Roeder (ID 65192) v. Schnurr

Filing 23

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to reconsider (Doc. 22 ) is denied. Signed by U.S. Senior District Judge Sam A. Crow on 06/04/21. Mailed to pro se party Scott P. Roeder by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SCOTT P. ROEDER,
Petitioner,
v.

CASE NO. 20-3275-SAC

DAN SCHNURR, et al.,
Respondent.

MEMORANDUM AND ORDER

Petitioner filed his petition for writ of habeas corpus on
November 4, 2020 (Doc. 1). On November 19, 2020, he filed a motion
to supplement the petition (Doc. 4) and on December 7, 2020, he
filed an emergency motion for stay of execution (Doc. 8). The court
denied both motions in an order dated December 23, 2020, and
petitioner filed a motion for reconsideration of the denial on
January 5, 2021 (Docs. 10, 11). The court denied the motion for
reconsideration in an order dated May 13, 2021 (Doc. 21). This
matter

is

now

reconsideration

before
of

the

the

court

order

on

denying

petitioner’s
his

prior

motion

for

motion

for

reconsideration (Doc. 22).
Local

Rule

7.3(b)

governs

motions

to

reconsider

non-

dispositive orders. Under that rule, “[a] motion to reconsider must
be based on: (1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct clear error
or prevent manifest injustice.” D. Kan. Rule 7.3(b). In his current
motion for reconsideration, petitioner argues that the court’s
reasoning and ruling in denying his prior motion for reconsideration

was “plain error.”
In

the

reconsider,

order
the

denying

court

petitioner’s

rejected

petitioner’s

earlier

motion

argument

that

to
the

Kansas Court of Appeals (KCOA) caused the procedural default when
it “impeded his effort to brief his claim by refusing to file upon
timely motion a Pro Se Supplemental Reply Brief of Appellant.” (Doc.
11, p. 2; Doc. 21, p. 2.) Noting that State v. McCullough, 293 Kan.
970 (2012), holds that “[a]n appellant may not raise new issues in
a reply brief,” the court reasoned that “no reply brief could have
cured petitioner’s failure to initially brief his claim.” (Doc. 21,
p. 2.) Petitioner now asserts that he raised the issue in his
initial brief to the KCOA and merely wished to add to that briefing
in a reply brief, so McCullough is inapplicable. (Doc. 22, p. 2.)
But Kansas courts are not required to consider arguments not
raised until a reply brief, even if a broader issue has been raised.
See Thoroughbred Associates, L.L.C. v. Kansas City Royalty Co.,
L.L.C., 58 Kan. App. 2d 306, 326 (2020) (citing Scribner v. U.S.D.
No. 492, 308 Kan. 254, 266, (2018), rev. denied Nov. 24, 2020. Thus,
petitioner could not have made new arguments in a reply brief that
were not included in his initial brief. The KCOA’s denial of
petitioner’s request to file a pro se supplemental reply brief did
not constitute a factor external to the defense that excuses the
procedural default.
Petitioner also appears to argue that since the KCOA exercised
de novo review over the denial of his K.S.A. 60-1507 motion, it
“assume[d] the district court’s responsibilities” and could not
disregard issues inadequately briefed on appeal. (Doc. 22, p. 2.)
Petitioner provides no legal authority in support of this contention

other than the plain language of K.S.A. 60-1507(b), and Kansas
caselaw

contradicts

petitioner’s

interpretation.

See

Louis

v.

State, 2013 WL 5870165, at *3 (Kan. Ct. App. 2013) (exercising de
novo review in an appeal from the denial of a K.S.A. 60-1507 motion
and noting that “an issue inadequately briefed on appeal [is] deemed
abandoned”), rev. denied Aug. 14, 2014; Love v. State, 2003 WL
22119223, at *3 (Kan. Ct. App. 2003) (holding in an appeal from the
denial of a K.S.A. 60-1507 motion that “[i]ssues not raised before
the trial court cannot be raised on appeal”), rev. denied Dec. 23,
2003.
Next, petitioner contends that the court was incorrect when it
asserted that he had not presented to the state courts his claim
that collateral-review counsel provided ineffective assistance.
(Doc. 22, p. 2.) Petitioner asserts that he raised this issue in a
motion for rehearing filed with the KCOA and he suggests that an
evidentiary hearing is needed to prove he raised the claim both in
his motion for rehearing and his pro se supplemental reply brief.
Id. Unfortunately, like a reply brief, “a motion to reconsider is
not a place to raise new issues or obtain a second chance to present
a stronger case.” State v. Briggs, 2018 WL 3995795, at *4 (Kan. Ct.
App. 2018) (Arnold-Burger, C.J., concurring), rev. denied, Dec. 6.
2019). Moreover, to the extent that petitioner relies upon his
collateral-review counsel’s failure to fully brief all the claims
he desired, the KCOA has rejected the argument that inadequate
briefing is per se ineffective assistance of counsel. See Rojas v.
State, 2016 WL 765414, at *2 (Kan. Ct. App. 2016), rev. denied,
April 17, 2017.

Finally, petitioner reiterates his argument that “unborn and
partially unborn individuals” are in fact facing a criminal death
sentence. (Doc. 22, p. 3.) He has not, however, asserted sufficient
grounds for this court to reconsider its previous order on this
point. See D. Kan. Rule 7.3(b).
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
reconsider (Doc. 22) is denied.
IT IS SO ORDERED.
DATED:

This 4th day of June, 2021, at Topeka, Kansas.

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