United States District Court, D. Kansas
LANCE J. HARRIS, Petitioner,
SAM CLINE, Respondent.
MEMORANDUM AND ORDER
CROW, U.S. Senior District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se and submitted the
petition presents four grounds for relief: (1) violations of
the Fourth Amendment arising from petitioner's arrest
without a warrant, the failure to conduct a probable cause
hearing within 48 hours, insufficient grounds for arrest; (2)
compulsory joinder, alleging error in charging petitioner in
two separate criminal cases arising from the same evidence;
(3) abuse of discretion by the trial court in failing to
conduct an evidentiary hearing on petitioner's motion to
withdraw the plea; and (4) ineffective assistance of counsel
by petitioner's defense counsel.
of state court remedies
habeas corpus relief is not available to a state prisoner
“unless it appears that the applicant has exhausted the
remedies available in the courts of the State, or that there
is either an absence of available State corrective process or
the existence of circumstances rendering such process
ineffective to protect the rights of the prisoner.” 28
U.S.C. § 2254(b).
Court has examined the decisions of the Kansas appellate
courts in petitioner's direct appeal, State v.
Harris, 291 P.3d 105 (Table), 2012 WL 6734658 (Kan. App.
Dec. 21, 2012), rev. denied, Aug. 23, 2013
(Harris I); and in his post-conviction action filed
under K.S.A. 60-1507, Harris v. State, 390 P.3d 127
(Table), 2017 WL 840227 (Kan. App. Mar. 3, 2017)(Harris
direct appeal, petitioner argued that the district court
erred in denying his motion for continuance of sentencing,
erred in sentencing him on a criminal history score that
relied on prior convictions not proven to a jury beyond a
reasonable doubt, and erred in sentencing him on aggravating
factors not proven to a jury beyond a reasonable doubt. These
claims are exhausted.
post-conviction action, petitioner successfully argued that
the district court erred in summarily dismissing his motion
under K.S.A. 60-1507. In that case, the Kansas Court of
Appeals noted that petitioner's only argument on appeal
is that his trial counsel was ineffective in telling him that
the State would stand silent at his sentencing hearing. Thus,
petitioner's other claims presented in the state district
court have been abandoned. In addition, the Kansas Court of
Appeals reversed the district court's summary dismissal
and remanded the matter for an evidentiary hearing. See
Harris II, 2017 WL 840227 *2. Because the petition does
not explain whether that hearing has taken place, the Court
will direct petitioner to explain whether that hearing has
been held; if so, whether he obtained relief in the state
district court; and if he did not obtain relief, whether he
has filed an appeal from that decision.
because this petition appears to include both exhausted
claims and unexhausted claims that were either never
presented on appeal or were abandoned on appeal, this matter
is a mixed petition. Where a petitioner presents a mixed
petition, a district court has options that include: staying
the habeas petition while the petitioner returns to the state
courts to exhaust the unexhausted claims; dismissing the
matter without prejudice to allow the exhaustion of state
court remedies; and allowing the petitioner to dismiss any
unexhausted claims from the petition and proceed only on the
exhausted claims. See Rhines v. Weber, 544 U.S. 269,
279 (2005); Rose v. Lundy, 455 U.S. 509, 510 (1982),
and Moore v. Schoeman, 288 F.3d 1231, 1235 (10th
first of these options, allowing a court to “stay and
abey” a petition, is available only if the petitioner
can show “good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines, 544 U.S.
second option, a dismissal without prejudice, must be weighed
against the risk that the petitioner will be unable to
proceed in a timely application in the future. If
petitioner's action under K.S.A. 60-1507 remains pending,
the limitation period is tolled. See 28 U.S.C.
§ 2244(d)(2)(time during which a properly filed
application for State post-conviction or other collateral
relief is pending does not count toward the one-year
limitation period for filing federal habeas corpus).
third option, the voluntary dismissal of unexhausted claims,
allows a petitioner to amend the petition to present only
exhausted claims. This option would allow the petition to
proceed, but the petitioner almost certainly will be unable
to present the unexhausted claims in a future federal habeas
corpus petition. See 28 U.S.C. §
2244(b)(3)(explaining limitations on proceeding in a second
or successive application for habeas corpus, including the
requirement that the petitioner received prior authorization
from the appropriate federal court of appeals).
petitioner also will be directed to set out whether he wishes
to proceed in the state courts on his unexhausted claims or
whether he wishes to dismiss those claims, ...