May (ID 96951) v. Kansas, State of et al
MEMORANDUM AND ORDER denying 3 Motion to Appoint Counsel; granting 5 Motion for Leave to Proceed in forma pauperis; granting 2 Motion for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED petitioner is granted to and including July 1 7, 2017, to show cause as directed and to submit an amended petition, if he chooses to do so. The failure to file a timely response may result in the dismissal of this action without additional prior notice. Signed by District Judge Sam A. Crow on 6/16/2017. Mailed to pro se party William D. May by regular mail. (ht)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM D. MAY,
CASE NO. 17-3095-SAC
WARDEN JAMES HEIMGARTNER1,
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis.
Rule 4 of the Rules Governing Habeas Corpus Cases Under Section
2254 requires the federal court to promptly examine a habeas petition
and to dismiss the action where it “plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to relief
in the district court.” The Court has examined the petition and enters
the following order.
Motion to appoint counsel
Petitioner also moves for the appointment of counsel. An
applicant for habeas corpus relief has no constitutional right
to the appointment of counsel. See Swazo v. Wyo. Dept. of Corr.,
23 F.3d 332, 333 (10th Cir. 1994)(“[T]here is no constitutional
The Court substitutes the Warden of the El Dorado Correctional Facility as the
respondent in this action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases
Under Section 2254 (“If the petitioner is currently in custody under a state-court
judgment, the petition must name as respondent the state officer who has custody.”)
right to counsel beyond the appeal of a criminal conviction, and
… generally appointment of counsel in a § 2254 proceeding is left
to the court’s discretion.”). Rather, the court may appoint
counsel when “the interests of justice so require” for a
petitioner who is financially eligible. See 18 U.S.C. §3006A
(1)(2)(b). The court has studied the petition and concludes that
the appointment of counsel is not warranted in this matter at
the present stage of the proceedings.
The Court adopts the factual and procedural background
statements of this matter from two decisions entered by the Kansas
Court of Appeals:
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 Mays’ 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 that 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 at *1
(Kan. Ct. App. Apr. 12, 2012), rev denied Apr. 8, 2013.
In December 2009, a jury convicted May of reckless
second-degree murder of his father and misdemeanor domestic
battery against his mother. The district court sentenced
May to 138 months’ imprisonment and 80 days in jail, with
36 months’ postrelease supervision.
May filed a direct appeal arguing the district court (1)
failed to give a voluntary intoxication instruction, (2)
failed to give his proposed instruction on favoritism or
sympathy, and (3) violated his constitutional rights under
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2349, 147
L.Ed.2d 435 (2000). [The Kansas Court of Appeals] affirmed
May’s convictions and sentences. State v. May, No. 104,505,
2012 WL 1352827 (Kan.App. 2012)(unpublished opinon), rev.
denied 297 Kan. 1253 (2013).
May v. State, 369 P.3d 340 (Table)(Kan.App. Apr. 8, 2016), rev
denied Apr. 19, 2017.
In April 2014, petitioner sought post-conviction relief under
K.S.A. 60-1507, alleging his appellate counsel was ineffective for
failing to argue that the death of petitioner’s father, Doyle, was
accidental. Petitioner identified the following evidence that his
points that his counsel failed to address: (1) paramedics who treated
Doyle found only a small scratch on his ear and Doyle refused to go
to the hospital; (2) Doyle was using a blood thinning medication; (3)
Doyle suffered a new injury when he collapsed; and (4) family members
made the decision to remove Doyle from life support.
The district court denied the motion, finding that petitioner
has not presented any triable issue. Petitioner filed an appeal from
that ruling, but he did not specifically challenge the ruling or
identify any error. Instead, he alleged ineffective assistance by his
post-conviction counsel. Accordingly, the Kansas Court of Appeals
ruled that petitioner had waived the original claims in his action
under K.S.A. 60-1507. It also held that because petitioner had not
raised the issue of ineffective assistance of his 60-1507 counsel in
the state district court, it was not preserved for appeal. May v.
State, 2016 WL 1391776 at *3.
An applicant for federal habeas corpus relief ordinarily must
exhaust available state court remedies before filing a petition under
28 U.S.C. § 2254. See 28 U.S.C. § 2254(b)(1)(A). Generally, a
petitioner satisfies the exhaustion requirement by presenting all of
the habeas claims to the state’s highest court. O’Sullivan v.
Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary,
36 F.3d 1531, 1534 (10th Cir. 1994).
Where a petitioner has failed to present habeas claims to the
state courts and no available state remedy remains, the claim may be
subject to dismissal for procedural default. To overcome a procedural
default, a petitioner must show both “cause” for the failure to comply
with the state procedural requirement and “prejudice” arising from
the state court’s refusal to consider the merits or a fundamental
miscarriage of justice based upon proof of actual innocence. Frost
v. Pryor, 749 F.3d 1212, 1231-32 (10th Cir. 2014).
The petition identifies the following grounds for relief:
(1) Petitioner did not receive effective assistance of counsel in his
action under 60-1507;
(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 motion under 60-1507 without conducting an evidentiary
(4) Petitioner did not receive effective assistance of counsel during
(5) Petitioner’s trial counsel erred in denying him the right to
(6) Petitioner’s counsel in his 60-1507 motion failed to amend the
petition to present additional claims;
(7) The appellate brief did not include the facts concerning the
victim’s use of the medication Coumadin and its effect on the victim’s
(8) Petitioner’s appellate counsel was ineffective in failing to argue
that paramedics saw only slight injury to the victim on their first
visit to the victim’s home, that petitioner was in jail when the victim
collapsed hours later, and that the same paramedics found new injuries
to the victim when they returned to the house for a second time.
Based upon the record, the Court finds that the claims presented
in petitioner’s direct appeal were exhausted. Those claims, however,
concerning jury instructions and Apprendi, are not presented in this
habeas corpus petition.
Instead, petitioner presents claims which have been procedurally
defaulted or fail to state a cognizable claim for habeas corpus relief.
First, petitioner’s claims alleging ineffective assistance by his
post-conviction counsel are barred by statute. See 28 U.S.C. §2254
(i)(“The ineffectiveness or incompetence of counsel during Federal
or State post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254.”).
Next, petitioner’s claims presented in his post-conviction
action are not properly exhausted. As noted, he abandoned the claims
in his initial petition under K.S.A. 60-1507 by failing to present
them on appeal in that action, and he presented new claims on appeal
which were not properly before the Kansas Court of Appeals. These
claims are subject to dismissal as procedurally defaulted unless
petitioner can demonstrate cause and prejudice for the default.
Finally, while the petition does not include the claims
petitioner presented in his direct appeal, which were properly
exhausted and could be considered in a habeas corpus action, he may
amend the petition to present the properly exhausted claims.
Accordingly, the Court will direct petitioner (1) to show cause
why the petition should not be dismissed due to the failure to properly
exhaust the claims presented and (2) to show cause and prejudice to
excuse the procedural default of those claims. Petitioner may file
an amended petition to present exhausted claims, but he must do so
within the time allowed to show cause.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motions to
proceed in forma pauperis (Docs. #2 and #5) are granted.
IT IS FURTHER ORDERED petitioner’s motion to appoint counsel
(Doc. #3) is denied.
IT IS FURTHER ORDERED petitioner is granted to and including July
17, 2017, to show cause as directed and to submit an amended petition,
if he chooses to do so. The failure to file a timely response may result
in the dismissal of this action without additional prior notice.
IT IS SO ORDERED.
This 16th day of June, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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