition for Review without
assistance from this counsel.

Exhaustion is not excused based on

these allegations and exhibits.

PENDING MOTIONS
The court has considered petitioner’s Motion for Stay of Action
(Doc. 5) and finds that it should be denied.

Petitioner has not set

forth facts in this motion to demonstrate all the factors that might
entitle him to a stay of these proceedings.

See Rhines v. Weber,

544 U.S. 269, 277-78 (2005)(A stay and abeyance of habeas proceedings
should be “available only in limited circumstances” lest it undermine
the legislative goals in AEDPA;

and

it

“petitioner

his

failure

had

good

cause

for

is

recommended where
to

exhaust,

his

unexhausted claims are potentially meritorious, and there is no

7

indication that the petitioner engaged in intentionally dilatory
litigation tactics.”).

Even if petitioner had alleged grounds for

a stay, this motion is moot because he has subsequently requested
that the stay be lifted (Doc. 6).
The court has considered petitioner’s “Motion to Reinstate”
Proceedings (Doc. 6) together with his Response (Doc. 7)(entitled
“Motion Showing Cause Why Petition Should not be Dismissed for
Failure to Exhaust”) and finds it should be denied because petitioner
is not entitled to the actions he requests.

In this motion,

petitioner implies that he should be allowed to proceed on his
original petition because he believes he has exhausted his state
remedies or that his counsel provided bad advice.
already discussed, the court rejects these arguments.

For reasons
Petitioner

also asks to court to lift the stay, but no stay was ordered.

CONCLUSION
The court finds that petitioner has not shown that he exhausted
state court remedies on his two ineffective assistance of counsel
claims4 or that state court remedies are unavailable.

It follows

4
The court acknowledges that it might find that petitioner had “technically
exhausted” these two claims if it could find that they had been procedurally
defaulted in state court. However, petitioner has not alleged and his exhibit
does not indicate that he filed a proper motion to file an appeal out of time.
Thus, the court is not presented with a solid basis for finding that state remedies
are no longer unavailable. Moreover, if petitioner has procedurally defaulted
these claims, he has not alleged facts to establish cause and prejudice or a
complete miscarriage of justice.
Consequently, these two claims would be
procedurally defaulted for purposes of federal habeas corpus as well and would
not be reviewed by this court.

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that he has not established that his petition is not mixed.

Nor has

he provided any valid reason for failing to comply with the court’s
order to file an Amended Petition containing only exhausted claims.
The court cannot rule upon and is required to dismiss a mixed
petition.

Mr. Manning is given one last opportunity to file an

Amended Petition containing only exhausted claims.

If he fails to

do comply with this order within the time prescribed herein, this
action will be dismissed for failure to exhaust.
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s Motion
for Stay of Action (Doc. 5) is dismissed as moot, and petitioner’s
“Motion to Reinstate” Proceedings (Doc. 6) and “Motion Showing Cause
Why Petition Should not be Dismissed for Failure to Exhaust” (Doc.
7) are denied because he is not entitled to the actions requested.
IT IS FURTHER ORDERED that this petition for a writ of habeas
corpus will be dismissed due to petitioner’s failure to exhaust state
court remedies as to all claims, unless within thirty (30) days of
this order petitioner files a complete Second Amended Petition5 upon
court-provided forms presenting only exhausted claims.
The clerk is directed to send petitioner forms for filing a §
2254 petition.
IT IS SO ORDERED.

5
Petitioner is reminded that he must write “Amended” and this case number,
12-3254, at the top of the first page, and that he must fill out the forms
completely. He may not simply refer to his initial petition, as the Amended
Petition completely supersedes prior petitions.

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Dated this 17th day of September, 2013, at Topeka, Kansas.

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

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