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Brown v. McKune

United States District Court, D. Kansas

February 11, 2015

COREY BROWN, Petitioner,
v.
DAVID McKUNE, et al., Respondents.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

Petitioner is incarcerated in the Kansas correctional system. This case is now before the court upon petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The application shall be denied for the reasons which follow.

I. CASE HISTORY

Petitioner was charged in the state district court with two counts of attempted first-degree murder or, in the alternative, two counts of aggravated battery against a law enforcement officer. He was also charged with possession of marijuana, possession of cocaine, and criminal possession of a firearm. He was convicted of two counts of the lesser included offense of attempted second-degree murder, marijuana possession and criminal possession of a firearm. He was sentenced to 534 months. His convictions and sentence were affirmed upon direct appeal. Petitioner has filed two state habeas motions pursuant to K.S.A. 60-1507. Each one was denied at the state district court level and on state court appeal.

II. PETITIONER'S CLAIMS FOR RELIEF

Upon review of the original petition and the court's order partially granting petitioner's motion to amend the petition, the court has identified three claims for relief: 1) the charges of two counts of attempted first-degree murder or, in the alternative, two counts of aggravated battery against a law enforcement officer were identical and duplicative; 2) petitioner was subject to a "sentencing inequity" upon his convictions of attempted second degree murder; and 3) petitioner should have received a lesser sentence under the identical offense sentencing doctrine. The original petition also alleges ineffective assistance of counsel during collateral post-conviction proceedings. But, as the court indicated in the order partially granting petitioner's motion to amend, under 28 U.S.C. § 2254(i), habeas relief is not available on such grounds.[1] Doc. No. 19, p.1 n.1.

III. PETITIONER'S MOTION FOR RECONSIDERATION AND MOTION FOR CONTINUANCE SHALL BE DENIED.

On August 26, 2014, the court granted in part petitioner's motion to amend the petition. Id. This action permitted petitioner to add the identical offense claim to the claims raised in the original petition. The court granted respondents time to file a supplemental response to the added claim and afforded petitioner time from the receipt of the supplemental response to file a supplemental traverse. Petitioner responded by filing a motion seeking reconsideration of this court's previous denial of petitioner's motion for appointment of counsel (Doc. No. 20) and a motion for continuance (Doc. No. 21). The motion for continuance requested either extra time for appointed counsel to address the court concerning the issues in the case, or, if counsel was not appointed, extra time for petitioner to react to the supplemental response from respondents.

The court shall deny the motion for reconsideration for two reasons. First, petitioner offers inadequate grounds to reconsider the denial of petitioner's request for appointment of counsel. To prevail upon a motion for reconsideration, petitioner must demonstrate: 1) an intervening change in the controlling law; 2) new evidence previously unavailable, and 3) the need to correct clear error or prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). These factors are not established here. The amendment of the original petition is not a significant change of circumstances that justifies the appointment of counsel. Petitioner also indicates that the "clerk" who has assisted him is being transferred to another institution. This does not persuade the court to appoint counsel because the issues raised by the petitioner, as amended, are straightforward and are sufficiently argued in the materials already before the court.

Second, a refusal to appoint counsel is not an abuse of discretion when the claims made for habeas relief are meritless. Anderson v. Attorney General of Kansas, 425 F.3d 853, 861 (10th Cir. 2005). As explained below, petitioner's claims lack merit.

Petitioner's request for additional time to reply to the response to the "identical offense" claim also shall be denied. As detailed later in this opinion, the "identical offense" claim is not a constitutional claim and does not warrant habeas relief. Permission to amend the original petition to add the claim could have been denied on the grounds of futility. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). For the same reason, the court shall deny petitioner's motion for additional time to reply to the supplemental response.

IV. STANDARDS OF REVIEW AND PROCEDURAL DEFAULT

When reviewing matters which were decided in state court proceedings, the court may not grant a § 2254 petition unless petitioner shows that "the state court's adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014)(quoting § 2254(d)(1)). A state court decision is an "unreasonable application" of Supreme Court precedent if the state court unreasonably applies the correct governing rule to the facts of the prisoner's case; the application must be so unreasonable that "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.'" Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)). This is an intentionally difficult standard to meet. Id.

This court cannot grant a state prisoner's habeas petition on the basis of a claim which has not been exhausted in state court. Id. at 1231 (citing § 2254(b)(1)). This means, the state prisoner "must give state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'" Id. (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). There are two exceptions to the procedural default of unexhausted claims: 1) if the prisoner has alleged sufficient cause for failing to raise the claim and resulting prejudice; ...


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