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

Filing 9

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for stay 8 is denied. Petitioner is granted to and including November 27, 2017, to show good cause why this matter should not be dismissed without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 10/27/17. 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
By a Memorandum and Order entered on June 16, 2017, the Court
notified petitioner that the claims presented in his petition have
been procedurally defaulted or fail to state a cognizable claim for
habeas corpus relief and granted him thirty days to file an amended
petition containing the claims exhausted in the state courts, if he
chose to do so.
Although petitioner did not file an amended petition, he filed
a motion to stay (Doc. #8). Briefly summarized, the motion alleges
that petitioner has available remedies in the state courts and asserts
the Court should stay this matter to allow him to pursue those
remedies.
In habeas corpus, a motion to stay should be granted where the
petitioner shows good cause for the failure to exhaust, the
unexhausted claims are potentially meritorious, and there is no
suggestion that the petitioner has intentionally delayed pursuing the
unexhausted claims. Rhines v. Weber, 544 U.S. 269, 278 (2005).
The Court declines to stay this matter. The April 2016 decision
of the Kansas Court of Appeals denying relief in petitioner’s action
under K.S.A. 60-1507 advised him that he could, under appropriate

circumstances, proceed in a subsequent motion under K.S.A. 60-1507
on his claims of ineffective assistance by post-conviction counsel.
See May v. State1, 369 P.3d 340, 2016 WL 1391776 (Kan. App. Apr. 8,
2016), rev. denied, Apr. 19, 2017. However, it does not appear
petitioner has made the necessary showing or sought permission to
proceed in a subsequent motion under K.S.A. 60-1507. And, as the Court
has explained, a claim of ineffective assistance by post-conviction
counsel is barred in federal habeas corpus by statute. 28 U.S.C.
§ 2254(i). Therefore, while petitioner may be able, eventually, to
present his claim of ineffective assistance to the state courts, that
claim does not present a ground for federal habeas corpus relief.
Accordingly, the Court finds petitioner cannot show good cause for
the stay he seeks and will deny the motion.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
stay (Doc. #8) is denied.
IT IS FURTHER ORDERED petitioner is granted to and including
November 27, 2017, to show cause why this matter should not be
dismissed without prejudice.
IT IS SO ORDERED.
DATED:

This 27th day of October, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
1

The Kansas Court of Appeals rejected his claim alleging the ineffective assistance
of post-conviction counsel, stating: “May faces what we determine to be an
insurmountable procedural hurdle. The issue of ineffective assistance of 60-1507
counsel has never been raised in the district court and, generally, we do not consider
an allegation of ineffective assistance of counsel raised for the first time on
appeal. […] May is not left without recourse by our rejection of his appeal. If
independent inquiry and investigation disclose a viable indication of ineffective
assistance of trial counsel and the requisite supporting extraordinary
circumstances and/or manifest injustice, he could, under proper circumstances,
proceed with a subsequent K.S.A. 60-1507 motion.” Id. at **3-4.