Opinion
Case No. 99-3203-DES
August 10, 2001
REPORT AND RECOMMENDATION
Petitioner, a prisoner confined at the El Dorado Correctional Facility, has filed a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Presently pending before the court is respondents' Motion to Dismiss for failure to exhaust available state court remedies (Doc. 7). The matter has been referred to the undersigned United States Magistrate Judge for a report and recommendation.
PROCEDURAL HISTORY
In 1987, petitioner was convicted of first-degree murder and unlawful possession of a firearm. On July 14, 1989, both convictions were affirmed on appeal. State v. Goss, 245 Kan. 189 (1989).
On November 2, 1995, petitioner filed a K.S.A. 60-1507 motion. The motion was denied on May 2, 1996. On April 10, 1998, the Kansas Court of Appeals affirmed. The Kansas Supreme Court denied review on June 9, 1998.
Petitioner commenced this action on June 14, 1999. On August 5, 1999, respondents filed a motion to dismiss for failure to exhaust state remedies (Doc. 7). Petitioner opposed the motion (Doc. 12).
Discussion
Petitioner requests an evidentiary hearing and presents three claims for review: (1) whether petitioner was denied a fair and impartial jury due to the court's failure to order a change of venue; (2) whether petitioner received ineffective assistance of counsel at trial; and (3) whether petitioner's court appointed counsel for his 1507 proceeding provided ineffective assistance of counsel.
Respondents argue the claim of ineffective assistance of trial counsel has not been exhausted. While the claim was raised in his 1507 motion, it was not presented to the appellate courts. Respondents conclude petitioner has presented a petition with an unexhausted claim, and that such a petition is subject to dismissal as a mixed petition under Rose v. Lundy, 455 U.S. 509 (1982). Under the circumstances presented, respondents' argument must be rejected.
Petitioner presented the claim of ineffective assistance of trial counsel in his 1507 motion. At the hearing on the motion, petitioner's court-appointed counsel argued the ineffective assistance of trial counsel claim raised by petitioner was without merit. The 1507 motion was denied.
The specific issue presented to the Kansas Court of Appeals was framed as follows:
Issue I.
When a criminal defendant has been appointed counsel to present the fundamental constitutional claim that trial or appellate counsel was ineffective, in the only available forum for such a claim, a post-conviction proceeding pursuant to K.S.A. 60-1507, the Due Process Clause of the United States Constitution and Kansas Supreme Court Rule 183(1) mandate that such counsel provide actual and minimally effective representation.
(Brief for Appellant filed August 28, 1997, at p. 5, attached to Doc. 12). The appellant's brief discussed the underlying claim of ineffective assistance of trial counsel and requested remand to the trial court to address that issue, (see Brief for Appellant at pp. 15-21). However, the claim of ineffective assistance of trial counsel was not presented for review by the Kansas Court of Appeals. Addressing the single issue presented, the Kansas Court of Appeals concluded there is no constitutional right to counsel in state collateral post-conviction proceedings and affirmed the trial court's decision.
The issue was presented in a similar fashion to the Kansas Supreme Court, with the appellate defender noting the single, "narrow issue" presented to the appellate courts. (Appellant's Petition for Review at pp. 1-2, attached to Doc. 10). Review was denied.
Petitioner had the right, under Kansas law, to appeal the finding that trial counsel was not ineffective. Thus, petitioner must present the claim to both the Kansas Court of Appeals and the Kansas Supreme Court in order to fully exhaust the claim. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
The issue of whether trial counsel was ineffective was not presented to the state appellate courts nor can it be at this late date. See K.S.A. 60-2103(a) (providing thirty days from entry of judgment to appeal). Where there remains no available forum to exhaust the issue, as here, the claim is technically exhausted but subject to procedural default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him.") and Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) ("[I]f the court to which petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.").
This case does not present an issue of exhaustion, but one of procedural default. The issue of procedural default has not been raised by respondents nor addressed by the parties. Thus, I find it premature to address procedural default within the confines of the present motion.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that respondents' Motion to Dismiss (Doc. 7) be denied. IT IS FURTHER RECOMMENDED that an Order to Show Cause issue to respondents to further address the petition filed herein.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.