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Stevenson v. Cline

United States District Court, D. Kansas

September 25, 2019

DAVID ANDREW STEVENSON, Petitioner,
v.
SAM CLINE, Respondent.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. Senior District Judge

         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2254. 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.

         Background

          Petitioner was convicted in the District Court of Gove County, Kansas, of premeditated first-degree murder. State v. Stevenson, 298 P.3d 303 (Kan. 2013)(“Stevenson I”).

         Approximately one month later, he commenced a state post-conviction action under K.S.A. 60-1507. The Kansas Court of Appeals (KCOA) described the procedural history of that action as follows:

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. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
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.

Stevenson v. State, 405 P.3d 59 (Table), 2017 WL 5180847 at *2 (Kan.Ct.App. Nov. 9, 2017)(“Stevenson II”).

         The state district court denied relief, and petitioner filed an appeal. He presented nine claims for review. However, the KCOA found that “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 conviction.” Id. Citing Kansas case law and Kansas Supreme Court Rule 6.02(a)(4), the KCOA dismissed the claims of trial error. The KCOA discussed petitioner’s claims concerning the failure of trial counsel to request DNA testing of the victim’s clothing but concluded that the failure to include the motion in the record on appeal made it impossible to conduct a de novo review of that issue.

         Petitioner filed this action on March 6, 2018. On April 6, 2018, the Court entered a Notice and Order to Show Cause (NOSC) that directed petitioner to show cause on or before May 7, 2018, why this matter should not be dismissed due to his procedural default. The NOSC also allowed him to submit an amended petition. Petitioner submitted an amended petition, an addendum to the petition, and two responses (Docs. 7-10).

         Discussion

          The federal courts “do not review issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the default is excused through a showing of cause and actual prejudice or a fundamental miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998).

         Petitioner asserts that the failure to consider his defaulted claims would result in a fundamental miscarriage of justice. He asserts that he has made a colorable showing of his actual innocence that warrants review of his claims, pointing to the failure of trial counsel to introduce evidence of unanswered calls from his cell phone to that of his father, the victim, on the day of his death and the failure to introduce cell tower records for the two phones at trial. Finally, he notes the ...


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