Butler v. State of Kansas , 57 F. App'x 781 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 30 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
RUSSELL LEE BUTLER, JR.,
Petitioner-Appellant,
No. 02-3211
v. (D. Kansas)
(D.C. No. 01-CV-3458-DES)
STATE OF KANSAS; CARLA
STOVALL, Attorney General, State of
Kansas,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the appellant’s brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Russell Lee Butler, Jr., a Kansas prisoner proceeding pro se , requests a
certificate of appealability (“COA”) to appeal the federal district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition. A COA will be issued only when
there is “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Mr. Butler can achieve this by “ showing that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (internal quotation marks omitted).
After carefully reviewing the record in Mr. Butler’s case, we conclude that
he has not met these standards. Mr. Butler is procedurally barred from raising
this claim, and we find no cause or prejudice that would require us to proceed to
the merits of his claim. Furthermore, failure to consider Mr. Butler’s claim will
not result in a fundamental miscarriage of justice. Therefore, we decline to issue
a certificate of appealability, and we dismiss the appeal.
I. BACKGROUND
Mr. Butler entered a plea of nolo contendere to two counts of attempted
aggravated indecent liberties with a child, Kan. Stat. Ann. §§ 21-3301 and 21-
3504(a)(1) (2001), based on at least two instances of sexual intercourse with the
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15-year-old daughter of the woman with whom Mr. Butler was then living. At the
plea and sentencing hearings, Mr. Butler was represented by counsel. The
appropriate procedures for a plea of nolo contendere required the state district
court judge to determine whether the state had proffered a factual basis for the
crimes. Finding the state’s proffered factual basis to be sufficient, the court
found Mr. Butler guilty. At a subsequent hearing, Mr. Butler was sentenced to
two consecutive thirty-two month terms of imprisonment.
Six months after sentencing, Mr. Butler filed post-conviction motions pro
se in Kansas district court , requesting that his plea be withdrawn, pursuant to
Kan. Stat. Ann. § 22-3210(d), asserting ineffectiv e assistance of counsel and
asking for an evidentiary hearing based on proffered newly discovered evidence,
pursuant to Kan. Stat. Ann. § 60-1507. The state district court denied the
motions. In the Kansas Court of Appeals, Mr. Butler argued that the state district
court should have appointed counsel and that it should have granted him a hearing
based on his claim of newly available evidence. Significantly, Mr. Butler did not
raise the ineffective assistance of plea counsel claim in that state-level appeal.
The Kansas Court of Appeals denied Mr. Butler’s appeal, and the Kansas
Supreme Court denied Mr. Butler’s petition for review. Mr. Butler was
represented by counsel (other than plea counsel) on both his appeal to the Kansas
Court of Appeals and his petition for review by the Kansas Supreme Court.
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In his federal habeas petition, Mr. Butler claims ineffective assistance of
plea counsel for failing to investigate facts surrounding the crime and for failing
to advise Mr. Butler of the consequences of his plea. The magistrate judge
recommended that the petition be denied, finding procedural default in the state
court, absent cause or prejudice (citing Coleman v. Thompson , 501 U.S. 722, 750
(1991)). The district court adopted the magistrate judge’s recommendation,
denied the petition, and did not grant Mr. Butler a COA.
II. DISCUSSION
Before filing a federal habeas corpus petition, an inmate must exhaust the
available state remedies. See 28 U.S.C. § 2254(b)(1). “A state prisoner is
ordinarily not able to obtain federal habeas corpus relief unless it appears that the
applicant has exhausted the remedies available in the courts of the State . . . .”
Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)
(quotation marks omitted). To satisfy this exhaustion requirement, a petitioner
must first present the issues raised in the federal habeas action to the highest
Kansas court, either by direct appeal or by the post-conviction process. Mr.
Butler does not dispute that he did not pursue the ineffective assistance of plea
counsel claim through the Kansas Supreme Court. Mr. Butler has thus failed to
exhaust his only claim.
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Moreover, it is no longer possible for Mr. Butler to return to the Kansas
courts to exhaust his claim. The Kansas district court denied Mr. Butler’s
ineffective assistance claim on January 12, 2000, more than nineteen months
before Mr. Butler filed his § 2254 motion with the federal district court, whereas
Kansas law requires appeals within 130 days of adverse rulings. See State v.
Ortiz 640 P.2d 1255, 1257 (Kan. 1982) (“The appeal in this case was not taken
within the 130-day period fixed by statute, K.S.A. 22-3608 and K.S.A. 1979
Supp. 21-4603, and must therefore be dismissed.”)
In addition, Mr. Butler is generally not entitled to file a successive petition
for post-conviction relief. See Kan. Stat. Ann. § 60-1507(c) (“The sentencing
court shall not be required to entertain a second or successive motion for similar
relief on behalf of the same prisoner.”) Kansas courts have recognized that
“exceptional circumstances” might justify a successive motion. See Brooks v.
State, 966 P.2d 686, 688 (Kan. Ct. App. 1998). However, Kansas defines
exceptional circumstances quite narrowly. See id. (“Exceptional circumstances . .
. are those unusual events or intervening changes in the law which prevented the
movant from being aware of and raising all of his alleged trial errors in his first
post-conviction proceeding, and they must be such that the ends of justice can
only be served by reaching the merits of the subsequent application.”). As Mr.
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Butler does not allege any such exceptional circumstances, he cannot now exhaust
this claim via a successive motion under Kan. Stat. Ann. § 60-1507.
Mr. Butler’s claim is therefore subject to anticipatory procedural default.
“If 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 purpose of federal habeas review.” Dulin v. Cook,
957 F.2d 758, 759 (10th Cir. 1992).
With his claim not properly exhausted in the Kansas state courts, Mr. Butler
must show either: 1) cause and prejudice or 2) manifest injustice. See Coleman,
501 U.S. at 750. He is unable to do so. “‘[C]ause’ under the cause and prejudice
test must be something external to the petitioner, something that cannot fairly be
attributed to him. . . . For example, a showing that the factual or legal basis for a
claim was not reasonably available to counsel . . . would constitute cause under
this standard.” Id. at 753 (internal quotation marks omitted) (emphasis in
original).
Mr. Butler claims that his failure to exhaust state-level remedies was
caused by his appellate attorney’s failure to inform Mr. Butler that he must raise
the ineffective assistance of counsel issues in the Kansas state courts in order to
preserve those issues for federal habeas review. This is a troubling allegation,
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because it raises the possibility that an attorney appointed by the state was the
cause of Mr. Butler’s procedural default.
However, even if we were to credit Mr. Butler’s attorney’s alleged failures
as an “objective factor external to the defense,” Coleman , 501 U.S. at 752, which
impeded Mr. Butler’s efforts to comply with the procedural rule, he is unable to
show actual prejudice. To show actual prejudice, “[t]he habeas petitioner must
show not merely that the errors . . . created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage. . . .” Murray v. Carrier , 477
U.S. 478, 494 (1986) (emphasis in original) (internal quotations omitted).
Mr. Butler claims that there is “newly discovered evidence” that he was not
in the state of Kansas on the dates that he was alleged to have committed the
crimes, evidence which he claims to have requested his attorney to retrieve prior
to entering his plea. However, the issue of the exact dates of the sexual
encounters was discussed and resolved at the plea hearing:
Mr. Warren [counsel for Mr. Butler]: [I]n discussing the
matter with my client, he wasn’t initially sure that the
dates that were given were exactly correct, but he said
that it may very well have happened on those dates. And
he was very cooperative with the police and gave a full
statement to the police regarding his involvement, so
there’s no question that he was involved. Again, the
initial question we had was as to the dates but we don’t
have any evidence that those were not the dates.
The Court : And he wouldn’t contest that at least on two
separate occasions this occurred?
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Mr. Warren : Right.
Rec. vol. II, at 15 (Plea Hr’g, dated Feb. 12, 1999).
Mr. Butler, therefore, cannot prove prejudice. Nor can Mr. Butler
“demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice,” Coleman, 501 U.S. at 750, where the “ends of justice”
require “a colorable showing of factual innocence.” Kuhlmann v. Wilson, 477
U.S. 436, 454 (1986). Given his failure to contest the facts of his having actually
engaged in sexual intercourse with a fifteen-year-old girl, Mr. Butler cannot
satisfy this standard.
III. CONCLUSION
For the reasons set forth above, we DENY Mr. Butler’s request for a COA
and DISMISS this appeal.
Entered for the Court
Robert H. Henry
Circuit Judge
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