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May v. Heimgartner

United States District Court, D. Kansas

September 5, 2019

WILLIAM D. MAY, Petitioner,
v.
WARDEN JAMES HEIMGARTNER, Respondent.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This matter is before the Court on petitioner's amended petition for habeas corpus filed under 28 U.S.C. § 2254. Also before the Court are petitioner's motion for resentence (Doc. 18), motion for illegal sentence (Doc. 19), and motion for extension of time to file amended petition (Doc. 20).

         Procedural and Factual Background

         Petitioner was convicted of reckless second-degree murder in the death of his father and misdemeanor domestic battery against his mother. The Kansas Court of Appeals (KCOA) summarized the facts as follows:

May had been living in the basement of the home of his elderly parents, Margaret and Doyle May, for several months. Late one night, while his parents were beginning to retire to bed, May entered their upstairs bedroom with his guitar and a beer. A verbal altercation began. There is some question as to the reason for it.
Police officers were dispatched to a physical disturbance at the May's home because May was allegedly “beating the hell out of” Doyle. When the officers arrived, Doyle was bleeding from his left ear. Although the cut was not serious, there was excessive blood as a result of Doyle taking a blood thinner medication, Coumadin. One officer testified that Doyle's shirt was ripped and the kitchen was splattered with blood. The Coumadin made it difficult for Doyle to stop bleeding. After the paramedics learned that Doyle was taking the medication, they attempted to take him to the hospital but he refused.
The officers arrested May. After the paramedics left the home, Doyle and Margaret watched television in bed. A few hours later, Doyle seemed to be disoriented and complained of a headache. He went to the restroom, and collapsed. Margaret called 911. When paramedics arrived, Doyle was barely conscious. Doyle received several X-rays and CAT scans. He slipped into a coma, which had resulted from a subdural hematoma. Physicians explained to the family that Doyle would not likely recover from the coma. The following day, at the family's request, Doyle was removed from life support and died.

State v. May, 274 P.3d 46 (Table), 2012 WL 1352827, *1 (Kan.Ct.App. Apr. 12, 2012), rev. denied, Apr. 8, 2013.

         On direct appeal, petitioner challenged the failure of the trial court to instruct the jury on voluntary intoxication or to give a proposed instruction on favoritism or sympathy. He also alleged the trial court violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). State v. May, id.

         In April 2014, petitioner filed a state post-conviction action under K.S.A. 60-1507. He argued his appellate counsel was ineffective for failing to argue that his father's death was accidental, citing the failure to argue that responding paramedics found only a small scratch on his father and that his father declined to go to the hospital, that his father was taking a blood-thinning medication, that his father subsequently suffered a new injury, and that the family chose to terminate life support measures. The state sought summary dismissal of the motion. The district court appointed counsel and granted a continuance.

         At a hearing held in December 2014, counsel advised the district court that petitioner had advised him of complaints against his trial counsel. The State argued that petitioner had failed to timely raise those claims and that there was no manifest injustice shown to excuse that failure. The district court agreed. It found that petitioner had failed to timely present claims against trial counsel and that the claims against his appellate counsel did not present a triable issue.

         On appeal from that decision, the Kansas Court of Appeals (KCOA) found that petitioner had failed to challenge the dismissal of his claims concerning his prior appellate counsel and held that he had “waived and abandoned the very claims upon which his original K.S.A. 60-1507 motion was premised.” May v. State, 369 P.3d 340 (Table), 2016 WL 1391776, *3 (Kan.Ct.App. Apr. 8, 2016), rev. denied, Apr. 19, 2017. The KCOA also found that petitioner's new claims alleging ineffective assistance by his trial counsel were untimely and, because they were not presented in the district court, they were not preserved for appeal. Id. at **3-4.

         Petitioner commenced this action in June 2017. On June 16, 2017, the Court entered a Memorandum and Order finding that the eight claims he presented had been procedurally defaulted or failed to state a cognizable claim for relief. The Court noted that although petitioner had properly exhausted the claims in his direct appeal, he did not include them as grounds for relief in the petition. Accordingly, the Court directed petitioner to show cause why the petition should not be dismissed and to show cause and prejudice to excuse his procedural default. The Court also advised petitioner that he could file an amended petition within the time allowed to show cause.

         Petitioner did not file an amended petition within the time given; instead, he filed a motion to stay. In October 2017, the Court denied that motion, noting that although the KCOA had advised in an order issued in April 2016 that petitioner could, in appropriate circumstances, proceed in a subsequent post-conviction motion to assert his claims of ineffective assistance by post-conviction counsel, there was no evidence that he had made the necessary showing or ...


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