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

Filing 25

MEMORANDUM AND ORDER: The petition for habeas corpus is dismissed. Petitioner's motion for resentence 18 and motion for illegal sentence 19 are denied. Petitioner's motion for extension of time to file amended petition 20 is granted. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 09/05/19. 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 before the Court on petitioner’s amended petition
for habeas corpus filed under 28 U.S.C. § 2254. Also before the Court
are petitioner’s motion for resentence (Doc. 18), motion for illegal
sentence (Doc. 19), and motion for extension of time to file amended
petition (Doc. 20).
Procedural and Factual Background
Petitioner was convicted of reckless second-degree murder in the
death of his father and misdemeanor domestic battery against his
mother. The Kansas Court of Appeals (KCOA) summarized the facts as
follows:
May had been living in the basement of the home of his
elderly parents, Margaret and Doyle May, for several
months. Late one night, while his parents were beginning
to retire to bed, May entered their upstairs bedroom with
his guitar and a beer. A verbal altercation began. There
is some question as to the reason for it.
Police officers were dispatched to a physical disturbance
at the May’s home because May was allegedly “beating the
hell out of” Doyle. When the officers arrived, Doyle was
bleeding from his left ear. Although the cut was not
serious, there was excessive blood as a result of Doyle
taking a blood thinner medication, Coumadin. One officer
testified that Doyle’s shirt was ripped and the kitchen was

splattered with blood. The Coumadin made it difficult for
Doyle to stop bleeding. After the paramedics learned that
Doyle was taking the medication, they attempted to take him
to the hospital but he refused.
The officers arrested May. After the paramedics left the
home, Doyle and Margaret watched television in bed. A few
hours later, Doyle seemed to be disoriented and complained
of a headache. He went to the restroom, and collapsed.
Margaret called 911. When paramedics arrived, Doyle was
barely conscious. Doyle received several X-rays and CAT
scans. He slipped into a coma, which had resulted from a
subdural hematoma. Physicians explained to the family that
Doyle would not likely recover from the coma. The following
day, at the family’s request, Doyle was removed from life
support and died.
State v. May, 274 P.3d 46 (Table), 2012 WL 1352827, *1 (Kan. Ct. App.
Apr. 12, 2012), rev. denied, Apr. 8, 2013.
On direct appeal, petitioner challenged the failure of the trial
court to instruct the jury on voluntary intoxication or to give a
proposed instruction on favoritism or sympathy. He also alleged the
trial court violated his rights under Apprendi v. New Jersey, 530 U.S.
466 (2000). State v. May, id.
In April 2014, petitioner filed a state post-conviction action
under K.S.A. 60-1507. He argued his appellate counsel was ineffective
for failing to argue that his father’s death was accidental, citing
the failure to argue that responding paramedics found only a small
scratch on his father and that his father declined to go to the
hospital, that his father was taking a blood-thinning medication, that
his father subsequently suffered a new injury, and that the family
chose to terminate life support measures. The state sought summary
dismissal of the motion. The district court appointed counsel and
granted a continuance.
At a hearing held in December 2014, counsel advised the district
court that petitioner had advised him of complaints against his trial

counsel. The State argued that petitioner had failed to timely raise
those claims and that there was no manifest injustice shown to excuse
that failure. The district court agreed. It found that petitioner had
failed to timely present claims against trial counsel and that the
claims against his appellate counsel did not present a triable issue.
On appeal from that decision, the Kansas Court of Appeals (KCOA)
found that petitioner had failed to challenge the dismissal of his
claims concerning his prior appellate counsel and held that he had
“waived and abandoned the very claims upon which his original K.S.A.
60-1507 motion was premised.” May v. State, 369 P.3d 340 (Table), 2016
WL 1391776, *3 (Kan. Ct. App. Apr. 8, 2016), rev. denied, Apr. 19,
2017. The KCOA also found that petitioner’s new claims alleging
ineffective assistance by his trial counsel were untimely and, because
they were not presented in the district court, they were not preserved
for appeal. Id. at **3-4.
Petitioner commenced this action in June 2017. On June 16, 2017,
the Court entered a Memorandum and Order finding that the eight claims
he presented had been procedurally defaulted or failed to state a
cognizable claim for relief. The Court noted that although petitioner
had properly exhausted the claims in his direct appeal, he did not
include them as grounds for relief in the petition. Accordingly, the
Court directed petitioner to show cause why the petition should not
be dismissed and to show cause and prejudice to excuse his procedural
default. The Court also advised petitioner that he could file an
amended petition within the time allowed to show cause.
Petitioner did not file an amended petition within the time
given; instead, he filed a motion to stay. In October 2017, the Court
denied that motion, noting that although the KCOA had advised in an

order issued in April 2016 that petitioner could, in appropriate
circumstances, proceed in a subsequent post-conviction motion to
assert his claims of ineffective assistance by post-conviction
counsel, there was no evidence that he had made the necessary showing
or sought permission to proceed since that time. The Court extended
the time to show cause why the matter should not be dismissed.
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. On August 24, 2018, the Court
denied the motions to appoint counsel and to hold a hearing and granted
petitioner to and including September 24, 2018, to amend the petition.
The Court specified that this was granted to allow petitioner “to
present claims that were properly exhausted on his direct appeal.”
Petitioner was warned that if he chose not to do so, the Court would
dismiss the petition.
Petitioner then filed a motion to resentence, motion for illegal
sentence, and motion for extension of time (Docs. 18-20). On September
20, 2018, he filed an amended petition for habeas corpus (Doc. 21).
The Court grants the motion to file an amended petition and has
reviewed that pleading.
The amended petition presents nine grounds for relief:
1. Post-conviction counsel was ineffective in failing to
respond with arguments and authorities;
2. Petitioner was prejudiced by counsel’s failure to seek
leave to amend the petition out of time;
3. The Kansas Court of Appeals erred in affirming the denial
of petitioner’s post-conviction motion without an
evidentiary hearing;
4. Plea counsel provided ineffective assistance during plea
negotiations;
5. Trial counsel erred in denying petitioner the right to
testify;
6. Post-conviction counsel failed to amend the motion to

present additional claims;
7. The appellate brief did not include facts explaining the
victim was using a blood-thinning medication at the time
of his death and the effect of the medication on his
injury;
8. Appellate counsel failed to argue that paramedics saw
only slight injuries on the victim on their first visit
to the victim’s home; and
9. “Jury instruction and Apprendi in petitioner’s direct
appeal”.
Doc. 21, p. 13.
Discussion
Because petitioner has submitted a petition with both exhausted
and unexhausted claims, he presents a “mixed” petition. See Pliler
v. Ford, 542 U.S. 225, 227 (2004). Where a court is presented with
a mixed petition, it has few options. It may:
(1)Dismiss the mixed petition in its entirety ….; (2) stay
the petition and hold it in abeyance while the petitioner
returns to state court to raise his unexhausted claims….;
(3) permit the petitioner to dismiss the unexhausted claims
and proceed with the exhausted claims….; or (4) ignore the
exhaustion requirement altogether and deny the petition on
the merits if none of the petitioner’s claims has any merit.
Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009)(citations
omitted).
In this case, the Court declines to stay this matter, as the stay
and abeyance only allows a petitioner to proceed if he demonstrates
good cause for the failure to exhaust and that the unexhausted claims
are not plainly without merit. Rhines v. Weber, 544 U.S. 269, 277
(2005). Petitioner has not made this showing.
The Court also has given petitioner multiple opportunities to
dismiss his unexhausted claims and proceed on the properly exhausted
claims he presented on direct appeal. He has not followed that course,

and the Court finds no reason to provide him with yet another
opportunity to dismiss the unexhausted claims. Instead, he now
presents a mixed petition with nine claims. The sole exhausted claims
appear as the final claim in the petition, and that ground states only
“jury instruction and Apprendi, in petitioner’s direct appeal….” Doc.
21, at p. 13.
Third, because the Court cannot definitively state that all of
the unexhausted claims are without merit, it cannot ignore the
exhaustion requirement and dismiss the petition on the merits. The
unexhausted claims primarily allege ineffective assistance at
different stages in the state court proceedings. These claims have
not been developed in the state courts, and it is simply unclear
whether petitioner might have prevailed in any of them had he properly
presented them in the state courts.
The Court therefore concludes that the proper course is to
dismiss this matter in its entirety as a mixed petition.
Pending motions
Petitioner has filed a motion for resentence (Doc. 18) and a
motion for illegal sentence (Doc. 19). In the motion for resentence,
he argues that he was offered a plea that would have placed him in
a lower sentencing range, and he argues that the victim’s death was
caused by blood-thinning medication. In the motion for illegal
sentence, petitioner argues that the trial court erred when it denied
his motion for a dismissal of the murder charge at the close of the
prosecution’s case.

The Court finds no grounds for relief are stated. Petitioner does
not show that he has exhausted these claims in the state courts, and
he does not suggest any ground to excuse that procedural default.
Conclusion
For the reasons set forth, the Court dismisses this matter as
a mixed petition.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed.
IT IS FURTHER ORDERED petitioner’s motion for resentence (Doc.
18) and motion for illegal sentence (Doc. 19) are denied.
IT IS FURTHER ORDERED petitioner’s motion for extension of time
to file amended petition (Doc. 20) is granted.
IT IS FURTHER ORDERED no certificate of appealability will issue.
IT IS SO ORDERED.
DATED:

This 5th day of September, 2019, at Topeka, Kansas.

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