Hunter v. Douglas County District Court et al

Filing 15

MEMORANDUM AND ORDER denying 7 and 10 Motions and Requests for investigation; denying 8 Motion to Appoint Counsel; denying 11 Motion to Dismiss. Action is dismissed as second and successive and for lack of Circuit Court pre-authorization as w ell as for the other reasons stated herein and in the court's Memorandum and Order of April 16, 2014. Certificate of appealability denied. Signed by U.S. District Senior Judge Sam A. Crow on 9/11/14. Mailed to pro se party Charles Curtis Hunter by regular mail. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES CURTIS HUNTER,
Petitioner,
v.

CASE NO.

14-3048-SAC

DOUGLAS COUNTY DISTRICT
COURT, et al.,
Respondents.
MEMORANDUM AND ORDER
This action was construed as a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 because Mr. Hunter is a
convicted prisoner seeking release from his current confinement
at the Larned State Hospital (LSH) and mainly challenges his
state criminal convictions.1
Order

on

April

16,

2014,

The court entered a Memorandum and
in

which

it

found

that

the

motion/petition was deficient in several ways including that it
was not upon court-approved forms, did not clearly state grounds
for relief, did not adequately set forth exhaustion of state
court

remedies

as

to

each

ground,2

and

did

not

address

the

1

In its screening order, the court noted that Mr. Hunter was convicted
in 1982 of four counts of rape, two counts of attempted rape, and seven
counts of aggravated burglary. Then in 2005 he was convicted of battery on a
law enforcement officer within the institution.
In 2007, he was sentenced
“to a prison term of 130 months to run consecutive to the prison sentence he
was currently serving” for his 1982 convictions.
2

As noted in the screening order, the initial pleading was entitled
“Motion for Evidentiary Hearing” and set forth two grounds for relief: (1)
court-appointed counsel was ineffective for failing to “put in” a mental

1

threshold issues that this 2254 petition appears to be untimely
as well as successive.

Mr. Hunter was given time to cure these

deficiencies and warned that his failure to do so within the
prescribed time could result in dismissal of this action without
further notice.
In

response

to

the

court’s

screening

order,

Mr.

Hunter

filed a “Motion for Investigation” (Doc. 7); a one-page “Notice”
with attachments also seeking an investigation docketed as his
“Supplement” (Doc. 9); a second “Motion for Investigation” (Doc.
10); a one-page “Affidavit”

(Doc. 12), and

eventually

a new

Petition for Writ of Habeas Corpus that is upon court-approved
2254 forms3 followed by a letter to the undersigned judge (Doc.
14).4

defense or have Mr. Hunter plead not guilty by reason of insanity, and (2)
the county court erred in finding petitioner guilty in Case No. 79 CR 24
after he was evaluated by “state doctors . . . (and) found to be in need of
psychiatric treatment.”
Petitioner seemed to assert other claims that were
likewise neither clearly stated nor followed with supporting facts or facts
showing exhaustion.
Mr. Hunter was required to utilize the proper forms in
order to plainly delineate all his 2254 claims and to provide the supporting
facts as well as show exhaustion.
Petitioner also complained regarding parole decisions and was advised
that such claims must be raised in a separate petition under 28 U.S.C. § 2241
in which exhaustion of administrative and state court remedies is shown. He
has correctly omitted his parole claims from his new 2254 petition, which has
completely superseded his original petition.
Accordingly, his state parole
claims are not considered further herein.
3

Mr. Hunter has also filed two documents in which he seeks return of his
filings and appears to request dismissal of this action.
The first was
received the same day as his initial Motion for Investigation and was
docketed by the clerk as petitioner’s second “Motion to Appoint Counsel”
(Doc. 8).
On this single page with no caption or title, petitioner writes
that if the undersigned judge is “unable to secure and order” an
investigation to “then please return all original documents” and papers
already mailed to the court. He alleges that it is “too confusing for (him)
to understand how to adequately fill out the petitions and writs” mailed to

2

Petitioner’s bald allegations that the court’s 2254 forms
were too confusing and that he required assistance of counsel
are

not

orders.

sufficient

to

excuse

his

non-compliance

with

court

Despite petitioner’s complaints, he finally managed to

submit a new habeas corpus petition upon forms.

The court has

examined the new petition and finds that Mr. Hunter has failed
to cure substantial deficiencies that were explained to him in
the court’s prior Memorandum and Order.

The court need not

discuss all remaining deficiencies however, because it concludes
that petitioner’s 2254 claims are second and successive and that
this action must be dismissed on this ground.
In his new petition, Mr. Hunter responded “No” when asked
if

he

had

previously

filed

regarding his 1982 conviction.

any

petition

in

federal

court

However, as the court judicially

noticed in its prior screening order, Mr. Hunter has filed “at
him, and that he needs counsel but the court has denied him counsel. A month
later, Mr. Hunter submitted correspondence in which he asked the clerk and
this court to “disregard (his) case and motions and to please return all
(his) documents and papers.” He alleged that he was “unable to pay for the
proceedings” and “cannot afford court cost” even though his motion to proceed
in forma pauperis had already been granted.
Petitioner’s request for the
court to “disregard his case and motions” (Doc. 11) could be treated as his
Notice of Voluntary Dismissal.
Under Rule 41(a)(1)(A)(i) of the Federal
Rules of Civil Procedure, a petitioner may dismiss an action without a court
order by filing a notice of dismissal before the opposing party serves a
response.
No responsive pleading has been required or filed in this case.
However, the allegations petitioner makes to support his requests render the
requests ambiguous.
The court declines to treat these ambiguous filings as
Notices of Voluntary Dismissal.
4

Yesterday, correspondence with no case number or caption was received
from Mr. Hunter at the undersigned judge’s chambers asking for consideration
of his case. All papers pertaining to a case must be sent to the Office of
the Clerk. It is not appropriate for a litigant to correspond directly with
the judge assigned to his case, and no additional action is warranted or will
be taken based upon this correspondence.

3

least one prior 2254 petition in this court that was denied on
the merits.”

Mr. Hunter has made no attempt to provide contrary

evidence in his new petition or other filings.
The court again takes judicial notice of Mr. Hunter’s prior
cases in this court.

In Hunter v. Kansas, Case No. 92-3136-DES

(Apr. 10, 1992), his challenges to his 1982 convictions and his
allegations of innocence and that another, identified only as
“the

culprit,”

prejudice.

committed

the

offenses

were

dismissed

without

Then, he filed Hunter v. Kansas, Case No. 92-3181-

DES (D.Kan. May 20, 1992), and Hunter v. Kansas, Case 92-3280DES (D.Kan. Aug. 3, 1992), which were found to be repetitive of
Case No. 92-3136 and dismissed.
94-3497-DES

In Hunter v. Kansas, Case No.

(D.Kan. July 19, 1995), the court issued a show

cause order, an Answer and Return was submitted along with the
state court records including those in Douglas County Case CR
79-24, and the petition was considered and denied.

In Hunter v.

Douglas County, Case No. 95-3261-DES (D.Kan. July 19, 1995),
petitioner claimed false imprisonment and argued that he was
entitled

to

release

claimed showed

on

the

basis

of

new

evidence,

which

he

that some other person who was under satanic

influence committed the offenses of which he was convicted.
court disposed of these claims as follows:
Petitioner advances the claim that . . . a singer from
the rock group “KISS” could verify that petitioner was
framed (and) that an individual named Marvin committed
4

The

the criminal offenses.
. . .[T]he court finds
petitioner’s allegations are delusional and should be
dismissed. . . . [T]he court finds it clear from the
face of the petition that petitioner’s fantastical
claims do not entitle petitioner to habeas corpus
relief.
Id. at *2.
As

Ground

One

in

his

new

petition,5

Mr.

Hunter

claims

“Luciferic Psychological Entrapment.” The facts he alleges in
support of this ground are similar to his bizarre allegations in
prior actions.

He claims to have newly discovered evidence that

he was falsely accused and is falsely imprisoned.
he

alleges

that

his

confession

was

In support,

misconstrued,

and

the

offenses were actually committed by a “culprit known only” as
Marvin who died over 30 years ago.

He further alleges that

Marvin was identical in appearance to petitioner and their DNA
was “mostly” the same, even though Marvin “was made to serve
Satan.”

Petitioner states that he stood mute at trial at the

same time as he alleges that he testified at trial about how the
devil affected his mind and that the rapes were “committed by
Lucifer,

the

Devil

.

.

.

accompanied

5

by

Marvin

through

my

As Ground Two, petitioner claims his appointed trial counsel was
ineffective for failing to present a defense of not guilty due to a mental
defect or insanity, and that the court likely would have ruled in
petitioner’s favor on such a defense as it is known that he has received
treatment for “severe psychosis for over 35 years.” Petitioner alleges that
he did not raise this issue on direct appeal because he was unable to assess
the legal situation and was unaware of processes. He alleges that he raised
this claim in state post-conviction motions, a hearing was held, the judge
“corrected illegal sentence,” and he does not recall if he appealed the
denial, “but (he) had legal counsel.”
Petitioner admits that he did not
exhaust on all grounds for relief.

5

person.”

He also alleges that “due to paranormal activity” he

became “mentally deranged.”

Petitioner claims that the trial

court erred by not allowing a “full and thorough investigation.”
Mr. Hunter petitions this court to conduct a hearing now that he
has

regained

his

sanity.

He

claims

it

would

be

a

“gross

injustice” to allow his current conviction and sentence to stand
and asks that his sentence be vacated or overturned and that he
be acquitted of all charges for which he is imprisoned.
It

does

petitioner’s

not

matter

claims

in

at

his

this

new

juncture

petition

are

whether
ones

or

that

not
have

already been presented in a prior federal habeas application.
It mainly matters that there was a prior petition.

A claim

“that was presented” in a prior federal application “shall be
dismissed.”

See 28 U.S.C. § 2244(b)(1).

A claim “that was not

presented in a prior application” may only be reviewed in a
second and successive petition after the applicant has moved for
and obtained an order from the Tenth Circuit Court of Appeals
“authorizing the district court to consider the application.”6
The court finds that the instant habeas corpus application is
second and successive and there is no indication that petitioner
“complied

with

28

U.S.C.

§

2244(b)(3)(A)

by

obtaining

preauthorization” from the Tenth Circuit Court of Appeals prior
6

To obtain a preauthorization order, the applicant must show the Circuit
Court that the application satisfies the requirements set forth in 28 U.S.C.
§ 2244(b)(2).

6

to

its

filing.

dismissed.
The

As

a

consequence,

this

application

must

be

28 U.S.C. § 2244(b)(1) and (2).7

court

further

finds

that

in

the

several

responsive

filings submitted by Mr. Hunter, he has not cured any of the
other significant deficiencies in his initial pleadings.

He

again fails to clearly delineate all his grounds for relief and
follow each with supporting facts as well as facts establishing
full and proper exhaustion.

He makes some attempt to address

the other obvious threshold issue that the petition appears to
be untimely.8

However, his allegations in this regard are mostly

conclusory, and his claims of ignorance and lack of knowledge
are simply not grounds for equitable tolling.

With respect to

his allegations that he suffered “severe mental illness” and
that “prescribed psychiatric psychotropic medication” affected
his

thinking,

he

provides

no

conditions or medications and

dates

or

details

as

no explanation as to

to

his

how they

actually prevented him from filing a timely petition.

7

This action is dismissed as second and successive rather than as
untimely. Nonetheless, based upon all the other reasons for dismissing this
action set forth herein and in the court’s prior order, including that the
petition is not shown to be timely, the court finds that the interests of
justice would not be served by the transfer of this matter to the Tenth
Circuit for consideration of pre-authorization.
8

In response to the question regarding timeliness in his new form
petition, Mr. Hunter alleges that he “was mentally confused,” ignorant, and
lacked legal knowledge to adequately present his case. He also alleges that
he was suffering from severe mental illness and his prescribed psychotropic
medication adversely affected his thinking. Finally, he alleges that he “had
to become mentally stable in order to present such petition.”

7

Mr.

Hunter’s

“Affidavit”

(Doc.

one-page

submission

12)

his

and

final

which

he

“letter”

entitled
(Doc.

14)

his
are

writings that utterly fail to state a legal claim of any type.
Therein, petitioner writes that he is “the one,” the “Modern Day
Prophet of the Most High God,” and “The Lord Our Righteousness,”
among

other

things.

He

repeats

that

his

“major

witness”

disclosing certain information about him and in regards to his
case is the “lead singer with . . . KISS.”
“wrongfully

incarcerated

due

to

He states that he is

“Luciferic

Psychological–

Entrapment” and concludes: “WOW . . . You’re a Kit Kat but I’m
The Cookie.”

Even though this particular document provides no

support whatsoever for a legal claim, Mr. Hunter has attached it
or a substantially similar document to five of his responsive
filings (Docs. 7, 8, 9, 10, & 13) including his new petition,
and has submitted it by itself as his affidavit (Doc. 12) and
correspondence (Docs. 13 & 14).

This document does nothing to

cure the deficiencies in the pleadings filed in this case, and
is a frivolous, abusive filing.
Petitioner’s

second

request

for

appointment

of

counsel

(Doc. 8) is denied because no evidentiary hearing is required on
a habeas application to be dismissed as successive.
Rule 11, Rules Governing Section 2254 Cases in the United
States

District

Courts,

instructs

that

“[t]he

district

court

must issue or deny a certificate of appealability when it enters
8

a final order adverse to the applicant.”

Pursuant to 28 U.S.C.

§ 2253, the court may issue a certificate of appealability “only
if the applicant has made a substantial showing of the denial of
a constitutional right,” and the court “indicates which specific
issue

or

issues

satisfy

[that]

showing.”

A

petitioner

can

satisfy that standard by demonstrating that the issues raised
are debatable among jurists, that a court could resolve the
issues

differently,

proceedings.

that

the

v.

McDaniel,

questions

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

In addition,

Court’s

ruling

is

based

on

U.S.

further

(2000)(citing

the

529

deserve
473

when

Slack

or

procedural

grounds,

a

petitioner must demonstrate that “jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling.”

Slack, 529 U.S. at 484.

In this

case, the Court concludes that a certificate of appealability
should not issue.

Nothing suggests that the court’s procedural

ruling resulting in the dismissal of this second and successive
petition is debatable or incorrect.

The record is devoid of any

authority suggesting that the Tenth Circuit Court of Appeals
would resolve the issues in this case differently.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

petitioner’s

Motions and requests for Investigation (Docs. 1, 7, 9 & 10), his
9

ambiguous requests for dismissal and return of his documents
(Docs. 8 & 11), and his Motion to Appoint Counsel (Doc. 8) are
denied.
IT IS FURTHER ORDERED
second

and

successive

and

that this action is dismissed
for

lack

of

Circuit

Court

as

pre-

authorization as well as for the other reasons stated herein and
in the court’s Memorandum and Order of April 16, 2014.
IT IS FURTHER ORDERED that a certificate of appealability
is denied.
IT IS SO ORDERED.
Dated this 11th day of September, 2014, at Topeka, Kansas.

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

10