MARCUS W. KELLEY, Jr., Petitioner,
REX PYROR, et al., Respondents.
MEMORANDUM AND ORDER
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, Lansing, Kansas. The filing fee has been paid. Having considered the materials filed, the court finds that Mr. Kelley fails to show that he exhausted all available state court remedies on the claims raised in this application and that the petition appears not to have been filed within the one-year statute of limitations. Petitioner is ordered to show cause why this petition should not be dismissed for failure to exhaust and as time-barred.
Mr. Kelley was convicted in the District Court of Atchison County, Kansas, of Attempted First Degree Murder upon his plea of no contest. On October 16, 2006, he was sentenced to 618 months in prison. He did not file a direct appeal.
On November 14, 2007, Mr. Kelley filed a motion pursuant to K.S.A. 60-1507 in which he alleged that he was mentally incompetent at the time of the offense, when he entered his plea, and at sentencing. He also claimed that the State failed to prove all elements of the offense and that his attorney was constitutionally ineffective for failing to investigate, request a second competency evaluation, and present mitigating evidence at sentencing. See Kelley v. State, 277 P.3d 447, *1 (Kan. App. 2012). In addition, petitioner challenged the use of a 1999 juvenile adjudication to calculate his criminal history score. Counsel was appointed, an evidentiary hearing was conducted, and the district court denied this motion in a Memorandum Decision filed on December 18, 2009. Kelley appealed to the Kansas Court of Appeals (KCA), which affirmed on May 25, 2012. Id.
Kelley also filed a Motion to Correct Illegal Sentence pursuant to K.S.A. 22-3504(1) in his state criminal case (No. 2006 CR 341). The date this motion was filed is not provided. In this motion, he claimed that sentencing him to the aggravated amount out of the three choices in the “B” box for his criminal history violated Apprendi v. New Jersey, 530 U.S. 466 (2000). This motion was denied by the state district court in an order filed on August 21, 2012, which Mr. Kelley has attached as an exhibit to his Petition.
CLAIMS IN FEDERAL PETITION
In his federal petitioner, Mr. Kelley claims as ground (1) that the district court violated Apprendi “when it sentenced him to the aggravated factors before the grid box without the jury and requiring the State prove them beyond a reasonable doubt.” As ground (2) he claims that the district court violated Apprendi when it sentenced him to an increased sentence based on his prior criminal history without requiring the State to present that history to a jury and prove it beyond a reasonable doubt. Petitioner does not allege any facts to support either of these claims. Instead, he merely cites Apprendi and Kansas statutes and case law and incorrectly refers to these cites as “supporting facts.”
FULL EXHAUSTION NOT SHOWN
“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). It is the petitioner’s burden to prove that he fully exhausted all state court remedies prior to filing his petition in federal court. 28 U.S.C. § 2254(b)(1) provides:
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 B- (A) the applicant has exhausted the remedies available in the courts of the State. . . .
Generally, the exhaustion prerequisite is not satisfied unless all claims asserted have been presented by “invoking one complete round of the State’s established appellate review process.” Id. at 845. This means that each claim must have been “properly presented” as a federal constitutional issue “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). It has long been established that a § 2254 petition containing claims which have not been exhausted in state court must be dismissed. See Rose v. Lundy, 455 U.S. 509, 513-20 (1982).
Petitioner’s statement in his petition that he raised ground (1) on direct appeal is contrary to his earlier statement in the same petition that he did not file a direct appeal. It is also refuted by the KCA finding on collateral appeal that he did not directly appeal. Kelley, 277 P.3d 447 at *1 (“Kelley filed no direct appeal.”). Petitioner does not clearly differentiate steps taken to exhaust ground (2) in his petition. The court concludes that Mr. Kelley did not raise either of his claims on direct appeal. This means that in order to have exhausted state court remedies on his claims, he must have presented them in a state post-conviction motion filed in the trial court. In addition, he must have appealed the denial of that motion to the KCA and ultimately to the KSC, which is the highest state court.
Petitioner shows that he filed a post-conviction motion in state court on November 14, 2007. In his federal petition, Mr. Kelley states that the grounds raised in this first 60-1507 motion were that he was incompetent and that Kansas failed to prove all elements of the crime beyond a reasonable doubt. These are not the same as the grounds raised in his federal petition, which are challenges to his sentence based upon Apprendi. Even if he did raise his Apprendi claims in his first 60-1507 motion and on the appeal of the denial of that motion to the KCA, there is no indication in the petition or on the state appellate court docket that Mr. Kelley presented any claims to the highest state court by filing ...