Opinion
Case No. 01-3302-DES.
October 16, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
On January 26, 1978, petitioner was convicted of second degree murder in Shawnee County. In February, 1990, the Tenth Circuit issued a writ of habeas corpus reversing petitioner's conviction. Petitioner was retried and found guilty of voluntary manslaughter on April 12, 1990. He was sentenced to a term of 10 to 40 years. Petitioner was released from prison on May 12, 1997, but he returned in 1998 for violation of his conditional release terms. On October 20, 1999, petitioner sought a writ of habeas corpus pursuant to K.S.A. § 60-1501 in the District Court of Leavenworth, Kansas. Petitioner contended he was fully discharged from his sentence on May 12, 1997, because he had completed his maximum sentence of 40 years. Petitioner served 20 years in prison and accumulated 20 years of good time credits. Petitioner's writ was denied on December 12, 1999 and the Kansas Court of Appeals affirmed this decision on December 15, 2000. Respondents allege that petitioner has failed to exhaust his state remedies because he did not seek review by the Kansas Supreme Court and, therefore, has procedurally defaulted the issue presented.
Petitioner failed to file a traverse to respondent's answer and there is no evidence on the record to demonstrate that petitioner pursued his petition in the Kansas Supreme Court.
Petitioner commenced the present action on July 20, 2001.
DISCUSSION
In order to satisfy the exhaustion requirement set forth in 28 U.S.C. § 2254(b)(1), a petitioner must first present the issues raised in the federal habeas action to the Kansas Courts either by direct appeal or by the state post-conviction process. Pickard v. Connor, 404 U.S. 270 (1971). In this case, exhaustion requires petitioner to present his § 60-1501 petition to the highest state court for discretionary review. O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999). However, such discretionary review is no longer procedurally available.See K.S.A. § 20-3018(b) (petitioner had thirty days or until January 15, 2001, to seek review of the denial of his § 60-1501 petition in the Kansas Supreme Court). 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.").
The procedural doctrine precludes federal habeas review of a federal claim that a state court has not considered due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Cause may be established by showing "that some objective factor external to the defense impeded . . . efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). The miscarriage of justice exception applies only if petitioner makes a threshold showing of actual innocence, that is, by showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray, 477 U.S. at 496).
The issue of procedural default was raised by respondents within their answer and return. Petitioner did not file a traverse or otherwise address procedural default. Thus, petitioner has failed to show either cause and prejudice or manifest injustice to excuse petitioner's procedural default.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed and all relief denied.
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 timely file objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985) and 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.