govinfo:USCOURTS-ksd-5_19-cv-03088-1

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF KANSAS 
 
 
PIDY T. TIGER, 
 
 Petitioner, 
 
v. CASE NO. 19-3088-SAC 
 
SAM CLINE, 
 
 
 Respondent. 
 
 
MEMORANDUM AND ORDER 
 
This matter comes before the Court on Petitioner’s response to 
the Court’s June 21, 2021 Memorandum and Order (“MO”). For the 
reasons stated below, the Court dismisses with prejudice Grounds 1, 
2, 7 8, and 9. The Court will allow Petitioner the opportunity to 
file an amended petition. 
Background 
On May 8, 2019, Petitioner filed in this Court a petition for 
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) After 
conducting an initial review of the Petition under Rule 4 of the 
Rules Governing Section 2254 Cases in the United States Courts, the 
Court identified several deficiencies. In the MO, the Court 
explained those deficiencies and directed Petitioner to show cause 
why the Court should not dismiss Grounds 1, 2, 7, 8, and 9.(Doc. 3, 
p. 10-11.) Petitioner filed his response to the MO on June 29, 2021. 
(Doc. 4.) 
Analysis 
 Ground 1 
Petitioner contends in Ground 1 that police lacked probable 

cause to arrest him and the State used evidence illegally obtained 
from that arrest to convict him , which appears to be a Fourth 
Amendment Claim. (Doc. 1, p. 6.) As noted in the MO, as long as 
“the State has provided an opportunity for full and fair litigation 
of a Fourth Amendment claim, a state prisoner may not be granted 
federal habeas corpus relief on the ground that evidence obtained 
in an unconstitutional search or seizure was introduced at his 
trial.” See Stone v. Powell, 428 U.S. 465, 494 (1976). (Doc. 3, p. 
4.) Since Petitioner could have raised Ground 1 on direct appeal, 
the State of Kansas provided the required opportunity for full and 
fair litigation and Petitioner’s Ground 1 alleges only a claim that 
is not actionable for federal habeas review. Id. at 4-5. 
In his response, Petitioner does not address Ground 1 
explicitly. However, he asserts that all his grounds for relief 
“stem from a violation of [his] fundamental right to due process.” 
(Doc. 4, p. 2.) The context for Petitioner’s due process assertion, 
however, is a discussion of his speedy trial rights. He has not 
explained how his Ground 1 arguments regarding his initial arrest 
and the evidence obtained therefrom relate to his “fundamental right 
to due process.” “Where a particular Amendment ‘provides an explicit 
textual source of constitutional protection’ against a particular 
sort of government behavior, ‘that Amendment, not the more 
generalized notion of “substantive due process,” must be the guide 
for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 
(1994) (citation omitted). Thus, Petitioner has not shown good cause 
why the Court should not dismiss Ground 1. 
 Grounds 2, 7, and 8 
In Ground 2, Petitioner asserts that “[c]oerced statements of 

the victim were used to convict” him. (Doc. 1, p. 6.) In Ground 7, 
Petitioner alleges trial counsel was ineffective for failing to 
file a motion to suppress unspecified “evidence obtained in 
violation of the [F]ourth [A]mendment.” (Doc. 1, p. 17.) In Ground 
8, Petitioner argues that trial counsel was ineffective for failing 
to file a motion to suppress T.J.’s allegedly involuntary statement 
to police. (Doc. 1, p. 18.) As noted in the MO, it appears Petitioner 
has not exhausted these claims in state court. (Doc. 3, p. 8-10.) 
In his response, Petitioner asserts that he relied on his 
appellate counsel to identify and raise all meritorious issues. 
(Doc. 4, p. 3 -4.) Liberally construing Petitioner’s argum ent, he 
contends that his appellate counsel’s ineffectiveness—in failing to 
raise Grounds 2, 7, and 8 in state court—caused Petitioner’s failure 
to exhaust state court remedies for those issues. 
For the ineffective assistance of counsel to excuse procedural 
default of a claim, “the assistance must have been so ineffective 
as to violate the Federal Constitution.” Edwards v. Carpenter, 529 
U.S. 446, 451 (2000). In other words, for appellate counsel’s 
failure to raise these issues to excuse the failure to exhaust state 
court remedies, the failure to raise these issues must independently 
constitute ineffective assistance of counsel in violation of the 
Federal Constitution. Like any other independent constitutional 
claim, Petitioner therefore must have argued to the state courts 
that appellate counsel was ineffective on this basis before he may 
argue it here. See id. at 452 (holding that ineffective assistance 
of counsel “generally must ‘be presented to the state courts as an 
independent claim before it m ay be used to establish cause for a 
procedural default.’”). 

There is no indication that Petitioner has argued to the Kansas 
state courts that appellate counsel provided ineffective assistance 
in violation of the Federal Constitution by failing to argue that 
(1) a victim’s coerced statements were used to convict him (Ground 
2); (2) trial counsel was ineffective for failing to file a motion 
to suppress “evidence obtained in violation of the [F]ourth 
[A]mendment” (Ground 7); or (3) trial counsel was ineffecti ve for 
failing to file a motion to suppress T.J.’s statement to police 
(Ground 8). Moreover, the state courts would likely find any such 
challenges at this point procedurally barred as untimely. See State 
v. Tiger, 2021 WL 1045178, at *3 (Kan. Ct. App. 2021)(holding that 
Petitioner’s most recent two 60 -1507 motions were properly 
dismissed as untimely). Petitioner has not shown sufficient cause 
for his failure to argue in state court that appellate counsel was 
ineffective for failing to argue Grounds 2, 7, a nd 8, so those 
ineffective assistance of appellate counsel claims are procedurally 
defaulted. Therefore, he may not now rely on the alleged ineffective 
assistance of appellate counsel to provide sufficient cause for the 
failure to raise the issues in Grounds 2, 7, and 8 to the state 
courts. 
Petitioner has failed to show sufficient cause why he did not 
exhaust his state court remedies on the issues raised in Grounds 2, 
7, and 8 and, as such, this Court cannot consider those asserted 
grounds for relief. 
 Ground 9 
In Ground 9 of his petition , Petitioner contends that the 
retroactive application of K.S.A. 22 -3402(g) is unconstitutional. 
(Doc. 1, p. 19.) In the MO, the Court rejected Petitioner’s argument 

that he did not need to raise this issue in the state court because 
the Kansas Supreme Court (KSC) had already decided the issue. (Doc. 
3, p. 7-8.) The Court also concluded that a procedural bar would 
likely apply if Petitioner attempted now to return to state court 
to exhaust this argument, so it directed Petitioner to either show 
the cause and prejudice required to overcome the anticipatory 
procedural bar or show that the Court’s refusal to consider the 
claim will result in a funda mental miscarriage of justice because 
he is actually innocent. (Doc. 3, p. 8-9.) 
In his response, Petitioner asserts, without citation to any 
legal authority, that “any attempt to litigate the issue of the 
constitutionality of K.S.A. 22-3402(g) would be procedurally barred 
in the State Court” and that “ordered liberty would call for this 
court to act” where the State of Kansas relied upon an 
unconstitutional statute to secure Petitioner’s criminal 
conviction. (Doc. 4, p. 4.) He also argues that this Court should 
find that the KSC had a “duty” to sua sponte address the 
constitutionality of K.S.A. 22-3402(g) and that the KSC implicitly 
found the statute constitutional because the KSC applied the statute 
without holding it unconstitutional. Id. at 7-8. 
Petitioner’s response does not establish good cause for his 
failure to squarely present to the state courts and exhaust his 
argument that K.S.A. 22 -3402(g) is unconstitutional, nor does it 
establish Petitioner’s actual innocence. Thus, Petitioner has 
failed to overcome the anticipatory procedural bar and the Court 
will not consider Ground 9. 
 Ground 10 
In his response, Petitioner refers to Ground 10, in which he 

argues for the first time that his convictions and sentence are 
illegal under McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). (Doc. 4, 
p. 4-6.) It appears that Petitioner wishes to add Ground 10 to his 
petition, which currently contains only 9 grounds for relief. The 
Court will allow Petitioner the opportunity to amend his petition 
to add Ground 10, with the following direction. 
Petitioner asserts that he made th e argument in his proposed 
Ground 10 in state district court, “which denied relief on Mar[ch] 
19, 2021[,] ruling only that the petitioner’s sentence was ‘legal.’” 
Id. at 8. Petitioner contends that he filed a notice of appeal and 
requested appointment of counsel, but the district court has not 
appointed counsel and it appears that Petitioner has not attempted 
to docket his appeal. Id. Petitioner asserts that he would now be 
barred from pursuing his appeal “for failure to docket the appeal 
on time” and because the district court’s ruling did not address 
jurisdiction. Id. 
By these assertions, Petitioner indicates to the Court that he 
has not exhausted his state court rem edies with respect to Ground 
10, and he does not intend to do so because he believes he would be 
procedurally barred from doing so. He argues that because he “has 
been diligent in attempting to present this issue to the state 
court” and because there has been “a change in the law,” the Court 
should excuse his failure to exhaust and his procedural default of 
the claim. Petitioner generally cites to Williams v. Taylor, 529 
U.S. 362 (2000), and Coleman v. Thompson, 501 U.S. 722 (1991), in 
support of his position that his diligence and a change in the law 
warrant overlooking his failure to exhaust, but he does not identify 
the parts of those opinions he believes support his position. (Doc. 

4, p. 8.) To the extent that Williams discusses the impact of a 
petitioner’s diligence, it is in the context of a petitioner’s 
failure to develop a factual basis in state court for a claim later 
raised in a federal habeas action. See Williams, 529 U.S. at 430-
37. Similarly, Coleman does not appear to support Petitioner’s 
argument at all. 
It is also questionable whether Petitioner is correct in his 
assertion that he is procedurally barred from pursuing further 
remedies in state court with respect to his proposed Ground 10. 
Petitioner states that the time to docket an appeal has e xpired. 
The failure to timely docket an appeal does not necessarily preclude 
review by Kansas appellate courts. Kansas Supreme Court Rule 
2.04(a)(4) allows a litigant to move to docket an appeal out of 
time when there is good cause for the failure to timel y docket an 
appeal. 
Conclusion 
For the reasons stated above, Grounds 1, 2, 7, 8, and 9 are 
dismissed with prejudice. Because Petitioner appears to wish to 
amend his petition to add the argument he titles Ground 10, th e 
Court will allow Petitioner the opportunity to file a complete and 
proper amended petition that presents only the claims now known as 
Grounds 3, 4, 5, and 6 and the proposed Ground 10 Petitioner 
articulated in his response to this Court’s MO. In his amended 
petition, Petitioner must address the exhaustion of Ground 10. 
If Petitioner submits an amended petition, it must be on court-
approved forms and must be complete in and of itself; it may not 
refer back to an earlier version of the petition or attempt to 
incorporate by reference other filings with this Court. Any grounds 

for relief not included in the amended petition will not be 
considered before the Court. Petitioner must include the case number 
of this action (19-3088) on the first page of the amended petition. 
If Petitioner fails to submit an amended petition consistent 
with these directions, the action may proceed and be decided on 
Grounds 3, 4, 5, and 6 as articulated in the currently operative 
petition. 
IT IS THEREFORE ORDER ED that Grounds 1, 2, 7, 8, and 9 are 
dismissed with prejudice. 
IT IS FURTHER ORDERED THAT Petitioner is granted until August 
9, 2021, in which to file a complete and proper amended complaint. 
 
 IT IS SO ORDERED. 
 DATED: This 9th day of July, 2021, at Topeka, Kansas. 
 
 S/ Sam A. Crow 
 SAM A. CROW 
U.S. Senior District Judge 

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