Requena (ID 48877) v. Roberts et al

Filing 5

MEMORANDUM AND ORDER ENTERED: This matter is dismissed due to petitioner's procedural default. Petitioner's motion 2 for leave to file out of time is denied. Signed by Senior District Judge Sam A. Crow on 11/27/2013. (Mailed to pro se party Adrian M. Requena by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ADRIAN M. REQUENA,
Petitioner,
v.

CASE NO. 13-3186-SAC

RAY ROBERTS, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed by a prisoner
in state custody. By its order of November 1, 2013, the court directed
petitioner to show cause why this matter should not be dismissed due
to his failure to fully exhaust state court remedies.
Petitioner submitted a response showing that the Kansas Court
of Appeals dismissed his petition due to his failure to submit the
required number of copies of the appellate brief. His attempt to file
a petition for review in the Kansas Supreme Court was rejected as
untimely.
It is apparent that petitioner failed to properly exhaust state
court remedies. Because it appears petitioner could not now pursue
those remedies, the court analyzes the failure as one of procedural
default. Where a petitioner has defaulted claims in the state courts,
the habeas court may not consider the claims unless the petitioner
demonstrates cause and prejudice or a fundamental miscarriage of
justice. Maples v. Thomas, __ U.S. __, __, 132 S.Ct. 912, 922 (2012).
In this context, a petitioner demonstrates cause by showing that
an objective factor external to the defense prevented petitioner’s

compliance with state procedural rules. Id. To show prejudice, the
petitioner must show “actual prejudice as a result of the alleged
violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750
(1991).
Finally,

a

petitioner

may

overcome

procedural

default

by

demonstrating a fundamental miscarriage of justice, a threshold that
requires the petitioner to show actual innocence. Black v. Workman,
682 F.3d 880, 915 (10th Cir. 2012).
The court has examined the record and finds no ground to excuse
petitioner’s procedural default. First, it is clear that petitioner’s
state appeal was dismissed due to his failure to supply an adequate
number

of

copies

of

his

appellate

brief.

While

petitioner

unsuccessfully sought permission to use funds from his forced savings
account, that refusal by the Kansas Department of Corrections does
not constitute adequate cause. The record shows the appellate court
both advised petitioner that he could submit handwritten copies to
satisfy the requirement1 and extended the time to file the copies2.
Despite this alternative, petitioner failed to supply adequate copies
of the brief within the time allowed. Because petitioner has not
established cause, the court need not reach the issue of prejudice.
Next, the record does not contain any evidence that shows
petitioner’s actual innocence of the charge of undue familiarity. See
Schlup v. Delo, 513 U.S. 298, 316 (1995)(“Without any new evidence
of

innocence,

even

the

existence

of

a

concededly

meritorious

constitutional violation is not itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the

1
2

Doc. 4, Attach. p. 16.
Id., p. 24.

merits of a barred claim.”) Petitioner therefore does not show that
application of the procedural bar will cause a miscarriage of justice.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
due to petitioner’s procedural default.
IT IS FURTHER ORDERED petitioner’s motion for leave to file out
of time is denied.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
DATED:

This 27th day of November, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge