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
in December 2025 by Petitioner and state prisoner Richard Chantez Butler. (Doc. 1.) The operative
amended petition (Doc. 9) was filed on February 3, 2026, after which the Court issued a
memorandum and order (Doc. 10) granting Petitioner time in which to supplement his amended
petition or file a complete and proper second amended petition. This matter comes now before the
Court on Petitioner’s “Motion for Stay and Abeyance,” filed February 10, 2026. (Doc. 11.)
In the motion, Petitioner asks the court to stay this matter and hold it in abeyance until the
state courts resolve his motion for postconviction DNA testing. Id. at 1-2. He cites Rhines v. Weber,
544 U.S. 269, 278 (2005), which holds that a federal district court may stay habeas proceedings to
permit exhaustion of state court remedies on a claim if (1) good cause exists for the failure to
exhaust the claim before filing the federal habeas petition; (2) the unexhausted claim is “potentially
meritorious”; and (3) there is no indication that the petitioner intentionally delayed the
proceedings. (See Doc. 11, p. 1.) Petitioner argues that if his motion for DNA testing is successful,
the results should be considered alongside the grounds for federal habeas relief he asserts to this
Court because they will increase his chances of obtaining federal habeas relief. Id. at 2. Petitioner
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further explains that he only recently realized that he may be barred from raising in the future any
issues he does not raise in this federal habeas case because of the strict limitations on successive
federal habeas petitions. Id. Finally, Petitioner states his intent to fully exhaust “all state claims,
(Including State D.N.A. Testing) [sic]” and his desire to avoid procedurally defaulting any claims.
Id.
The Court agrees with Petitioner that Rhines provides the standard for consideration of a
motion to stay a federal habeas matter and hold it in abeyance so that a state prisoner petitioner
may exhaust his or her claims. Generally speaking, to “exhaust” an issue in state court so that it
may be brought as a ground for relief in a federal habeas petition, a Kansas prisoner must fairly
present the issue to a Kansas state appellate court, which must have denied relief. See Picard v.
Connor, 404 U.S. 270, 275-76 (1971); Kansas Supreme Court Rule 8.03B(a) (“In all appeals from
criminal convictions or post-conviction relief on or after July 1, 2018, . . . when a claim has been
presented to the Court of Appeals and relief has been denied, the party is deemed to have exhausted
all available state remedies.”). If a § 2254 petition contains an unexhausted claim and there still
exists a way for the petitioner to return to state court and exhaust the claim, federal courts generally
dismiss the entire federal habeas case without prejudice. See Grant v. Royal, 886 F.3d 874, 891-
92 (10 th Cir. 2018). Because the dismissal is without prejudice, the petitioner may exhaust his or
her claims in state court and then return to federal court—within the applicable statute of
limitations—and begin a new case under 28 U.S.C. § 2254.
Although 	federal 	courts 	usually 	dismiss 	without 	prejudice 	petitions 	that 	include
unexhausted claims that may still be exhausted, there are other options. See Wood v. McCollum,
833 F.3d 1272, 1273 (10th Cir. 2016). One option is to stay the federal habeas case and hold it in
abeyance while the petitioner returns to state court and exhausts the unexhausted claims. See id.;
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see also Rhines, 544 U.S. at 277-78. This option is available if (1) there is good cause for the
failure to exhaust the claims before filing the federal habeas petition; (2) the unexhausted claims
are not plainly meritless; and (3) the petitioner did not intentionally delay the proceedings. Id. In
addition, Rhines requires this Court to consider whether Petitioner is “close to the end of the 1-
year period” established in 28 U.S.C. § 2244(d) for filing a federal habeas petition. See Rhines,
544 U.S. at 275. This is because “if a district court dismisses a mixed petition close to the end of
the 1-year period, the petitioner’s chances of exhausting his [or her] claims in state court and
refiling his [or her] petition in federal court before the limitations period runs are slim.” Id.
But in the case now before the Court it does not appear that any grounds for relief stated in
the operative amended petition are unexhausted. The operative amended petition asserts that all
seven of the grounds for relief Petitioner asserts are exhausted. (See Doc. 9, p. 6, 8-9, 11, 21-22,
24.) And Petitioner’s motion to stay does not identify any grounds for federal habeas relief that
are currently unexhausted but could be exhausted through his state-court motion for postconviction
DNA testing. (See Doc. 11.) Rather, Petitioner merely asserts without further explanation that he
“has a better chance of [s]uccess i[f] the result of the D.N.A. testing [is] taken into consideration
with his additional claims.” Id. at 2.
Without knowing the claims Petitioner seeks to exhaust in the DNA testing proceedings,
the Court cannot determine whether good cause exists for the failure to exhaust them prior to filing
a federal habeas petition. Nor can the Court determine whether they are potentially meritorious1 ,
as required by Rhines. Accordingly, the motion 	(Doc. 11) will be denied without prejudice. If he
1 To the extent that Petitioner intends to argue that DNA testing will show his actual innocence, any such argument
must fail. Both the United States Supreme Court and the Tenth Circuit have repeatedly held that “a claim of actual
innocence does not serve as the basis for granting habeas relief.” See Pacheco v. El Habti, 48 F.4th 1179, 1186 (10th
Cir. 2022); see also Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly
discovered evidence have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceedings.”).
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wishes, Petitioner may file a second motion to stay this matter and hold it in abeyance that includes
more information about the claims he intends to exhaust.2
IT IS THEREFORE ORDERED that the motion to stay this matter and hold it in
abeyance (Doc. 11) is denied without prejudice. The deadlines set forth in the Court’s
memorandum and order dated February 9, 2026 (Doc. 10) remain in effect.
IT IS SO ORDERED.
DATED: 	This 11th day of February, 2026, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
2 A successful motion to stay and hold this matter in abeyance must identify the unexhausted claims Petitioner intends
to exhaust in the DNA-testing proceedings in state-court. Those claims also must be included as grounds for relief
asserted in the currently operative amended petition (Doc. 9). If unexhausted claims are not in the amended petition
but Petitioner nevertheless seeks a stay of this federal habeas case to exhaust them, he must file a second amended
petition that complies with the Court’s memorandum and order of February 9, 2026 (Doc. 10) and that includes all
claims he intends to bring in this federal habeas case, both exhausted and unexhausted. In other words, in order for
this Court to stay this matter and hold it in abeyance while Petitioner exhausts a claim, that currently unexhausted
claim must be asserted as a ground for relief in the most recent federal habeas petition filed in this Court.
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