United States District Court, D. Kansas
GARY W. KLEYPAS, Petitioner,
PAUL SNYDER and DEREK SCHMIDT, Respondents.
CROW U.S. Senior District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner is a death-sentenced prisoner in the
custody of the Secretary of the Kansas Department of
matter comes before the Court on petitioner's motion for
leave to proceed in forma pauperis (Doc. 2) and his combined
motion to appoint counsel and to stay this matter (Doc. 3).
Court has examined the record and provisionally grants the
motion to proceed in forma pauperis.
also requests the appointment of counsel under 18 U.S.C.
§ 3599(e) and a stay of this matter pending the
resolution of his state post-conviction action.
death-sentenced prisoner seeking relief under 28 U.S.C.
§2254, petitioner, if he “is or becomes
financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary
services” is entitled to the appointment of counsel. 18
U.S.C. § 3599(a)(2). Because the Court has provisionally
granted in forma pauperis status, the Court likewise
provisionally grants the motion to appoint counsel, pending
its receipt and examination of petitioner's financial
petitioner moves the Court to stay this matter pending the
resolution of his state court action. This matter appears to
be a protective petition, that is, one filed in the federal
court prior to exhaustion in order to prevent the expiration
of the one-year deadline under the Antiterrorism and
Effective Death Penalty Act (AEDPA). This type of petition
has been approved by the United States Supreme Court. See
Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)(noting
that a state prisoner facing the possible expiration of the
AEDPA deadline may “fil[e] a ‘protective'
petition in federal court and ask the federal court to stay
and abey the federal habeas proceedings until state remedies
Rhines v. Weber, 544 U.S. 269 (2005), the Court may
stay a federal habeas petition where it finds that “the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petition engaged in intentionally
dilatory litigation tactics.” Rhines, 544 U.S.
it appears that the remaining time for filing a habeas corpus
petition is relatively short. The United States Supreme Court
denied review in petitioner's direct appeal on March 27,
2017, Kleypas v. Kansas, __ U.S., 137 S.Ct. 1381
(2017), and petitioner filed his state post-conviction action
on January 23, 2018, approximately ten months later, leaving
roughly two months in the limitation period.
the complexity of this case, this relatively brief time
militates in favor of a stay. See Doe v. Jones, 762
F.3d 1174, 1180 (10th Cir. 2014)(limited time
remaining on AEDPA limitation is “a significant factor
in determining whether a Rhines stay is
the Court has considered the petition and finds that
petitioner presents claims that are potentially meritorious.
Finally, the Court finds no reason to believe that petitioner
has intentionally delayed any action in this matter. For
these reasons, the Court finds good cause is shown and grants
the request to stay this matter.
THEREFORE, BY THE COURT ORDERED petitioner's motion for
leave to proceed in forma pauperis (Doc. 2) is provisionally
FURTHER ORDERED petitioner is granted to and including
April 26, 2019, to submit a certified
institutional financial statement in support of his motion to
proceed in forma pauperis.
FURTHER ORDERED petitioner's combined motion to appoint
counsel and motion to stay (Doc. 3) is granted. The request
to appoint counsel is provisionally granted pending