Davis (ID 06598) v. Schnurr

Filing 21

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Petitioner's Motion for Hearing (Doc. 16 ), Motion to Appoint Counsel (Doc. 17 ), "Motion to Respond to Order Granted Second Motion for Leave to File Amended Petition for Motion on Judgment on the Pleadings" (Doc. 18 ), Motion for an Evidentiary Hearing (Doc. 19 ), and Motion for a Narrative Summary of the Evidence (Doc. 20 ), are denied. Petitioner is granted until and including March 10, 2022, in which to provide the Court, in w riting, with the information and documents requested in this order regarding additional pursuit of state-court remedies. In the alternative, Petitioner is granted until and including March 10, 2022, to file a third amended petition deleting what is currently identified as Ground One for relief. No other amendments to the current petition are authorized. The failure to comply with this order will result in this matter being dismissed without further notice. Signed by U.S. Senior District Judge Sam A. Crow on 01/11/22. Mailed to pro se party Anthony Leroy Davis by regular mail. (smnd)

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY LEROY DAVIS,
Petitioner,
v.

CASE NO. 20-3269-SAC

DAN SCHNURR,
Respondent.

MEMORANDUM AND ORDER TO SHOW CAUSE
This matter is before the Court on Petitioner’s second amended
petition for writ of habeas corpus (Doc. 15), and multiple pending
motions (Docs. 16, 17, 18, 19, and 20). For the reasons stated
below, the Court will allow Petitioner the opportunity to decide
whether to pursue his unexhausted claim in state court and to
inform the Court of his decision, which will determine the future
of this matter. The Court also will deny each of the pending
motions.
Background
Petitioner was convicted in state court in 1989 and sentenced
to life plus 25 years in prison. See State v. Davis, 247 Kan. 566,
567 (1990) (Davis I); Davis v. State, 2021 WL 18903, *1 (Kan. Ct.
App.

2021)

dismissed

(unpublished

Feb.

2021.

In

opinion)
2016,

(Davis

while

II),

pet.

incarcerated,

for

rev.

Petitioner

punched a correctional officer in the eye. State v. Davis, 2019 WL
5090467, at *1 (Kan. Ct. App. 2019) (unpublished opinion) (Davis
III), rev. denied Sept. 24, 2020. In 2017, a jury convicted him of
battery of a law enforcement officer and in 2018, the Butler County
1

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 2 of 17

District Court sentenced him to 65 months in prison. Id. at *2.
Petitioner pursued a direct appeal, and the Kansas Court of Appeals
(KCOA) affirmed his conviction on October 11, 2019. Davis III,
2019 WL 5090467. The Kansas Supreme Court (KSC) denied review on
September 24, 2020.
Initial Petition
On October 29, 2020, Petitioner filed the petition for writ
of habeas corpus that began the matter currently before the Court.
(Doc. 1.) The initial petition contained four grounds for relief:
a challenge to his 2017 conviction based on Kansas state law; the
2017 conviction was invalid because Petitioner was not legally “in
custody” of the state at the time the battery occurred as required
by K.S.A. 21-5413(c)(3)(A); and two challenges to the conditions
of Petitioner’s confinement.
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts requires the Court to review a habeas
petition when it is filed and to dismiss the petition “[i]f it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.”
Rules Governing § 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254.
The Court accordingly reviewed the petition and concluded that
Ground 1 failed to state an actionable federal habeas claim because
it alleged only a violation of state law. (Doc. 10, p. 2-3.)
Similarly, Grounds Three and Four were challenges to the conditions
of Petitioner’s confinement, which must be presented in a civil
rights complaint and are not proper grounds for habeas relief.
(Doc. 10, p. 4.) Thus, these grounds were subject to dismissal.
2

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 3 of 17

Ground Two was not properly exhausted in state court. (Doc.
10, p. 3.) As a state prisoner, Petitioner must exhaust all
available state-court remedies before pursuing federal habeas
relief unless it appears there is an absence of available state
corrective process or circumstances exist that make the available
state process ineffective to protect his rights. See 28 U.S.C. §
2254(b)(1); see also Bland v. Simmons, 459 F.3d 999, 1011 (10th
Cir. 2006). In other words, habeas petitioners are ordinarily
required to “give state courts a fair opportunity to act on [his]
claims.” O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (citing
Castille v. Peoples, 489 U.S. 346, 351 (1989)). To satisfy this
requirement, Petitioner must have presented the very issues now
raised in the federal petition to the KCOA, either by way of direct
appeal or by state post-conviction motion. Kansas Supreme Court
Rule 8.03(B); Picard v. Connor, 404 U.S. 270, 275-76 (1971).
Although Petitioner pursued a direct appeal from the 2017
conviction, he did not properly raise the argument now set forth
in

Ground

Two;

he

raised

it

only

in

a

purported

letter

of

additional authority filed with the KCOA. Davis III, 2019 WL
5090467, at *4. Because parties may not raise new arguments in a
letter of additional authority, the KCOA refused to address the
issue. Id. Accordingly, on April 8, 2021, this Court issued a
Notice and Order to Show Cause (NOSC) directing Petitioner to show
cause why the petition should not be summarily dismissed for the
reasons stated above.
Petitioner filed a response, in which he did not address any
of the deficiencies identified in the NOSC. (See Doc. 11; Doc. 13,
3

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 4 of 17

p. 2.) However, he also filed a motion for leave to file an amended
petition, which the Court granted. (Docs. 12 and 13.)
First Amended Petition
The first amended petition was filed on October 1, 2021. (Doc.
14.) The Court reviewed the amended petition, as required under
Rule 4, and found that Ground One reasserted the unexhausted claim
that Petitioner was not in lawful custody at the time of the 2017
battery. (See Doc. 13.) Ground Two appeared to be a procedural due
process argument based on state appellate review of evidentiary
challenges. Id. Ground Three argued that Petitioner’s restraints
during trial deprived him of the presumption of innocence, and
Ground Four argued that overwhelming evidence showed he did not
commit the crime. Id.
Because Ground One was unexhausted, as the Court had already
explained in the NOSC, but Grounds Two, Three, and Four appeared
to be exhausted, the Court was faced with a “mixed petition”—one
containing both exhausted and unexhausted claims. Generally, the
Court must dismiss mixed petitions. See Rhines v. Weber, 544 U.S.
269, 273 (2005); May v. Heimgartner, 794 F. Appx. 751, 755 (10th
Cir. 2019). The dismissal requirement is not absolute, however;
the Court has three additional options when faced with a mixed
petition. First, the Court may “stay the petition and hold it in
abeyance while the petitioner returns to state court to raise his
unexhausted claims.” Fairchild v. Workman, 579 F.3d 1134, 1156
(10th Cir. 2009). Second, the Court may “permit the petitioner to
delete the unexhausted claims from his petition and proceed only
on the exhausted claims.” Wood v. McCollum, 833 F.3d 1272, 1273
4

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 5 of 17

(10th Cir. 2016). And third, the Court may “ignore the exhaustion
requirement altogether and deny the entire petition on the merits
if none of the petitioner’s claims has any merit.” Fairchild, 579
F.3d at 1156.
On October 1, 2021, the Court issued a Memorandum and Order
(M&O) explaining to Petitioner that his was a mixed petition,
setting

forth

the

potential

options

for

dealing

with

mixed

petitions, and allowing Petitioner an opportunity to respond.
(Doc. 13.) The Court explained that Petitioner could (1) show that
he had, in fact, exhausted state-court remedies on all claims in
the amended petition; (2) show that he had good cause for failing
to do so and that he suffered prejudice; or (3) file an amended
petition raising only the exhausted claims. Id. at 4.
Second Amended Petition
On October 6, 2021, Petitioner filed his second amended
petition, which is currently before the Court for the review
required by Rule 4. (Doc. 15.) The grounds in the second amended
petition and the supporting facts alleged for each ground are
identical to those asserted in the first amended petition, except
that the second amended petition refers the Court to attached
exhibits A through C.1 (Compare Doc. 14 and Doc. 15.)
For the reasons already explained to Petitioner in the NOSC

Exhibit A is an order in which the KSC dismissed a petition by Petitioner “for
failure to state a claim for a writ of mandamus or quo warranto.” (Doc. 15-1,
p. 1.) Exhibit B consists of the KCOA opinion affirming Petitioner’s 2017
conviction, the KSC order denying his petition for review, the Butler County
journal entry of judgment for the 2017 conviction, and an excerpt from the
transcript of the 2017 jury trial. Id. at 2-34. Exhibit C is a 2003 KCOA opinion
affirming the denial of a K.S.A. 60-1507 motion challenging his 1989
convictions.
1

5

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 6 of 17

and the M&O, Ground One is unexhausted. None of the additional
information in or attached to the second amended petition alters
the Court’s prior conclusion on this point. Thus, as explained in
the M&O, the Court must treat this matter as a mixed petition. It
must either follow the general rule and dismiss the petition in
its entirety or: (1) stay the petition and hold this matter in
abeyance while Petitioner returns to state court to raise Ground
One;

(2) allow Petitioner to delete the unexhausted claim and

proceed only on the exhausted ones; or (3) deny the petition in
its entirety on the merits.
Petitioner has not asked the Court to stay this matter and
hold it in abeyance so he may return to state court to raise his
unexhausted claim. In addition, by filing his second amended
petition and including Ground One, Petitioner has rejected the
opportunity to delete his unexhausted claim and proceed in this
matter only on his exhausted claims. And the Court declines to
conclude that all of Petitioner’s claims lack merit and deny the
petition in its entirety on the merits.
The M&O informed Petitioner that if he failed to file a
response

or

“submit

an

amended

petition

without

unexhausted

claims,” he risked “the dismissal of this matter without additional
prior notice.” (Doc. 13, p. 5.) Petitioner chose to file an amended
petition that continued to include an unexhausted claim, so the
Court could simply dismiss this matter without prejudice. The Court
wishes,

however,

to

ensure

that

Petitioner

understands

the

potential consequences of this matter being dismissed without
prejudice, as it may affect his ability to obtain federal habeas
6

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 7 of 17

relief.
Timing of State and Federal Habeas Actions
This Court cannot provide legal advice to Petitioner, nor
will it opine on the likelihood of his success in potential future
state-court proceedings. However, it appears that Petitioner may
have an avenue for relief left in state court. K.S.A. 60-1507(a)
allows “[a] prisoner in custody under sentence of a court of
general jurisdiction claiming the right to be released upon the
ground that . . . the court was without jurisdiction to impose
such sentence” and K.S.A. 60-1507(b) authorizes a district court
that “finds that the judgment was rendered without jurisdiction”
to “vacate and set the judgment aside,” among other things. Due to
the

KSC’s

administrative

orders

resulting

from

the

COVID-19

pandemic, it appears that Petitioner may be able to file a timely
motion for relief in state court under K.S.A. 60-1507.2
The current federal action, however, is not subject to the
deadline suspensions ordered by the KSC. Rather, it is subject to
the one-year limitation period established by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) in 28 U.S.C. §
2244(d). Generally speaking, the time to file a federal habeas

On May 1, 2020, while Petitioner’s petition for review in his direct appeal
was pending and the time in which he could file a K.S.A. 60-1507 motion had not
yet begun, the KSC suspended “[a]ll statutes of limitations and statutory time
standards or deadlines applying to the conduct or processing of judicial
proceedings.” See KSC Administrative Order 2020-PR-047. The KSC reinstated the
statute of limitations for filing a K.S.A. 60-1507 motion effective August 2,
2021. See KSC Administrative Order 2021-PR-100. The KSC has instructed that
“for a deadline or time limitation that did not begin to run” because of the
earlier suspension, “a person shall have the full period provided by law to
comply with the deadline or time limitation.” See id. Thus, it appears that
Petitioner may, at this point, file a timely K.S.A. 60-1507 motion in state
court.
2

7

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 8 of 17

petition pursuant to 28 U.S.C. § 2254 expires one year after the
date on which direct review of the judgment concluded or the time
for seeking such review expired. 28 U.S.C. § 2241(d)(1).3
The Kansas Supreme Court (KSC) denied review on September 24,
2020. Petitioner had 90 days to seek review by the United States
Supreme Court by filing a petition for writ of certiorari, which
he did not. See Sup. Ct. R. 13(1). Accordingly, his one-year
limitation period for a federal habeas action began to run on
approximately December 24, 2020, when the 90 days expired. See
United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003) (“[I]f
a prisoner does not file a petition for writ of certiorari . . .,
the one-year limitation period begins to run when the time for
filing certiorari petition expires.”). It expired one year later,
on December 24, 2021.
Petitioner

has

been

pursuing

the

current

federal

habeas

petition since October 29, 2020. But if the Court dismisses this
matter without prejudice so that Petitioner may pursue state-court
remedies on Ground One, any future federal habeas petition under
28 U.S.C. § 2254 would likely be barred as untimely. Thus, although
the Court could dismiss this matter without prejudice as a mixed
petition, doing so could effectively close the door on any future
federal habeas relief.
Accordingly,

the

Court

will

allow

Petitioner

one

final

opportunity to inform the Court of the direction he wishes the
Although there are provisions for tolling the deadline, those are not relevant
for purposes of the present analysis. Suffice it to say that the pursuit of a
federal habeas petition that is ultimately dismissed as a mixed petition does
not toll the federal habeas filing deadline.
3

8

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 9 of 17

Court to take in this matter. On or before March 10, 2022,
Petitioner must inform the Court, in writing, whether or not he
wishes to pursue available state-court remedies for the claim he
now asserts as Ground One, such as a motion for relief under K.S.A.
60-1507 or another type of state-court collateral action.
If

Petitioner

chooses

to

pursue

state-court

remedies

on

Ground One, he must provide the Court with a copy of the pleading
initiating a state-court matter and he must provide the Court with
the case number assigned by the state court. At that point, the
Court will stay this federal matter pending resolution of the
state-court

proceedings.

If

Petitioner

chooses

not

to

pursue

state-court remedies on Ground One but wishes to proceed in this
federal habeas matter with his remaining three asserted grounds
for relief,4 he must file a third amended petition omitting Ground
One but otherwise identical to the second amended petition. The
Court does not grant leave for Petitioner to further amend the
petition beyond removing Ground One.
If Petitioner fails to respond as directed to this order or
if Petitioner attempts to file a third amended petition that
contains an unexhausted ground for relief, the Court will dismiss
this matter without prejudice as a mixed petition without further
notice to Petitioner.

As set forth above, this may severely

restrict

Petitioner’s

or

foreclose

ability

to

obtain

federal

habeas relief in the future.
Pending Motions
As previously explained, Petitioner may not proceed on the merits of Ground
One because of his failure to exhaust the claim in state court.
4

9

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 10 of 17

Petitioner also has several motions pending before the Court.
The Court will address each in turn.
“Objection, Notice, and Motion for a Hearing” (Doc. 16)
Petitioner seeks an order setting a hearing regarding a
memorandum and order issued September 13, 2021 and to argue why
the relief he seeks in this matter should not be granted. Id. No
order was entered in this matter on September 13, 2021, and
Petitioner

is

not

entitled

at

this

time

to

a

response

from

Respondent as to why the relief he seeks should not be granted,
since his second amended petition has not passed initial review
under Rule 4 of the Rules Governing Section 2254 Case. Thus, this
motion is denied.
Motion for Appointment of Counsel (Doc. 17)
As Petitioner concedes, he has no constitutional right to
counsel in a federal habeas corpus action. See Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987). Rather, the decision whether to
appoint counsel rests in the Court's discretion. Swazo v. Wy. Dept.
of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir
1994). A court may appoint counsel if it “determines that the
interest of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). “The
burden is on the applicant to convince the court that there is
sufficient merit
counsel.”

Steffey

to his claim to warrant the appointment of
v.

Orman,

451

F.3d

1218,

1223

(10th

Cir.

2006)(quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004)). When deciding whether to appoint counsel,
the Court must consider “the merits of a prisoner's claims, the
nature and complexity of the factual and legal issues, and the
10

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 11 of 17

prisoner's

ability

to

investigate

the

facts

and

present

his

claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979). At
this early stage in the proceedings, when it is yet unclear whether
this matter will proceed, the Court concludes that it is not in
the interest of justice to appoint counsel. The motion to appoint
counsel is denied.
“Motion to Respond to Order Granted Second Motion for Leave to
File Amended Petition for Motion on Judgment on the Pleadings”
(Doc. 18)
Liberally

construing

this

motion,

Petitioner

seeks

dispositive relief or, in the alternative, leave to further amend
his petition. At the beginning of the motion, Petitioner cites
Federal Rule of Civil Procedure 12, subsections (b)(6) and (7),
(c), (d), (g), and (h)(3); Rule 56 of the Federal Rules of Civil
Procedure; Rules 4 and 11 of the Rules Governing Section 2254
cases; and 28 U.S.C. § 2243. Id. First, to the extent that
Petitioner seeks relief under Rule 12, his requests are misplaced.
By its plain language, Rule 12(b) governs the assertion of
defenses to claims. Petitioner is the party asserting claims in
this matter, not the party defending against such claims, so Rule
12(b) does not apply. Rule 12(c) governs motions for judgment on
the pleadings and applies only “[a]fter the pleadings are closed.”
Since there has been no responsive pleading yet filed in this case,
Rule 12(c) is similarly inapplicable. Rule 12(d) applies only to
motions under Rule 12(b)(6) or 12(c); since Petitioner may not at
this point bring such a motion, Rule 12(d) does not apply.
Rule 12(g) addresses when it is appropriate to join motions
11

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 12 of 17

made under Rule 12. Since Petitioner has not identified a Rule 12
motion that he may properly bring at this time, joinder of such
motions is irrelevant. Finally, Rule (h)(3) states that “[i]f the
court

determines

at

any

time

that

it

lacks

subject-matter

jurisdiction, the court must dismiss the action.” This Court has
not determined that it lacks subject-matter jurisdiction.5
Petitioner also seeks summary judgment in this motion. (Doc.
18, p. 1.) A motion for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure is appropriate where “the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th
Cir. 1994). Petitioner has not shown that he is entitled to
judgment as a matter of law, so summary judgment is not appropriate
at this time.
This motion also seems to imply that Petitioner wishes to
further amend his petition. (See Doc. 18, p. 1 (seeking “to add[]
claims and parties joined persons.”) As the M&O pointed out, a
habeas petition “may be amended or supplemented as provided in the
rules of procedure applicable to civil actions.” 28 U.S.C. § 2242.
Under Federal Rule of Civil Procedure 15(a)(2), a “court should
freely give leave” to amend pleadings “when justice so requires.”
However, Local Rule 15.1(a)(2) requires Petitioner to attach the
Any argument that Rule 12(h)(3) supports Petitioner’s claim that Kansas state
courts should have dismissed the criminal charge against him for lack of
subject-matter jurisdiction fails because Kansas state courts are not bound by
the federal rules of civil procedure. See State v. Sullivan, 307 Kan. 697, 707
(2018) (“Obviously, the federal rules do not govern a state-court trial.”)
5

12

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 13 of 17

proposed amended petition to his motion to amend and Petitioner
has not done so. See D. Kan. Rule 15.1(a)(2).
Moreover, the Court has already allowed Petitioner to amend
his

petition

twice

and

neither

amendment

has

cured

or

even

substantively addressed Petitioner’s failure to exhaust statecourt remedies with respect to his “custody” claim, most recently
articulated as Ground One. Whether to grant leave to amend under
Rule 15(a)(2) is a decision left to this Court’s discretion. See
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971); Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.
2006). And where a party has failed in prior amendments to cure
identified deficiencies, the Court may properly refuse to allow
further amendments. See Frank v. U.S.W., Inc., 3 F.3d 1357, 1365
(10th Cir. 1993). The Court exercises its discretion here to deny
the motion to further amend the petition other than as articulated
above with respect to deleting Ground One for relief.
Finally, Petitioner attached to this motion an affidavit,
proposed interrogatories for Respondent, and the journal entry of
judgment for his 1989 convictions. (Docs. 18-1, 18-2, and 18-3.)
Discovery has not begun and the journal entry is irrelevant at the
current time. Thus, the “Motion to Respond to Order Granted Second
Motion for Leave to File Amended Petition for Motion on Judgment
on the Pleadings Rule 12[e]” (Doc. 18) is denied.

13

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 14 of 17

“Notice and Motion for an Evidentiary Hearing Respondent Show
Cause Fed. R. Civ. P. 6[b], Enlargement” (Doc. 19)
Petitioner asks the Court to expand the record under Rule 7
of the Rules Governing Section 2254 Cases in the United States
District Courts and to order the Respondent to file an answer to
the petition under Rule 4 of the same. Rule 7 provides that “[i]f
the petition is not dismissed, the judge may direct the parties to
expand the record by submitting additional materials relating to
the petition.” Rule 4 states that “[i]f the petition is not
dismissed, the judge must order the respondent to file an answer,
motion, or other response within a fixed time, or to take any other
action the judge may order.”
This matter remains in the initial screening phase required
by Rule 4 and, as such, it is undetermined which, if any, of
Petitioner’s grounds for relief will require an answer or be
examined on their merits. Court concludes it would be premature at
this

point

to

expand

the

record

or

direct

an

answer

from

Respondent. The motion is denied.
“Motion Request for a Narrative Summory of the Evidences [sic]”
(Doc. 20)
It is difficult to discern what Petitioner seeks through this
final motion. He refers to the required contents of an answer to
a habeas corpus petition, but no answer has been ordered. He
appears to request additions to the record, but, as explained
above, there is no need to enlarge the record at this time.
Petitioner

refers

to

Eighth

and

Fourteenth

Amendment

rights

involving conditions of confinement, but as explained in the NOSC,
such conditions-of-confinement claims are not proper in a habeas
14

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 15 of 17

corpus

petition.

Petitioner

again

requests

counsel

and

an

evidentiary hearing, which have been addressed above, and he
appears to argue the merits of his current Ground One for relief,
asserting

that

imprisonment.

he
Even

is

being

liberally

held

beyond

construing

the

the

term
motion,

of
as

his
is

appropriate because Petitioner proceeds pro se, this motion does
not persuasively request any relief from this Court. Thus, it is
denied.
Conclusion
In summary, the second amended petition does not establish
that Petitioner exhausted his state-court remedies with respect to
Ground One of the second amended petition. Because the second
amended petition contains both exhausted and unexhausted claims,
it is a mixed petition. Petitioner has declined to submit an
amended petition presenting only the unexhausted claims, and he
has failed to show good cause for his failure to exhaust his statecourt remedies regarding Ground One. But because the statute of
limitations for filing federal habeas actions such as this appears
to have run, the Court is disinclined to simply dismiss this matter
without prejudice so that Petitioner may exhaust his remedies in
state court.
Thus, the Court orders Petitioner to inform the Court, in
writing, on or before March 10, 2022, whether he intends to pursue
state-court relief on Ground One. If Petitioner chooses to pursue
state-court remedies on Ground One, he must provide the Court with
a copy of the pleading initiating a state-court matter and he must
provide the Court with the case number assigned by the state court.
15

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 16 of 17

If Petitioner chooses not to pursue state-court remedies on
Ground One but wishes to proceed in this federal habeas matter, he
may file a third amended petition on or before March 10, 2022
omitting Ground One but remaining otherwise identical to the second
amended petition. The Court does not grant leave for Petitioner to
further amend the petition beyond removing Ground One.
If Petitioner fails to respond as directed to this order, the
Court will dismiss this matter without prejudice as a mixed
petition without further notice to Petitioner.

IT IS THEREFORE ORDERED that Petitioner’s Motion for Hearing
(Doc. 16), Motion to Appoint Counsel (Doc. 17), “Motion to Respond
to Order Granted Second Motion for Leave to File Amended Petition
for Motion on Judgment on the Pleadings” (Doc. 18), Motion for an
Evidentiary Hearing (Doc. 19), and Motion for a Narrative Summary
of the Evidence (Doc. 20), are denied.
IT IS FURTHER ORDERED that Petitioner is granted until and
including March 10, 2022, in which to provide the Court, in
writing, with the information and documents requested in this order
regarding

additional

pursuit

of

state-court

remedies.

In

the

alternative, Petitioner is granted until and including March 10,
2022, to file a third amended petition deleting what is currently
identified as Ground One for relief. No other amendments to the
current petition are authorized. The failure to comply with this
order will result in this matter being dismissed without further
notice.

16

Case 5:20-cv-03269-SAC Document 21 Filed 01/11/22 Page 17 of 17

IT IS SO ORDERED.
DATED:

This 11th day of January, 2022, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

17