Roeder (ID 65192) v. Schnurr

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for an extension of time (Doc. #3 ) is granted, and the time for filing a traverse is extended to 60 days. Petitioner is granted to and including December 11, 2020, to show cause why his defaulted claim should be considered by the Court. Signed by U.S. Senior District Judge Sam A. Crow on 11/20/2020. Mailed to pro se party Scott P. Roeder by regular mail. (jal)

Case 5:20-cv-03275-SAC Document 5 Filed 11/20/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SCOTT P. ROEDER,
Petitioner,
v.

CASE NO. 20-3275-SAC

DAN SCHNURR,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed pursuant
to 28 U.S.C. § 2254. Petitioner has filed a motion for an
extension of time to allow him 60 days, rather than 30 days,
to file a traverse. The Court will grant the request.
Also before the Court is petitioner’s motion to amend the
petition to add the claim that he was subjected to a “pattern
of legal indifference for his rights.” Petitioner states that
he presented this claim in the Kansas Court of Appeals in a pro
se brief filed in his post-conviction action.
“Before a federal court may grant habeas relief to a state
prisoner, the prisoner must exhaust his remedies in state court.
In other words, the state prisoner must give the state courts
an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.” O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). See Woodford v. Ngo, 548

Case 5:20-cv-03275-SAC Document 5 Filed 11/20/20 Page 2 of 4

U.S. 81, 92 (2006).
The federal courts “do not review issues that have been
defaulted on an independent and adequate state procedural ground,
unless the default is excused through a showing of cause and actual
prejudice or a fundamental miscarriage of justice.” Jackson v.
Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). See also Banks v.
Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) (“When a state court
dismisses a federal claim on the basis of noncompliance with adequate
and independent state procedural rules, federal courts ordinarily
consider such claims procedurally barred and refuse to consider
them.”).
Petitioner states that he presented the claim he seeks to add
by including it in a pro se brief submitted in his appeal from the
denial of post-conviction relief. In that case, however, the Kansas
Court of Appeals declined to consider several claims due to the
failure to brief them on appeal and due to the fact that one claim
was presented for the first time on appeal. Roeder v. State, 444 P.3d
379 (Table), 2019 WL 3242198, at *2 (Kan. Ct. App. July 19, 2019),
rev. denied, Dec. 18, 2019 (“Although Roeder raised more than five
issues in the K.S.A. 2018 Supp. 60-1507 motion he originally filed
with the district court, he failed to brief some of those issues on
appeal; thus, we deem them abandoned. See State v. Arnett, 307 Kan.
648, 650, 413 P.3d 787 (2018) (holding issues not adequately briefed
are waived or abandoned). Roeder also raises a new issue for the

Case 5:20-cv-03275-SAC Document 5 Filed 11/20/20 Page 3 of 4

first time on appeal. As a general rule, issues not raised before
the trial court cannot be raised on appeal. See State v. Kelly, 298
Kan. 965, 971, 318 P.3d 987 (2014).”).
Because the claim petitioner seeks to add to his petition was
not considered by the Kansas Court of Appeals, he may proceed only
if he shows cause and prejudice or a fundamental miscarriage of
justice. To demonstrate cause, he must “show that some objective
factor external to the defense impeded [his] efforts to comply with
the State's procedural rules.” Murray v. Carrier, 477 U.S. 478, 488
(1986) If a petitioner fails to demonstrate “cause,” a court need
not consider whether he can establish the requisite prejudice. Klein
v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995).
If petitioner is unable to show cause and prejudice, he must
show that habeas corpus review is needed to avoid “a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). This exception is available only in the “extraordinary” case
of one who is “innocent of the crime.” Gilbert v. Scott, 941 F.3d
1065, 1068 n.2 (10th Cir. 1991). To support a claim of actual
innocence, “a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995).
Ordinarily, this exception “requires [the] petitioner to support his
allegations

of

constitutional

error

with

new

reliable

evidence—whether it be exculpatory scientific evidence, trustworthy

Case 5:20-cv-03275-SAC Document 5 Filed 11/20/20 Page 4 of 4

eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Id. at 324.
Accordingly, the Court will direct petitioner to support his
request to amend the petition by showing either cause and prejudice
for his default, or to show that review of this claim is required
to avoid a fundamental miscarriage of justice. If petitioner fails
to make this showing, or to file a timely response, the motion to
amend will be denied.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
an extension of time (Doc. 3) is granted, and the time for filing
a traverse is extended to 60 days.
IT IS FURTHER ORDERED petitioner is granted to and including
December 11, 2020, to show cause why his defaulted claim should be
considered by the Court.
IT IS SO ORDERED.
DATED:

This 20th day of November, 2020, at Topeka, Kansas.

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