Adams (ID 93199) v. Shelton et al
MEMORANDUM AND ORDER granting 16 Motion for Leave to File Out of Time; denying 17 Motion to Stay Proceedings. Signed by District Judge Julie A. Robinson on 1/4/2017. Mailed to pro se party Kenneth D. Adams by regular and certified mail; Certified Tracking Number: 7012 3460 0000 8262 6085. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH D. ADAMS,
Case No. 15-3219-JAR
MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Kenneth D. Adams’ Motion for Leave
to File Out of Time (Doc. 16) and Motion to Stay Proceedings (Doc. 17). Petitioner seeks leave
to file his motion to stay out of time. The motions are fully briefed and the Court is prepared to
rule. For the reasons explained below, the Court grants Petitioner’s motion for leave to file out
of time and denies his motion to stay proceedings.
Petitioner is an inmate in the custody of the Kansas Department of Corrections. He filed
pro se a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He challenges the
validity of his conviction in Comanche County, Kansas, District Court for manufacturing
methamphetamine, conspiracy to manufacture methamphetamine, possession of lithium metal
with intent to manufacture methamphetamine, possession of methamphetamine, and two counts
of possession of drug paraphernalia. Petitioner asserts twenty-one grounds in support of his
request that the Court vacate his state convictions and sentence.1
Petitioner requests a stay of these proceedings in order to allow him to return to state
court to litigate the following five issues related to his habeas Petition, which he acknowledges
Doc. 1 at 3–7.
have not been exhausted: (1) structural error concerning the jury instructions and verdict form;
(2) whether the denial of marital privilege to Petitioner’s common-law wife resulted in a
violation of Petitioner’s constitutional rights; (3) ineffective assistance of appellate counsel; (4)
whether the trial court had jurisdiction to hear Petitioner’s case; and (5) whether the trial court
erred in carrying out the ruling of the appellate court.2 Petitioner raises issues one and four for
the first time in his motion to stay. 3 Petitioner raised the other three issues in his Petition.4
Before a petitioner may seek habeas relief in federal court, the petitioner must first
exhaust all available state-court remedies.5 “When a petitioner raises a new claim in federal
court that is not barred on other procedural grounds, the federal court may, in appropriate
circumstance, hold the federal case in abeyance to allow the petitioner to take his unexhausted
claim back to state court for adjudication.”6 Whether to grant a stay is within the discretion of
the district court.7 In Rhines v. Weber, the Supreme Court explained why stay and abeyance of
habeas proceedings should be employed sparingly:
Staying a federal habeas petition frustrates AEDPA’s objective of encouraging
finality by allowing a petitioner to delay the resolution of the federal proceedings.
It also undermines AEDPA’s goal of streamlining federal habeas proceedings by
decreasing a petitioner’s incentive to exhaust all his claims in state court prior to
filing his federal petition . . . . For these reasons, stay and abeyance should be
available only in limited circumstances. Because granting a stay effectively
excuses a petitioner’s failure to present his claims first to the state courts, stay and
abeyance is only appropriate when the district court determines there was good
cause for the petitioner’s failure to exhaust his claims first in state court.
Moreover, even if a petitioner had good cause for that failure, the district court
See Doc. 17 at 1 (recognizing that the five issues identified in the motion “have not been fully and
completely resolved at the [s]tate [l]evel”); Doc. 17-1.
Doc. 17 at 2, 3 (issues one and four in the motion to stay).
Doc. 1 at 6–7.
28 U.S.C. §2254(b)(1)(A); Fairchild v. Workman, 579 F.3d 1134, 1151(10th Cir. 2009).
Id. at 1152 (citing Rhines v. Weber, 544 U.S. 269 (2005)).
Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014).
would abuse its discretion if it were to grant him a stay when his unexhausted
claims are plainly meritless.8
Here, Petitioner does not articulate any good cause for his failure to first exhaust
his claims in state court before proceeding with his habeas Petition.9 Indeed, Petitioner
suggests in his motion that these non-exhausted issues were brought to his attention by
Respondent.10 Without a showing of good cause why Petitioner failed to exhaust these
additional issues at the state level, the Court will not stay these proceedings to allow
Petitioner to exhaust additional issues. Accordingly, the Court denies Petitioner’s motion
to stay proceedings.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner Kenneth D.
Adams’ Motion for Leave to File Out of Time (Doc. 16) is granted.
IT IS FURTHER ORDERED BY THE COURT that Petitioner Kenneth D. Adams’
Motion to Stay Proceedings (Doc. 17) is denied. Petitioner is given leave to submit an amended
Petition presenting only exhausted federal claims by no later than January 27, 2017.
IT IS SO ORDERED.
Dated: January 4, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
Rhines, 544 U.S. at 277 (citation omitted).
Doc. 17; Doc. 17-1.
Doc. 17 at 1 (“In the Answer and Return filed by the Assistant Solicitor General on Adams 28 U.S.C.S. §
2254 the Solicitor brings to attention several items which have not been fully examined by the State prior to this
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