CHRISTOPHER D. GANT, Petitioner,
SAM CLINE, et al., Respondents.
MEMORANDUM AND ORDER
SAM A. CROW, 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 Hutchinson Correctional Facility, Hutchinson, Kansas. Petitioner has also filed a Motion for Leave to Proceed in forma pauperis with financial information in support indicating that the motion should be granted. Having considered the materials filed, the court finds that Mr. Gant fails to show that he has exhausted state court remedies on the claims raised in his petition and that the petition appears not to have been filed within the one-year statute of limitations.
In 2006, petitioner was convicted by a jury in the District Court of Sedgwick County, Kansas, of felony murder and attempted aggravated robbery. On December 28, 2006, he was sentenced to a term of life imprisonment for the felony murder and a consecutive term of 34 months for the attempted aggravated robbery. He directly appealed to the Kansas Supreme Court (KSC), which affirmed on January 30, 2009. State v. Gant, 288 Kan. 76, 201 P.3d 673 (Kan. 2009).
On February 4, 2010, Mr. Gant filed a post-conviction motion pursuant to K.S.A. 60-1507 in the trial court, which was denied. He appealed the denial to the Kansas Court of Appeals (KCA), which affirmed on January 13, 2012. Mr. Gant filed a Petition for Review that was denied on February 19, 2013.
Mr. Gant executed the instant application for federal habeas corpus relief on either September 24 or 27, 2013.
GROUNDS RAISED IN FEDERAL PETITION
As Ground (1) in his federal petition, Mr. Gant claims that the evidence was insufficient to convict him of the crimes charged. As factual support, he alleges that the information charged him as a principal only, that the evidence presented at trial supported a charge that he aided and abetted only, that the elements of aiding and abetting were not included in the complaint, that the complaint was therefore fatally defective, and that the jury was improperly instructed that they could find him guilty as either a principal or an aider and abetter.
As Ground (2), petitioner claims that his Sixth Amendment right to effective assistance of appellate counsel was violated in that his appellate counsel failed to argue his claim in ground (1). As factual support, he incorporates the facts alleged in support of ground (1).
As Ground (3), petitioner claims that the trial court violated his Fifth and Fourteenth Amendment rights when it "failed to instruct the jury on a lesser included crime for felony murder." As factual support, he alleges that evidence was presented at trial "tending to prove the shooting was done in imperfect self-defense, " that the "victim pulled out a gun and the shooter took action to defend himself or others, " that the evidence also "tended to prove that the shooting was done in the heat of passion or upon a sudden quarrel, " and that as a result "a reasonable jury could have found the killing was either second-degree intentional, or voluntary manslaughter."
As Ground (4), petitioner claims that appellate and post-conviction counsel were ineffective because they failed to present the claim in Ground (3).
CLAIMS ARE NOT EXHAUSTED
"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 ...