United States District Court, D. Kansas
KWAME O. HILL, Petitioner,
STATE OF KANSAS, 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 a Kansas prison inmate. Having examined the materials filed, the court finds that petitioner has not satisfied the statutory filing fee and that the petition is subject to being dismissed as "mixed", that is as containing unexhausted as well as exhausted claims. Petitioner is given time to satisfy the fee and the option of either dismissing his unexhausted claim or dismissing his mixed petition.
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); 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. Hill does not satisfy the filing fee within the prescribed time, this action may be dismissed without further notice.
In 2010, Mr. Hill was convicted upon trial by jury in the District Court of Sedgwick County, Wichita, Kansas, of two counts of rape. Mr. Hill represented himself at trial. He was sentenced on August 12, 2010, to 272 months in prison. He appealed to the Kansas Court of Appeals (KCA), which affirmed on September 28, 2012. See State v. Hill, 285 P.3d 1045, 2012 WL 4677701 (Kan.App. 2012). The Kansas Supreme Court (KSC) denied his Petition for Review on July 19, 2013. Mr. Hill states that, other than his direct appeal, he has not filed any post-conviction petitions or motions concerning these convictions in state court.
CLAIMS AND EXHAUSTION
As Ground (1), Mr. Hill claims that the trial court erred in not granting his June 2010 request for new counsel. In support he alleges that his relationship with the "public defenders office" had "deteriorated beyond any reconciliation" and the matter was "too complicated" for him to have proceeded without proper counsel. As Ground (2), petitioner claims that the State failed to present "sufficient evidence to prove two of the three alternative means of committing each rape." In support he alleges that there was no evidence that he put his finger or an object in the victim's vagina. As Ground (3), petitioner claims prosecutorial misconduct. In support, he alleges that the State commented in court upon his failure to testify. As Ground (4) petitioner claims that the district court violated Apprendi v. New Jersey and his Sixth and Fourteenth Amendment rights when it enhanced his sentence based upon his prior criminal history. In support, petitioner alleges that his prior convictions were not included in the complaint and proven to the jury beyond a reasonable doubt.
With respect to exhaustion, Mr. Hill alleges that he presented Grounds (2), (3) and (4) on direct appeal. However, as to Ground (1), he alleges that he did not raise this issue on direct appeal. He explains that his "new lawyer" did not raise the issue and told petitioner he did not need his help when petitioner "wrote and asked." He states that he raised this issue in his motion for new trial that was denied and not appealed. The court is asked to grant a new trial.
It has long been established that a state prisoner is required to fully and properly "exhaust" all remedies available in the state courts before he files a federal habeas corpus petition. 28 U.S.C. § 2254(b)(1). This is because "[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 all claims asserted have been presented by "invoking one complete round of the State's established appellate review process." Id. at 845. In Kansas, 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 is the petitioner's burden to prove that prior to filing his petition in federal court he fully exhausted all state court remedies on each of his claims.
It is equally well-established that a § 2254 petition that contains a claim that has not been fully and properly exhausted must be dismissed. See Rose v. Lundy, 455 U.S. 509, 513-20 (1982). After AEDPA became applicable, the United States Supreme Court continued to hold that "[u]nder [ Rose ], federal district courts must dismiss mixed petitions." Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose, 455 U.S. at 522). The Supreme Court in Burton, 549 U.S. 147, 154 (2007) explained:
The plurality opinion in Rose v. Lundy , (citation omitted), stated that district courts should dismiss "mixed petitions"-those with exhausted and unexhausted claims-and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be "second or successive." Slack v. McDaniel, 529 U.S. 473, 485-486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to ...