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Manning v. State

United States District Court, Tenth Circuit

June 19, 2013

FAYVUN MANNING, Petitioner,
v.
STATE OF KANSAS, Respondent.

MEMORANDUM AND ORDER

Sam A. Crow U.S. Senior District Judge

This petition for writ of habeas corpus, 28 U.S.C. § 2254, was filed by an inmate of the Lansing Correctional Facility, Lansing, Kansas. Petitioner has also filed a Motion for Leave to Proceed in forma pauperis and has attached financial information in support indicating the motion should be granted.

Petitioner seeks to challenge his 1998 conviction in Wyandotte County District Court of felony murder. The court finds that this application is second and successive, that petitioner does not show that he obtained preauthorization from the Tenth Circuit Court of Appeals, and that this court lacks jurisdiction as a result. The court further finds that transfer to the Circuit Court for consideration of preauthorization is not warranted because petitioner’s claims are time-barred. Accordingly, this action is dismissed.

BACKGROUND AND CLAIMS

Petitioner’s allegations and exhibits and relevant court records reveal the following background facts. Mr. Manning was convicted of Aggravated Robbery and First Degree Murder in Case No. 97-CR-549. On October 14, 1998, he was sentenced to consecutive terms of life and 51 months. He directly appealed, and the Kansas Supreme Court (KSC) affirmed on March 9, 2001. See State v. Manning, 270 Kan. 674, 19 P.3d 84 (2001).

On December 20, 2001, petitioner filed his first motion under K.S.A. 60-1507. Manning v. State, Case No. 01-C-5052. It was summarily dismissed based upon the district court’s finding that the issues raised in the motion were similar to those previously considered and denied on appeal. The denial was affirmed on collateral appeal in Manning v. State, 111 P.3d 198 (KCA 2005)(Table). The KSC denied review on September 20, 2005. See Manning v. State, 268 P.3d 11, *1 (Kan. App. Jan. 20, 2012). In 2002, petitioner filed a Motion to Correct Illegal Sentence in the trial court, Kansas v. Manning, 02-C-4197. He exhibits the order of the court showing that this motion was considered and denied on the merits on April 8, 2003. Petition (Doc. 1) at 21, Journal Entry.[1]

On March 23, 2006, petitioner filed his first federal habeas corpus application challenging this conviction. Manning v. State, Case No. 06-3088-SAC (Apr. 3, 2007). It was dismissed with prejudice as time-barred because it was filed outside the one-year statute of limitations. Petitioner did not appeal this decision.

In 2010, petitioner filed another state post-conviction motion, Manning v. State of Kansas, 2010-CV-284 (Apr. 15, 2010).[2] This motion was dismissed as successive or barred by res judicata and the time limitations in K.S.A. 60-1507. Petition (Doc. 1) at 20, Order Summarily Dismissing Petition. Petitioner appealed to the Kansas Court of Appeals (KCA), which affirmed. Manning v. State, 268 P.3d 11 (Kan.App. Jan. 20, 2012). The KCA found Manning conceded that this motion was untimely and did not argue that it was not successive, but argued only that exceptional circumstances required review. Id. at *2. However, the KCA determined that Manning failed to establish either exceptional circumstances or manifest injustice. Id. The KSC denied review on February 19, 2013. The instant federal application was executed on March 26, 2013.

Petitioner claims in his federal petition that (1) the “charging document” was “jurisdictionally defective” in that it lacked essential elements of the offense, (2) jury instructions differed from the charge in the complaint, (3) trial counsel was ineffective and (4) the state erred in summarily dismissing his 60-1507 motion and not excusing his failure to previously raise his claims.

FEDERAL PETITION IS SECOND AND SUCCESSIVE

Section 2244 of 28 U.S.C., provides in pertinent part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme ...

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