Hollingshead v. Kansas, State of et al

Filing 2

ORDER ENTERED: Petitioner is given thirty (30) days in which to advise the court as to how he intends to proceed in order to avoid dismissal of this petition as mixed. Signed by Senior District Judge Sam A. Crow on 10/24/2013. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN HOLLINGSHEAD,
Petitioner,
v.

CASE NO.

13-3148-SAC

STATE OF KANSAS,
et al.,
Respondents.
O R D E R
This petition for writ of habeas corpus was filed pursuant to
28 U.S.C. § 2254 by a state inmate.

The filing fee was paid.

Having

considered the materials filed, the court finds that the petition
is “mixed,” that is it contains unexhausted as well as exhausted
claims.

Petitioner is given time to advise the court as to how he

intends to proceed in this matter.
Mr. Hollingshead was initially charged with state offenses in
2006.

In 2007 his attorney filed a detailed “Motion to Suppress

Portions

of

His

September

2006

Statement”

during

police

interrogation, which included as an attachment “three pages of quotes
counsel argued should be redacted from Hollingshead’s 47 minute
interrogation if shown to the jury (pursuant to the Kansas Supreme
Court precedent, State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005)).
(ROA Vol. I, pp. 42-56).”

Petition (Doc. 1) at 32.

A hearing was

held, at which the court and State concurred with defendant’s motion.

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Petitioner’s first trial commenced later in 2007, but a mistrial was
declared at the end of the State’s case-in-chief because as the State
played the tape of petitioner’s interrogation, defense counsel
objected that it had not been redacted.

Following the mistrial, Mr.

Hollingshead filed a motion claiming that a retrial would violate
double jeopardy.

A hearing was held, and the motion was denied.

His

second trial was conducted in 2008, and he was convicted in the
District Court of Johnson County, Kansas, of Attempted Murder in the
First Degree and Aggravated Burglary.

Thereafter, defense counsel

filed a motion for new trial claiming newly discovered evidence,
which was denied.

On November 10, 2008, Mr. Holllingshead was

sentenced to imprisonment for 147 months and 32 months to be served
concurrently.
Petitioner directly appealed to the Kansas Court of Appeals
(KCA), which affirmed.

His Petition for Review to the Kansas Supreme

Court (KSC) was denied in 2011.

Mr. Hollingshead filed a pro se

Petition for Certiorari in the United States Supreme Court, which
was denied January on 17, 2012.
On January 18, 2013, petitioner’s pro se motion pursuant to
K.S.A.

60-1507

was

filed

in

Johnson

County

District

Court.

Petitioner uses or used the prisoner mailbox rule to assert that this
motion should be considered as having been filed on January 7, 2013.
He alleges that the district court judge found this motion to be
timely and then summarily denied relief on June 4, 2013.
2

Mr.

Hollingshead filed a timely Notice of Appeal, and thereafter retained
counsel that is now representing him before the court.

His

collateral appeal to the KCA was dismissed by counsel on August 28,
2013, “in favor of commencing this ‘2254’ proceeding.”
Mr. Hollingshead alleges three grounds in his federal petition:
(1) his mistrial was provoked by the prosecutor and thus his retrial
violated the Double Jeopardy Cause; (2) the Kansas courts violated
his rights under the Fifth and Fourteenth Amendments by denying his
request for a new trial after the State commented during closing upon
his silence between his arrest and re-trial; and (3) the Kansas courts
erred by failing to grant a new trial when his trial attorney produced
newly-discovered exculpatory evidence following his retrial.
Petitioner alleges that all available state court remedies have
been exhausted on the first two grounds.

As to ground (3), he alleges

that this issue was raised in the KCA and addressed on the merits,
but was not included in the “Petition for Review” to the KSC “because
of its 15 page limitation on such filings.”

Petitioner admits that

his third ground is “technically not exhausted,” but states that he
“seeks discretionary review to avoid a fundamental miscarriage of
justice” and that this issue is one of “newly discovered evidence
supportive of a finding of actual innocence, so it can therefore be
reviewed discretionarily to avoid a miscarriage of justice.”

It

thus appears that petitioner intentionally failed to exhaust his
third claim.
3

Petitioner’s allegations plainly indicate that this is a “mixed
petition.”

The Tenth Circuit recently affirmed the dismissal of a

mixed § 2254 petition filed by an Oklahoma state prisoner based upon
the following reasoning and long-established authority:
A district court may not grant a habeas petition if the
prisoner has not exhausted the available state court
remedies.
See 28 U.S.C. § 2254(b)(1); Coleman v.
Thompson, 501 U.S. 722, 731 (1991). The court may not
grant a habeas petition that contains both exhausted and
unexhausted claims. See Rose v. Lundy, 455 U .S. 509, 522
(1982). District courts may grant a stay and abeyance of
the petition if the petitioner can show “good cause” for
his failure to exhaust his state court remedies. See
Rhines v. Weber, 544 U.S. 269, 277 (2005). The petitioner
bears the burden of showing he has exhausted his state
court remedies. See Clonce v. Presley, 640 F.2d 271, 273
(10th Cir. 1981).
Mendenhall v. Parker, ___Fed.Appx.___, 2013 WL 5651315 (10th Cir.,
Oct. 17, 2013)(unpublished opinion cited for persuasive reasoning).
Petitioner’s reasoning does not convince this court that it has
authority to consider his mixed petition.1

He seeks “discretionary

review,” but the sole discretion this court is aware of having to
review a mixed petition is when it is prepared to deny all claims.
Petitioner now has two main options in this action: (1) dismiss
this entire action without prejudice, or (2) dismiss his unexhausted
claim and continue this action in federal court with his two exhausted
claims only.

However, petitioner is cautioned that any federal

habeas corpus petition he may attempt to submit in the future

1
At this juncture, petitioner has alleged no facts to suggest he is entitled
to a stay and abeyance of his federal petition.
His stated reason for not
exhausting his third claim does not amount to good cause for his failure to exhaust.

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regarding these convictions or sentences could be barred as second
or successive under 28 U.S.C. § 2244(b)(2) or by the one-year statute
of limitations in § 2244(d)(1).2
D.Kan. Rule 9.1(a)(1) requires that a federal habeas corpus
petition be submitted upon court-approved forms.

If petitioner

files an Amended Petition that omits his unexhausted claim, it must
be submitted upon forms.
Petitioner is given time to advise the court as to how he intends
to proceed in this action.

If he fails to respond within the

prescribed time, this action may be dismissed without further notice.
IT IS THEREFORE ORDERED that petitioner is given thirty (30)
days in which to advise the court as to how he intends to proceed
in order to avoid dismissal of this petition as mixed.
The clerk is directed to send § 2254 forms to counsel for
petitioner.
IT IS SO ORDERED.
Dated this 24th day of October, 2013, at Topeka, Kansas.

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

2
Petitioner is reminded that the pendency of this federal habeas corpus
petition, unlike a properly-filed state post-conviction motion, does not toll the
statute of limitations applicable to federal petitions. Duncan v. Walker, 533
U.S. 167 (2001). It follows that if this petition was filed with only 9 days
remaining in the limitations period, as petitioner alleges, the time limit has
expired unless entitlement to statutory or equitable tolling can be shown.

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