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Manning v. Deere

United States District Court, Tenth Circuit

September 17, 2013

EVERETT MANNING, Petitioner,
v.
DEPUTY WARDEN KYLE DEERE, Respondent.

MEMORANDUM AND ORDER

SAM A. CROW U.S. SENIOR DISTRICT JUDGE

This matter is before the court to determine petitioner’s compliance with prior orders of the court and upon petitioner’s pending motions. Having considered all materials filed, the court finds that the petition remains mixed and that petitioner has failed to comply with orders of the court. Petitioner is given twenty (20) days to submit an Amended Petition containing exhausted claims only or this action will be dismissed.

BACKGROUND AND CLAIMS

Mr. Manning was convicted by a jury in Wyandotte County District Court of aggravated battery of one victim and battery of another 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 State v. Manning, No. 98, 051, 2008 WL 4291504 (Kan.App. 2008)(unpublished), rev.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 (KSC) on February 13, 2009.

On February 4, 2010, Mr. Manning filed a post-conviction motion pursuant to K.S.A. § 60-1507, which the district court summarily dismissed. 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 presented four[1] grounds in his federal petition: (1) ineffective assistance of appellate counsel on direct appeal, (2) ineffective assistance of trial counsel, (3) that the trial court erred in failing to instruct the jury on the lesser included offense of battery, and (4) improper use of defendant’s juvenile adjudications.[2] He did not raise grounds (1) and (2) on direct appeal but raised them in his 60-1507 petition. He raised grounds (3) and (4) on direct appeal and in his 60-1507 petition. Mr. Manning claimed that he had exhausted state court remedies on all four grounds raised in his federal petition.

After reviewing the petition, the court entered a Memorandum and Order in which it agreed that grounds (3) and (4) had been exhausted. However, the court found that his two claims of ineffective assistance of counsel had not been fully exhausted.[3]This finding was based on the fact that Mr. Manning had not filed a timely Petition for Review by the Kansas Supreme Court in his 60-1507 proceedings and thus had not presented these two grounds to the highest state court. Because the initial petition included unexhausted claims, the court held it was subject to being dismissed as “mixed.”

In addition, the court found that if this case is dismissed in its entirety, the applicable statute of limitations expired 22 days after its file date. Thus, Mr. Manning was warned that if in the future he manages to exhaust his two currently-unexhausted claims in state court, any attempt to thereafter file a second federal habeas corpus petition raising those claims will likely face the obstacles of being time-barred and “second and successive.” The court also mentioned the likelihood that federal habeas review of petitioner’s two unexhausted claims is barred by procedural default.

As noted, Mr. Manning was ordered in the court’s prior Memorandum and Order to file an “Amended Petition” upon forms that were transmitted to him. He was also notified that the Amended Petition would be dismissed as mixed if it included unexhausted claims unless he showed that those claims had been properly presented to the Kansas Supreme Court. In addition, he was forewarned that if he failed to comply with these orders within the time allotted, this action could be dismissed without further notice.

Eight days after the court’s Memorandum and Order was entered, Mr. Manning filed a “Motion for Stay of Action” (Doc. 5). Therein, he requested that this case be stayed “pending the final judgment” of the KSC in State vs. Manning (Appeal No. 105, 699). He alleged in support that a stay would allow him to exhaust his state remedies, that he had been misadvised about taking his ineffective assistance of counsel claims to the KSC, and that his federal habeas claims would be time-barred if this action were dismissed. Before this court ruled on the motion to stay, petitioner filed a “Motion to Reinstate” these proceedings (Doc. 6), in which he alleges that he received a reply from the KSC and “is ready to restart the proceedings.” He also filed a “Motion Showing Cause Why Petition Should not be (Dismissed) for Failure to Exhaust, ” which was docketed as his Response (Doc. 7).

FAILURE TO COMPLY WITH COURT ORDER

Petitioner has not complied with the court’s order to file an Amended Petition. Instead, he has filed motions in which he alleges facts and makes arguments from which he apparently expects the court to find that his original petition should not be treated as mixed. The court rejects petitioner’s arguments.

Mr. Manning argues that state court remedies are no longer available to exhaust his two ineffective assistance of counsel claims. In support, he alleges that since the court’s Memorandum and Order, he attempted to exhaust these two claims but found that remedies were unavailable. He exhibits a letter dated April 8, 2013, from “The Appellate Courts of Kansas” noting that the Clerk’s Office received his “petition for review concerning Appeal No. 105, 699” on April 5, 2013. He was informed in the letter that his petition for review could not be filed because “[j]urisdiction over this matter was returned to the district court on September 13, 2012.” Based on these facts, he argues that “jurisdiction can be retained by Federal Courts” because “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant” citing 28 U.S.C. 2254(b)(1)(B)(i)-(ii). Rather than showing that petitioner’s state remedies are absent or ineffective, these allegations and exhibits confirm that petitioner did not present his claims of ineffective assistance of trial and appellate counsel to the Kansas Supreme Court in a timely and proper manner. Petitioner alleges no facts to suggest that state remedies would not have been available had he pursued them in a timely manner. The exhaustion prerequisite is not excused because petitioner’s failure to timely pursue state remedies resulted in their unavailability. If that were the law, the exhaustion requirement would be rendered useless. The Petition for Review filed by Mr. Manning was rejected because the KSC no longer had jurisdiction over his appeal. This effort did not amount to exhaustion of state remedies and does not show that state remedies were ineffective.

Petitioner also claims that his failure to exhaust two of his claims should be excused because it was due to incorrect advice from his appellate counsel in his state post-conviction proceedings. In support he claims that after the KCA denied relief in those proceedings, counsel representing him on that appeal misinformed him that his case did “not fit into any” of the categories of cases accepted for ...


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