Smith-Parker (ID 2000056791) v. Schnurr

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIE JEROME SMITH-PARKER,
Petitioner,
v.
DAN SCHNURR, warden of Hutchinson
Correctional Facility,
Respondent.
Case No. 25-3095-DDC-BGS
MEMORANDUM & ORDER
This matter comes before the Court on Petitioner Willie Smith-Parker’s Motion for
Appointment of Counsel (Doc. 41), Motion to Stay (Doc. 42), and Motion to Amend (Doc. 45).
Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 to challenge his state-
court convictions and sentence. 1 The Court has reviewed the motions and the record and is
prepared to rule.
I. 	Background
In May 2025, Petitioner Willie Jerome Smith-Parker initiated this federal habeas action under
28 U.S.C. § 2254. See Doc. 1. He is a Kansas state prisoner currently incarcerated at Hutchinson
Correctional Facility. Petitioner challenges his convictions and 796-month sentence entered in
Saline County District Court following a second jury trial held in April and May 2015.
As summarized by Judge Lungstrum, who screened the case, the State originally filed two
separate criminal cases against Petitioner in 2009. See Doc. 32, at 2. Those cases were consolidated
for trial over Petitioner’s objection. A jury convicted Petitioner, but the Kansas Supreme Court
1 Petitioner proceeds pro se. The Court construes his filings liberally and holds him to a less stringent
standard than trained lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). But the Court does not assume the role of advocate for the pro se litigant. Hall, 935
F.2d at 1110.
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reversed based on cumulative error and remanded for further proceedings. Id. On remand, the
cases again were consolidated, and a second jury convicted Petitioner of second-degree intentional
murder, second-degree reckless murder, aggravated assault, and theft. He received a total sentence
of 796 months’ imprisonment.
Petitioner pursued a direct appeal. The Kansas Court of Appeals affirmed his convictions
and sentence in 2017, and although the Kansas Supreme Court initially granted review, it later
dismissed the petition for review as improvidently granted. Id. Thereafter, Petitioner filed multiple
motions in Saline County District Court for post-conviction relief pursuant to K.S.A. 60-1507. His
first motion alleged ineffective assistance of trial and appellate counsel and was summarily denied;
the Kansas Court of Appeals affirmed, and the Kansas Supreme Court denied review in March
2025. Id. at 3. Petitioner has also filed subsequent motions under K.S.A. 60-1507, including one
that was pending in state court at the time he sought to stay these federal proceedings. Id.
Petitioner initiated this federal action on May 14, 2025 by filing a petition for habeas relief
under 28 U.S.C. § 2254. See Doc. 1. Over the course of the litigation, Petitioner has filed several
amended petitions. See, e.g., Docs. 1, 7, 33, 37. Petitioner first filed an amended petition on June 5,
2025. See Doc. 7. Later, on November 5, 2025, Petitioner filed a second amended petition together
with a supporting memorandum. See Doc. 33. In a memorandum and order entered that same day,
Judge Lungstrum noted that the second amended petition asserted four grounds for relief, while the
accompanying memorandum referred to six grounds, creating uncertainty regarding the claims
Petitioner intended to pursue. See Doc. 32 at 8–9. To resolve the discrepancy, the Court directed
Petitioner to file either (1) a complete third amended petition containing all six grounds for relief or
(2) a notice advising that he intended to proceed only on the four grounds asserted in the petition.
Id. Judge Lungstrum noted that this was a “final opportunity to amend the petition.” Id. at 8. The
Court later extended Petitioner’s deadline to submit a third amended petition and directed the Clerk
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to provide the appropriate forms. See Doc. 36. Petitioner thereafter filed a third amended petition
on December 2, 2025, which is the operative petition presently before the Court. See Doc. 37.
In the third amended petition, Petitioner asserts six grounds for relief. First, he contends
that consolidation of his two criminal cases for trial violated his Sixth Amendment right to a fair trial
and his Fourteenth Amendment right to due process. Second, he argues that the trial court violated
his Sixth and Fourteenth Amendment rights by allowing a witness to present what he characterizes
as expert testimony without first establishing the witness’s qualifications. Id. Third, he challenges a
jury instruction advising jurors that evidence had been admitted tending to prove he committed
other crimes. Id. Fourth, he asserts that the cumulative effect of alleged trial errors—including
consolidation, the challenged jury instruction, admission of certain evidence, and statements by the
trial court—deprived him of a fair trial. Id. Petitioner also brings two claims (grounds 5 and 6)
under Apprendi v. New Jersey, 530 U.S. 466 (2000), challenging the use of his criminal history and the
imposition of an aggravated grid sentence.
Since Petitioner filed his third amended petition, the Court entered an order directing
Respondent to file an answer by April 6, 2026 showing why the writ should not be granted and to
submit the relevant state-court records and transcripts for review. See Docs. 39 and 44. Following
that order, the case was reassigned to Judge Crabtree—the presiding district judge—and Magistrate
Judge Severson—the undersigned.
Against this backdrop, the Court turns to the pending motions which include a renewed
motion for appointment of counsel, motion to stay the case, and motion to amend. See Docs. 41,
42, and 45. The Court will address each below.
II. 	Request for Counsel.
Petitioner first moved for appointment of counsel early in the case. See Doc. 6. That
motion was denied as moot when the case was dismissed for failure to comply with a court order,
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but it was revived when the dismissal was vacated. See Doc. 11. On August 11, 2025, the Court
considered the motion and denied it without prejudice, explaining that there is no constitutional
right to counsel in habeas proceedings and that, at that early stage—before Rule 4 review and before
the claims were clearly defined—the interests of justice did not require appointment. Doc. 23. The
Court advised Petitioner that he could renew his request if the case survived initial screening and
developed in a manner warranting counsel, such as if discovery were authorized or an evidentiary
hearing became necessary. Petitioner has since renewed his request, which is the motion presently
before the Court. See Doc. 41.
There is no constitutional right to counsel in a federal habeas corpus proceeding beyond the
direct appeal of a criminal conviction. See Coleman v. Thompson, 501 U.S. 722, 756–57 (1991); Swazo v.
Wyoming Dep't of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994) (“[T]here is no
constitutional right to counsel beyond the appeal of a criminal conviction”). In most § 2254
proceedings, the appointment of counsel is left to the Court’s discretion. See 28 U.S.C. § 1915(e)(1);
Lyons v. Kyner, 367 F. App’x 878, 883 n.9 (10th Cir. 2010). In exercising that discretion, the Court
considers factors such as: (1) the apparent merit of the petitioner’s claims; (2) the nature and
complexity of the factual and legal issues presented; and (3) the petitioner’s ability to investigate and
present the claims without the assistance of counsel. Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004). This Court may appoint counsel in a federal habeas action if it “determines
that the interest of justice so require.” See 18 U.S.C. § 3006A(a)(2)(B). Thoughtful use of the
appointment power is warranted, as volunteer counsel is a limited resource. Castner v. Colorado
Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992).
That said, the Court’s discretion is not without limit. Rule 8(c) of the Rules Governing
Section 2254 Cases provides that “[i]f an evidentiary hearing is warranted, the judge must appoint an
attorney to represent a petitioner who qualifies” under the Criminal Justice Act. The Tenth Circuit
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has made clear that once a district court determines that an evidentiary hearing is required,
appointment of counsel is mandatory—not discretionary. Swazo, 23 F.3d at 333–34. Thus, until an
evidentiary hearing is deemed necessary, appointment remains within the Court’s sound discretion;
once a hearing is required, however, counsel must be appointed for a qualifying petitioner. See id.
Accordingly, in evaluating a motion to appoint counsel in a habeas proceeding, the Court
first determines whether an evidentiary hearing is required under Rule 8. If so, and if the petitioner
qualifies under 18 U.S.C. § 3006A, the Court must appoint counsel. If no evidentiary hearing is
required, the Court applies the discretionary factors described above in determining whether the
interests of justice warrant appointment.
At this stage, no such determination has been made and the mandatory-appointment
provision does not apply. The Court has completed its Rule 4 screening and ordered Respondent to
answer, but it has not concluded that additional factual development is necessary. Once briefing is
complete, the district judge will review the petition, the parties’ submissions, and the state-court
record to determine whether the claims can be resolved on that record or whether additional factual
development is necessary. See Rule 8 of the Rules Governing Section 2254 Cases. Generally, federal
review under 28 U.S.C. § 2254(d) is limited to the state-court record. See Johnson v. Vaughn, 532 F.
App'x 811, 811–12 (10th Cir. 2013) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). Only if the
district judge concludes that further factual development is warranted may the Court authorize
discovery or set an evidentiary hearing, subject to the limitations of 28 U.S.C. § 2254(e)(2). Because
that determination has not yet been made, the mandatory-appointment provision does not apply,
and the Court turns to whether discretionary appointment of counsel is warranted.
The factors for discretionary appointment weigh against appointing counsel. First, regarding
the merits of Petitioner’s case, “[t]he burden is on the applicant to convince the court that there is
sufficient merit to his claim to warrant the appointment of counsel.” Hill, 393 F.3d at 1115 (quoting
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McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)). In his present motion, Petitioner does not
substantively address the merits of his habeas corpus petition. Rather, he asserts that he seeks
professional assistance to “perfect deficiencies,” to avoid a “miscarriage of justice,” and to better
understand the rules and laws applicable to his petition. See Doc. 41. While the Court does not
discount Petitioner’s concerns, generalized assertions of need do not demonstrate that the
underlying claims possess sufficient merit to justify appointment of counsel. At this stage, the Court
has ordered a response from Respondent and has not yet evaluated the claims under § 2254(d).
Nothing presently before the Court suggests that Petitioner’s claims are so likely to succeed, or so
substantial, as to weigh in favor of appointing counsel. Accordingly, this factor does not support
discretionary appointment at this time.
Second, the Court must consider the nature and complexity of the factual and legal issues.
Petitioner’s claims primarily challenge the consolidation of his criminal cases in state court, certain
evidentiary rulings, jury instructions, and the cumulative effect of alleged trial errors. These issues
arise from the existing state-court record and were addressed on direct appeal. Although federal
habeas review under 28 U.S.C. § 2254 involves application of the deferential standards set forth in §
2254(d), the legal framework governing such claims is well established. Petitioner does not identify
any novel constitutional theory, unusually intricate factual dispute, or need for technical or scientific
evidence that would render the issues unusually complex. Nor does the case presently involve
discovery or evidentiary development. While habeas litigation is undoubtedly challenging for a pro
se litigant, the claims asserted here are neither factually nor legally extraordinary. Accordingly, the
second factor does not weigh in favor of appointing counsel at this stage.
Third, the next factor the Court considers is Petitioner’s capacity to prepare and present the
case without the aid of counsel. Castner, 979 F.2d at 1420–21. In considering this factor, the Court
must look to the Petitioner’s ability to gather and present crucial facts as well as the complexity of
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the case. Id. at 1422. Merely alleging that counsel could assist in presenting the “strongest possible
case” does not justify granting such a motion. Lane v. Brewer, No. 07-3225-JAR, 2008 WL 3271921,
at *2 (D. Kan. Aug. 7, 2008). Petitioner has filed multiple pleadings in this matter which articulate
the factual basis of his claims and cite relevant constitutional provisions. Although Petitioner states
that he lacks legal training and would benefit from professional assistance, the mere assertion that
counsel could assist him in presenting the “strongest possible case” does not warrant appointment.
Id. at *2. At this stage, the claims are confined to the existing state-court record, and no discovery or
evidentiary hearing has been authorized. Petitioner has not demonstrated that he is unable to
adequately present his arguments or comply with court directives. Accordingly, the third factor does
not weigh in favor of discretionary appointment of counsel.
After considering all the relevant factors, the Court finds no basis to appoint counsel at this
stage of the proceedings. Petitioner’s claims, while important to him, are neither unusually complex
nor presently in need of factual development beyond the existing state-court record. Although
Petitioner lacks formal legal training and counsel might present his arguments more effectively, that
circumstance does not distinguish him from the many pro se litigants who pursue habeas relief in
federal court. See Abu-Fakher v. Bode, 175 F. App’x 179, 185 (10th Cir. 2006). On balance, the Court
concludes that the Hill factors weigh against discretionary appointment of counsel at this time. The
motion is therefore denied.
III. 	Motion to Stay
Petitioner moves to stay this action so that he may add amended issues and ensure
exhaustion of certain state-court remedies. See Doc. 42. He asserts that some amended issues were
mistakenly omitted and that he seeks to avoid being barred from later presenting them. Id. He also
references ongoing state proceedings and expresses concern about procedural compliance. Id.
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A stay of a federal habeas proceeding is an extraordinary remedy. Such relief is appropriate
only in limited circumstances—typically where a petitioner presents a “mixed petition” containing
both exhausted and unexhausted claims, demonstrates good cause for the failure to exhaust, and
shows that the unexhausted claims are potentially meritorious. Rhines v. Weber, 544 U.S. 269, 276–77
(2005). Petitioner has not made such a showing here. The third amended petition presently before
the Court contains claims that have been litigated in the Kansas appellate courts. Moreover,
Petitioner has not demonstrated that any specific unexhausted claim presently warrants application
of the Rhines stay-and-abeyance procedure.
Additionally, this case has already progressed beyond Rule 4 screening, and Respondent has
been directed to answer. Granting a stay at this juncture would delay resolution of claims already
properly before the Court. On the record presented, Petitioner has not shown the existence of a
mixed petition requiring protection, or any other basis justifying a stay. The motion to stay is
therefore denied.
IV. 	Motion to Amend
Petitioner also moves to amend his § 2254 petition to add what he describes as “missing
amended issues.” See Doc. 45. He asserts that the omission was inadvertent and that he seeks to
correct the mistake in good faith. Id.
Federal Rule of Civil Procedure 15(a)(1) permits a party to amend its pleading once as a
matter of course, either before the responding party answers or within 21 days after service of a
responsive pleading. “In all other cases, a party may amend its pleading only with the opposing
party’s written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to
amend under Rule 15(a)(2) is committed to the Court’s sound discretion. Las Vegas Ice & Cold
Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990).
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It is well-settled that in ruling on a motion for leave to amend, courts are instructed to freely
give leave when justice so requires. Foman v. Davis, 371 U.S. 178, 182 (1962). See also Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave when justice so requires.”). In freely allowing leave to
amend, the court provides litigants with “the maximum opportunity for each claim to be decided on
its merits rather than on procedural niceties.” Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456
(10th Cir. 1982). A court may deny leave to amend upon a showing of undue delay, bad faith or
dilatory motive on the part of the movant, undue prejudice to the opposing party, and futility of
amendment. Foman, 371 U.S. at 182; Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010).
Applying these principles here, the Court cannot meaningfully evaluate whether leave to
amend should be freely granted under Rule 15 because Petitioner’s motion is wholly conclusory.
The motion does not identify the specific claims Petitioner seeks to add, explain how those claims
differ from the six grounds already asserted in the operative petition, or describe the factual or legal
basis for the proposed amendments. See Doc. 45. Without such information, the Court cannot
determine whether the proposed amendments would be futile, unduly delayed, prejudicial, or
whether amendment would otherwise serve the interests of justice under Rule 15.
Petitioner’s motion also fails to comply with D. Kan. Rule 15.1(a), which requires a party to
(1) set forth a concise statement of the amendment or leave sought and (2) attach the proposed
pleading or other document. Here, Petitioner has failed to attach his proposed amended petition.
This alone serves as a basis for denial. Waterman v. Groves, No. 18-3092-JWB-KGG, 2020 WL
6044103, at *2 (D. Kan. Oct. 13, 2020).
Further, allowing further amendment at this stage would undermine the Court’s prior
directive that the amended petition be complete and would delay the orderly progression of the case.
Judge Lungstrum previously advised Petitioner he had “one final opportunity” to include all grounds
for relief in a complete and self-contained amended petition. Doc. 32, at 8. To the extent Petitioner
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seeks to reassert the previously referenced Apprendi claims or other sentencing-related arguments, he
was specifically advised to include all such grounds in his amended petition. Having been afforded
that opportunity, and in the absence of a showing that amendment is necessary to prevent manifest
injustice, the Court declines to permit further amendment. This case must move forward. Pallottino
v. City of Rio Rancho, 31 F.3d 1023 (10th Cir. 1994) (“A busy district court need not allow itself to be
imposed upon by the presentation of theories seriatim. Liberality in amendment is important to
assure a party a fair opportunity to present his claims and defenses, but ‘equal attention should be
given to the proposition that there must be an end finally to a particular litigation.’”). Accordingly,
the motion is denied.
IT IS THEREFORE ORDERED that Petitioner’s Motion for Appointment of Counsel,
Doc. 41, is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Stay, Doc. 42, is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Amend, Doc. 45, is DENIED.
IT IS SO ORDERED.
Dated March 5, 2026, at Wichita, Kansas.
/S / BROOKS S EVERSON
Brooks G. Severson
United States Magistrate Judge
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