SAUL A. MILLER, Petitioner,
DEREK SCHMIDT, et al., Respondents.
MEMORANDUM AND ORDER
Sam A. Crow U.S. Senior District Judge
The initial pro se petition filed in this federal habeas corpus action, 28 U.S.C. § 2254, was inadequate in that it failed to set forth any grounds, facts in support, or information showing exhaustion of state court remedies. Mr. Miller was ordered to submit an Amended Petition upon court-approved forms that set forth the requisite allegations and information. In response, he submitted his Amended Petition (Doc. 5), which has been reviewed by the court. The court finds that the Amended Petition is subject to dismissal because it contains both exhausted and unexhausted claims. However, Mr. Miller is given the opportunity to avoid dismissal by filing a Second Amended Petition that contains only exhausted claims.
In 2007, Mr. Miller was convicted in his second jury trial of Rape, Aggravated Criminal Sodomy, and 2 Counts Aggravated Indecent Liberties with a Child. His “first trial ended in a mistrial when the State repeatedly violated the trial court’s pretrial order limiting admission of the victim’s statement.” See State v. Miller, 264 P.3d 461, 465 (Kan. 2011). He directly appealed his convictions, and the Kansas Court of Appeals (KCA) affirmed in a published opinion, State v. Miller, 208 P.3d 774 (Kan.App. 2009). Mr. Miller appealed to the Kansas Supreme Court, which affirmed in a published opinion on October 28, 2011.
Mr. Miller lists 16 grounds for relief. In response to questions regarding exhaustion on his form Amended Petition he stated that four grounds were raised on direct appeal: (1) through (3), and (15). Thus, his exhausted claims are: (1) double jeopardy by retrying him after the mistrial; (2) prosecutorial misconduct; (3) improper admission of hearsay along with failure to order child victim to testify; and (15) defense attorney at second trial failed to object to same evidence, testimony, and comments that caused the first mistrial. Petitioner’s allegations regarding exhaustion made in connection with grounds (5) through (14) and (16) indicate that these issues were not raised on direct appeal. Petitioner does not show that he presented any of his claims in state post-conviction proceedings.
PETITION CONTAINS UNEXHAUSTED CLAIMS
It has long been established by case law that “before a petitioner may proceed in federal court under 28 U.S.C. § 2254, he or she must first exhaust viable state remedies.” Harris v. Champion, 938 F.2d 1062, 1064 (10th Cir. 1991); see Picard v. Connor, 404 U.S. 270, 275 (1971)(A state prisoner is generally required to exhaust available state court remedies before filing a habeas corpus action in federal court.); Hernandez v. Starbuck, 69 F.3d 1089, 1092– 93 (10th Cir. 1995), cert. denied, 517 U.S. 1223 (1996). 28 U.S.C. 2254(b)(1) also expressly provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the State. . . .
Id. “A 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). Generally, the exhaustion prerequisite is not satisfied unless every claim asserted has been presented by “invoking one complete round of the State’s established appellate review process.” Id. at 845. In this district, that means petitioner’s claims must have been “properly presented” as federal constitutional issues “to the highest state court, either by direct review of the conviction or in a post-conviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Mr. Miller plainly reveals in his Amended Petition that only 4 of his 16 claims were exhausted prior to his filing of this federal habeas action. He alleges that these 4 claims were presented to the Kansas Supreme Court on direct appeal. He alleges no facts suggesting that he raised any claims by way of state post-conviction remedies or that these state remedies were either unavailable or ineffective. Petitioner baldly alleges that he failed to present his unexhausted claims in the state courts because his appellate counsel was ineffective. However, ineffective assistance of appellate counsel is a separate claim that must also be fairly presented through one complete round of the state’s judicial review process before it is raised in federal court. It is therefore clear from the face of the Amended Petition that it is a “mixed petition.”
MIXED PETITIONS MAY NOT BE ADJUDICATED
The United States Supreme Court held in Rose v. Lundy, 455 U.S. 509, 510 (1982), that a federal district court “may not adjudicate mixed petitions for habeas corpus, that is petitions containing both exhausted and unexhausted claims.” Id.; Pliler v. Ford, 542 U.S. 225, 227 (2004)(“Under Rose, federal district courts must dismiss ‘mixed’ habeas petitions.”). The Supreme Court cautioned in Rose:
[O]ur interpretation of §§ 2254(b), (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that ...