The opinion of the court was delivered by: Sam A. Crow U. S. Senior District Judge
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by an inmate of the Lansing Correctional Facility. Petitioner has also filed a Motion for Leave to Proceed in forma pauperis (Doc. 3). The court has reviewed the motion and the supporting financial information, and finds that the motion should be granted.
The Petition and Memorandum in Support indicate the following. In 2006, Mr. Manning was convicted by a jury in Wyandotte County District Court of aggravated battery and battery and sentenced to 154 months in prison. He appealed to the Kansas Court of Appeals (KCA), which affirmed. State v. Manning, No. 98,051, 2008 WL 4291504 (Kan.App. 2008)(unpublished), rev. denied 288 Kan. 834 (Kan. 2009). His Petition for Review was denied by the Kansas Supreme Court on February 13, 2009.
On February 4, 2010, Mr. Manning filed a post-conviction motion pursuant to K.S.A. § 60-1507. The district court summarily dismissed this motion. Manning appealed to the KCA, which affirmed on August 10, 2012. Manning v. State, 281 P.3d 1146, *1-*2 (Kan.App. 2012). The instant federal petition was executed on December 12, 2012.
Mr. Manning presents three grounds in his federal petition: (1) ineffective assistance of appellate counsel on direct appeal, (2) ineffective assistance of trial counsel, and (3) that the trial court erred in failing to instruct the jury on the lesser included offense of battery. He states, and it appears from the KCA opinion on direct appeal, that he did not raise grounds (1) and (2) on direct appeal but raised them in his 60-1507 petition. He raised ground (3) on direct appeal and in his 60-1507 petition.
ALL CLAIMS MUST BE STATED IN PETITION
Petitioner has filed a Memorandum in support of his federal petition in which he lists two rather than three issues. One of these two issues, the challenge to his criminal history score, is not included as a ground in his federal petition. It is thus unclear whether Mr. Manning is seeking review of the three grounds set forth in the petition, or four grounds including the challenge to his criminal history score. All grounds for relief must be set forth in the petition.
TWO CLAIMS NOT FULLY EXHAUSTED
Mr. Manning claims that he has exhausted state court remedies on the three grounds presented in his federal petition. However, it appears from the face of the petition that he did not fully exhaust state remedies on his two claims of ineffective assistance of counsel. *fn1 The KCA opinion on direct appeal confirms that he presented his claim regarding the trial court's failure to instruct and his claim that the court erred in determining his criminal history score to the KCA on direct appeal. The claims presented on direct appeal were ultimately presented to the Kansas Supreme Court in Mr. Manning's Petition for Review. Thus, it appears that petitioner fully exhausted state court remedies only on ground (3) in his petition regarding jury instructions and his possible fourth claim in his Memorandum that the sentencing court erred in determining his criminal history score.
Petitioner's two ineffective assistance of counsel claims were not presented on direct appeal. Instead, they were raised for the first time in petitioner's 60-1507 motion. The Kansas Appellate Courts docket available on-line for Mr. Manning's 60-1507 proceedings (Appellate Case No. 105699) shows that on August 10, 2012, the KCA issued its opinion denying relief on his claims of ineffective assistance of trial and appellate counsel. The docket does not show that Mr. Manning filed a Petition for Review of the KCA's decision by the Kansas Supreme Court. It thus appears from the face of the petition that Mr. Manning has not presented grounds
(1) and (2) to the highest state court.*fn2
Because two of petitioner's claims were not fully exhausted, this petition is subject to being dismissed as "mixed." Petitioner has the option of proceeding herein only upon his exhausted claims. However, a state prisoner is given only one chance to present all challenges to his state conviction or sentence in federal court. It follows that if Mr. Manning decides to proceed herein only upon his exhausted claims, then somehow subsequently exhausts his two unexhausted claims in state court, any attempt to thereafter file a second federal habeas corpus petition raising his previously-unexhausted claims will likely be barred as second and successive.
UNEXHAUSTED CLAIMS ARE PROCEDURALLY DEFAULTED
Since the time limit for filing a Petition for Review in the 60-1507 proceedings expired months ago, *fn3 it is also likely that federal habeas review of petitioner's two unexhausted claims is barred by procedural default. Under the procedural bar doctrine, the federal court cannot address claims defaulted in state court on independent and adequate state procedural grounds "unless [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violations of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."*fn4 Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002)(quoting Coleman, ...