Butler (ID 2000152231) v. Geither

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICHARD CHANTEZ BUTLER,
Petitioner,
v. 	CASE NO. 25-3280-JWL
GLORIA GEITHER,
Respondent.
MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by Petitioner Richard Chantez Butler, a state prisoner currently incarcerated at Lansing
Correctional Facility in Lansing, Kansas. Petitioner proceeds in forma pauperis. (Doc. 3.) The
operative amended petition (Doc. 9) was filed on February 3, 2026. This matter comes now before
the Court on Petitioner’s response (Doc. 36) to the Court’s memorandum and order (Doc. 26)
regarding anticipatory procedural default of Ground Seven of the amended petition. For the
reasons explained below, the Court will dismiss Ground Seven of the amended petition and will
order Respondent to file an answer to the remaining grounds for relief.
Background
The parties are well aware of the procedural history that led to this federal habeas case and
the Court sees no need to repeat it here. (See Doc. 26, p. 1-2.) It is sufficient at this point to note
that Petitioner is currently serving a lengthy prison sentence imposed after he was convicted of
multiple crimes. (Doc. 9, p. 1; Doc. 18, p. 1-2.) Petitioner’s direct appeal was ultimately
unsuccessful, as was his motion for state habeas relief under K.S.A. 60-1507. See State v. Butler,
317 Kan. 605 (2023); Butler v. State, 2025 WL 733370 (Kan. Ct. App. Mar. 7, 2025 (unpublished),
rev. denied July 31, 2025. Petitioner began the federal habeas case now before this Court on
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December 31, 2025 by filing a petition for relief under 28 U.S.C. § 2254, and he filed his amended
petition on February 3, 2026. (Docs. 1 and 9.)
The Court began the review of the amended petition required by Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts (“the Habeas Rules”), 28 U.S.C.
foll. § 2254, and ordered Respondent Gloria Geither to file a limited pre-answer response (“PAR”)
addressing whether Petitioner had exhausted his asserted grounds for relief. (Doc. 15.) After
Respondent filed her PAR (Doc. 18) and Petitioner filed a reply to the PAR (Doc. 22), the Court
issued a memorandum and order to show cause (“MOSC”) explaining its conclusion that Ground
Seven of the amended petition appears barred by anticipatory procedural default. (Doc. 26.) The
Court therefore granted Petitioner time to show cause why Ground Seven should not be summarily
dismissed. Id.
Petitioner timely filed his response to the MOSC on June 17, 2026. (Doc. 36.) The Court
has carefully considered the response and is now prepared to rule on whether Ground Seven of the
amended petition must be dismissed under Habeas Rule 4 because consideration of its merits is
barred by the doctrine of anticipatory procedural default.
Discussion
Petitioner’s response to the MOSC is 75 pages long and he attached 43 pages of supporting
exhibits. (Docs. 36 and 36-1.) Even liberally construing the response, at no point does Petitioner
challenge the Court’s conclusion that Ground Seven was not properly exhausted in the state
appellate courts or argue that there remains a procedural avenue by which Petitioner could now
return to state court and do so. Thus, the Court maintains those prior conclusions for the reasons
set forth in the MOSC. (See Doc. 26, p. 4-9.) Consideration of Ground Seven on its merits is thus
subject to the bar against considering the merits of claims that are barred by the doctrine of
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anticipatory procedural default. See id.
As the MOSC explained:
There are two ways Petitioner may overcome this bar: he can establish cause
and prejudice for his default of state court remedies or he can establish that a
fundamental miscarriage of justice will occur if the Court does not consider the
merits of the claims. See Gray v. Netherland, 518 U.S. 152, 162 (1996); Fontenot
v. Crow, 4 F.4th 982, 1028 (10th Cir. 2021) (quoting Coleman v. Thompson, 501
U.S. 722, 750 (1991)).To demonstrate cause in this context, Petitioner must show
that some objective factor external to the defense impeded his ability to comply
with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986).
“Objective factors that constitute cause include interference by officials that makes
compliance with the State's procedural rule impracticable, and a showing that the
factual or legal basis for a claim was not reasonably available to [petitioner.]”
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (internal quotation marks
omitted). He also must show “actual prejudice as a result of the alleged violation of
federal law.” See Coleman, 501 U.S. at 750.
(Doc. 26, p. 9.)
Petitioner titles some of the sections of his response using the words cause, effect, and
prejudice. (See Doc. 36, p. 25, 34, 49, 64.) But the arguments contained in those sections do not
identify any objective factor external to the defense that impeded Petitioner’s ability to properly
exhaust the arguments in Ground Seven. Instead, highly summarized, the response details evidence
presented at various points during Petitioner’s criminal prosecution and argues that the State failed
to meet its burden of proof at trial. Because Petitioner has failed to identify any objective factor
that prevented him from properly exhausting Ground Seven, he has failed to show the type of cause
and prejudice that would allow the Court to consider the merits of the arguments in Ground Seven.
In his response, Petitioner also cites Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011), as
support for his contention that this Court should not dismiss Ground Seven as barred by
anticipatory procedural default. (Doc. 36, p. 73-74.) Elmore does not convince this Court to
consider the merits of Ground Seven. First, because Elmore is a decision by the United States
Court of Appeals for the Fourth Circuit, it is not binding on this Court. Precedent from other
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circuits may be persuasive, but this Court is bound to apply the holdings of the Supreme Court and
the Tenth Circuit.” See Gulick v. State Farm Mut. Aut. Ins. Co., 780 F. Supp. 3d 1169, 1205 n.6
(D. Kan. April 30, 2025). Second, Elmore did not involve anticipatory procedural default; it was
an examination of already exhausted issues on their merits. See Elmore, 661 F.3d at 786, 789
(noting federal district court denied claims “previously exhausted in the South Carolina courts”
and identifying two issues left on appeal). In the case now before this Court, the focus is not
whether the arguments in Ground Seven warrant habeas relief, it is whether the arguments may be
considered at all.
The response to the MOSC could be liberally construed to assert that this Court should
apply the actual innocence exception to the general bar on considering grounds that are subject to
anticipatory procedural default. (Doc. 36, p. 74.) As the MOSC explained:
An anticipatory procedural default also may be excused, meaning that this
Court will reach the merits of the claim, if Petitioner can show that the failure to
consider the merits of the claim would result in a fundamental miscarriage of
justice. . . . This exception requires a colorable showing of “‘factual innocence not
mere legal insufficiency.’” See O’Bryant v. Oklahoma, 568 Fed. Appx. 632, 637
(10th Cir. 2014) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
Petitioner is not required to conclusively exonerate himself, but he must show that
“in light of new evidence, ‘it is more likely than not that no reasonable juror would
have found [him] guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518,
536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
. . . .
To qualify for the actual innocence exception, Petitioner must present to
this Court “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324. “To be ‘new,’ the evidence need only
be evidence that was not considered by the fact-finder in the original proceedings.”
Taylor v. Powell, 7 F.4th 920, 927 (10th Cir. 2021) (citing Fontenot v. Crow, 4
F.4th 982, 1031-33 (10th Cir. July 13, 2021)). “An actual innocence claim must be
based on more than the petitioner’s speculations and conjectures.” Taylor[, 7 F.4th
at 927. If Petitioner comes forward with new reliable evidence, “[t]he habeas court
must make its determination . . . ‘in light of all the evidence, including that alleged
to have been illegally admitted (but with due regard to any unreliability of it) and
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evidence tenably claimed to have been wrongly excluded or to have become
available only after the trial.’” Schlup, 513 U.S. at 328.
(Doc. 26, p. 10-11.)
Even liberally construing the response to the MOSC, Petitioner has not clearly identified
the “new reliable evidence” that he believes would have left any reasonable juror with a reasonable
doubt about his guilt. His general reference to “forensic medical evidence” is insufficiently
specific. (See Doc. 36, p. 74.) If by this phrase, Petitioner meant to refer to any of the exhibits
attached to his response, the Court is not convinced that these exhibits justify application of the
actual innocence exception.
Petitioner’s arguments in his response largely point to inconsistencies between the victim’s
testimony and written reports, which he asserts prove that the victim was not truthful. At best,
Petitioner has presented this Court with “impeachment evidence, rather than evidence of actual
innocence.” See Stafford v. Saffle, 34 F.3d 1557, 1561 (10th Cir. 1994). “Simply maintaining one’s
innocence, or even casting some doubt on witness credibility, does not necessarily” demonstrate
that “it is more likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt.” Frost v. Pryor, 749 F.3d 1212, 1232 (10th Cir. 2014) (citations and internal
quotation marks omitted).
As explained in the MOSC, the focus for the actual innocence exception is factual
innocence. The Court has considered the arguments in the response to the MOSC and has
considered the attachments to the response. It concludes that Petitioner has not made a colorable
showing of actual innocence and, specifically, he has not provided this Court with new, reliable
evidence that, if it had been admitted at trial, makes it more likely than not that no reasonable juror
would have found him guilty beyond a reasonable doubt. Therefore, Ground Seven will be
dismissed from this case because consideration of its merits is barred by anticipatory procedural
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default. Grounds One through Six survive screening.
Conclusion
The Court has completed reviewing the petition as required by Rule 4 of the Rules
Governing § 2254 Cases in the United States District Courts. The Court finds that:
1. 	Petitioner is presently a prisoner in the custody of the State of Kansas; and
2. 	Petitioner demands his release from such custody, and as grounds therefore alleges that
he is being deprived of his liberty in violation of his rights under the Constitution of
the United States, and he claims that he has exhausted all remedies afforded by the
courts of the State of Kansas with respect to the arguments made in his petition.
IT IS THEREFORE ORDERED
1. 	That Ground Seven of the amended petition (Doc. 9) is dismissed with prejudice
because the claims therein are subject to anticipatory procedural default and
Petitioner has not made the showing required for the Court to consider the merits
of claims subject to anticipatory procedural default.
2. 	That pursuant to Rule 5 of the Rules Governing Section 2254 Cases, Respondent
shall file an answer on or before August 24, 2026 showing why the writ should not
be granted based on the arguments in Grounds One through Six of the amended
petition (Doc. 9) and attachments thereto.
3. 	That the answer should address:
a. 	The necessity for an evidentiary hearing on Grounds One through Six as alleged
in the second amended petition;
b. 	Whether the arguments in Grounds One through Six of the amended petition
are barred by a statute of limitations or any other procedural bar; and
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c. 	An analysis of Grounds One through Six and any cases and supporting
documents relied upon by Respondent in opposition to the same.
Respondent shall cause to be forwarded to this Court for examination and review the
records and transcripts, if available, of the criminal proceedings complained of by Petitioner. If a
direct appeal of the judgment and sentence of the trial court was taken by Petitioner, Respondent
shall furnish the records, or copies thereof, of the appeal proceedings and any subsequent
postconviction proceedings.
4. 	That upon the termination of the proceedings herein, the clerk of this Court will
return to the clerk of the proper state court all state court records and transcripts.
5. 	That Petitioner be granted to and including September 24, 2026 to file a traverse,
or response, to the answer, admitting or denying, under oath, all factual allegations
therein contained.
6. 	That the clerk of this Court then return this file to the undersigned for such other
and further proceedings as may be appropriate; and that the clerk of this Court
transmit copies of this order to Petitioner and to the office of the Attorney General
for the State of Kansas.
IT IS SO ORDERED.
DATED: 	This 22nd day of June, 2026, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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