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
Petitioner and Kansas state prisoner Richard Chantez Butler seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He proceeds pro se and has been granted leave to proceed in forma
pauperis. (Doc. 3.) This matter comes now before the Court on Petitioner’s amended petition (Doc.
9), filed on February 3, 2026. The Court has conducted the required review of the amended petition
and concludes that deficiencies in the amended petition, which are explained below, leave Grounds
One through Six of this matter subject to dismissal. Petitioner will be granted time in which to cure
the deficiencies, either by filing a second amended petition or by supplementing his amended
petition with the direct-appeal brief on which he depends for the facts supporting Grounds One
through Six. If he fails to do so, the Court will dismiss Grounds One through Six of this matter and
the case will proceed on Ground Seven alone.
Background
A jury in Atchison County, Kansas, convicted Petitioner “of aggravated kidnapping and 14
other crimes, including 3 counts of rape and 2 counts of aggravated criminal sodomy, all against
the same victim.” See State v. Butler, 2022 WL 3692866, *1, 6 (Kan. Ct. App. Aug. 26, 2022)
(unpublished) (Butler I), rev. in part on other grounds by State v. Butler, 317 Kan. 6705 (2023)
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(Butler II). After trial but before sentencing, Petitioner moved to represent himself, which the
district court allowed. Butler I, 2022 WL 3692866 at *6. Petitioner then filed a pro se motion for
a new trial based on ineffective assistance of counsel.1 Id. The district court heard argument on
the motion at sentencing in July 2020, but ultimately denied it and sentenced Petitioner to a
controlling sentence of 543 months in prison. Id. Petitioner pursued a direct appeal and, in an
opinion issued on August 26, 2022, the Kansas Court of Appeals (KCOA) vacated Petitioner’s
conviction for aggravated kidnapping, vacated the related sentence, and affirmed all other
convictions. Id. at *1, 13. It also considered but rejected Petitioner’s arguments that the district
court had erred by denying the motion for a new trial based on ineffective assistance of counsel.
Id. at *17-19.
Petitioner filed a petition for review, which the Kansas Supreme Court (“KSC”) denied,
and the State filed a cross-petition for review, which the KSC granted. See State v. Butler, Case
No. 123,742, records available on the Kansas Appellate Courts Public Access Portal. In an opinion
filed on August 11, 2023, the KSC reversed the KCOA’s decision vacating the aggravated
kidnapping conviction and reinstated the conviction and accompanying sentence. Butler II, 317
Kan. at 606. Petitioner advises that he did not file a petition for writ of certiorari in the United
States Supreme Court. (Doc. 9, p. 4.)
Petitioner then filed a motion for state habeas relief under K.S.A. 60-1507, which the state
district court summarily dismissed. Butler v. State, 2025 WL 7333370, * (Kan. Ct. App. Mar. 7,
2025) (unpublished) (Butler III), rev. denied July 31, 2025. Petitioner appealed and, on March 7,
2025, the KCOA issued an opinion affirming the dismissal. Id. at *1. The KSC denied Petitioner’s
1 In Kansas, a motion for new criminal trial generally must be filed within 14 days after the verdict. K.S.A. 22-3501(1).
When a motion for new trial is filed outside of that window but seeks a new trial based on alleged ineffective assistance
of counsel, the state district court may “treat it as a collateral attack on the conviction—like a K.S.A. 60-1507 motion.”
See Butler I, 2022 WL 3692866 at *17 (citing State v. Jarmon, 308 Kan. 241, 250 (2018)).
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petition for review on July 31, 2025.
On December 31, 2025, Petitioner filed in this Court the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 that began this case. (Doc. 1.) The Court reviewed the petition as
required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
and determined that portions of the petition were subject to dismissal. Thus, on January 22, 2026,
the Court issued a memorandum and order (“M&O”) identifying the deficiencies in the petition
and granting Petitioner time to file an amended petition that cured the deficiencies. (Doc. 8.)
Petitioner timely filed his amended petition (Doc. 9), which is now before the Court.
The Amended Petition (Doc. 9)
In the amended petition, Petitioner asserts seven grounds for relief. (Doc. 9, p. 6-7, 9-10,
17-25.) In Ground One, he argues that his rights under the Sixth and Fourteenth Amendments to
the United States Constitution were violated because there was insufficient evidence to support his
aggravated kidnapping conviction. Id. at 17. As supporting facts for Ground One, Petitioner seeks
to “incorporate by reference facts thereof appellant counsel’s brief on Direct Appeal [sic].” Id.
This attempt to incorporate by reference similarly stands as the supporting facts for Grounds Two,
Three, Four, Five, and Six. Id. at 18-22.
In Ground Two, Petitioner argues that his rights under the Sixth and Fourteenth
Amendments were violated because some of his convictions were multiplicitous2 and therefore
violated the Double Jeopardy Clause. Id. at 18. In Ground Three, he argues that his rights under
2 The amended petition states in Ground Two: 	“Mr. Butler’s three convictions of and two convictions of aggravated
criminal sodomy are multiplicitous . . . .” (Doc. 9, p. 18 (all errors in original).) Based on Petitioner’s arguments in
the initial petition and in the related state-court proceedings, the Court presumes that Petitioner intends to argue the
multiplicity of “three convictions of rape and two convictions of aggravated criminal sodomy.” The missing word in
the amended petition—rape—was likely a simple error by Petitioner. Petitioner must ensure, however, that any second
amended petition he chooses to file clearly identifies the convictions he believes to be multiplicitous. As stated in the
M&O, a petition “must be complete in and of itself.” (Doc. 8, p. 8.) If grounds for relief cannot be understood without
reference to previously filed petitions, they do not comply with Rule 2(c) of the Rules Governing Section 2254 Cases
in the United States District Courts and they will be subject to dismissal without further prior notice.
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the Sixth and Fourteenth Amendments were violated by prosecutorial error during closing
arguments. Id. at 19. In Ground Four, Petitioner argues that his rights under the Sixth and
Fourteenth Amendments were violated when “[t]he district court erred in summarily denying [his]
motion for new trial based on ineffective assistance of counsel,” and he asks this Court to “remand
for an evidentiary hearing.” Id. at 20. In Ground Five, Petitioner argues that his right to a fair trial
under the Sixth and Fourteenth Amendments was violated by cumulative trial errors. Id. at 21. In
Ground Six, Petitioner argues that the state district court violated his Sixth and Fourteenth
Amendment rights as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), by increasing his
sentence based upon past convictions without requiring the State to prove those convictions
beyond a reasonable doubt to a jury. Id. at 22.
In Ground Seven, Petitioner argues that his Sixth Amendment right to the effective
assistance of counsel was violated when trial counsel “partially disclosed (Excluding) from Jury
Mr. Butler evidence of the Domestic Violence Direct Asses[s]ment that was a part of the Rape
Kit[.]” Id. at 23 (all errors in original). As supporting facts for Ground Seven, Petitioner asserts
that trial counsel failed to review a domestic violence assessment, failed to present exculpatory
evidence to the jury, failed to call an expert witness, and failed to challenge State witnesses. Id.
Petitioner argues that these failures left him to “face[] his accuser alone and without important
evidence” that was in the assessment. Id. Petitioner further asserts that trial counsel was ineffective
by deciding not to present “Exhibit A,” which was Dr. James Lasseter’s findings and analysis of
the rape kit. Id. Petitioner contends that if Exhibit A had been presented at trial, it would have
“opened up the flood-gates to [his] innocence” and changed the outcome of the trial. Id.
As relief in this federal habeas case, Petitioner asks this Court to hold an evidentiary
hearing to further develop Ground Seven. Id. at 15. He also asks the Court to reverse the state
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court’s rejection of the arguments now in Grounds One through Seven and remand for a new trial.
Id. at 16.
Rule 4 Standards of 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 pleading, 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 never presented.’”
Childers v. Crow, 1 F.4th 792, 798 (10th Cir. 2021) (citation omitted).
Analysis
To his credit, Petitioner has cured many of the deficiencies in the initial petition that were
identified in the M&O. (See Doc. 8, p. 4-8.) When the pro se amended petition is liberally
construed, the Court is able to determine the legal basis of each of the grounds for relief asserted
therein. As also stated in the M&O, however, an amended petition “may not . . . attempt to
incorporate by reference other filings with this Court.” (Doc. 8, p. 8.) The M&O also explained
that Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts
requires, among other things, that the petition “state the facts supporting each ground.” Id. at 4.
Petitioner’s attempt to provide the supporting facts for Grounds One through Six of the
amended petition only through incorporating by reference a brief filed in state court in his direct
appeal does not satisfy Rule 2(c) and does not comply with the M&O. The record before this Court
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does not contain a copy of the direct-appeal brief on which Petitioner depends for his supporting
facts. Thus, the Court in essence has before it no facts alleged to support Grounds One through Six
and those grounds are subject to dismissal under Rule 2(c).
Petitioner has three options. First, he may supplement his amended petition by filing a copy
of the brief from his state-court direct appeal and a cover sheet that indicates it is intended to be a
supplement to the amended petition. If Petitioner chooses this option, the Court will conduct the
Rule 4 review of the amended petition in light of the supplemental filing and will issue further
orders as necessary.
Second, Petitioner may file a complete and proper second amended petition. If Petitioner
chooses this option, the Court will conduct the Rule 4 review of the second amended petition and
issue further orders as appropriate. The second amended petition must be on the required, court-
approved form, which the Court will direct the clerk to provide to Petitioner, and it must be
complete in and of itself, although Petitioner may attach to the second amended petition a copy of
the direct-appeal brief. To be clear, Petitioner must include in the second amended petition and
exhibits thereto the facts that support his asserted grounds for relief. Any grounds for relief not
included in the second amended petition will not be considered by the Court and any grounds that
are asserted but lack supporting facts will be dismissed without further prior notice to Petitioner.
Third, Petitioner may choose to do nothing in response to this order. If he chooses this
option, the Court will dismiss Grounds One through Six of the amended petition and this case will
proceed on Ground Seven alone. Petitioner is cautioned that proceeding on Ground Seven alone
could severely restrict his ability to bring the claims in Grounds One through Six in a future habeas
action. Strict limitations exist for second or successive claims under 28 U.S.C. § 2254. See 28
U.S.C. § 2244(b); Davis v. Roberts, 425 F.3d 830, 834-35 (10th Cir. 2005). If this matter proceeds
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and the Court considers the merits of Ground Seven, any future § 2254 petition that attempts to
raise the arguments now in Grounds One through Six likely will be subject to the restrictions on
second or successive motions.
IT IS THEREFORE ORDERED that Petitioner is granted to and including March 17,
2026 in which to either (1) supplement his amended petition with a copy of the brief from his state-
court direct appeal or (2) file a complete and proper second amended petition that contains
sufficient facts to support each asserted ground for relief. If Petitioner fails to comply, Grounds
One through Six of the amended petition will be dismissed without further prior notice to Petitioner
and this case will proceed on Ground Seven alone. The clerk is directed to provide to Petitioner
the required form for filing a second amended petition under 28 U.S.C. § 2254.
IT IS SO ORDERED.
DATED: 	This 9th day of February, 2026, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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