Estrada v. State

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE.

         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2254. Petitioner proceeds pro se, and his fee status is pending^[1].

         The 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.

         Background

         Petitioner 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 granted probation.

         In 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).

         Petitioner 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).

         Petitioner 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 sentence.

         On 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^[2].

         On 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, 2018.

         The petition

         Petitioner 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 supervision.

         Analysis

         A 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 alleged ...