United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This pro se action was filed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by an inmate while he was confined at the Larned Correctional Mental Health Facility, Larned, Kansas. Having examined the materials filed, the court finds that Mr. Jones has not satisfied the statutory filing fee prerequisite and that the petition is deficient in several ways. Mr. Jones is given time to satisfy the filing fee. In addition, most of petitioner's claims are dismissed and he is given the opportunity to cure the deficiencies in his only remaining claim.
The statutory fee for filing a federal habeas corpus petition is $5.00. This fee is to be submitted with the initial pleading in a lawsuit. Petitioner has previously been informed of this prerequisite, but has again neither paid the fee nor submitted a motion to proceed in forma pauperis (IFP). This action may not proceed until the filing fee is satisfied in one of these two ways. If petitioner elects to file a motion to proceed in forma pauperis, it must be submitted upon court-approved forms. He must also submit a certified accounting of the funds available to him in his institutional account. D.Kan.Rule 9.1(g); see Rules Governing Section 2254 Cases in the United States District Courts, Rule 3(a)(2)(habeas petition must be accompanied by "a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution"). The clerk shall be directed to send forms for filing a proper IFP motion.
The court has examined the Petition and "Exhibit" in support filed herein. As the background for this action, Mr. Jones alleges as follows. He was convicted upon his pleas of nolo contendere in Shawnee County District Court, Topeka, Kansas, of Attempted Theft and Attempted Car Burglary. In April 2013, he was sentenced to 12 months in prison. He appealed the judgment of conviction to the Kansas Court of Appeals (KCA), but the appeal was dismissed in October 2013. "[T]he failure to have a restitution hearing robbed (him) of (his) time to file an appeal." Mr. Jones recently filed a motion regarding this conviction in Shawnee County District Court pursuant to K.S.A. §§ 60-1501 and 1507 seeking injunctive relief, which he mailed on February 5, 2014. He did not "even know if it was received" at the time he filed the instant federal petition.
CLAIMS AND ALLEGATIONS
Petitioner sets forth four grounds in his petition: (1) violation of First Amendment Right to Communicate and Access to the Courts, (2) violation of due process with regard to parole violation charges, (3) violation of right to medical treatment and taking of leg brace, and (4) cruel and unusual punishment. As facts in support of Ground (1), petitioner alleges a "pattern of problems" with his "captors" losing his legal papers, a check, and his leg brace, moving him around, and "mail being slowed" seemingly "by design." As facts in support of Ground (2) petitioner alleges that he was not given a "Morrisey hearing" because his parole officer incorrectly stated that he was observed by the arresting officer committing the violation offense. In support of Ground (3) petitioner alleges that his leg brace was stolen and then lost and he was not taken to a doctor's appointment. As support for Ground (4), petitioner alleges that "they" are denying his "needed mental health benefits and services" knowing of his pre-existing problems in order to play on his illness and have stolen his legal papers, money, and leg brace so he can't win his civil lawsuits. Mr. Jones seeks release from prison as well as a doctor's appointment in the free world for a new leg brace.
Mr. Jones is no stranger to this court. In this action he again improperly attempts to lump together three distinct types of claims that cannot be litigated in a single action. His conditions claims are dismissed because such claims are not properly raised in a habeas corpus petition. His § 2254 claims are dismissed for failure to state adequate grounds and facts in support to challenge his state conviction(s) and for clear failure to exhaust state remedies. His remaining claim challenging parole revocation is treated as one under 28 U.S.C. § 2241, and he is given time to state facts showing a constitutional violation and to show exhaustion of state remedies.
None of the grounds presented in this petition is a challenge to either of petitioner's active convictions or sentence. Grounds (1), (3), and (4) are claims regarding his conditions of confinement. Mr. Jones has previously been informed that conditions of confinement claims may only be raised in a civil rights complaint. See Jones v. Kansas, 2012 WL 5933066, *3 n.3 (D.Kan. Nov. 27, 2012). The conditions of which he complains do not entitle him to release from prison, which is the relief available in a habeas corpus action.
Furthermore, even if any of the grounds in the petition based on conditions claims could somehow be construed as legitimate grounds for habeas corpus relief, petitioner's responses in his petition to questions regarding exhaustion plainly show that he has not exhausted state remedies on either of his active state convictions. Petitioner states that he appealed to the KCA but adds that the KCA appeal was dismissed and admits that he did not appeal to the highest state court. The court takes judicial notice of the docket of the Kansas Appellate Courts in Dist. Case No. 12-CR-1469, showing that Mr. Jones filed a Petition for Review in that state criminal appeal on August 28, 2013, that appears to be pending. The court also takes judicial notice of the appellate docket in Case No. 11-CR-523 showing that briefs have been filed in that criminal appeal, which is currently pending before the KCA. These records demonstrate that Mr. Jones has not exhausted his appeals in either of his two active criminal cases.
Petitioner's references to other cases and motions he has filed in federal court do not show the requisite exhaustion of state court remedies. Nor does petitioner properly present any claims or facts in the instant petition by baldly referring the court to his other cases or motions.
Ground (2) suggests that Mr. Jones seeks to challenge the revocation of his state parole. A state prisoner's claim of entitlement to immediate release based on allegations of improper parole revocation should be brought pursuant to 28 U.S.C. § 2241 because it is an attack upon a revocation decision and not the petitioner's criminal conviction or sentence. See Reed v. McKune, 298 F.3d 946, 953 (10th Cir. 2002); McIntosh v. U.S.Parole Commission, 115 F.3d 809, 812 (10th Cir. 1997); Stoltz v. Sanders, 242 F.3d 390, *1 (10th Cir. 2000)("To the extent Mr. Stoltz is challenging the revocation of his (suspended) sentence, we construe his petition as filed under 28 U.S.C. § 2241 because it challenges the execution of his sentence, rather than its validity). Furthermore, a ...