United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se. The Court has
conducted a review of the petition under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts and enters the following order.
was convicted in the District Court of Gove County, Kansas,
of first-degree murder. State v. Stevenson, 298 P.3d
303 (Kan. 2013).
2013, he filed a state post-conviction action under K.S.A.
60-1507. Stevenson v. State, 405 P.3d 59 (Table)
2017 WL 5180847 (Kan. App. Nov. 9, 2017). The Kansas Court of
Appeals (KCOA) described the background of that matter as
On May 20, 2013, Stevenson filed a 150-page pro se motion for
writ of habeas corpus in which he raised 27 grounds for
relief. The district court appointed attorney Charles Worden
to represent Stevenson in his 60-1507 motion. Prior to the
pretrial conference, Worden filed a pretrial questionnaire,
an amended pretrial questionnaire, and a second amended
questionnaire on Stevenson's behalf. The second amended
questionnaire included additional claims regarding
ineffective assistance of counsel based upon the alleged
failure of Stevenson's court-appointed trial attorney to
investigate and prepare an adequate defense.
On the day of the pretrial conference, Stevenson filed a pro
se pleading entitled “Pro Se Supplement to His K.S.A.
60-1507 Motion Filed on May 20, 2013.” In this pleading
he raised additional grounds for relief, including
Brady violations and additional ineffective
assistance of counsel claims. [Citation omitted.]
At the pretrial conference, Worden stated that the new claims
in the second amended pretrial questionnaire he filed were
intended to replace the claims made in Stevenson's
original motion. The State objected to Stevenson adding
additional claims to his motion through the pretrial
questionnaire or supplemental pleadings. The district court
granted Stevenson leave to amend his motion to add the new
claims but stated that the timeliness of such claims would be
determined after the evidentiary hearing.
The district court held an evidentiary hearing on
Stevenson's 60-1507 motion on April 20-21, 2015.
Stevenson called 14 witnesses; the State called one witness.
Both sides admitted several exhibits. After taking the matter
under advisement, the district court issued a detailed and
comprehensive 28-page order denying Stevenson relief.
Specifically, the district court held it did not have
jurisdiction over 11 of Stevenson's claims and dismissed
them. The court also dismissed five other claims because they
were not filed within the required timeframe. On the
remaining claims, the district court held that Stevenson did
not meet his burden and denied relief.
Stevenson v. State, 2017 WL 5180847 *2.
appeal, petitioner raised eight claims of error
arising from the denial of relief and also alleged the
district court erred in denying his request for DNA testing
of the victim's clothing.
KCOA denied relief on all claims alleging trial error and
litigated in the 60-1507 action due to petitioner's
failure to include the trial transcript in the record on
appeal, as required by the rules of the Kansas Supreme Court.
Stevenson v. State, id. at *3 (“fatal
to all of Stevenson's alleged trial errors is his failure
to include in the record on appeal the transcript of the
proceedings surrounding his underlying trial and
KCOA also affirmed the denial of petitioner's request for
DNA testing, noting that it had been raised three times in
the district court: in the 60-1507 motion, by a motion in the
criminal case, and in a post-hearing motion. The KCOA found
the first motion was properly denied because the motion did
not comply with the requirements of the governing state
statute, K.S.A. 21-2512, as it did not allege that the item
upon which testing was requested was in the possession of the
State and petitioner did not argue that the requested testing
for “touch DNA” was reasonably likely to produce
more accurate, probative results. Id. at *5. The
KCOA rejected the argument concerning the motion filed in the
criminal case because petitioner had voluntarily withdrawn
the motion. Id. at **5-6. And the KCOA rejected the
claim concerning the post-hearing motion due to
petitioner's failure to include the motion in the record
on appeal. Id. at *6.
did not file a petition for review, and petitioner's
motion for permission to file a pro se petition for review