Maestas (ID 89892) v. Waddington et al

Filing 3

ORDER ENTERED: Petitioner is granted thirty (30) days in which to submit a certified statement of his inmate account in support of his motion to proceed in forma pauperis. Within the same thirt-day period, petitioner is required to submit an Amende d Petition in which he states claims and grounds for federal habeas corpus relief and shows full and proper exhaustion of state remedies on each claim. Petitioner's imbedded requests 1 for unpublished orders, appointment of federal appellate counsel, and for subpoena of state appellate brief are denied. Signed by Senior District Judge Sam A. Crow on 04/29/14. (Mailed to pro se party Michael Joseph Maestas, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL JOSEPH
MAESTAS, JR.,
Petitioner,
v.

CASE NO.

14-3060-SAC

WARDEN DOUG
WADDINGTON, et al.,
Respondents.
O R D E R
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2254 by an inmate of the Larned Correctional Mental
Health Facility.

Having examined the materials filed, the court

finds that petitioner’s Motion to Proceed in forma pauperis is not
supported by the requisite financial information and that the
petition is defective.

Petitioner is given time to submit the proper

financial information and to cure the deficiencies in his petition.

FILING FEE
The statutory fee for filing a federal habeas corpus petition
is $5.00.

Petitioner has submitted a motion to proceed in forma

pauperis (IFP).

However, a prisoner seeking IFP status must also

submit a certified accounting of the funds available to him in his

1

institutional account.

D.Kan.Rule 9.1(g);1 see also Rule 3(a)(2) of

the Rules Governing Section 2254 Cases in the United States District
Courts (hereinafter HC Rules)(habeas petition must be accompanied by
“a motion for leave to proceed in forma pauperis, the affidavit
required by 28 U.S.C. § 1915, and a certificate from the warden or
other appropriate officer of the place of confinement showing the
amount of money or securities that the petitioner has in any account
in the institution.”).

Mr. Maestas is given time to submit a

certified statement of the amount in his inmate account.

If he does

not comply within the prescribed time, this action may be dismissed
without further notice.

BACKGROUND
After admitting that he stabbed his mother to death, Mr. Maestas
was tried before a jury in the District Court of Stevens County in
Hugoton, Kansas, and convicted of first-degree premeditated murder.
State v. Maestas, 298 Kan. 765, 316 P.3d 724, 728 (Kan. 2014).

He

was sentenced to life imprisonment with a minimum 25-year term.

Id.

Mr. Maestas appealed his conviction to the Kansas Supreme Court, which
affirmed on January 24, 2014.
1

He indicates that he has not

D.Kan.Rule 9.1(g)(2)(A) provides:
Where a petitioner, movant, or plaintiff is an inmate of a penal
institution and desires to proceed without prepayment of fees, he or
she must also submit a certificate executed by an authorized officer
of the institution in which he or she is confined. The certificate must
state the amount of money or securities on deposit to his or her credit
in any account in the institution.

2

subsequently pursued any state post-conviction remedies.

The

instant federal habeas corpus petition was electronically filed on
April 15, 2014.

CLAIMS
In his federal petition, Mr. Maestas presents three grounds for
relief.

As Ground One, he claims violations of First, Fourth, Fifth,

Sixth, Eighth and Fourteenth Amendments.

As supporting facts he

alleges “Brady violations,” and that the trial court “certified (him)
as indigent and recognized him to be mentally retarded.”

As Ground

Two, petitioner claims “Brady violations” citing Brady v. Maryland,
373 U.S. 83 (1963).

As supporting facts, he alleges “suppression of

favorable evidence”; “appointed trial defense counsel” Mr. Kuharic
“was weak on defending” him; the rural courtroom was very emotionally
charged; and the nature of the case, murder of his mother, “mandated
protective custody.”

As Ground Three, petitioner claims “Weak trial

defense counsel” and cites Strickland v. Washington, 487 U.S. 1267
(1984).

DISCUSSION
The court has reviewed this petition as required under HC Rule
4, and finds that it is defective.

The petition does not comply with

HC Rule 2(c), which provides that “the petition must: (1) specify all
the grounds for relief available to the petitioner,” and (2) state
3

the facts supporting each ground.”

Not one of the three grounds

amounts to a recognizable statement of a claim for federal habeas
corpus relief.

Instead, each is nothing more than a completely

conclusory statement that provisions of the Constitution or a U.S.
Supreme Court case referred to only by citation was violated.

In

addition, none of the grounds is supported by sufficient facts as the
statements

provided

conclusory.

under

“Supporting

facts”

are

completely

The assertion that protective custody was mandated

simply makes no sense.

The court concludes that no grounds for

federal habeas corpus relief are stated in this petition.
Furthermore, the petition fails to show that Mr. Maestas has
fully and properly exhausted state court remedies on the claims in
his petition.

Mr. Maestas indicates that he does not know if any of

his three claims were raised on direct appeal and that he did not file
a state post-conviction motion.
Petitioner attempts to excuse his failure to formulate claims
and state facts in support as well as his failure to show exhaustion
by alleging that he does not know “what grounds were raised by Kansas
Appellate Defenders” on direct appeal or how the appellate defenders
presented his issues.

He claims to have none of this information

because the Kansas Appellate Defenders Office has not yet sent
“Appellant’s Brief” to him even though a copy was requested from that
office by letter dated March 13, 2014.

However, Mr. Maestas attended

his own trial and presumably discussed his criminal case and trial
4

as well as his direct appeal with his attorneys.

He is expected to

personally set forth his claims and supporting facts in his federal
habeas corpus petition.
The petition in this case was unmistakably prepared by another
inmate, Mr. Parrish-Parrado, who has long been an abusive filer in
this court.

Mr. Parrish-Parrado even improperly signs the petition

along with Mr. Maestas and claims that he is “a certified federal
paralegal volunteering full-time co-counsel to Maestas” until this
court

appoints

“appellate

counsel.”

The

fact

that

Mr.

Parrish-Parrado has not seen petitioner’s appellate brief or the
trial transcript does not excuse Mr. Maestas from presenting his
claims and supporting facts.

Mr. Maestas is given time to file an

“Amended Petition” upon court-approved forms in which he adequately
states all his claims and facts in support.2
In addition, it appears to the extent discernible that Mr.
Maestas has not exhausted state court remedies on the three claims
raised in this federal petition.

The only state court remedy pursued

by Mr. Maestas after his trial was his direct appeal to the Kansas
Supreme Court (KSC).

The KSC, in its published opinion, summarized

the “five issues” that Mr. Maestas raised on direct appeal:
(1) prosecutorial misconduct; (2) the failure to instruct on a lesser
included offense of reckless second-degree murder; (3) alleged
infringement on his right to present his defense; (4) the district
2

Petitioner must write the number of this case, 14-3060, and “Amended” at the
top of the first page of his new petition. He must answer all applicable questions
on the forms and may not simply refer to his original petition.

5

court’s determination for sentencing purposes that he was not
“mentally retarded” under K.S.A. 21-4634; and (5) the district
court’s refusal to commit Maestra to the state security hospital
rather than prison under K.S.A. 22-3430.
State v. Maestas, 298 Kan. at 728.

None of these issues is a claim

of Brady violation, suppression of favorable evidence, or ineffective
assistance of appointed counsel.

It thus appears that petitioner did

not present any of the issues on direct appeal that he now attempts
to raise in his federal petition.

In response to questions on

exhaustion,

Parrish-Parrado)

Mr.

Maestas

(or

Mr.

alleges

a

post-conviction motion was not filed due to “no cooperation from” the
trial court in providing a copy of the trial transcript, which was
allegedly “required to prep a KSA 60-1501 petition.”

In order to

raise an issue in state court that was not raised on direct appeal,
a state inmate generally may file a motion pursuant to K.S.A. 60-1507.
Again, the court notes that Mr. Maestas was present at his trial and
should not require a trial transcript to file a pro se 60-1507 motion,
which is initially filed in the trial court.
Petitioner indicates that he filed this federal petition without
complete information because the one-year statute of limitations is
already running in his case.

A one-year statute of limitations is

applicable to petitioner’s federal habeas corpus petition.
U.S.C. § 2244(d).

See 28

It generally begins to run 90 days after completion

of direct appeal, if the petitioner waived certiorari review by the
United States Supreme Court.

However,, the federal statute of

6

limitations

is

tolled

during

the

pendency

of

a

pertinent,

properly-filed state post-conviction motion that challenges the
conviction or sentence in question.

Petitioner is not excused from

filing an adequate federal petition or from exhausting state court
remedies by the fact that his one-year statute of limitations may have
recently begun to run.

He is cautioned that the filing of a premature

federal habeas corpus petition, unlike a state post-conviction
motion, has no tolling effect upon the federal statute of limitations.
The court is not unmindful that legal rules may be difficult for a
pro se petitioner to comprehend and follow.

Nevertheless, pro se

litigants are required to follow the same rules as attorneys.
Several motions are improperly imbedded within the petition,
which is a common, improper practice by Mr. Parrish-Parrado.

The

clerk is not required to parse a pleading to discover imbedded
motions.

As a result these requests have not been properly docketed

as motions.

In any event, petitioner’s request for “all federal

court orders” to be “unpublished” is not supported with any factual
or legal basis and is denied.

The Notice of Appearance of Mr.

Parrish-Parrado is found to be improper.

Petitioner’s imbedded

request for appointment of “federal appellate counsel” is denied.
Counsel appointed in this matter would not be appellate counsel as
proceedings in this court are not appeals.

Petitioner is not

entitled to appointment of counsel in a federal habeas corpus action
unless the court determines that an evidentiary hearing is required.
7

Such a determination cannot be made upon this bald and premature
application.
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days in which to submit a certified statement of his inmate account
in support of his motion to proceed in forma pauperis.
IT IS FURTHER ORDERED that within the same thirty-day period
petitioner is required to submit an Amended Petition in which he
states claims and grounds for federal habeas corpus relief and shows
full and proper exhaustion of state remedies on each claim.
IT IS FURTHER ORDERED that petitioner’s imbedded requests (Doc.
1) for unpublished orders, appointment of federal appellate counsel,
and for subpoena of state appellate brief are denied.
The clerk is directed to send 2254 forms to petitioner.
IT IS SO ORDERED.
Dated this 29th day of April, 2014, at Topeka, Kansas.

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

8