United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. Senior District Judge
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.
Petitioner was convicted in the District Court of Gove
County, Kansas, of premeditated first-degree murder.
State v. Stevenson, 298 P.3d 303 (Kan.
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
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
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.
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).
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).
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