FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
WILLIAM D. MAY,
Petitioner - Appellant,
v. No. 19-3206
(D.C. No. 5:17-CV-03095-SAC)
JAMES HEIMGARTNER, Warden, (D. Kan.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
_________________________________
William May, a Kansas state prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his amended
28 U.S.C. § 2254 petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)
(requiring a COA to appeal “the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court”). The federal
district court dismissed Mr. May’s amended petition as a “mixed petition” containing
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. May is pro se, we construe his filings liberally, but we do not act as
his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
both exhausted and unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 273 (2005).
Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.
I. BACKGROUND
A. State Conviction and Direct Appeal
Mr. May was convicted of reckless second-degree murder and a domestic battery
misdemeanor. He was sentenced to 138 months in prison, 180 days in jail, and 36
months of post-release supervision. Mr. May appealed to the Kansas Court of Appeals
(“KCOA”), arguing the Kansas district court failed to give certain jury instructions and
violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The KCOA
affirmed Mr. May’s convictions and sentences and the Kansas Supreme Court denied
review. State v. May, 274 P.3d 46, 2012 WL 1352827, at *1 (Kan. Ct. App. Apr. 12,
2012) (unpublished).
B. State Post-Conviction Petition and Appeal
Mr. May moved under § 60-1507 of the Kansas Code for post-conviction relief,
arguing his appellate counsel provided ineffective assistance (“IAC”). Mr. May’s
post-conviction counsel advised the Kansas district court during a preliminary hearing
that Mr. May had also raised IAC claims against his trial counsel. The court denied Mr.
May’s § 60-1507 petition because his IAC claims against his appellate counsel did not
2
present triable issues and his IAC claims against his trial counsel were untimely. ROA at
98.2
Mr. May appealed pro se, alleging new IAC claims against his post-conviction
counsel for failing to pursue IAC claims against his trial counsel. The KCOA affirmed
the district court’s judgment. See May v. State, 369 P.3d 340, 2016 WL 1391776, at *3
(Kan. Ct. App. Apr. 8, 2016) (unpublished). It determined that Mr. May had “waived and
abandoned” his IAC claims against appellate counsel “[b]y failing to brief and argue”
them and that he had failed to challenge the district court’s ruling denying his IAC claims
against trial counsel. Id. The KCOA further rejected the new IAC claims against his
post-conviction counsel as improperly raised for the first time in his KCOA appeal. The
Kansas Supreme Court again denied review.
C. Section 2254 Petition
Mr. May then filed a petition for federal habeas corpus relief under 28 U.S.C.
§ 2254 in the United States District Court for the District of Kansas. The petition alleged
eight claims: two IAC claims against his appellate counsel, two IAC claims against his
trial counsel, three IAC claims against his post-conviction counsel, and one claim
alleging the KCOA erred in affirming the state district court’s denial of his § 60-1507
motion without conducting an evidentiary hearing.
2
See Kan. Stat. Ann. § 60-1507(f) (2014) (requiring petitions for post-conviction
relief to be brought within one year of the final order unless to prevent a manifest
injustice).
3
June 2017 Order
In its June 2017 order, the district court denied all eight claims. It determined the
three IAC claims against post-conviction counsel were statutorily barred by 28 U.S.C.
§ 2254(i) and the IAC claims against his appellate and trial counsel were procedurally
defaulted unless he showed (1) “cause” for failure to exhaust and resulting prejudice or
(2) a fundamental miscarriage of justice. ROA at 34-36 (citing Frost v. Pryor, 749 F.3d
1212, 1231-32 (10th Cir. 2014)).3 The court advised that he could amend the petition to
present the exhausted claims from his direct appeal “concerning jury instructions and
Apprendi.” Id. at 35.
October 2017 Order
Rather than file an amended petition, Mr. May filed a motion requesting a stay and
abeyance. In its October 2017 order, the district court declined to stay the matter because
Mr. May could not show the “good cause” for failure to exhaust required for a stay and
abeyance under Rhines, 544 U.S. at 278. It explained that Mr. May had not sought
permission in state court to proceed in a motion under § 60-1507 on his IAC claims
against post-conviction counsel. The court granted Mr. May one month to show cause as
to why his petition should not be dismissed without prejudice.
3
The district court did not directly address Mr. May’s claim that the KCOA erred
in affirming the state district court’s denial of his § 60-1507 motion without conducting
an evidentiary hearing.
4
August 2018 Order
Mr. May responded that his post-conviction counsel’s failure to present his
unexhausted claims was the cause for his failure to exhaust. He requested permission to
proceed in a second § 60-1507 post-conviction action and enclosed motions for an
evidentiary hearing and to appoint counsel.
In its August 2018 order, the district court determined Mr. May had failed to show
cause for failure to exhaust and that the Kansas state courts, not the federal court, would
have needed to address whether Mr. May could proceed in a second or successive
§ 60-1507 post-conviction action. The court denied both motions but granted Mr. May a
one-month extension to amend his petition and present the properly exhausted claims
from his direct appeal. It warned that if Mr. May “cho[se] not to do so within the time
allowed, [it] [would] dismiss [the] petition.” Id. at 52.
September 2019 Order
Mr. May then filed an amended § 2254 petition presenting nine claims for relief.
Claims (1) through (8) were the same as in the original petition, but Claim (9) newly
raised the “jury instruction and Apprendi” claims made in Mr. May’s direct appeal. Id. at
73. He also filed a “motion for resentence,” id. at 54, and a “motion for illegal sentence,”
id. at 58.
In September 2019, the district court denied Mr. May’s amended § 2254 petition
in its entirety as a “mixed petition” “contain[ing] both exhausted and unexhausted
claims.” Id. at 100 (quoting Pliler v. Ford, 542 U.S. 225, 227 (2004)). The court said the
5
amended petition was “mixed” because Claims (1) through (8) were unexhausted and
Claim (9) was exhausted in the direct appeal. Id. at 101. It said a district court
“presented with a mixed petition . . . has [a] few options”: (1) “[d]ismiss the mixed
petition in its entirety”; (2) stay and abate for the petitioner to exhaust the unexhausted
claims in state court; (3) “permit the petitioner to dismiss the unexhausted claims and
proceed with the exhausted claims”; or (4) under 28 U.S.C. § 2254(b)(2), “ignore the
exhaustion requirement . . . and deny the petition on the merits if none of the . . . claims
has any merit.” Id. at 100 (quoting Fairchild v. Workman, 579 F.3d 1134, 1156 (10th
Cir. 2009)).
The court chose the first option and dismissed the petition in its entirety. It
rejected the stay and abate option because Mr. May failed to show (1) “good cause” for
failure to exhaust and (2) that the unexhausted claims were potentially meritorious. Id.
(quoting Rhines, 544 U.S. at 277). It declined to re-offer Mr. May the option to “dismiss
his unexhausted claims and proceed on . . . [t]he sole exhausted [Claim (9)]” because the
court already had “given [Mr. May] multiple opportunities” to do so. Id. at 100-01. It
declined to “definitively state” the unexhausted and exhausted claims lacked merit under
§ 2254(b)(2) because the former “[had] not been developed in the state courts,” making it
“simply unclear whether [Mr. May] might have prevailed.” Id. at 101. The court also
denied the “motion for resentence” and “motion for illegal sentence” for failure to
exhaust. Id. at 102.
6
Mr. May timely appealed. In his brief to this court, he asserts the same Claims (1)
through (8) as in his amended § 2254 petition while omitting Claim (9). He moves this
court to conduct an evidentiary hearing and to appoint counsel.
II. DISCUSSION
A. COA Requirements
We must grant a COA to review a § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A);
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To receive a COA, a petitioner must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Where, as here, the district court denied Mr. May’s habeas petition on
procedural grounds “without reaching the prisoner’s underlying constitutional claim,” we
will grant a COA only if the petitioner demonstrates both “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis
added). Because we may resolve whichever issue presents the “more apparent” answer,
we begin and end our discussion with the district court’s procedural ruling. Id. at 485.
B. Rules for Mixed Petitions
A state prisoner seeking federal habeas relief must exhaust available state court
remedies before filing a § 2254 petition. 28 U.S.C. § 2254(b)(1)(A). To satisfy the
exhaustion requirement, prisoners must fairly present their claims to the state’s highest
7
court—either by direct appeal or in a post-conviction attack—before asserting the claims
in federal court. See Fairchild, 579 F.3d at 1151.
In general, federal district courts may not adjudicate mixed petitions and must
dismiss them in their entirety. See Rose v. Lundy, 455 U.S. 509, 522 (1982). This rule of
total exhaustion, however, “is not absolute.” Harris v. Champion, 48 F.3d 1127, 1131
n.3 (10th Cir. 1995). A district court presented with a mixed petition has three other
options. See Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016).
First, a district court may stay and abate a case, allowing a petitioner to “return[]
to state court to exhaust his previously unexhausted claims” under “limited
circumstances.” Rhines, 544 U.S. at 275, 277.4 A district court’s denial of a stay and
abate would likely be an abuse of discretion if a petitioner had (1) “good cause for his
failure to exhaust,” (2) “potentially meritorious” unexhausted claims, and (3) “no
indication . . . [of] intentionally dilatory litigation tactics.” Id. at 278; see also Kell v.
Benzon, 925 F.3d 448, 468 (10th Cir. 2019).
Second, “[t]he court may also permit the petitioner to delete the unexhausted claim
from his petition and proceed only on the exhausted claims.” Wood, 833 F.3d at 1273
(citing Lundy, 455 U.S. at 510).
4
The total exhaustion requirement in 28 U.S.C. § 2254(b)(1)(A) and the 1-year
statute of limitations in 28 U.S.C. § 2244(d) can foreclose “mixed petitions” from federal
review. Id. at 275. Rhines permitted district courts to use a “stay and abeyance”
procedure “in limited circumstances” to avoid this result. Id. at 275, 277.
8
Third, a petition “may be denied on the merits” in its entirety, notwithstanding the
failure to exhaust. 28 U.S.C. § 2254(b)(2). This option is available only if the court
denies both the unexhausted and exhausted claims. See Moore v. Schoeman, 288 F.3d
1231, 1235-36 (10th Cir. 2002) (explaining § 2254(b)(2) permits “deny[ing] the entire
petition on the merits,” but not a “hybrid approach”).
C. Analysis
We deny a COA because reasonable jurists could not debate the district court’s
procedural ruling to dismiss Mr. May’s mixed habeas petition in its entirety. After giving
Mr. May ample opportunity to avoid dismissal of his mixed petition, the district court
correctly declined to (1) stay and abate the case because Mr. May failed to show the
elements required under Rhines, 544 U.S. at 278; (2) offer Mr. May another chance to
delete the unexhausted claims; or (3) dismiss his unexhausted and exhausted claims on
the merits.
Stay and Abeyance
As discussed above, a stay and abeyance is appropriate if the petitioner shows
(1) “good cause for his failure to exhaust,” (2) “potentially meritorious” unexhausted
claims, and (3) no “dilatory litigation tactics.” Rhines, 544 U.S. at 278. The district court
declined to stay and abate Mr. May’s petition because he failed to show good cause.5
5
Because the district court found it was unclear whether petitioner might have
prevailed on the unexhausted claims, it follows the court refused to stay and abate
because the petitioner had failed to show “good cause.”
9
Our review of his filings shows Mr. May offered no good cause showing in district court
to justify a stay and abeyance.
Dismiss and Proceed
In its September 2019 order, the district court declined to provide Mr. May with
another opportunity to dismiss his unexhausted claims and proceed with the exhausted
claims. The court previously provided Mr. May with multiple opportunities to proceed
with only the exhausted claims, including in its June 2017, October 2017, and August
2018 orders. See, e.g., Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008)
(determining “ample opportunity to amend” where petitioner twice failed to properly
amend). In its August 2018 order, the court specifically warned that if Mr. May “cho[se]
not to [properly amend his petition] within the time allowed, the [c]ourt [would] dismiss
[the] petition.” ROA at 52. The district court was more than generous and cannot be
faulted for not offering yet another opportunity for Mr. May to shed his unexhausted
claims.
Deny on Merits
The district court also declined to dismiss Mr. May’s unexhausted and exhausted
claims on the merits under 28 U.S.C. § 2254(b)(2). The court could not assess the merits
of the unexhausted claims because they had “not been developed in the state court,” and
it was “simply unclear whether [Mr. May] might have prevailed in any of them.” Id. at
101. Given Mr. May’s failure to pursue these claims in state court proceedings, the
interests of comity and federalism would not be “better served” if the court had addressed
10
and dismissed the unexhausted and exhausted claims on the merits. Harris, 48 F.3d at
1131 n.3. We find no error in the district court’s analysis.
III. CONCLUSION
Reasonable jurists could not debate the correctness of the district court’s
procedural ruling in dismissing the petitioner’s mixed petition in its entirety. We deny a
COA and dismiss this matter. We also deny the petitioner’s requests to conduct an
evidentiary hearing and to appoint counsel.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
11
May v. Heimgartner
Combined Opinion