Briscoe (ID 66034) v. Baker

Filing 20

MEMORANDUM AND ORDER ENTERED: Respondent is required to show cause within thirty (30) days from the date of this order why the writ should not be granted. Petitioner is granted thirty (30) days after receipt by him of a copy of Respondent's answer and return to file a traverse thereto. Signed by U.S. Senior District Judge Sam A. Crow on 07/19/21. Mailed to pro se party Alphonso Graham Briscoe by regular mail; e-mailed to Attorney General for the State of Kansas. (smnd)

Case 5:18-cv-03300-SAC Document 20 Filed 07/19/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALPHONSO GRAHAM BRISCOE,
Petitioner,
v.

CASE NO. 18-3300-SAC

SHANNON MEYER,
Respondent.

MEMORANDUM AND ORDER

The Court has examined Petitioner’s second amended petition
(Doc. 19) and finds that:
1. Petitioner is presently a prisoner in the custody of the
State of Kansas; and
2. Petitioner demands his release from such custody, and as
grounds therefore alleges that he is being deprived of his
liberty in violation of his rights under the Constitution
of the United States, and he claims that he has exhausted
all remedies afforded by the courts of the State of Kansas.1
IT IS THEREFORE ORDERED:
1. That Respondent is hereby required to show cause within
Petitioner initially asserted ineffective assistance of trial counsel as
Ground 9. (Doc. 1, p. 19.) As noted in the Court’s January 4, 2021, Memorandum
and Order, Ground 9 contained multiple assertions of error by trial counsel,
but Petitioner had exhausted his state-court remedies only with respect to some
of the asserted errors by trial counsel. (Doc. 10, p. 4.) See Briscoe v. State,
2018 WL 911416 (Kan. Ct. App. 2018), rev. denied Oct. 30, 2018. In the
operative second amended petition, ineffective assistance of trial counsel is
Ground 1, and Petitioner again includes those alleged errors that he does not
appear to have exhausted in the state court. (See Doc. 19, p. 3, 6.) Petitioner
exhausted his state-court remedies only on the claims that trial counsel were
ineffective for failing to (1) cross-examine Ms. Taylor,(2) impeach another
witness with a prior conviction, and (3) successfully qualify Dr. Lyman as an
expert, as well as a claim of cumulative error. (See Doc. 10, p. 4.)
1

Case 5:18-cv-03300-SAC Document 20 Filed 07/19/21 Page 2 of 3

thirty (30) days from the date of this order why the writ
should not be granted.
2. That the response should present:
a. The necessity for an evidentiary hearing on each of
the grounds alleged in Petitioner’s pleading; and
b. An analysis of each of said grounds and any cases and
supporting

documents

relied

upon

by

Respondent

in

opposition to the same.
Respondent shall cause to be forwarded to this court for
examination and review the following:
The

records

and

transcripts,

if

available,

of

the

criminal proceedings complained of by Petitioner; if a direct
appeal of the judgment and sentence of the trial court was
taken by Petitioner, Respondent shall furnish the records, or
copies thereof, of the appeal proceedings.
3. Upon the termination of the proceedings herein, the clerk
of this Court will return to the clerk of the proper state
court all state court records and transcripts.
4. That Petitioner be granted thirty (30) days after receipt
by him of a copy of Respondent’s answer and return to file
a traverse thereto, admitting or denying, under oath, all
factual allegations therein contained.
5. That the clerk of this Court then return this file to the
undersigned judge for such other and further proceedings as
may

be

appropriate;

and

that

the

clerk

of

this

Court

transmit copies of this order to Petitioner and to the
office of the Attorney General for the State of Kansas.

Case 5:18-cv-03300-SAC Document 20 Filed 07/19/21 Page 3 of 3

IT IS SO ORDERED.

DATED:

This 19th day of July, 2021, at Topeka, Kansas.

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