United States District Court, D. Kansas
MICHAEL D. WALKER, Petitioner,
JAMES HEIMGARTNER, et al., Respondents.
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
March 31, 2017, the court denied petitioner Michael D.
Walker's Petition for Writ of Habeas Corpus (Doc. 26) and
entered Judgment (Doc. 27). On April 27, 2017, petitioner
filed a Motion to Alter or Amend the Judgment under
Fed.R.Civ.P. 59(e). It asserts that the court erred when it
denied his petition for federal habeas corpus relief under 28
U.S.C. § 2254. For reasons explained below, the court
denies petitioner's motion.
59(e) allows a party to file a motion to alter or amend a
judgment no later than 28 days after the entry of judgment. A
court may grant a motion to alter or amend a judgment under
Rule 59(e) under one of the following three grounds:
“(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.”
Somerlott v. Cherokee Nation Distribs., Inc., 686
F.3d 1144, 1153 (10th Cir. 2012). A Rule 59(e) motion is
“appropriate where the court has misapprehended the
facts, a party's position, or the controlling law.”
Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). “It is not appropriate to
revisit issues already addressed or advance arguments that
could have been raised in prior briefing.” Id.
(citing Van Skiver v. United States, 952 F.2d 1241,
1243 (10th Cir. 1991)).
presents no reason to grant his Motion to Alter or Amend
under this standard. The motion first asserts that the court
erred by failing to “notif[y] petitioner that his
petition was a mixed petition and that he either had to
dismiss the unexhausted claims or stay the petition and
return to the Kansas Supreme Court to finish exhausting them
to prevent them from being barred forever.” Doc. 28 at
1. Petitioner's argument fails for two reasons.
petitioner's unexhausted claims are procedurally barred.
The court explained the extensive procedural history of
petitioner's case in its March 31, 2017 Memorandum and
Order. See Doc. 26 at 5-7. And, the court held that
several of petitioner's claims were procedurally barred
because the district court ruled that certain claims raised
in petitioner's Kan. Stat. Ann. § 60-1507 motion
were time-barred, the Kansas Court of Appeals affirmed that
ruling, and petitioner never filed a Petition for Review by
the Kansas Supreme Court challenging that holding.
Id. at 9. Petitioner thus never presented the claims
to the highest state court in Kansas, and the doctrines of
exhaustion and procedural default bar petitioner from
asserting them here. Id. at 9-11.
state collateral post-conviction proceedings ended on
September 14, 2015, when the Kansas Supreme Court denied
review of the Kansas Court of Appeals' decision denying
petitioner's amended motion for post-conviction relief
under Kan. Stat. Ann. § 60-1507. See Walker v.
State, 329 P.3d 1253, 2014 WL 3843084 (Kan.Ct.App. Aug.
1, 2014) (unpublished table opinion) (identifying that the
Kansas Supreme Court denied review on Sept. 14, 2015). This
decision resolved all claims-both exhausted and
defaulted-that petitioner raised in his § 60-1507
motion. Petitioner never identifies any exceptional procedure
that would allow him to return to the Kansas Supreme Court to
finish exhausting his defaulted claims. And, he fails to
assert the existence of any other remedy available in the
Kansas courts that would allow him to assert the defaulted
claims. To the contrary, these claims are procedurally
although petitioner filed a mixed petition asserting both
exhausted and unexhausted claims, the court did not err by
ruling the mixed petition's exhausted claims. The court
was “faced with a mixed petition” where
“the petitioner's unexhausted claims would now be
procedurally barred in state court.” Harris v.
Champion, 48 F.3d 1127, 1131 n.3 (10th Cir. 1995). In
such circumstances, “there is a procedural default for
purposes of federal habeas.” Id. (quoting
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
And, when this occurs, “instead of dismissing the
entire petition, the court can deem the unexhausted claims
procedurally barred and address the properly exhausted
claims.” Id. That is precisely what the court
petitioner asserts that his court-appointed attorney was
incompetent for failing “to file a petition for review
on the Kansas Court of Appeals' decision holding that
several of his issues [raised in petitioner's motion for
post-conviction relief under Kan. Stat. Ann. § 60-1507]
did not relate back to the original filing of his habeas
petition.” Doc. 28 at 2. Section 2254 specifically
prohibits petitioner from asserting an ineffective assistance
of counsel claim based on his counsel's actions in a
collateral post-conviction proceeding. See 28 U.S.C.
§ 2254(i) (“The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”). So, petitioner's
final argument also provides no reason to grant him relief.
these reasons, the court denies petitioner's Motion to
Alter or Amend the Judgment under Fed.R.Civ.P. 59(e).
THEREFORE ORDERED BY THE COURT THAT petitioner Michael D.
Walker's Motion to ...