Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelly v. McKune

United States District Court, Tenth Circuit

May 15, 2013

DAVID McKUNE, et al., Respondents.


SAM A. CROW, Senior District Judge.

In this pro se petition for writ of habeas corpus, 28 U.S.C. ยง 2254, petitioner seeks to challenge his state conviction for aggravated sodomy entered upon his pleas of guilty twenty years ago. This court screened the original federal petition and informed petitioner of four deficiencies on its face: (1) failure to state the claims with sufficient clarity and allege adequate facts in support; (2) failure to show full and proper exhaustion of all available state court remedies on every claim; (3) procedural default of petitioner's claims that were recently exhausted; and (4) the petition appears to be barred by the one-year statute of limitations. Mr. Kelly was ordered to submit an Amended Petition on court-provided forms, in which he clearly alleged separate, numbered claims; stated the facts in support immediately after each claim; and showed full and proper exhaustion on each claim. He was also ordered to show cause why his claims held to be procedurally defaulted in state court should not be treated as procedurally defaulted in federal court. Finally, he was ordered to allege facts showing his entitlement to additional statutory or equitable tolling. Petitioner was advised that if he failed to comply with the court's specific directions or failed to cure all the deficiencies pointed out in its Memorandum and Order, this action could be dismissed without further notice.

Mr. Kelly's immediate reaction was to file a single-page Notice of Appeal of what he called this court's "adverse judgment." Twenty days later, he filed a document entitled "Petitioner's Opposition to the Memorandum and Order" (Doc. 7) (hereinafter referred to as Response). Shortly thereafter, his interlocutory appeal was dismissed by the Tenth Circuit for failure to prosecute. The court has considered petitioner's Response together with all materials in the case file, and the available written opinions in petitioner's state cases as well as records in the relevant federal court cases previously filed by Mr. Kelly. The court concludes that petitioner has failed to comply with orders of the court and has failed to show good cause why this action should not be dismissed as time-barred. Accordingly, this habeas corpus petition is dismissed with prejudice.


The Kansas Supreme Court (KSC) set forth the procedural history of Mr. Kelly's 1991 state court convictions in State v. Kelly, 291 Kan. 868, 869-70, 248 P.3d 1282 (Kan. 2011). The following background facts are relevant to this court's disposition of this matter. In 1990, the State of Kansas charged Mr. Kelly in two cases. In Case No. 90-CR-670 he was charged with aggravated kidnaping, rape, two counts of aggravated criminal sodomy, and aggravated sexual battery of a female victim. In Case No. 90-CR-671, he was charged with two counts of aggravated criminal sodomy of a 15-year-old male. In January 1991, the court conducted a preliminary hearing in case 90-CR-670. Before the preliminary hearing could be conducted in 90-CR-671, the parties reached a plea agreement that called for Kelly to plead guilty to attempted rape in 90-CR-670 and to one count of aggravated criminal sodomy in 90-CR-671. Id. at 869. In return, the State agreed to dismiss the remaining counts in both cases, not to invoke the Habitual Criminal Act, and to recommend that Kelly be treated at Larned in lieu of imprisonment. The court accepted Kelly's pleas and followed the plea agreement. Id. at 870.

Mr. Kelly appeared for sentencing on June 21, 1991. His appointed attorney for the pretrial and plea proceedings, Mr. Greeno, had left the public defender's office; and Mr. Wurtz from that office appeared at sentencing with Kelly. Wurtz advised the court that Kelly wanted to withdraw his pleas based on his belief that Greeno had coerced him. Wurtz began to explain a possible conflict of interest due to the fact that he had supervised Mr. Greeno; however, the district court judge interrupted and declared:

That motion, if it's considered to be a motion, will be overruled. I personally attended at that plea and the record will reflect no such inducements from the Court's personal knowledge. Based on that, the motion will be overruled.

Id. The court then proceeded to sentence Kelly to a controlling term of 15 years to life in prison. Id.

Petitioner has attached a copy of the docket from Shawnee County District Court in 90-CR-671 as an exhibit. The docket shows that on June 24, 1991, Mr. Wurtz filed a motion to modify sentence. The docket also shows that this motion was denied on September 11, 1991. See also id. "Kelly did not directly appeal his convictions, his sentences, or the denial of his presentence motion to withdraw pleas." Id.

In his Response, petitioner alleges that on August 24, 1993, he filed a "motion pursuant to KSA 21-4724 and under others: KSA 60-1507" claiming: lack of probable cause for warrant, ineffective assistance of counsel and conflict of interest, lack of subject matter jurisdiction in 90-CR-671, and illegal aggregation of sentence. He claims elsewhere in his Response that he filed a 60-1507 motion on August 23, 1993, but Judge Bullock "refused to hear his petition within a reasonable time" or issue a ruling on the matter. He then cites the exhibited docket sheet. However, no motion is recorded on the docket as filed by Mr. Kelly in August 1993.[1] The next entry on the docket is on November 2, 1993: "Motion filed and entered by Thomas O Kelley. TO EMULATE NOTICE OF HEARING." This was the only pro se motion docketed in 1993 according to petitioner's exhibit. The KSC subsequently found that "[b]eginning in 1993, Kelly filed a number of post-conviction motions, including a K.S.A. 60-1507 motion alleging ineffective assistance of counsel, which was denied. State v. Kelly, 291 Kan. at 870.

In 1994, petitioner filed a federal habeas corpus petition: Kelly v. Stotts, 94-3010-DES (Mar. 10, 1994). The court takes judicial notice of the records in that case wherein petitioner claimed, among other things, [2] that "the State of Kansas unnecessarily delayed his K.S.A. 60-1507 action." The judge dismissing that case specifically found:

[P]etitioner did not file a direct appeal challenging his sentence. Although he filed a motion pursuant to K.S.A. 60-1507, the motion was dismissed at his request.
Petitioner subsequently filed a motion pursuant to K.S.A. 60-1507 with the Kansas Supreme Court. The motion was denied without comment. Petitioner's motion for reconsideration and clarification was also denied without comment. Petitioner now claims he has exhausted his state court remedies. The court disagrees.... In this case, petitioner had never fully pursued his claims through the district court. Although he filed a post-conviction motion with the district court, he asked that the motion be dismissed. There was an adequate remedy available in the state district court.

Id. at 2-3. Thus, the federal court rejected Mr. Kelly's assertion in 1994 that he had exhausted state court remedies and found that the motion he claimed had been unreasonably delayed had been dismissed at his request. Kelly appealed, and the appeal was denied for failure to exhaust. Kelly v. Stotts, 45 F.3d 439 (10th Cir. 1994). Petitioner repeated this premature ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.