May (ID 96951) v. Kansas, State of et al

Filing 17

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to appoint counsel 11 and motion for evidentiary hearing 12 are denied. Petitioner is granted to and including September 24, 2018, to amend the petition to present claims that were properly exhausted in the state court. Signed by U.S. Senior District Judge Sam A. Crow on 08/24/18. Mailed to pro se party William D. May by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM D. MAY,
Petitioner,
v.

CASE NO. 17-3095-SAC

WARDEN JAMES HEIMGARTNER,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On October 27, 2017, the Court entered a Memorandum and Order
explaining that the claims petitioner presented in his application
for habeas corpus had not been exhausted in the state courts. The Court
directed petitioner to show cause why the matter should not be
dismissed but also noted that petitioner could file an amended
petition that presented the claims exhausted on his direct appeal.
Petitioner filed a response, a motion to appoint counsel, a
motion for evidentiary hearing, two supplements to the response, and
a request for certified mail delivery.
Petitioner’s response (Doc. #10) argues that the unexhausted
claims are the strongest, that his post-conviction counsel failed to
present them, and that he has not intentionally delayed presenting
them. Petitioner also states that he would like to pursue a second
state post-conviction action, and he requests the appointment of
counsel.
The Court has considered these arguments and finds first, that
whether petitioner may proceed in a second or successive state
post-conviction action must be determined by the Kansas state courts.

Likewise, whether he is appointed counsel in such a proceeding must
be decided by the presiding judge in that action.
Next, petitioner has not shown grounds to excuse his procedural
default of the claims presented in his post-conviction action.
To the extent he argues that the ineffective assistance of his
appellate counsel is cause for the procedural default of his claims,
petitioner failed to properly exhaust that claim in the state courts.1
See Edwards v. Carpenter, 529 U.S. 446, 451-52, (2000) (recognizing
that ineffective assistance adequate to establish cause for the
procedural default of some other constitutional claim is itself an
independent constitutional claim and must have been properly and fully
presented to the state courts “before it may be used to establish cause
for a procedural default”) (internal quotations marks and citation
omitted).
Petitioner’s claims that he received ineffective assistance
from his appellate and post-conviction counsel are barred by
procedural default. Petitioner has not established adequate cause and
prejudice for the default by showing that something external to him
“impeded [his] efforts to comply with the State procedural rule.”
Maples v. Thomas, 565 U.S. 266, 280 (2012). While petitioner argues
that his post-conviction appellate counsel failed to adequately
review the record, “[n]egligence on the part of a prisoner’s

In his state post-conviction action filed in April 2014, petitioner alleged his
appellate counsel was ineffective in failing to argue that the evidence showed the
victim’s death was accidental. The district court denied relief, and petitioner
appealed. However, on appeal, petitioner argued that his post-conviction counsel
provided ineffective assistance and did not specifically challenge the ruling by
the district court concerning his appellate counsel. The Kansas Court of Appeals
held that petitioner had waived the claim concerning his appellate counsel that was
presented in his post-conviction action and that because he had failed to present
the claim concerning his post-conviction counsel to the district court, it would
not consider a claim raised for the first time on appeal. May v. State, 2016 WL 1391776
at **3-4 (Kan. App. Apr. 8, 2016), rev. denied, Apr. 19, 2017.
1

postconviction attorney does not qualify as ‘cause’”. Id., citing
Coleman v. Thompson, 501 U.S. 722, 753 (1991)).
Nor does the record show that a fundamental miscarriage of
justice will occur if petitioner’s procedural default is not excused.
That showing requires “a convincing showing of actual innocence” to
overcome a procedural bar, and this showing is limited to “cases in
which new evidence shows ‘it is more likely than not that no reasonable
juror would have convicted [the petitioner].’” McQuiggin v. Perkins,
569 U.S.

383, 395 (2013) (brackets in original)(quoting Schlup v.

Delo, 513 U.S. 298, 329 (1995)).
Accordingly, the Court finds petitioner’s claims presented in
his post-conviction action are barred. The Court will deny
petitioner’s renewed motion to appoint counsel (Doc. #11) and his
motion for an evidentiary hearing (Doc. #12). The Court will grant
petitioner an additional opportunity to amend his petition to present
the claims that were properly exhausted on his direct appeal. If he
chooses not to do so within the time allowed, the Court will dismiss
this petition.
Finally, the Court denies petitioner’s request for certified
mail delivery (Doc. #15). The Court takes notice that petitioner has
been transferred to a different correctional institution since he
sought that delivery.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
appoint counsel (Doc. #11) and motion for evidentiary hearing (Doc.
#12) are denied.
IT IS FURTHER ORDERED petitioner is granted to and including
September 24, 2018, to amend the petition to present claims that were
properly exhausted in the state court.

IT IS SO ORDERED.
DATED:

This 24th day of August, 2018, at Topeka, Kansas.

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