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Bell v. Heimgartner

United States District Court, D. Kansas

April 29, 2014

JAMES HEIMGARTNER, Warden, et al., Respondents.


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 El Dorado Correctional Facility, El Dorado, Kansas. Having examined the materials filed, the court finds that the filing fee prerequisite has not been satisfied and the petition is defective. Petitioner is given time to cure all deficiencies.


The statutory fee for filing a federal habeas corpus petition is $5.00. Petitioner has neither paid the fee nor submitted a properly-supported motion to proceed in forma pauperis (IFP). This action may not proceed unless the filing fee is satisfied in one of these two ways. A prisoner seeking to proceed IFP must submit a motion upon court-approved forms containing an affidavit that includes a statement of the prisoner's assets. 28 U.S.C. § 1915(a)(1). In addition, he must submit a certified accounting of the funds available to him in his institutional account. D.Kan.Rule 9.1(g);[1] see also Rule 3(a)(2) of the Rules Governing Section 2254 Cases in the United States District Courts (hereinafter HC Rules)(habeas petition must be accompanied by "a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution."). The clerk shall send forms to petitioner for filing a proper IFP motion. If Mr. Bell does not satisfy the filing fee within the prescribed time, this action may be dismissed without further notice.


In 2003, Mr. Bell was convicted upon trial by jury in the District Court of Sedgwick County, Kansas of first-degree premeditated murder and sentenced to life without parole for 25 years. He appealed to the Kansas Supreme Court (KSC), which affirmed on October 28, 2005. He alleges that he did not pursue any state post-conviction remedies on the issue raised in his federal petition. The instant federal habeas corpus petition was electronically filed on April 7, 2014.


Mr. Bell claims that he was denied his Sixth Amendment right to effective assistance of counsel. As facts in support, he alleges that trial counsel failed to request a competency evaluation after petitioner expressed that he "was not thinking clearly, didn't understand the nature of the proceedings against him and was seeing dead people" and that counsel "failed to reveal psychological test result to the defendant."[2] Petitioner seeks an evidentiary hearing on his claim so that he may be discharged.


The court has reviewed this petition as required under HC Rule 4 and finds that it is defective. First, the petition is not upon court-approved forms as required by local court rule.

Second, it appears that petitioner's claim was not fully exhausted and is now procedurally defaulted. Mr. Bell alleges that he raised the single ground presented in his federal petition on direct appeal, but the opinion of the KSC indicates otherwise. On direct appeal, Bell claimed that (1) his statement made during police interrogation should have been suppressed, (2) the trial court erred in giving Jury Instruction 11 and (3) prosecutorial misconduct during closing. See State of Kansas v. Bell, 280 Kan. 358, 121 P.3d 972 (Kan. 2005). Since petitioner's claim was not raised on direct appeal, in order to have exhausted he must have fully litigated in state post-conviction proceedings.[3] However, he alleges in his federal petition that he did not raise this issue by state post-conviction motion.

State court records indicate that Mr. Bell filed at least two state post-conviction motions. On October 4, 2006, he filed his first pro se motion pursuant to K.S.A. 60-1507. The trial court denied the motion following a non-evidentiary hearing, and Bell appealed to the Kansas Court of Appeals (KCA). The KCA found that Bell alleged the following in this 60-1507 motion:

(1) The district court failed to conduct a competency hearing pursuant to K.S.A. 22-3302; (2) the prosecutor violated Bell's right to a fair trial by withholding exculpatory evidence about the victim's toxicology report..., (3) ineffective assistance of counsel because his trial counsel failed to file a motion for discovery and inspection pursuant to K.S.A. 22-3212; and (4) ineffective assistance of counsel based on his trial counsel's failure to cross-examine the coroner's finding in the toxicology report regarding the presence of drugs in the victim.

Bell v. State, 207 P.3d 288, 2009 WL 1499209 (Kan.App. May 22, 2009), review denied, (Kan. Oct. 24, ...

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