Manning (ID 68174) v. Kansas, State of

Filing 7

MEMORANDUM AND ORDER ENTERED: This action is found to be second and successive and is accordingly dismissed for lack of jurisdiction. Petitioner's motion 5 for leave to proceed in forma pauperis is granted. Petitioner's motion 3 to d ocket/appeal/file out of time and motion 6 to appoint counsel are denied. Petitioner is denied a certificate of appealability. Signed by Senior District Judge Sam A. Crow on 6/19/2013. (Mailed to pro se party Fayvun Manning by regular mail.) (smnd)

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

CASE NO.

13-3071-SAC

STATE OF KANSAS,
Respondent.
MEMORANDUM AND ORDER
This petition for writ of habeas corpus, 28 U.S.C. § 2254, was
filed by an inmate of the Lansing Correctional Facility, Lansing,
Kansas.

Petitioner has also filed a Motion for Leave to Proceed in

forma pauperis and has attached financial information in support
indicating the motion should be granted.
Petitioner seeks to challenge his 1998 conviction in Wyandotte
County District Court of felony murder.

The court finds that this

application is second and successive, that petitioner does not show
that he obtained preauthorization from the Tenth Circuit Court of
Appeals, and that this court lacks jurisdiction as a result.

The

court

for

further

consideration

finds
of

that

transfer

preauthorization

petitioner’s claims are time-barred.
dismissed.

BACKGROUND AND CLAIMS

1

to

the

Circuit

Court

is

not

warranted

because

Accordingly, this action is

Petitioner’s allegations and exhibits and
records reveal the following background facts.

relevant

court

Mr. Manning was

convicted of Aggravated Robbery and First Degree Murder in Case No.
97-CR-549.

On October 14, 1998, he was sentenced to consecutive

terms of life and 51 months.

He directly appealed, and the Kansas

Supreme Court (KSC) affirmed on March 9, 2001.

See State v. Manning,

270 Kan. 674, 19 P.3d 84 (2001).
On December 20, 2001, petitioner filed his first motion under
K.S.A. 60-1507.

Manning v. State, Case No. 01-C-5052.

It was

summarily dismissed based upon the district court’s finding that the
issues raised in the motion were similar to those previously
considered and denied on appeal.

The denial was affirmed on

collateral

State,

appeal

2005)(Table).

in

Manning

v.

111

P.3d

198

The KSC denied review on September 20, 2005.

Manning v. State, 268 P.3d 11, *1 (Kan. App. Jan. 20, 2012).

(KCA
See

In 2002,

petitioner filed a Motion to Correct Illegal Sentence in the trial
court, Kansas v. Manning, 02-C-4197.

He exhibits the order of the

court showing that this motion was considered and denied on the merits
on April 8, 2003.

Petition (Doc. 1) at 21, Journal Entry.1

On March 23, 2006, petitioner filed his first federal habeas
corpus application challenging this conviction.

1

Manning v. State,

Although petitioner states that the denial of this motion was appealed, the
KCA later found that “[t]he files and records of this court do not show that an
appeal was filed.” Manning, 268 P.3d 11, at *1. They also found that in this
motion, Mr. Manning “argued that the amended information was jurisdictionally
defective” because the charge was different than the jury instructions. Id.

2

Case No. 06-3088-SAC (Apr. 3, 2007).

It was dismissed with prejudice

as time-barred because it was filed outside the one-year statute of
limitations.

Petitioner did not appeal this decision.

In 2010, petitioner filed another state post-conviction motion,
Manning v. State of Kansas, 2010-CV-284 (Apr. 15, 2010). 2

This

motion was dismissed as successive or barred by res judicata and the
time limitations in K.S.A. 60-1507.
Summarily Dismissing Petition.

Petition (Doc. 1) at 20, Order

Petitioner appealed to the Kansas

Court of Appeals (KCA), which affirmed.
11 (Kan.App. Jan. 20, 2012).

Manning v. State, 268 P.3d

The KCA found Manning conceded that

this motion was untimely and did not argue that it was not successive,
but argued only that exceptional circumstances required review.
at *2.

Id.

However, the KCA determined that Manning failed to establish

either exceptional circumstances or manifest injustice.
KSC denied review on February 19, 2013.

Id.

The

The instant federal

application was executed on March 26, 2013.
Petitioner claims in his federal petition that (1) the “charging
document”

was

“jurisdictionally

defective”

in

that

it

lacked

essential elements of the offense, (2) jury instructions differed
from the charge in the complaint, (3) trial counsel was ineffective
and (4) the state erred in summarily dismissing his 60-1507 motion
and not excusing his failure to previously raise his claims.

2

Petitioner filed his most recent state post-conviction motion as Motion to
Correct Illegal Sentence, but it was treated as a motion under K.S.A. 60-1507.

3

FEDERAL PETITION IS SECOND AND SUCCESSIVE
Section 2244 of 28 U.S.C., provides in pertinent part:
(b)(1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented
in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless—
(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or
(B)(i) the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing
evidence
that,
but
for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
(3)(A) Before a second or successive application permitted
by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider
the application.
The dismissal of petitioner’s first federal habeas corpus petition
as time-barred is considered a dismissal on the merits.

McDowell

v. Zavaras, 417 Fed.Appx. 755, 757 (10th Cir.), cert. denied, 132
S.Ct. 258 (2011)(unpublished decision cited as persuasive rather
than controlling authority).

Consequently the instant application

4

is “second and successive.”

Under 28 U.S.C. § 2244(b)(3)(A), a

second or successive petition for habeas corpus may be filed in the
district court only if the applicant first obtains an order from the
appropriate

federal

Court

of

Appeals

authorizing

district court to consider the petition.

Id.

the

federal

There is no

indication in the materials filed that petitioner has obtained the
necessary authorization from the United States Court of Appeals for
the Tenth Circuit.

As a result, this court lacks jurisdiction to

address the merits of any § 2254 claim asserted in the petition.

In

re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008); see United States
v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).3

Furthermore, this

application is time-barred for the same reasons as the first.
This court may either transfer this action pursuant to 28 U.S.C.
§ 1631 to the Tenth Circuit for prior authorization if it is in the
interest of justice to do so, or dismiss it for lack of jurisdiction.
Cline, 531 F.3d at 1252.

The court finds that the interest of justice

would not be served by such transfer, and that this action should
be dismissed instead.

The three primary considerations governing

a court’s decision whether to transfer or dismiss are: (1) whether
the action was in good faith filed in the wrong court; (2) whether
3

Petitioner has not utilized court-approved forms for filing this application
as required by local court rule, and appears to have instead created his own format.
If he had used the appropriate forms, he would have been directed to address the
issues of successive applications and timeliness.
He did not include these
questions in his self-styled application, and has alleged no grounds contrary to
the court’s findings that this petition is second and successive as well as
time-barred.

5

dismissal might make it difficult for the petitioner to comply with
the one year federal limitations period; and (3) whether the claim
is likely to have merit.

See id. at 1251.

The first consideration does not support transfer in this case
because the statutory requirement for prior authorization of second
or successive habeas petitions has been in effect for over 17 years,
making it difficult for petitioner to credibly allege that the filing
of the instant petition in this court rather than the Circuit was
in good faith.

See id. at 1252.

Second, a dismissal will not make

it any more difficult for petitioner to comply with the applicable
limitations period as the one-year statute of limitations expired
many years ago.
Cir. 2000).

See U.S. v. Espinoza-Saenz, 235 F.3d 501, 504 (10th

Finally, the facts showing that this case is time-barred

lead the court to conclude that transfer of this action would raise
“false hopes” and waste judicial resources on a case that is “clearly
doomed.”

Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000).

Finally, the court notes that the findings and legal rulings
of the state courts on petitioner’s claims are not shown to be
contrary to existing Supreme Court precedent.
For the foregoing reasons, the court declines to transfer this
petition to the Tenth Circuit for authorization, and finds instead
that it should be dismissed for lack of jurisdiction in accordance
with 28 U.S.C. § 2244(b)(3).

6

OTHER PLEADINGS
Petitioner has filed several other pleadings.

His “Notice of

Appeal” (Doc. 2) and “Motion for Permission to Docket/Appeal/File
Out of Time” (Doc. 3) are not appropriate pleadings in this case.
In these pleadings, he seeks to appeal “from the denial of his
Petition for Review in the Kansas Supreme Court, February 19, 2013”
and requests permission to file “this Appeal and 28 U.S.C. § 2254”
petition in this court out of time.

The only “appeal” available from

the decision of the Kansas Supreme Court was to the United States
Supreme Court.

A petition for writ of habeas corpus filed in a

federal district court pursuant to § 2254 is not an “appeal,” even
though it is often incorrectly referred to as such.

Petitioner

initiated this action by submitting his § 2254 petition, and no
additional

“Notice

of

Appeal”

was

necessary

or

appropriate.

Petitioner’s request for permission to file his “appeal” out of time
is likewise inappropriate because this is not an appeal, and the
thirty-day limit for state court appeals does not govern the
timeliness of this action.

In this motion, petitioner does not

present any grounds that address the actual time limitation for
federal habeas corpus petitions set forth in 28 U.S.C. § 2244.

The

court denies the motion to “appeal” out of time on the grounds that
this is not an appeal subject to a thirty-day time limit and
petitioner presents no valid grounds for tolling the habeas corpus
time limit.
7

Petitioner’s Motion for Appointment of Counsel (Doc. 6) is
denied as moot due to the dismissal of this action for lack of
jurisdiction.
IT IS THEREFORE ORDERED that this action is found to be second
and successive and is accordingly dismissed for lack of jurisdiction.
IT IS FURTHER ORDERED that petitioner’s Motion for Leave to
Proceed in forma pauperis (Doc. 5) is granted, and petitioner’s
Motion to Docket/Appeal/File Out of Time (Doc. 3) and Motion to
Appoint Counsel (Doc. 6) are denied.
IT IS FURTHER ORDERED that petitioner is denied a certificate
of appealability.
IT IS SO ORDERED.
Dated this 19th day of June, 2013, at Topeka, Kansas.

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

8