Opinion
22-3081-SAC
10-20-2022
MICHAEL WILLIAMS, Petitioner, v. DON LANGFORD, Respondent.
MEMORANDUM AND ORDER
JAMES P. O'HARA United States Magistrate Judge.
This matter is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner Michael Williams, who is proceeding pro se, is a state prisoner incarcerated at Ellsworth Correctional Facility in Ellsworth, Kansas. Petitioner challenges his 2012 conviction of first-degree premeditated murder, raising four grounds for relief. On September 14, 2022, the Court stayed this matter so that Petitioner could return to state court to exhaust the two federal grounds for relief--Grounds Two and Three--that were unexhausted. (Doc. 16.) The following day, Petitioner notified the Court that he wishes to delete Ground Three of the petition, so the only remaining unexhausted ground for relief was Ground Two. (Doc. 17.) On September 29, 2022, Petitioner filed a status report informing the Court that the state district court has ruled in his 60-1507 proceeding and denied relief; Petitioner therefore believes that the matter is resolved in the state court. (Doc. 18.)
On October 3, 2022, the Court issued a memorandum and order noting that it did not appear that Petitioner's latest 60-1507 proceeding involved the issue asserted in Ground Two, which is ineffective assistance of counsel in Petitioner's direct appeal. (Doc. 19.) The Court explained that Ground Two therefore appears unexhausted and subject to anticipatory procedural default because no apparent avenue remains in state court for Petitioner to exhaust that argument. The Court therefore directed Petitioner to advise the Court, in writing, whether his most recent 60-1507 proceeding raised the arguments contained in Ground Two of his current federal habeas petition. If it did not, Petitioner was directed to either (1) identify an available state court remedy for those claims that he intends to pursue or (2) show cause why the claims in Ground Two should be considered despite the procedural default.
Petitioner has filed a response (Doc. 21) in which he asserts that there remains an available avenue for relief in the state courts on the arguments made in Ground Two. The Court offers no opinion on the potential for success of such state court proceedings, but will continue the stay of this proceeding so that Petitioner may pursue a motion to recall mandate in the state courts. Petitioner will be directed to file, on or before November 21, 2022, a status report advising the Court whether he has filed the motion in the state courts. If possible, Petitioner shall attach a copy of the motion to his status report.
IT IS THEREFORE ORDERD that Petitioner is granted to and including November 21, 2022, in which to provide a written status report containing the information identified in this order.
IT IS SO ORDERED.