United States District Court, D. Kansas
DANIEL V. ESTRADA, Petitioner,
STATE OF KANSAS, Respondent.
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, and his fee status
Court has conducted an initial review of the petition as
required by Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts. For the reasons that
follow, the Court directs petitioner to show cause why this
matter should not be dismissed.
was convicted in the District Court of Sedgwick County. In
No. 07CR1078, he pled guilty to four counts of electronic
solicitation. Each count involved a different victim. As part
of the plea agreement, the State agreed to recommend a
mid-range sentence, to recommend concurrent sentences, and
not to oppose a defense request for a dispositional departure
to probation. Following the sentencing hearing in July 2008,
the district court imposed a sentence of 233 months but
August 2009, however, due to petitioner's commission of
new crimes, the district court revoked probation, ordered him
to serve the sentence in 07CR1078, and imposed a 90-day
consecutive sentence for the new conviction of driving under
the influence (DUI).
filed a direct appeal, in which he challenged the imposition
of lifetime postrelease supervision as part of the sentence
in the electronic solicitation case and the decision in the
new criminal case to impose a fine for his fourth DUI
conviction. The Kansas Court of Appeals (KCOA) overturned the
term of lifetime supervision but affirmed the fine. State
v. Estrada, 261 P.3d 979 (Table), 2011 WL 5027092 (Kan.
App. Oct. 21, 2011).
then addressed a series of letters to the district court. A
letter sent in June 2012 was construed as a motion to
withdraw plea and was denied as untimely. Another, sent in
October 2014, alleged that the State lacked evidence to
support the conviction of electronic solicitation of N.H.,
which was charged as Count 1 (Count 1). In June 2015,
petitioner filed a motion to correct illegal sentence
presenting the same claim of insufficient evidence, but now
asserting that his counsel provided ineffective assistance by
coercing him to accept the plea deal despite the lack of
evidence. The district court summarily denied that motion on
the ground that petitioner could not present a collateral
attack on his conviction by a motion to correct illegal
September 28, 2015, petitioner filed a state post-conviction
action under K.S.A. 60-1507. In that action, he alleged (1)
ineffective assistance arising from counsel's allegedly
coercive tactics despite the lack of evidence for Count 1;
(2) collusion between defense counsel and the prosecutor
concerning the lack of evidence; (3) error by the trial court
in convicting petitioner of Count 1; and (4) ineffective
assistance by his appellate counsel for failure to present
the issue concerning Count 1. The district court summarily
denied the action, finding that petitioner had failed to
timely present the action under K.S.A. 60-1507 and did not
establish either manifest injustice or exceptional
circumstances to excuse the late filing.
appeal, petitioner argued the district court erred in failing
to hold an evidentiary hearing. The KCOA affirmed, finding
that petitioner failed to timely file the 1507 action and
failed to show that manifest injustice required consideration
of his claims despite his late filing. Estrada v.
State, 399 P.3d 880 (Table), 2017 WL 3321423 *4 (Kan.
App. Aug. 4, 2017)(“Estrada failed to file his 1507
motion within 1 year after appellate jurisdiction terminated
in his case, and he has failed to establish that
consideration of his untimely motion is necessary to prevent
a manifest injustice”), rev. denied, Aug. 30,
filed this action on March 18, 2019. The petition presents
four claims: (1) petitioner received ineffective assistance
from his trial defense counsel, and review out of time is
necessary due to exceptional circumstances and manifest
injustice; (2) prosecutorial misconduct denied petitioner due
process and other constitutional rights; (3) the trial court
erred in convicting petitioner of Count 1; and (4) petitioner
received ineffective assistance from his appellate counsel
due to the failure to present claims other than a challenge
to the sentencing provision of lifetime postrelease
federal court cannot grant habeas corpus relief unless the
petitioner has exhausted his state court remedies by
presenting substantially the same claims to the state courts.
See 28 U.S.C. §2254 (b)(1)(A). This requires a
petitioner to present the claims in “each appropriate
state court … thereby alerting that court to the
federal nature of the claim” and allowing the state
courts the “opportunity to pass upon and correct