Shields v. Zmuda
| Decision Date | 02 August 2022 |
| Docket Number | 22-3069-SAC |
| Parties | BRIAN C. SHIELDS, Petitioner, v. JEFF ZMUDA, Respondent. |
| Court | U.S. District Court — District of Kansas |
This matter is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, filed on April 7, 2022. Petitioner proceeds pro se. The initial review of the petition required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts revealed that this matter may not have been filed within the applicable statute of limitations. Respondent has now advised the Court, however that he will not raise the affirmative defense of timeliness in this matter. (Doc. 12.) The Court has continued its initial review under Rule 4 and has determined that this is a mixed petition, containing both exhausted and unexhausted claims, and that state-court remedies remain available for at least one of the currently unexhausted claims. Therefore, the Court will direct Petitioner to advise the Court, in writing how he wishes to proceed in this matter.
On January 23, 2014, Petitioner pled guilty in the district court of Neosho County, Kansas to one count of first-degree murder. (Doc. 1, 1.) See also online records of Neosho County District Court, case number 2013-CR-44. The following month, he was sentenced to a prison term of 20 years to life. Petitioner filed a timely notice of appeal, but on February 19, 2015, the Kansas Supreme Court (KSC) granted Petitioner's motion to voluntarily dismiss his appeal. See online records of the Kansas appellate courts, State v. Shields, Appeal No. 111,669.
On February 11, 2016, the state district court received a letter from Petitioner that it construed as a motion to withdraw his plea. See State v. Shields, 504 P.3d 1061 (Kan. Mar. 4, 2022); see also online records of Neosho County District Court, case number 2013-CR-44. The district court held a hearing and, on April 29, 2020, issued an order denying the motion. Id. Petitioner appealed the decision and on March 4, 2022, the KSC affirmed the denial.
On April 7, 2022, Petitioner filed in this Court his petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) He asserts four grounds for relief. Because Petitioner is proceeding pro se, the Court liberally construes the petition, but it may not act as Petitioner's advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). “[T]he court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). It “‘may not rewrite a petition to include claims that were never presented.'” Childers v. Crow, 1 F.4th 792, 798 (10th Cir. 2021) (citation omitted).
Liberally construing the petition, Ground One argues that the State lacked jurisdiction to convict Petitioner because his case “should have been federal” and there was insufficient evidence to charge and convict him of murder. Id. at 5. As Ground Two, Petitioner asserts ineffective assistance of counsel, pointing out that he was not notified when his trial attorney was later disciplined for misleading clients. Id. at 6. Ground Three also rests on a claim of ineffective assistance of counsel, asserting that his trial attorney “held back information” and improperly advised him to plead no contest to the murder charge. Id. at 8. As Ground Four, Petitioner complains that he did not receive a mental evaluation prior to entering his plea. Id. at 9. He explains that he has “a mental handicap,” he was on strong pain medication at the time, and he was going through withdrawal. Id.
As relief, Petitioner asks this Court to “accept jurisdiction” over his criminal case, find he should have been charged with lesser charges, sentence him to time already served in state custody, and order his release. Id. at 14.
“‘A threshold question that must be addressed in every habeas case is that of exhaustion.'” Fontenot v. Crow, 4 F.4th 982, 1018 (10th Cir. 2021) (quoting Harris v. Champion, 15 F.3d 1538, 1544 (10th Cir. 1994). A state prisoner must exhaust all available statecourt remedies before pursuing federal habeas relief unless it appears there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the petitioner's rights. See 28 U.S.C. § 2254(b)(1); see also Bland v. Simmons, 459 F.3d 999, 1011 (10th Cir. 2006). The exhaustion requirement exists to “give state courts a fair opportunity to act on [his] claims.” O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
To satisfy the exhaustion requirement, Petitioner must have presented the very issues raised in the federal petition to the KSC and KSC must have denied relief. See Picard v. Connor, 404 U.S. 270, 275-76 (1971); Kansas Supreme Court Rule 8.03B(a). Petitioner bears the burden to show he has exhausted available state remedies. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992); see also Parkhurst v. Pacheco, 809 Fed.Appx. 556, 557 (10th Cir. 2020).
To his credit, Petitioner concedes the Court that Grounds One and Four were not exhausted in the state courts. (Doc. 1, p. 11.)
Grant v. Royal, 886 F.3d 874, 891-92 (” Grant v. Royal, 886 F.3d 874, 891-92 (10th Cir. 2018) (internal citations and quotation marks omitted). Thus, the Court must determine whether independent and adequate state procedural grounds bar Petitioner from now raising in the state courts the arguments in Ground One and Ground Four. If not, Petitioner may be able to return to state court to pursue his arguments there. If so, they claims are subject to an anticipatory procedural bar and are considered functionally exhausted.. See Fontenot v. Crow, 4 F.4th 982, 1024 (10th Cir. 2021) ( that an unexhausted claim that is “subject to an anticipatory procedural bar . . . is procedurally defaulted (and exhausted) for purposes of federal habeas review”).
Liberally construing Ground One, it asserts that the state court lacked jurisdiction to convict Petitioner and that there was insufficient evidence to support the conviction. Ground Four appears to challenge the validity of Petitioner's plea based on his mental state at the time. As Petitioner concedes, none of these claims were presented to the state court.
Ground One (sufficiency argument) and Ground Four
In Kansas, a defendant who is found guilty after a plea of guilty or no context may not appeal the judgment of conviction. See K.S.A. 22-3602(a). In addition, Kansas Courts have held that “[w]here judgment and sentence have been entered upon a plea of guilty, there can be no review of the sufficiency in a K.S.A. 601507 proceeding.” Woods v. State, 52 Kan.App.2d 958, 967 (Kan.Ct.App. 2016) (citing Hughes v. State, 206 Kan. 515, 517 (1971)), rev. denied Sept. 28, 2017. Thus, it appears that Petitioner would now be procedurally barred from presenting a sufficiency of the evidence argument to the state courts.
Where a petitioner fails to present a claim in the state courts, and would be procedurally barred from presenting it if he returned to state court, there is an anticipatory procedural bar, or default. Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007). Under this analysis, the Court concludes that Petitioner's sufficiency of the evidence argument is anticipatorily procedurally defaulted and thus is functionally exhausted. See Fontenot, 4 F.4th at 1024.
Similarly, Ground Four asserts that Petitioner should have undergone a mental evaluation before being allowed to enter his plea. Petitioner has already brought an unsuccessful post-sentence motion to withdraw his plea in the state courts, but he did not raise this claim therein. The KSC has held that res judicata may bar successive motions to withdraw a plea. See State v. Williams, 303 Kan. 605, 608 (2016); State v. Kelly, 291 Kan. 868, 874 (2011). Accordingly, it appears that Petitioner would be procedurally barred from raising the arguments in Ground Four to the state courts. Thus, the Court finds that Ground Four is anticipatorily procedurally defaulted and thus is functionally exhausted.
With respect to the jurisdictional argument in Ground One, however, Kansas courts are authorized by K.S.A. 22-3504(a) to “correct an illegal sentence at any time while the defendant is serving such sentence,” and subsection (c) of the same statute defines “illegal sentence” to include “a sentence[ i]mposed by a court without jurisdiction.” Because the basis for the jurisdictional argument is unclear, the Court offers no opinion on the potential for success in the state court. Nonetheless, it appears that K.S.A. 22-3504 may provide a procedural avenue for Petitioner to bring his jurisdictional argument in the state court, so that argument is not subject to an anticipatory procedural bar and is unexhausted. A federal habeas petition that contains exhausted claims and unexhausted claims and state-court remedies are still available for at least one of the unexhausted claims is referred to as a “mixed petition.” See Grant, 886 F.3d at 891-92.
When a federal habeas court is faced with a mixed petition, the federal court generally should dismiss the matter “without prejudice so that the petitioner can pursue available state-court remedies.” Grant, 886 F.3d at 891-92 (internal...
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