Bell (ID 78997) v. Heimgartner et al

Filing 5

MEMORANDUM AND ORDER ENTERED: This habeas corpus petition is dismissed and all relief is denied. Signed by Senior District Judge Sam A. Crow on 07/17/14.Mailed to pro se party Nathaniel Bell by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATHANIEL BELL,
Petitioner,
v.

CASE NO.

14-3056-SAC

JAMES HEIMGARTNER,
Warden, et al.,
Respondents.
MEMORANDUM AND ORDER
Upon screening this pro se petition for writ of habeas
corpus, the court entered a Memorandum and Order requiring Mr.
Bell to satisfy the statutory filing fee and submit his petition
upon forms in which he showed exhaustion of state court remedies
and

that

excused.
this

his

procedural

default

in

state

court

should

be

In addition, petitioner was ordered to show cause why

action

response,

should

petitioner

not

be

paid

dismissed

the

filing

as
fee

time-barred.
and

submitted

In
his

petition upon forms as directed with 125 pages of attachments.
Having examined the materials filed by Mr. Bell, the court finds
that

petitioner

has

failed

to

show

good

cause

for

the

late

filing of his federal petition, failed to show exhaustion, and
failed

to

overcome

the

procedural

Accordingly, this action is dismissed.

1

default

of

his

claims.

I.

FAILURE TO SHOW THAT PETITION SHOULD NOT BE DISMISSED AS

TIME-BARRED
In its prior Memorandum and Order, the court set forth the
following background facts:
In 2003, Mr. Bell was convicted upon trial by jury in
the District Court of Sedgwick County, Kansas of
first-degree premeditated murder and sentenced to life
without parole for 25 years.1
He appealed to the
Kansas Supreme Court (KSC), which affirmed on October
28, 2005.
* * *
State court records indicate that Mr. Bell filed at
least two state post-conviction motions.
On October
4, 2006, he filed his first pro se motion pursuant to
K.S.A. 60-1507.
The trial court denied the motion
following a non-evidentiary hearing, and Bell appealed
to the Kansas Court of Appeals (KCA).
On October 26, 2011, Mr. Bell filed a second 60-1507
motion in which he contended that “his trial counsel
was ineffective for failing to request a competency
examination.”
Id.
“Without holding a hearing or
appointing counsel for Bell, the district court
dismissed the motion as impermissibly successive and
untimely. . . .”
Id.
The KCA found that Bell had
“effectively
raised
and
then
abandoned”
his
“successive claim based on the absence of a competency
examination before his trial.” Id. at *2.
The KCA affirmed on June 14, 2013, and the KSC denied review on
November 22, 2013.

The instant federal habeas corpus petition

was electronically filed on April 7, 2014.

1

“The jury found Bell stabbed another man to death after partying at the
victim’s apartment.”
Bell v. State, 302 P.3d 45, *1 (Kan.App. June 14,
2013), review denied, (Kan. Nov. 22, 2013).
At trial, Bell presented the
defense of self-defense. Other persons present at the time of the stabbing
testified at trial.

2

Based on these tentative facts, this court previously found
that

Mr.

Bell’s

federal

petition

appeared

citing 28 U.S.C. § 2244(d)(1) and (2).
calculations as follows.

to

be

time-barred

The court explained its

Mr. Bell’s conviction became “final”

on January 26, 2006, which was ninety days after completion of
his direct appeal, and the limitation period began on that date
and “ran without interruption until Bell filed his first 60-1507
motion on October 4, 2006.”
year

period

limitations

had
period

At “that point 251 days of the one-

expired,
was

and

then

114

tolled

days
during

remained.”
the

The

pendency

of

petitioner’s two state collateral proceedings, but recommenced
when his latest state post-conviction proceedings concluded on
November 22, 2013.

It then “ran unimpeded until it expired 114

days later on March 16, 2014.”

As noted, Mr. Bell did not file

his federal petition until April 7, 2014.
Mr. Bell was notified that without additional tolling, his
federal petition was subject to dismissal as time-barred and
that

he

must

show

exceptional

circumstances

entitled to equitable tolling.
petitioner

seeking

equitable

in

order

to

be

As Mr. Bell was informed, a
tolling

bears

the

burden

of

establishing that he diligently pursued his claims throughout
the

period

he

seeks

to

toll

and

that

“‘some

extraordinary

circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010); Wallace v. Kato,
3

549 U.S. 384, 396 (2007)(“Equitable tolling is a rare remedy to
be

applied

in

unusual

circumstances,

not

a

cure

all

for

an

entirely common state of affairs.”); Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005); Miller v. Marr, 141 F.3d 976, 978 (10th
Cir.), cert. denied, 525 U.S. 891 (1998); Marsh v. Soares, 223
F.3d

1217,

available

1220
when

demonstrates

(10th
an

that

Cir.

inmate
the

2000)(Equitable

diligently

failure

to

tolling

pursues

timely

his

file

“is

only

claims

was

and

caused

by

extraordinary circumstances beyond his control.”), cert. denied,
531 U.S. 1194 (2001).

He was further informed that the Tenth

Circuit has stated that equitable tolling “would be appropriate,
for

example,

adversary’s
prevents
actively

a

when

a

prisoner

conduct--or
prisoner

pursues

is

other

from

filing,

remedies

1133,

Gibson,

232

1141
F.3d

(10th
at

Cir.

808

2003);

(citing

Affairs, 498 U.S. 89, 96 (1990)).

or

but

pleading during the statutory period.”
F.3d

innocent,

uncontrollable

timely

judicial

actually

an

circumstance--

when

files

a
a

prisoner
defective

Burger v. Scott, 317

Miller,

Irwin

when

v.

141
Dep’t

F.3d
of

at

978;

Veterans

He was ordered “to fully

address the timeliness issue” in his new petition.
In response to the timeliness question in his new petition,
Mr. Bell generally alleges that upon appealing “they” assign an
attorney “that will not represent your interest” but “will file
pointless motions . . . and late petitions that will enable the
4

State to time-bar a defendant’s petition.”

He further alleges

that he “requested for each of his court-appointed appellate
attorneys to preserve important issues and to file his petitions
in a timely manner;” however, “the assigned attorney chose not
to

follow

establish

criminal

procedure.”

He

claims

this

“appears to be a common practice here in the State of Kansas.”
He also alleges that “during each stage of this appeal process,
(he) was confronted with an attorney that either refused to
preserve triable issues or failed to file petitions in a timely
manner.”

Petition (Doc. 3) at pg. 14.

These
statements.

allegations

are

nothing

more

than

conclusory

Petitioner blames the late filing of his federal

habeas corpus petition on the attorneys appointed to represent
him on his appeals in state court.

His exhibits indicate that

he was represented by Appellate Defender Hodgkinson on direct
appeal2

and

Attorney

Whalen

on

his

first

collateral

appeal.

However, he describes no specific act or inaction on the part of
either Hodgkinson or Whalen and provides no explanation as to
how either caused him to file his federal petition two weeks
late or impeded him from filing on time.

2

He generally complains

His attachments also show that after affirmance by the KSC, Hodgkinson
advised him of “various post-appeal options,” that the office could not
assist him further, and that his case would be closed.
After petitioner
filed his pro se 60-1507 motion in 2006, he moved for appointment of counsel,
and Ternes was appointed to represent him.
After the 60-1507 motion was
denied, Ternes filed a notice of appeal.

5

that appellate counsel failed to file timely motions, but does
not identify the type of motion, which attorney neglected to
file it, or relevant dates including when the motion should have
been

filed

as

opposed

to

the

together with the outcome.3
to

establish

that

a

date

it

was

actually

filed,

He certainly does not allege facts

particular

appellate

counsel’s

conduct

amounted to more than “a ‘garden variety claim’ of attorney
negligence.”

Holland,

560

U.S.

at

651.

Nor

has

Mr.

Bell

provided a copy of or described requests sent by him to counsel
regarding
together

each
with

issue,
the

or

responses

approximate

responses.

Prisoners

bear

exceptional

circumstances

dates

the

he
of

burden

hindered

received

from

counsel

and

counsel

requests
of

their

demonstrating
effort

to

that

pursue

claims, but Mr. Bell has offered nothing more than his own selfserving declarations to support his allegations that appellate
counsel prevented him from raising his
collateral

appeal.

The

court

claims

concludes

on

that

direct and
petitioner’s

general allegations are simply insufficient to justify equitable
tolling Cf. Miller, 141 F.3d at 978.
3

A letter among petitioner’s attachments from attorney Cotton informed
him that Mr. Whalen failed to timely file a Petition for Review in Case
10CV3919, but a judge had ruled that this was grounds to allow a Petition for
Review out of time, and that Cotton had filed the Motion and Petition for
Review. Doc. 3-1 (Letter dated July 11, 2011) pg. 31. Cotton later notified
petitioner that his Petition for Review was accepted for filing but review
was then denied.
Id. at pg. 32.
On December 13, 2011, Cotton notified
petitioner that “this ends our representation of you in this matter.”
Petitioner does not refer in his petition to any of his numerous attachments
and explain their import.

6

In

addition,

Mr.

Bell

has

not

described

in

sufficient

detail his own efforts to pursue his state court remedies on
these

claims

under

the

proper

state

procedures.

He

simply

alleges no facts establishing that he diligently pursued his
claims during the 251-day period between January 26, 2006, and
the filing of his first 60-1507 motion on October 4, 2006.

He

likewise fails to describe how he diligently pursued his claims
during the 114-day period that began when his second state postconviction proceedings concluded on November 22, 2013, and ended
on

March

16,

2014.

An

inmate

is

required

to

allege

with

specificity the steps he took to pursue his federal claims.
Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008); Miller,
141 F.3d at 978 (“In the final analysis, [petitioner must show]
the steps he took to diligently pursue his federal claims.”).
In

sum,

Mr.

Bell

fails

to

show

that

his

appellate

counsel,

rather than his own lack of diligence, caused him to file his
federal petition two weeks late.
time-barred.

Accordingly,

As a result, the petition is

this

action

is

dismissed

with

prejudice and all relief is denied.
Furthermore,

petitioner’s

general

allegations

that

his

appellate attorneys refused or failed to raise issues and failed
to file timely motions amount to separate challenges to his
state

court

convictions

that

do

not

appear

to

have

been

exhausted in state court prior to the filing of this federal
7

petition.

There

is

nothing

in

the

record

suggesting

that

petitioner filed an action claiming ineffective assistance of
appellate counsel prior to seeking relief in this court.

II.

FAILURE TO SHOW EXHAUSTION
Even

would

be

if

the

petition

dismissed

for

were

failure

not
to

time-barred,
show

this

exhaustion.

action
In

his

original federal petition, Mr. Bell raised the single claim that
he was denied his Sixth Amendment right to effective assistance
of trial counsel.

In support, he alleged that his trial counsel

failed to request a competency evaluation after petitioner said
he

was

having

difficulty

thinking

and

understanding

the

proceedings and was seeing dead people, and “failed to reveal
psychological test result to the defendant.”

He alleged that he

suffered prejudice because he was incompetent.
In his new petition, Mr. Bell raises three grounds: (1) the
State of Kansas violated due process in connection with a courtordered psychological evaluation;4 (2) “prosecutorial misconduct”
in that the “State of Kansas withheld critical evidence, IE,

4

As facts in support of this claim, petitioner alleges that the trial
court ordered a “psychological evaluation” at the request of his trial lawyer
Alice Osburn, but upon completion of the examination the “examining doctor
did not send its report to the court.” He baldly claims that the report had
a “direct barring” and “would determine his innocence or guilt of the crime.”
However, petitioner provides no information as to the contents of this report
or any explanation as to why it must have been provided to the court.

8

report from psychological evidence of self-defense;”5 and (3)
violation of Sixth Amendment right to effective assistance of
trial counsel in that “counsel did not request for report from
examination, of which could have established reasonable doubt in
a first degree prematated (sic) case.”6
In grounds (2) and (3) petitioner does not clearly refer to
a particular report.

He based some of his claims in state court

on three different reports: a competency examination report, his
psychological
report.

evaluation

report,

and

the

victim’s

toxicology

No pre-trial competency examination report was prepared

because a competency exam was not requested by the defense, the
State,

or

the

court;

and

Mr.

Bell

incompetent until years after his trial.

did

not

claim

he

was

With regard to grounds

(1) and (2), a psychological evaluation was ordered at defense
counsel’s request and completed, but was not presented at trial.
It is not unusual for such a report to not be presented at trial
if

the

results

were

not

favorable

to

a

defense

theory,

and

petitioner does not suggest how this violated the Constitution
5

What report petitioner is referring to in this claim is not at all
clear, and again he fails to describe its content or explain its import. He
alleges that this claim was not raised on direct appeal or in his postconviction appeals. Thus, the appellate court opinions shed no light on the
content of this report or the basis for this claim.
6

Again, petitioner does not adequately describe the “report that counsel
did not request.” His use of the word “examination” suggests he is claiming
that
trial
counsel
failed
to
do
something
with
the
psychological
evaluation/examination report. However, he also alleges that this claim was
not raised on direct appeal but was raised on collateral appeal of his “first
60-1507,” where only the victim’s toxicology report was at issue.

9

in his case.
defense

A toxicology report on the victim was prepared,

counsel

was

given

a

copy

prior

to

trial,

and

its

contents were discussed at trial.
The court finds that Mr. Bell fails in his new petition to
state

recognizable

support.

constitutional

claims

and

clear

facts

His three grounds might be dismissed on this basis.

With

respect

to

exhaustion

of

state

court

remedies,

petitioner alleges the following in his new petition.
would not raise ground (1) on direct appeal, but
raised

in

it

in

his

first

60-1507

motion,

which

Counsel

petitioner

was

pro

se.

However, it was not raised on collateral appeal of the denial of
that motion because appointed counsel “abandoned the issue” and
refused to raise it “even after the petitioner requested that he
present this argument in attorney’s brief.”

Thus, according to

petitioner’s own allegations, ground (1) was not presented to
the

highest

Petitioner

state
did

court.

not

raise

The

same

ground

is

(2)

true
on

of

either

ground
direct

(2).
or

collateral appeal and states that he did not exhaust this claim
because “[c]ourt appointed attorney abandoned this issue . . .
refused to present requested issues.”

Petitioner did not raise

ground (3) on direct appeal because “[a]ppellate attorney choose
not to preserve or present this issue, even though petitioner
request to do so.”

He alleges that he raised this ground in his

60-1507 motion “and appeal of denial,” without specifying his
10

first or second, and then makes the contradictory allegation
that this issue “was abandoned by court appointed attorney.”
However,

as

noted

the

only

report

referenced

on

his

collateral appeal was the victim’s toxicology report.

first
In his

first 60-1507 motion, he claimed that the court had failed to
request a competency examination and on his second collateral
appeal that his trial counsel was incompetent for failing to
request a competency examination.

The KCA found that this claim

was successive and that he was simply trying to “repackage it”
as an ineffective assistance of counsel claim.7

Thus ground (3)

in the instant petition does not appear to be a challenge to the
lack of a competency examination.
The court could deny the new petition because it fails on
its face to plainly show exhaustion of state court remedies.
Instead,

to

resolve

the exhaustion issue

the court has

also

considered the relevant written opinions of the state appellate
courts, which are exhibited by Mr. Bell.
KSC

found

that

“Bell’s

principle

of

alcohol

and

consumption
interrogation

affected

the

drugs

contention”
the

voluntariness

7

On direct appeal, the
was

evening
of

his

“that

his

before

his

statement.”

The KCA found the trial transcript showed that Bell, who testified at
trial, was “coherent and well oriented” and that “[t]here remains nothing to
suggest Bell was incompetent or that the district court would have granted a
request from counsel for a psychological examination.”
They concluded that
“[simply] put, Bell gave no indication of incompetence to stand trial.” Bell
v. State, 302 P.3d 45 at *2.

11

State of Kansas v. Bell, 280 Kan. 358, 121 P.3d 972, 976 (Kan.
2005).

On

this

basis,

he

“claimed

that

his

statement

during police interrogation should have been suppressed.”
also

claimed

that

“the

trial

court

erred

in

giving

made
He
Jury

Instruction 11,”8 id. at 977, and that “he was denied a fair
trial by the prosecutor’s misstatements of fact and law.”9
at 979.
direct

Id.

It is thus clear from the KSC opinion on petitioner’s
appeal

that

the

three

grounds

raised

in

his

federal

petition were not among those raised on direct appeal.

8

“Bell was charged with first-degree murder and the jury was instructed
on voluntary manslaughter as a lesser offense.”
State v. Bell, 121 P.3d at
978. “[T]he basic premise of his argument (was) that either heat of passion
or an honest but unreasonable reliance on self-defense would reduce firstdegree murder to a lesser offense.”
Id. at 978.
The KSC disagreed,
reasoning that
the jury was properly instructed that intentional second-degree
murder might be reduced to voluntary manslaughter if committed
with an honest but unreasonable belief that circumstances
justified the use of deadly force in self-defense.
But
premeditated first-degree murder would not be reduced by an
honest but unreasonable reliance on self-defense because, as with
premeditation and heat of passion, the two are mutually exclusive
concepts. If murder were committed with premeditation, it would
not be the result of an unreasonable but honest belief that
circumstances justified deadly force.
Premeditation requires
reason; imperfect self-defense requires the absence of reason.
Id. at 979.
9

“Bell complained that the prosecutor misstated a fact relevant to his
theory of self-defense by stating in closing argument: ‘Did anybody tell you
that there was a beer bottle, no nobody did.’”
State v. Bell, 121 P.3d at
979. The KCA found that even if this was a misstatement of the evidence, it
“did not so prejudice Bell that he should be granted a new trial.”
Id. at
980.
Bell also complained that the prosecution misstated the law regarding
voluntary intoxication during closing by asking whether Bell’s “intoxication
was so great that it overcame his ability to think.” Id. at 981. The court
found that this was a misstatement of the law, but that there was no
prejudice because the trial court’s jury instructions provided the correct
legal standard for the jury.

12

In
pursuant

October
to

2006,

K.S.A.

Bell

60-1507

filed
in

his

which

first
he

pro

se

alleged:

motion

“(1)

The

district court failed to conduct a competency hearing pursuant
to K.S.A. 22-3302; (2) the prosecutor violated Bell’s right to a
fair

trial

victim’s

by

withholding

toxicology

report

exculpatory

evidence

during

questioning

its

about
of

the
the

coroner; (3) ineffective assistance of counsel because his trial
counsel failed to file a motion for discovery and inspection
pursuant to K.S.A. 22-3212; and (4) ineffective assistance of
counsel based on his trial counsel’s failure to cross-examine
the coroner’s finding in the toxicology report regarding the
presence of drugs in the victim.”
288, *1 (Kan.App. 2009).
evidentiary hearing.

See Bell v. State, 207 P.3d

This motion was denied without an

Bell appealed to the KCA claiming “he was

entitled to an evidentiary hearing (1) to determine whether the
State

withheld

exculpatory

evidence

from

the

defense,

namely

(the victim’s) toxicology report, in violation of Brady10 . . .;

10

Petitioner argued that “Felix’s toxicology report was material to his
self-defense claim because the report would have supported Bell’s assertion
that Felix was the initial aggressor due to the presence of drugs in his
system.” Id. at *2. The court first noted that this claim was “procedurally
barred because Bell failed to state any exceptional circumstances for not
raising” it on direct appeal and a “60-1507 motion cannot be used as a
substitute for a second appeal.”
Id.
They further held that the argument
failed on the merits. Id. Their main basis for so holding was that defense
counsel told the court during trial that she had received a copy of Felix’s
toxicology report, which “was negative concerning the presence of drugs in
Felix’s system” other than alcohol.
Id. at *3.
Defense counsel disclosed
this fact to the court when she explained, during an objection, that the
defense theory was self-defense and she wanted to admit testimony that Felix
had been acting aggressively toward Bell as a result of his NOT being on “his

13

and (2) to determine whether defense counsel’s failure to file a
motion

for

discovery

of

(the

victim’s)

toxicology

constituted ineffective assistance of counsel.”
represented by counsel on that appeal.

Id.

report
He was

The KCA specifically

found that petitioner did not argue the other issues raised in
his K.S.A. 60-1507 motion and that any issues not briefed were
deemed waived or abandoned.
October 24, 2011.

Id.

The KSC denied review on

Thus, the only claims fully exhaustion in

these proceedings concerned the victim’s toxicology report.
In

2011,

Bell

“filed

a

motion

to

correct

an

illegal

sentence, arguing that the district court’s failure to order a
competency examination violated his due process rights.”

See

Bell v. State, 302 P.3d 45, *1 (Kan.App. June 14, 2013), review
denied November 22, 2013.

This motion was denied.11

Bell did

medication” (antidepressants). Id. The KCA noted that Bell was claiming in
his 60-1507 “that Felix was the initial aggressor due to the presence of
drugs in his system,” and stated that “[e]ither way, the record reflects that
defense counsel had received a copy of Felix’s toxicology report at the time
of trial.” Id.
11

The judge that decided this motion noted that Bell claimed “for the
first time in his 2011 motion that he was not competent to stand trial in
2003, and that his sentence was illegal because “the Court never conducted a
competency hearing to determine Defendant’s competency to stand trial after a
psychological evaluation of Defendant by a local psychologist was done at
defense request.” Doc. 3-1, pg. 26. The judge found that Bell
obviously confuses a psychological evaluation of Defendant for
purposes of trying to establish the defense of lack of mental
state pursuant to K.S.A. 22-3219 (done by defense to see if there
are psychological issues which can be used as a defense at trial
relative to specific states of mind necessary for a conviction .
. .) with a Motion to Determine Competency pursuant to K.S.A. 223301, et seq. ((done on motion of defense, state or Court when
there is concern the Defendant is unable to understand the nature
and purpose of the proceedings against him and/or to make or

14

not appeal this ruling.

Id.

It follows that no claim was fully

exhausted by way of this motion.
On October 26, 2011, Bell filed his “second motion under
K.S.A. 60-1507,” this time alleging that his trial counsel was
ineffective

for

failing

to

request

a

competency

examination,

which was denied by the district court without counsel or a
hearing as “impermissibly successive and untimely.”

Id. at *1.

A timely appeal was filed, and petitioner was represented by
Whalen on this appeal.

The KCA agreed that this second motion

was barred as “plainly successive” and that Bell had “not shown
any grounds demonstrating exceptional circumstances that would
support lifting that bar.”
“nothing

to

suggest

Bell

Id.
was

They also noted there was

incompetent,”

that

the

trial

transcript, which included his own testimony, showed Bell “to be
coherent and well oriented,” and that he “gave no indication of
incompetence to stand trial.”

302 P.3d 45, at *2.

A timely

appeal of this decision was filed, and the KSC denied review on
November 22, 2013.

Since the claims in these proceedings were

dismissed in state court as successive, even if any were the
same as one that Mr. Bell is trying to present in federal court,

assist in making his defense)).”
The judge further found that no competency motion was filed, but that the
“defense filed a motion for a psychological evaluation, arguably to see if a
defense of lack of mental state could be developed,” and explained that the
defense “does not have to disclose the results of the evaluation to either
the State or the Court if they are not seeking to use it at trial.” Id.

15

exhaustion

would

only

be

shown

in

a

technical

sense

and

petitioner would have to overcome procedural default.
The

court

emphasizes

that

Mr.

Bell

does

not

present

ineffective assistance of appellate counsel as a ground in his
federal petition.

Instead, he alleges it only as his excuse for

failure to exhaust each ground he does raise.
allegations

are

nothing

more

than

As noted, these

conclusory

statements.

Moreover, the allegation that appellate counsel was ineffective
for failing or refusing to raise viable constitutional claims
amounts to a separate claim that must have been exhausted in
state court prior to being raised in a federal habeas petition.12
The court’s review of the state court opinions establishes that
this claim has not been exhausted.

III.

FAILURE TO SHOW CAUSE AND PREJUDICE FOR PROCEDURAL DEFAULT
This court found in its prior order that Mr. Bell failed to

fully exhaust his ineffective assistance of trial counsel claim
when he had the opportunity and that this claim was eventually

12

Judicial scrutiny of counsel’s performance starts with the “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”
Strickland v. Washington, 466 U.S. 668, 689
(1984).
Determining which issues to raise on appeal requires counsel to
exercise professional judgment.
“It is completely reasonable, and in fact
advisable, for appellate counsel to eliminate weak but arguable claims and
pursue issues on appeal which are more likely to succeed.”
Jackson v.
Shanks, 143 F.3d 1313, 1321 (10th Cir. 1998). A court will not find failure
to raise a colorable issue on appeal ineffective unless the omitted issue
would have been a “dead bang winner.”
United States v. Cook, 45 F.3d 388,
395 (10th Cir. 1995).

16

dismissed

by

the

state

courts

as

successive

and

untimely.

Petitioner was advised that when a “state prisoner has defaulted
his federal claims in state court pursuant to an independent and
adequate state procedural rule,13 federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for
the default and actual prejudice as a result of the alleged
violation

of

federal

law,

or

demonstrate

that

failure

to

consider the claims will result in a fundamental miscarriage of
justice.”
v.

McKune,

Coleman v. Thompson, 501 U.S. 722, 724 (1991); Hume
176

F.Supp.2d

1134,

1140

(D.Kan.

2001).

He

was

further advised as to the showings he was required to make to
establish
exception.

cause

and

prejudice

or

the

miscarriage

of

justice

Other grounds raised in the federal petition that

were not exhausted, as well as his allegation of ineffective
assistance

of

appellate

counsel,

are

likewise

subject

to

dismissal based on anticipatory default.
Mr. Bell makes no overt attempt to demonstrate cause and
prejudice in his new petition.

His conclusory allegations that

his appellate attorneys failed or refused to raise or preserve
issues

despite

proffered

as

his

requests

grounds

for

and

filed

equitable

13

untimely

tolling

to

motions

are

excuse

the

The state court holdings in petitioner’s second post-conviction
proceedings that Mr. Bell’s claim was barred as successive were based on
K.S.A. § 60-1507(c), which provides that Kansas courts will entertain a
successive 60-1507 motion only in “exceptional circumstances.”
This
provision constitutes an independent and adequate state procedural grounds
that has been evenhandedly applied.

17

untimeliness

of

his

petition.

Even

if

they

are

liberally

construed as proffered in connection with this issue, they are
not

supported

with

sufficient

facts

to

establish

cause

and

prejudice.
Furthermore, before a habeas petitioner can use the claim
of

ineffective

assistance

of

appellate

counsel

as

cause

for

procedural default, it too must have been exhausted in state
court.14

As the Supreme Court explained:

The procedural default doctrine and its attendant
“cause and prejudice” standard are “grounded in
concerns of comity and federalism,”
Coleman v.
Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991), and apply alike whether the
default in question occurred at trial, on appeal, or
on state collateral attack, Murray v. Carrier, 477
U.S. [at 490–492].
“[A] habeas petitioner who has
failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state
courts of an opportunity to address those claims in
the first instance.” Coleman, 501 U.S. [at 732]. We
therefore require a prisoner to demonstrate cause for
his state-court default of any federal claim, and
prejudice therefrom, before the federal habeas court
will consider the merits of that claim. Id., at 750,
111 S.Ct. 2546.
The one exception to that rule, not
at issue here, is the circumstance in which the habeas
petitioner can demonstrate a sufficient probability
that our failure to review his federal claim will
result in a fundamental miscarriage of justice. Ibid.

14

Ineffective assistance of counsel may establish cause excusing a
procedural default. Jackson v. Shanks, 143 F.3d 1313, 1319 (10th Cir. 1998).
However, an applicant must show “that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s procedural rule”
and have “presented to the state courts [ ] an independent claim before it
may be used to establish cause for a procedural default.” Murray v. Carrier,
477 U.S. 478, 488–89 (1986).

18

Although we have not identified with precision exactly
what constitutes “cause” to excuse a procedural
default,
we
have
acknowledged
that
in
certain
circumstances counsel’s ineffectiveness in failing
properly to preserve the claim for review in state
court will suffice.
Carrier, 477 U.S.[at 488–489].
Not just any deficiency in counsel’s performance will
do, however; the assistance must have been so
ineffective as to violate the Federal Constitution.
Ibid. In other words, ineffective assistance adequate
to establish cause for the procedural default of some
other constitutional claim is itself an independent
constitutional claim. And we held in Carrier that the
principles of comity and federalism that underlie our
longstanding exhaustion doctrine—then as now codified
in the federal habeas statute, see 28 U.S.C. §§
2254(b), (c)—require that constitutional claim, like
others, to be first raised in state court. “[A] claim
of ineffective assistance,” we said, generally must
“be presented to the state courts as an independent
claim before it may be used to establish cause for a
procedural default.”
Carrier, supra, at 489, 106
S.Ct. 2639.
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000).
In short, Mr. Bell has not alleged facts to establish cause
for his procedural default of his three grounds.

Furthermore,

he alleges no facts whatsoever to suggest his actual innocence
or other manifest injustice.

IV.

CONCLUSION
The court concludes from the foregoing that the petition is

time-barred.

In addition, the court finds that Mr. Bell has

failed to state cognizable claims, failed to show exhaustion of
state court remedies, and failed to show that his procedural

19

default should be excused.

For these reasons, this petition is

denied.

V.

EVIDENTIARY HEARING
“[I]f

allegations

the

applicant’s

Schriro

arguments

474.

have

Because

been

all

resolved

hearing is necessary.

habeas

of

on

the

relief,

factual

court is not required to hold an evidentiary hearing.”
at

precludes

the

district

U.S.

otherwise

refutes

a

550

or

record

petitioner’s
record,

no

claims

and

evidentiary

Anderson v. Attorney General of Kansas,

425 F.3d 853, 859 (10th Cir. 2005).

VI.

CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Proceedings

provides that the court must issue or deny a COA when it enters
a

final

order

adverse

to

the

applicant.

“A

certificate

of

appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).

Where a district court has rejected the

constitutional claims on the merits, a petitioner makes that
showing by demonstrating that reasonable jurists would find the
district

court’s

debatable

or

assessment

wrong.

Slack

of
v.

the

constitutional

McDaniel,

529

U.S.

claims

473,

484

(2000); see United States v. Bedford, 628 F.3d 1232 (10th Cir.
20

2010).

When

a

claim

is

denied

on

procedural

grounds,

“the

petitioner seeking a COA must show both ‘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
S.Ct.

in
641,

Petitioner
presented.

its
648
has

procedural

ruling.’”

(2012)(quoting
not

met

Accordingly,

these
no

Gonzalez

Slack,

529

standards

certificate

v.

132

U.S.

as
of

Thaler,
at

484).

to

any

issue

appealability

is

granted.
IT IS THEREFORE ORDERED that this habeas corpus petition is
dismissed and all relief is denied.
IT IS SO ORDERED.
Dated this 17th day of July, 2014, at Topeka, Kansas.

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

21