Shields (ID 107518) v. Zmuda
Filing
13
MEMORANDUM AND ORDER ENTERED: Petitioner is granted until and including September 2, 2022, in which to advise the Court, in writing, how he wishes the Court to proceed on this mixed petition. Signed by U.S. Senior District Judge Sam A. Crow on 08/02/22. Mailed to pro se party Brian C. Shields by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN C. SHIELDS,
Petitioner,
v.
CASE NO. 22-3069-SAC
JEFF ZMUDA,
Respondent.
MEMORANDUM AND ORDER
This matter is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254, filed on April 7, 2022. Petitioner
proceeds pro se. The initial review of the petition required by
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts revealed that this matter may not have been
filed within the applicable statute of limitations. Respondent has
now
advised
the
Court,
however,
that
he
will
not
raise
the
affirmative defense of timeliness in this matter. (Doc. 12.) The
Court
has
continued
its
initial
review
under
Rule
4
and
has
determined that this is a mixed petition, containing both exhausted
and
unexhausted
claims,
and
that
state-court
remedies
remain
available for at least one of the currently unexhausted claims.
Therefore, the Court will direct Petitioner to advise the Court, in
writing, how he wishes to proceed in this matter.
Background
On January 23, 2014, Petitioner pled guilty in the district
1
court of Neosho County, Kansas to one count of first-degree murder.
(Doc. 1, 1.) See also online records of Neosho County District
Court, case number 2013-CR-44. The following month, he was sentenced
to a prison term of 20 years to life. Petitioner filed a timely
notice of appeal, but on February 19, 2015, the Kansas Supreme Court
(KSC)
granted
Petitioner’s
motion
to
voluntarily
dismiss
his
appeal. See online records of the Kansas appellate courts, State v.
Shields, Appeal No. 111,669.
On February 11, 2016, the state district court received a
letter from Petitioner that it construed as a motion to withdraw
his plea. See State v. Shields, 504 P.3d 1061 (Kan. Mar. 4, 2022);
see also online records of Neosho County District Court, case number
2013-CR-44. The district court held a hearing and, on April 29,
2020, issued an order denying the motion. Id. Petitioner appealed
the decision and on March 4, 2022, the KSC affirmed the denial.
On April 7, 2022, Petitioner filed in this Court his petition
for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) He
asserts four grounds for relief. Because Petitioner is proceeding
pro se, the Court liberally construes the petition, but it may not
act as Petitioner’s advocate. See James v. Wadas, 724 F.3d 1312,
1315
(10th
Cir.
responsibility
of
2013).
serving
“[T]he
as
court
the
cannot
litigant’s
take
on
attorney
the
in
constructing arguments.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). It “‘may not rewrite a petition
to include claims that were never presented.’” Childers v. Crow, 1
F.4th 792, 798 (10th Cir. 2021) (citation omitted).
Liberally construing the petition, Ground One argues that the
2
State lacked jurisdiction to convict Petitioner because his case
“should have been federal” and there was insufficient evidence to
charge
and
convict
him
of
murder.
Id.
at
5.
As
Ground
Two,
Petitioner asserts ineffective assistance of counsel, pointing out
that
he
was
not
notified
when
his
trial
attorney
was
later
disciplined for misleading clients. Id. at 6. Ground Three also
rests on a claim of ineffective assistance of counsel, asserting
that his trial attorney “held back information” and improperly
advised him to plead no contest to the murder charge. Id. at 8. As
Ground Four, Petitioner complains that he did not receive a mental
evaluation prior to entering his plea. Id. at 9. He explains that
he has “a mental handicap,” he was on strong pain medication at the
time, and he was going through withdrawal. Id.
As relief, Petitioner asks this Court to “accept jurisdiction”
over his criminal case, find he should have been charged with lesser
charges, sentence him to time already served in state custody, and
order his release. Id. at 14.
Exhaustion
“‘A threshold question that must be addressed in every habeas
case is that of exhaustion.’” Fontenot v. Crow, 4 F.4th 982, 1018
(10th Cir. 2021) (quoting Harris v. Champion, 15 F.3d 1538, 1544
(10th Cir. 1994). A state prisoner must exhaust all available statecourt remedies before pursuing federal habeas relief unless it
appears there is an absence of available state corrective process
or circumstances exist that render such process ineffective to
protect the petitioner’s rights. See 28 U.S.C. § 2254(b)(1); see
also Bland v. Simmons, 459 F.3d 999, 1011 (10th Cir. 2006). The
3
exhaustion
requirement
exists
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 the exhaustion requirement, Petitioner must have
presented the very issues raised in the federal petition to the KSC
and KSC must have denied relief. See Picard v. Connor, 404 U.S.
270, 275-76 (1971); Kansas Supreme Court Rule 8.03B(a). Petitioner
bears the burden to show he has exhausted available state remedies.
Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992); see also
Parkhurst v. Pacheco, 809 Fed. Appx. 556, 557 (10th Cir. 2020).
To his credit, Petitioner concedes the Court that Grounds One
and Four were not exhausted in the state courts. (Doc. 1, p. 11.)
“Generally,
a
federal
court
should
dismiss
unexhausted claims without prejudice so that the
petitioner can pursue available state-court remedies.
However, dismissal without prejudice for failure to
exhaust state remedies is not appropriate if the state
court would now find the claims procedurally barred on
independent and adequate state procedural grounds.”
Grant v. Royal, 886 F.3d 874, 891-92 (” Grant v. Royal, 886
F.3d 874, 891-92 (10th Cir. 2018) (internal citations and quotation
marks omitted). Thus, the Court must determine whether independent
and adequate state procedural grounds bar Petitioner from now
raising in the state courts the arguments in Ground One and Ground
Four. If not, Petitioner may be able to return to state court to
pursue his arguments there. If so, they claims are subject to an
anticipatory
procedural
bar
and
are
considered
functionally
exhausted.. See Fontenot v. Crow, 4 F.4th 982, 1024 (10th Cir. 2021)
4
(noting
that
an
unexhausted
claim
that
is
“subject
to
an
anticipatory procedural bar . . . is procedurally defaulted (and
exhausted) for purposes of federal habeas review”).
Liberally construing Ground One, it asserts that the state
court lacked jurisdiction to convict Petitioner and that there was
insufficient
evidence
to
support
the
conviction.
Ground
Four
appears to challenge the validity of Petitioner’s plea based on his
mental state at the time. As Petitioner concedes, none of these
claims were presented to the state court.
Ground One (sufficiency argument) and Ground Four
In Kansas, a defendant who is found guilty after a plea of
guilty or no context may not appeal the judgment of conviction. See
K.S.A.
22-3602(a).
In
addition,
Kansas
Courts
have
held
that
“[w]here judgment and sentence have been entered upon a plea of
guilty, there can be no review of the sufficiency in a K.S.A. 601507 proceeding.” Woods v. State, 52 Kan. App. 2d 958, 967 (Kan.
Ct. App. 2016) (citing Hughes v. State, 206 Kan. 515, 517 (1971)),
rev. denied Sept. 28, 2017. Thus, it appears that Petitioner would
now be procedurally barred from presenting a sufficiency of the
evidence argument to the state courts.
Where a petitioner fails to present a claim in the state
courts, and would be procedurally barred from presenting it if he
returned to state court, there is an anticipatory procedural bar,
or default. Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir.
2007). Under this analysis, the Court concludes that Petitioner’s
sufficiency of the evidence argument is anticipatorily procedurally
defaulted and thus is functionally exhausted. See Fontenot, 4 F.4th
5
at 1024.
Similarly, Ground Four asserts that Petitioner should have
undergone a mental evaluation before being allowed to enter his
plea. Petitioner has already brought an unsuccessful post-sentence
motion to withdraw his plea in the state courts, but he did not
raise this claim therein. The KSC has held that res judicata may
bar successive motions to withdraw a plea. See State v. Williams,
303 Kan. 605, 608 (2016); State v. Kelly, 291 Kan. 868, 874 (2011).
Accordingly,
it
appears
that
Petitioner
would
be
procedurally
barred from raising the arguments in Ground Four to the state
courts. Thus, the Court finds that Ground Four is anticipatorily
procedurally defaulted and thus is functionally exhausted.
With respect to the jurisdictional argument in Ground One,
however, Kansas courts are authorized by K.S.A. 22-3504(a) to
“correct an illegal sentence at any time while the defendant is
serving such sentence,” and subsection (c) of the same statute
defines “illegal sentence” to include “a sentence[ i]mposed by a
court
without
jurisdiction.”
Because
the
basis
for
the
jurisdictional argument is unclear, the Court offers no opinion on
the potential for success in the state court. Nonetheless, it
appears that K.S.A. 22-3504 may provide a procedural avenue for
Petitioner to bring his jurisdictional argument in the state court,
so that argument is not subject to an anticipatory procedural bar
and
is
unexhausted.
A
federal
habeas
petition
that
contains
exhausted claims and unexhausted claims and state-court remedies
are still available for at least one of the unexhausted claims is
referred to as a “mixed petition.” See Grant, 886 F.3d at 891-92.
6
Mixed Petition
When a federal habeas court is faced with a mixed petition,
the federal court generally should dismiss the matter “without
prejudice so that the petitioner can pursue available state-court
remedies.”
Grant,
886
F.3d
at
891-92
(internal
citations
and
quotation marks omitted). But dismissal is not the Court’s only
option. It may also stay the petition and hold it in abeyance while
Petitioner exhausts state-court remedies, deny the petition on the
merits, or allow Petitioner to delete the unexhausted claims and
proceed only on the exhausted claims. See Wood v. McCollum, 833
F.3d 1272, 1273 (10th Cir. 2016). Thus, the Court will direct
Petitioner to advise the Court which of these options he prefers.
First, Petitioner is advised that if he asks the Court to
dismiss this matter without prejudice so that he may pursue statecourt remedies on his jurisdictional issue, the matter of timeliness
may arise in any future federal habeas petition. Respondent’s
decision not to pursue timeliness as an affirmative defense in this
matter will not bind him in a future federal habeas matter.
Second, if Petitioner instead opts to request a stay of this
matter
so
that
he
may
exhaust
state-court
remedies
on
his
jurisdictional issue, he should be aware that a federal district
court may grant such a stay only if (1) good cause exists for the
failure to exhaust the claim prior to filing the federal habeas
petition; (2) the unexhausted claim is not “plainly meritless”; and
(3) the petitioner did not intentionally delay the proceedings.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Thus, if Petitioner
wishes the Court to stay this matter, he must make a sufficient
7
showing of these three factors.
The current petition identifies Ground One as “Wrongful[]
Jurisdictional conviction Should Have Been Federal -- and Not
Murder.” (Doc. 1, p. 5.) As the supporting facts, Petitioner states
only:
“A
Homemade
Fire
Cracker
Cause
Explosion
-
House
was
condemn[e]d and suppos[ed] to Be Vacant[] -- was Padlocked[.] A
propane Tank unknown In House Cause Explosion . . . Home Owner Left
in House . . . Had possible Leak.” Id. Petitioner does not further
explain his belief that the state court lacked jurisdiction to
convict him because he should have been tried in federal court. To
obtain
habeas
corpus
relief,
under
§
2254,
Petitioner
must
demonstrate that he is “in [State] custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
2254(a). Even liberally construing the petition, it does not contain
sufficient factual allegations or explanation for the Court to
understand the basis for Petitioner’s assertion that the state court
lacked jurisdiction to convict him. Thus, in order to show that the
jurisdictional claim is not plainly meritless, Petitioner must file
an amended petition with sufficient facts and explanation to support
a jurisdictional argument.1
Third, if Petitioner instead opts to delete the unexhausted
jurisdictional claim and proceed on only the currently exhausted
grounds for relief in this habeas action, he should be aware that
If Petitioner submits an amended petition, it must be on court-approved forms
and must be complete in and of itself; it may not refer back to an earlier
version of the petition or attempt to incorporate by reference earlier filings
with this Court. Rather, it must include all asserted facts and any grounds for
relief Petitioner wishes the Court to consider in this matter. Any grounds for
relief not included in the amended petition will not be considered before the
Court. Petitioner must include the case number of this action (22-3069) on the
first page of the amended petition.
1
8
it will limit his ability to file a second § 2254 petition later
raising the currently unexhausted claims. See Case v. Hatch, 731
F.3d 1015, 1026 (10th Cir. 2013) (“The filing of a second or
successive § 2254 application is tightly constrained.”). Before
filing a second or subsequent § 2254 petition in a federal district
court, a petitioner must “move in the appropriate court of appeals
for
an
order
authorizing
the
district
court
to
consider
the
application” and make a prima facie showing that the second or
subsequent petition meets certain statutory requirements. See 28
U.S.C. § 2244(b).
In addition, if Petitioner opts to delete his jurisdictional
argument from Ground One and proceed only on the exhausted claims,
he must also show cause why the Court should reach the merits of
the remainder of Ground One and Ground Four. As explained above,
these arguments are considered functionally exhausted because they
are anticipatorily procedurally defaulted. But an unexhausted claim
that
is
barred
by
anticipatory
procedural
default
cannot
be
considered in habeas corpus unless Petitioner establishes cause and
prejudice for his default of state court remedies or establishes a
fundamental miscarriage of justice. See Gray v. Netherland, 518
U.S. 152, 162 (1996).
To
demonstrate
cause,
Petitioner
must
“show
that
some
objective factor external to the defense impeded [his] efforts to
comply with the State’s procedural rules.” See Murray v. Carrier,
477 U.S. 478, 488 (1986). If Petitioner fails to demonstrate cause,
the Court need not consider whether he can establish the requisite
prejudice. See Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995).
9
Thus, for the Court to consider the merits of Petitioner’s
insufficiency of the evidence argument in Ground One and his
argument in Ground Four, Petitioner must make the required showing
of either (1) cause and prejudice or (2) that the refusal to
consider the merits of the claims will result in a fundamental
miscarriage of justice. If Petitioner fails to do so, the Court
will not reach the merits of the claims.
Conclusion
Petitioner’s
jurisdictional
argument
in
Ground
One
is
unexhausted, but state-court remedies may still be available to
Petitioner on that claim and the other claims are exhausted,
rendering this a mixed petition. Thus, the Court will
direct
Petitioner to advise the Court, on or before September 2, 2022,
which option he prefers. First, the Court may dismiss this matter
without prejudice so Petitioner may exhaust state-court remedies.
If Petitioner wishes the Court to do so, he must file a written
response to this order so advising the Court.
Second, the Court may, in appropriate circumstances, stay this
matter so Petitioner may return to state court to exhaust available
remedies. If Petitioner wishes the Court to grant such a stay, he
must file an amended petition that adequately articulates his
argument that the state court lacked jurisdiction and he must file
a written response addressing the requirements for a stay that are
set forth above.
Third, Petitioner may delete the unexhausted jurisdictional
argument and proceed on the remaining claims. If Petitioner wishes
to delete the unexhausted jurisdictional argument in Ground One and
10
proceed only on the remaining claims, he is directed to file a
written response stating that intent. In his response, Petitioner
must also show cause in writing why the Court should consider the
merits of Ground Four and the sufficiency of the evidence argument
in
Ground
One
despite
these
arguments
being
anticipatorily
procedurally defaulted.
IT IS THEREFORE ORDERED that Petitioner is granted until and
including September 2, 2022, in which to advise the Court, in
writing, how he wishes the Court to proceed on this mixed petition.
IT IS SO ORDERED.
DATED:
This 2nd day of August, 2022, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
11
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