Smith-Parker (ID 2000056791) v. Schnurr

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIE JEROME SMITH-PARKER,
Petitioner,
v. 	CASE NO. 25-3095-JWL
DAN SCHNURR,
Respondent.
MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by Petitioner Willie Jerome Smith-Parker, a state prisoner incarcerated at Hutchinson Correctional
Facility in Hutchinson, Kansas. This matter comes now before the Court on Petitioner’s latest
petition (Doc. 31-1) and the memorandum in support of that petition (Doc. 31). The most recently
filed petition contains only four grounds for relief, but the memorandum refers to six grounds for
relief. Therefore, the Court will grant Petitioner time in which to file either a third amended petition
that contains all six grounds for relief or a written notice advising that he wishes to proceed only
on the four grounds asserted in the most recently filed petition. After the Court receives one of
these filings from Petitioner, it will issue further orders as necessary. If Petitioner fails to timely
respond to this order by filing either a third amended petition or a written response, this case will
proceed only on the four grounds asserted in the most recently filed petition.
Background
The procedural history of Petitioner’s litigation in the state courts and in this Court is
complex, but to fully appreciate the current status of this federal habeas matter, a detailed recitation
is necessary. The Court assures Petitioner that this statement of background is not intended to be
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binding findings of fact. Rather, it is merely an attempt to provide context and a chronological
explanation of the history of Petitioner’s various cases.
In June 2009, the State of Kansas charged Petitioner with aggravated assault, second-
degree intentional murder, and criminal possession of a firearm. State v. Smith-Parker, 301 Kan.
132, 138 (2014) (Smith-Parker I). Later in 2009, the State charged Petitioner in a different case
with first-degree premeditated murder, first-degree felony murder, two counts of aggravated
burglary, and one count of theft. Id. at 139. Over Petitioner’s objection, the cases were consolidated
for trial and a jury convicted Petitioner of first-degree premeditated murder, second-degree
intentional murder, theft, and aggravated assault. Id. at 134, 139. Petitioner appealed, and the
Kansas Supreme Court (“KSC”) held that cumulative error required the reversal of the convictions
and it remanded the case for further proceedings. Id. at 134.
On remand, the cases remained consolidated for trial, despite Petitioner’s objection. State
v. Smith-Parker, 2017 WL 5014898, *1 (Kan. Ct. App. Nov. 3, 2017) (unpublished) (Smith-Parker
II), rev. dismissed as improvidently granted Feb. 5, 2020. A second jury trial occurred in April and
May 2015. Id. at *4. The jury ultimately convicted Petitioner of second-degree intentional murder,
theft, second-degree reckless murder, and aggravated assault. Id. at *8; (Doc. 31-1, p. 1-2). The
state district court sentenced Petitioner to a total of 796 months in prison. Id. at 1. Petitioner
appealed, and, on November 3, 2017, the Kansas Court of Appeals (“KCOA”) affirmed his
convictions and sentences. Smith-Parker II, 2017 WL 5014898, at *1. Petitioner timely filed a
petition for review in the KSC, which was initially granted. However, on February 5, 2020, the
KSC issued an order dismissing the petition for review and holding that review had been
improvidently granted.
On October 5, 2020, Petitioner filed in Saline County District Court a motion for habeas
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relief under K.S.A. 60-1507. (Doc. 31-1, p. 3.) Therein, he argued that he had received
unconstitutional ineffective assistance of counsel during his trial and on direct appeal. Id. The state
district court summarily denied the motion. Smith-Parker v. State, 2024 WL 2235284, *1 (Kan.
Ct. App. May 17, 2024) (unpublished) (Smith-Parker III), rev. denied Mar. 27, 2025. Petitioner
appealed and, on May 17, 2024, the KCOA affirmed. Id. Petitioner filed a petition for review in
the KSC.
On July 26, 2024, while the petition for review was pending, Petitioner filed in Saline
County District Court a second K.S.A. 60-1507 motion. (Doc. 31-1, p. 3.) Therein, he argued that
he was actually innocent and had been convicted only due to the ineffective assistance of trial and
direct-appeal counsel. Id. The state district court denied the motion on August 9, 2024. Id. at 4.
Petitioner asserts that he filed a notice of appeal from the denial1 but has “not heard back from the
courts.” (Doc. 31-1, p. 4.) On March 27, 2025, the KSC denied the petition for review related to
Petitioner’s first K.S.A. 60-1507 motion.
On May 14, 2025, Petitioner filed in this Court the petition for federal habeas relief under
28 U.S.C. § 2254 that began this case. (Doc. 1.) With his petition, he filed an affidavit seeking
leave to proceed in forma pauperis (Doc. 2) and a motion to stay the federal proceedings (Doc. 3).
In the motion to stay, Petitioner explained that he wished to return to state court and argue that he
received ineffective assistance from appellate counsel during his pursuit of K.S.A. 60-1507 relief
because counsel failed to appeal certain issues that had been raised to the district court. (Doc. 3, p.
1-2.) Petitioner’s affidavit in support of his request for leave to proceed in forma pauperis,
however, was not on the required form or supported by the required financial information. Thus,
1 As of the date of this order, the publicly available records of the Saline County District Court do not reflect that a
notice of appeal was ever received by the district court. See Kansas District Court Public Access Portal, Smith-Parker
v. State, Case No. SA-2024-CV-000165.
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on May 15, 2025, the Court issued a notice of deficiency, granting Petitioner 30 days in which to
either pay the filing fee or submit a proper motion for leave to proceed in forma pauperis. (Doc.
4.) The notice of deficiency also told Petitioner that his petition appeared to be missing a page and
it provided him with the required form on which to re-submit his petition. Id.
Petitioner timely filed a complete petition on the required forms, which was docketed as
an amended petition. (Doc. 7.) But the deadline set in the notice of deficiency came and went and
the Court received neither payment of the filing fee nor a proper motion for leave to proceed in
forma pauperis. Thus, on June 24, 2025, the Court dismissed this case under Federal Rule of Civil
Procedure 41(b) for failure to comply with a court order. (Doc. 8.) The dismissal order denied as
moot the pending motion to stay. Id.
The following day, however, the Court received from Petitioner a motion to reconsider the
dismissal. (Doc. 10.) Petitioner explained that he had requested payment of the filing fee but was
having difficulty getting prison approval for the money to be sent to the Court from his inmate
account. Id. In light of this information, the Court granted the motion to reconsider, vacated the
dismissal order and judgment, and reopened this case. (Doc. 11.) When the dismissal order was
vacated, the motion to stay that had been denied as moot in the dismissal order was revived.
Before Petitioner received notification that his case was reopened, however, he filed a
notice of appeal of the dismissal. (Doc. 12.) The appeal was docketed in the United States Court
of Appeals for the Tenth Circuit. (Doc. 14.) While the appeal was pending, Petitioner filed in this
Court a motion to further amend his petition. (Doc. 15.) On July 25, 2025, the Tenth Circuit
dismissed Petitioner’s appeal for lack of prosecution. (Doc. 22.)
Three days later, Petitioner filed in Saline County District Court a third motion seeking
relief under K.S.A. 60-1507. See Kansas District Court Public Access Portal, Smith-Parker v. State
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of Kansas, Case No. SA-2025-CV-000227.
On August 11, 2025, the Court issued a memorandum and order (“M&O”) granting the
pending motion to further amend the petition and allowing Petitioner to and including September
22, 2025 in which to do so. (Doc. 23, p. 1.) The M&O also denied the now-revived motion to stay,
explaining:
Because the Court is granting Petitioner’s motion to amend his petition and the
Court does not know the precise claims that Petitioner will raise in the amended
petition, the motion to stay will be denied without prejudice. Petitioner may refile
the motion after he submits the amended petition, if he chooses to do so.
Id. at 2. Finally, because Petitioner was still experiencing difficulty submitting payment of the
filing fee, the M&O directed him to file a status report on the payment on or before September 22,
2025. Id. at 3-4. The Court received payment of the filing fee on September 2, 2025. The Court
later granted Petitioner an extension of time in which to file his second amended petition, making
it due on or before October 23, 2025. (Doc. 28.)
On October 8, 2025, Petitioner filed a second motion to stay the proceedings. (Doc. 29.) In
the motion, Petitioner advised the Court of the K.S.A. 60-1507 motion pending in the Saline
County District Court, which he explained involved some of the issues on which he seeks federal
habeas relief in the case now before this Court. Id. at 1. Liberally construed, the motion to stay
asserted that Petitioner is attempting in the pending K.S.A. 60-1507 action to exhaust state-court
remedies on some of the grounds for relief he wishes to assert in this federal habeas matter. Id. at
1-2. Petitioner further advised the Court that the time for the State to respond to his K.S.A. 60-
1507 motion had expired and he had filed a motion asking the state district court to dismiss the
underlying criminal case and order him released on time served. Id. at 1.
The following day, the Court denied the renewed motion to stay. (Doc. 30.) The Court
explained:
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The current motion to stay (Doc. 29) will be denied for the same reasons
as the previous motion to stay: in light of Petitioner’s request to file an amended
petition, the claims Petitioner wishes to pursue in this matter remain unclear. Thus,
the Court cannot fully analyze how this matter relates to the pending state-court
action or whether a stay of this matter is appropriate. As stated in the earlier order,
Petitioner may renew his motion to stay after he files his amended petition. At this
point, the petition most recently filed in this case, which is referred to as “the
operative petition,” controls Petitioner’s claims. The operative petition was filed on
June 5, 2025. (Doc. 7.) If Petitioner does not submit an amended petition on or
before October 23, 2025, the Court will screen the operative petition as required by
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts and issue further orders as necessary. If Petitioner timely submits an
amended petition, the Court will screen the amended petition under Rule 4.
Id. at 2.
On October 16, 2025, Petitioner filed 90 pages of documents in this case. (Docs. 31 and
31-1.) The first 30 pages of the filing is titled “Memorandum of Points in Support of 28 U.S.C. §
2254 Petition.” (Doc. 31, p. 1-30.) The next 9 pages are titled “Amended Grounds 1 – 6 of 2254
Petition.” Id. at 31-39. The next 14 pages are a duplicate2 copy of the amended petition filed on
June 5, 2025. (Doc. 31-1, p. 1-14.) For ease of understanding, the Court will refer to the petition
filed on October 16, 2025 as “the second amended petition” and will direct the clerk to adjust the
docket to reflect that the petition filed on October 16, 2025 is the second amended petition. (Doc.
31-1, p. 1-14.) The remaining 37 pages are two copies of the 2017 KCOA opinion in the direct
appeal from Petitioner’s second trial. Id. at 15-51.
Discussion
The Court has examined the documents most recently filed by Petitioner and finds that the
second amended petition states four grounds for relief. As Ground One, Petitioner asserts that the
consolidation of the two criminal cases for trial violated his Sixth Amendment right to a fair trial
and his Fourteenth Amendment right to due process. (Doc. 31-1, p. 5.) As Ground Two, As Ground
2 The only difference between the two petitions is that the timeliness section of the June 5, 2025 petition was blank
and the same section of the October 16, 2025 petition reads “N/A.” (See Doc. 7, p. 14; Doc. 31-1, p. 13.)
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Two, Petitioner argues that the state trial court violated his Sixth Amendment right to a fair trial
and his Fourteenth Amendment right to equal protection by allowing a trial witness to present
expert testimony without first ensuring the witness was qualified as an expert witness. Id. at 6.
Ground Three focuses on a jury instruction that included language telling the jury that
evidence had been admitted “‘tending to prove that [he] committed crimes other than the present
crimes charged.’” Id. at 8; see also Smith-Parker II, 2017 WL 5014898, at *15. In Ground Three
of this federal habeas matter, Petitioner argues that giving this jury instruction violated his Fifth,
Sixth, and Fourteenth Amendment rights. (Doc. 31-1, p. 8.) As Ground Four, Petitioner asserts
that the cumulative effect of errors by the trial court violated his Sixth Amendment right to a fair
trial. Id. at 9. Specifically, Petitioner points to the following asserted errors by the trial court: 	(1)
consolidation of the two criminal cases against him; (2) the jury instruction at issue in Ground
Three; (3) the trial court “tried to prove the State’s case for them by mis[s]tating facts”; (4) it
admitted evidence at the second trial of a crime of which Petitioner was acquitted at his first trial,
which the State used to place Petitioner at the scene of the crime; and, relatedly, (5) it allowed the
State to tell the jury that Petitioner was inside one victim’s apartment even though Petitioner had
been previously acquitted of related burglary charges. Id.
As noted above, at the same time he filed this amended petition, Petitioner also filed a
document titled “Amended Grounds 1 – 6 of 2254 Petition.” (Doc. 31, p. 31-39.) This document
restates and expands upon the four grounds for relief set forth above, and it purports to add two
more asserted grounds for relief, both based on the United States Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. at 38-39. Ground Five asserts that the trial court
violated Apprendi when it sentenced him based in part on his prior criminal history without first
requiring the State to prove his criminal history to a jury and beyond a reasonable doubt. Id. at 38.
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Ground Six argues that the trial court violated Apprendi when it sentenced him to an aggravated
grid-box sentence without first requiring the State to prove the aggravating factors to a jury and
beyond a reasonable doubt. Id. at 39. The memorandum in support filed on October 16, 2025
includes argument on Grounds Five and Six. Id. at 28-29.
However, Grounds Five and Six do not appear in the second amended petition. (Doc. 31-
1, p. 1-14.) As previously explained to Petitioner, a federal habeas petition “must be complete in
and of itself” and may not “attempt to incorporate . . . other filings with this Court.” (Doc. 23, p.
1.) Put another way, “any grounds for relief not included in the amended petition will not be
considered by the Court, since the amended petition will effectively replace the current petition
filed in this matter.” Id. at 1-2. Since Grounds Five and Six are not stated in the second amended
petition, Petitioner has not properly raised them in this matter. Liberally construing the pro se
filings now in front of the Court, however, it appears that Petitioner may wish to raise Grounds
Five and Six. Thus, the Court will grant Petitioner one final opportunity to amend the petition in
this matter and will direct the clerk to provide Petitioner with the required form for filing a third
amended petition in this case.
Simply put, at this point in time, there are four asserted grounds for relief in this matter.
They are Grounds One through Four, as detailed above. If Petitioner wishes to also assert Grounds
Five and Six, he must include them in a third amended petition, along with Grounds One through
Four. The Court emphasizes that the choice belongs to Petitioner. If he does not wish to proceed
on his Apprendi arguments in this matter, he need only file a written response to this order
informing the Court and this matter will proceed on the Grounds One through Four as they are
asserted in the second amended petition.
If Petitioner wishes to proceed with his Apprendi arguments, however, he must file a third
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amended petition that includes them as asserted grounds for relief. Although the required, court-
approved form contains space designated for only four grounds, it instructs petitioners to “[a]ttach
additional pages” to the form “if you have more than four grounds.” (See Doc. 31-1, p. 5.) When
attaching pages to the petition, Petitioner should clearly label those pages to indicate that they
contain additional grounds for relief. For example, Petitioner could title an additional page
“Ground Five” and insert it after page 12 of the form.
If Petitioner chooses to file a third amended petition, he is again cautioned that it must be
complete in and of itself. It may not refer to earlier versions of the petition or attempt to incorporate
other filings in this case. Any grounds for relief that are not included in the third amended petition
will not be considered by the Court. If Petitioner files a third amended petition, the Court does not
anticipate allowing further amendments to the petition in this matter. Petitioner should therefore
ensure that all of the grounds for relief he wishes to assert in this matter are included in the third
amended petition. If Petitioner does not file a third amended petition or a written response to this
order on or before the deadline set in this order, the Court will proceed on the second amended
complaint, which was filed October 16, 2025 (Doc. 31-1, p. 1-14) and will issue further orders as
necessary.
IT IS THEREFORE ORDERED that clerk shall re-file the documents currently located
at Doc. 31-1 as the second amended petition. The clerk shall re-file the documents currently located
at Doc. 31 as the Memorandum in Support of the second amended petition.
IT IS FURTHER ORDERED that Petitioner is granted until and including December 5,
2025, to submit either (1) a complete and proper third amended petition that contains all grounds
for relief Petitioner wishes to assert in this matter or (2) a written response to this order advising
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the Court that he wishes to proceed on Grounds One through Four only. If Petitioner fails to timely
file either a third amended petition or a written response to this order, this matter will proceed on
the second amended petition, which includes only Grounds One through Four, and the Court will
issue further orders as necessary. The Clerk is directed to provide to Petitioner the required form
for filing a third amended petition.
IT IS SO ORDERED.
DATED: 	This 5th day of November, 2025, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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