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 TO SHOW CAUSE
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 incarcerated at Lansing Correctional Facility
in Lansing, Kansas, who proceeds in forma pauperis. (See Doc. 3.) Petitioner filed the operative
amended petition on February 3, 2026. (Doc. 9.) This matter comes now before the Court on
Respondent Gloria Geither’s pre-answer response (“PAR”) and Petitioner’s reply to the PAR.
(Docs. 18 and 22.) The Court has considered the PAR and the reply and, for the reasons explained
below, will grant Petitioner time in which to show why Ground Seven of this matter should not be
summarily dismissed as barred by anticipatory procedural default. Also before the Court is
Petitioner’s “Motion to Amend Case Law,” which the Court will deny. (Doc. 25.)
Background
In March 2020, a jury in Atchison County, Kansas convicted Petitioner of three counts of
rape, two counts of aggravated criminal sodomy, two counts of criminal threat, and one count each
of aggravated kidnapping, aggravated robbery, aggravated assault, domestic battery, criminal
damage to property, intimidation of a victim, and harassment by intimidation. (Doc. 18, p. 1-2.) In
July 2020, the state district court sentenced Petitioner to a controlling sentence of 543 months in
prison. (Doc. 9, p. 1.) Petitioner pursued a direct appeal and, in August 2022, the Kansas Court of
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Appeals (“KCOA”) vacated the aggravated kidnapping conviction. State v. Butler, 2022 WL
3692866, *13 (Kan. Ct. App. Aug. 26, 2022) (unpublished) (Butler I), rev. in part by State v.
Butler, 317 Kan. 605, 606 (2023) (Butler II). The State filed a petition for review in the Kansas
Supreme Court (“KSC”), which was granted, and in August 2023, the KSC reversed the KCOA’s
decision to vacate the aggravated kidnapping conviction. Butler II, 317 Kan. at 606.
Petitioner then filed a motion in state district court seeking relief under K.S.A. 60-1507.
See Butler v. State, 2025 WL 733370 (Kan. Ct. App. Mar. 7, 2025) (unpublished) (Butler III), rev.
denied July 31, 2025. The district court summarily denied relief and, on appeal, the KCOA
affirmed the denial. Id. at *1-2. In July 2025, the KSC denied Petitioner’s petition for review.
On December 31, 2025, Petitioner filed in this Court a petition seeking federal habeas relief
under 28 U.S.C. § 2254. (Doc. 1.) As noted above, Petitioner filed the operative amended petition
on February 3, 2026 (Doc. 9), after which the Court directed Respondent to file a limited PAR
addressing the exhaustion of Petitioner’s asserted grounds for federal habeas relief (Doc. 15).
Respondent complied (Doc. 18) and Petitioner filed a reply to the PAR (Doc. 22).
Standards of Initial Review
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
requires the Court to review a habeas petition upon filing and to dismiss it “[i]f it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” Because Petitioner is proceeding pro se, the Court liberally construes the petition during
this review, 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 and searching the record.” 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
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never presented.’” Childers v. Crow, 1 F.4th 792, 798 (10th Cir. 2021) (citation omitted).
Exhaustion Standards
“‘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 state-court 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). To
satisfy the exhaustion requirement, Petitioner must have presented the very issues raised in the
federal petition to the either the KCOA or the KSC, which 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).
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) (citation omitted). Thus, the United
States Supreme Court has held that before a state prisoner may pursue federal habeas relief on the
grounds that his or her federal constitutional rights have been violated, “the federal claim must be
fairly presented to the state courts.” See Picard, 404 U.S. at 275. This requirement “reflects a
policy of federal-state comity” and is “‘an accommodation of our federal system designed to give
the State an initial “opportunity to pass upon and correct” alleged violations of its prisoners’ federal
rights.’” Id. (citations omitted). In other words, the state courts must have the first chance to
remedy violations of the rights guaranteed to state prisoners who are sentenced for violations of
state law, even when the rights in question are guaranteed by the United States Constitution. See
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id. at 275-76.
In order to have given the state appellate courts a “fair opportunity” to resolve a federal
constitutional claim, Petitioner must have presented to the state court the same claim on which he
now seeks federal habeas relief. The Tenth Circuit recently reaffirmed this principle, stating:
“For a federal court to consider a federal constitutional claim in an
application for habeas, the claim must be ‘fairly presented to the state courts’ . . . .”
Thus, we recognize that we must afford state courts “the ‘opportunity to pass upon
and correct’ alleged violations of its prisoners’ federal rights,” which those courts
cannot do unless they have been “alerted to the fact that the prisoners are asserting
claims under the United States Constitution.” A petitioner “need not cite ‘book and
verse on the federal constitution.’” But he must do “more than present[ ] ‘all the
facts necessary to support the federal claim’ to the state court or articulat[e] a
‘somewhat similar state-law claim.’” At bottom, “the crucial inquiry is whether the
‘substance’ of the petitioner's claim has been presented to the state courts in a
manner sufficient to put the courts on notice of the federal constitutional claim.”
Honie v. Powell, 58 F.4th 1173, 1184 (10th Cir. 2023) (citations omitted).
Discussion
To her credit, Respondent candidly concedes in the PAR that Grounds One through Six of
the amended petition were properly exhausted. (Doc. 18, p. 3.) Respondent argues that Ground
Seven only was not properly exhausted and is now barred by anticipatory procedural default. Id.
at 3-4. For his part, Petitioner asserted in the amended petition that he exhausted Ground Seven by
raising it in his K.S.A. 60-1507 motion. (Doc. 9, p. 24.) He renews this argument in his reply to
the PAR. Id. at 1-3. In his reply to the PAR, Petitioner also argues, in the alternative, “that Ground
Seven and Ground Four are of the same in nature and or could be possible ‘look at as the same
claim.’” (Doc. 22, p. 5 (all errors in original).) For ease of understanding, the Court will address
this alternative argument first.
Ground Seven and Ground Four
The Court’s review of Grounds Four and Seven, however, reveals that although they both
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center on ineffective assistance of trial counsel, they are not the same claim for federal habeas
purposes. In Ground Seven of the amended petition, Petitioner asserts that he received ineffective
assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution
when trial counsel only partially disclosed to the jury evidence included in a domestic violence
direct assessment (“the Assessment”) that was conducted as part of the rape kit. (Doc. 9, p. 23.)
Id. Liberally construing the supporting facts alleged in the amended petition, Petitioner appears to
contend that trial counsel failed to adequately review the Assessment, failed to present exculpatory
evidence in the Assessment, failed to present an expert, and let a State witness testify unchallenged.
Id. Petitioner also asserts that trial counsel was ineffective for deciding not to introduce at trial Dr.
James Lasseter’s analysis of the rape kit, which Petitioner alleges would have led to a different
outcome at trial and “opened up the flood-gates to [Petitioner’s] innocence.” Id.
Ground Four, on the other hand, focuses on a motion alleging ineffective assistance of trial
counsel that Petitioner filed after his convictions but before sentencing; Ground Four asserts that
“[t]he district court erred in summarily denying [Petitioner’s] motion for new trial based on
ineffective assistance of counsel.” (Doc. 9, p. 20; see also Doc. 24-1, p. 14-15.) As supporting
facts for Ground Four, Petitioner refers the reader to the brief filed on his behalf in his direct
appeal. Id. The brief reflects that in Petitioner’s pre-sentencing motion for new trial based on
ineffective assistance of counsel, he argued trial counsel was ineffective by “failing to move for a
mistrial after two witnesses mentioned his prior incarceration,” failing to cross-examine the rape
victim on her changing description of her assailant, and failing to “speak on the full rape kit.”
(Doc. 24-1, p. 14-15.) Nothing in Issue IV of the direct-appeal brief, which mirrors Petitioner’s
arguments in Ground Four of the amended federal habeas petition, mentions Dr. Lasseter, the
Assessment, or trial counsel’s failure to present expert testimony. Id. at 33-41. Thus, Ground Four
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and Ground Seven do not involve the same claims of ineffective assistance of trial counsel.
The Tenth Circuit has long held that when a federal habeas petitioner raises a claim of
ineffective assistance of counsel in the state court but “based it on different reasons than those
expressed in his [federal] habeas petition,” the bases which were not alleged in the state court have
not been exhausted. See Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999). Thus,
because Ground Four and Ground Seven do not raise the same alleged instances of ineffective
assistance of counsel, the exhaustion of Ground Four in the direct appeal does not equal the
exhaustion of Ground Seven. The Court will therefore address independent exhaustion of Ground
Seven.
Exhaustion of Ground Seven
As a reminder, the focus in an exhaustion analysis is whether the claim presented in the
federal habeas petition was fairly presented to the state appellate court. This Court has carefully
reviewed the briefs filed in the KCOA and the KSC throughout Petitioner’s appeals (Docs. 24-1
thorough 24-8) and agrees with Respondent that Ground Seven was not fairly presented to either
appellate court in either of Petitioner’s appeals. The analysis set forth above shows that Ground
Seven was not exhausted during Petitioner’s direct appeal.
Moreover, Petitioner did not exhaust Ground Seven through his K.S.A. 60-1507 and the
related appeal. Although Petitioner raised related claims in those proceedings, he did not argue
ineffective assistance of trial counsel to the state appellate court. Rather, he argued to the state
district court and the KCOA:
(1) The State knowingly introduced perjured testimony through the alleged
victim. The basis for this claim was that L.K.’s statements to police and her
testimony were not consistent with a court-ordered domestic violence assessment
and her physical examination. Butler claims this was evidence newly discovered
after trial;
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(2) Prosecutorial error for failure to introduce the court-ordered domestic
violence assessment into evidence at his preliminary hearing and trial; and
(3) He was denied his right to present theory of defense because the State
did not admit the domestic violence assessment into evidence.
See Butler III, 2025 WL 733370 at *3. These are different claims than those presented in Ground
Seven of the federal habeas petition now before this Court.
In his reply to the PAR, Petitioner argues that he substantially complied with the exhaustion
requirement, which he asserts should be sufficient. (Doc. 22, p. 2.) He reminds the Court that he
is a pro se litigant and he asserts that he “misstated his nouns” and argued prosecutorial error when
he meant to argue ineffective assistance of trial counsel. Id. This argument fails to persuade the
Court that Ground Seven was exhausted.
Petitioner’s reliance on State v. Burnett, 297 Kan. 447 (2013), as legal authority for the
sufficiency of substantial compliance is misplaced. First, the exhaustion requirement for state
prisoners seeking federal habeas relief is one created by federal law. See 28 U.S.C. § 2254(b)(1)
(establishing exhaustion requirement and exceptions). Burnett is an opinion issued by the Kansas
Supreme Court, so it is not binding on the interpretation of federal law by federal courts like this
Court. See Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007) (“[W]e are not bound by a state
court interpretation of federal law . . . .”).
Second, Burnett did not involve the federal habeas exhaustion requirement. Petitioner
attributes to Burnett the following quote: 	“‘substantial compliance was/is sufficient.’” (Doc. 22,
p. 2.) The sentence in Burnett, in full, reads: 	“But substantial compliance with the UMDDA is
sufficient to invoke its protections.” 297 Kan. at 453. The “UMDDA” refers to the Uniform
Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. See 297 Kan. at 448.
Finally, in light of the case law set forth above regarding the “fair presentment” principles
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underlying the exhaustion requirement, this Court cannot agree that a claim of prosecutorial
misconduct is substantially equivalent to a claim of ineffective assistance of defense counsel. The
Tenth Circuit clearly instructed: 	“’[T]he crucial inquiry is whether the ‘substance’ of the
petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on
notice of the federal constitutional claim.’” Honie, 58 F.5th at 1184 (citation omitted). Petitioner’s
claim of prosecutorial misconduct did not put the state courts on notice of a claim of ineffective
assistance of trial counsel. Accordingly, the Court agrees with Respondent that Ground Seven was
not properly exhausted.
Anticipatory Procedural Default
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 which
prevents the federal court from addressing the merits of the claim. Anderson v. Sirmons, 476 F.3d
1131, 1139 n.7 (10th Cir. 2007). The claim is referred to as being barred by anticipatory procedural
default. In the PAR, Respondent argues that there is no remaining procedural avenue by which
Petitioner could return to state court to exhaust Ground Seven. (Doc. 18, p. 4.) She asserts that any
future K.S.A. 60-1507 motion Petitioner files including the allegations of ineffective assistance of
counsel in Ground Seven would be dismissed under K.S.A. 60-1507(c) as successive. Id. Thus,
she contends, Ground Seven is barred by anticipatory procedural default. Id.
The Court agrees. K.S.A. 60-1507(c) provides: 	“The sentencing court shall not be
required to entertain a second or successive motion for similar relief on behalf of the same
prisoner.” Thus, any future K.S.A. 60-1507 motion by Petitioner would likely be denied as
successive. In his reply to the PAR, Petitioner identifies no avenue by which he could now exhaust
Ground Seven in the state courts. (Doc. 22.) The Court will grant Petitioner time in which to
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identify any way by which he could return to state court to now exhaust Ground Seven. But if
Petitioner cannot do so, the Court will conclude that Ground Seven falls within the bar against
considering claims subject to anticipatory procedural default.
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.
The Court pauses to note that in Petitioner’s reply to the PAR, he argues that the state
district court’s failure to appoint counsel to represent him in pursuing post-conviction relief under
K.S.A. 60-1507 is an “objective factor external to the defense [that] impeded [his] ability to have
complied w[ith] the state’s procedural rule and exhaust [his] claim at the appropriate time.” (Doc.
22, p. 3.) The Tenth Circuit has rejected the claim that a litigant’s “pro se status and his
corresponding lack of awareness and training on legal issues do not constitute adequate cause’ to
overcome a procedural bar.” Quintana v. Hansen, 733 F. App’x 439, 444 (10th Cir. 2018)
(unpublished) (quoting Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991)). It has also
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held that a state court’s refusal to appoint post-conviction counsel is not cause to overcome a
procedural bar because there is “‘no constitutional right to an attorney in state post-conviction
proceedings.’” Quintana, 733 F. App’x at 444 (quoting Coleman, 501 U.S. at 725). Therefore, to
the extent that Petitioner argues that the lack of post-conviction counsel is cause to overcome the
anticipatory procedural default of Ground Seven, his argument must fail. Petitioner will be granted
time in which show, in writing, other cause and prejudice that might overcome his anticipatory
procedural default of Ground Seven.
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. To proceed under this exception, Petitioner
“must make a colorable showing of factual innocence.” See Beavers v. Saffle, 216 F.3d 918, 923
(10th Cir. 2000). 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)).
The actual innocence exception is sometimes called a gateway because, if successful,
Petitioner is not guaranteed federal habeas relief. Instead, if Petitioner successfully makes a
colorable showing of actual innocence, he will pass through the gateway otherwise closed by the
anticipatory procedural default of Ground Seven, meaning that the federal court may consider the
merits of the arguments in Ground Seven. The Tenth Circuit has made clear:
[T]enable actual-innocence gateway pleas are rare, arising only in an extraordinary
case. The gateway should open only when a petition presents evidence of innocence
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so strong that a court cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of nonharmless constitutional error.
Fontenot, 4 F.4th at 1031 (citations and quotation marks omitted).
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 v. Powell, 7 F.4th 920, 927 (10th Cir. 2021).
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 evidence tenably claimed to have been wrongly
excluded or to have become available only after the trial.’” Schlup, 513 U.S. at 328.
Conclusion
For the reasons set forth above, the Court concludes that Ground Seven of the amended
petition appears to be barred by anticipatory procedural default. Petitioner will be given time in
which to submit a written response identifying an avenue by which he could properly return to
state court and exhaust Ground Seven. In the alternative, Petitioner may choose to argue that this
Court should consider the merits of Ground Seven regardless of the anticipatory procedural
default. To succeed on this argument, Petitioner must show (1) cause and prejudice or (2) that a
fundamental miscarriage of justice will occur if the Court declines to consider the arguments in
Ground Seven on their merits. After Petitioner files his response to this order, the Court will review
it carefully and will issue additional orders. If Petitioner fails to timely file a response to this order,
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Ground Seven of the amended petition will be dismissed without further prior notice to Petitioner
and this matter will proceed on Grounds One through Six of the amended petition.
Motion to Amend Case Law to Ground Four and Seven (Doc. 25)
Also before the Court is Petitioner’s motion asking to add Olden v. Kentucky, 488 U.S. 227
(1988), as legal authority in support of Ground Four and Ground Seven. (Doc. 25.) The motion
provides no further information about the relevance of this case or any indication what document
previously filed in this Court Petitioner is seeking to amend. The motion will be denied. If
Petitioner wishes to amend his memorandum of law filed in support of the amended petition (Doc.
14), he must file a motion seeking to file a complete amended memorandum of law in support of
the amended petition that will replace any previous memorandum of law filed in this case. The
Court is not inclined to allow amendment of the memorandum by supplemental filing.
IT IS THEREFORE ORDERED that Petitioner is granted until and including June 18,
2026, to submit a written response to this order that shows cause why Ground Seven of the
amended petition should not be dismissed as barred by anticipatory procedural default. If Petitioner
fails to timely file a written response, Ground Seven will be dismissed without further prior notice
to him and this matter will proceed on Grounds One through Six only.
IT IS FURTHER ORDERED that the motion to amend case law (Doc. 25) is denied.
IT IS SO ORDERED.
DATED: 	This 18th day of May, 2026, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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