United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
DAVID J. WAXSE, Magistrate Judge.
TO PETITIONER MILTON GILMORE LEE:
Petitioner Milton Gilmore Lee is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed for failure to exhaust state court remedies.
I. Nature of the Matter before the Court
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by a state inmate. Petitioner has also filed a Motion to Proceed in forma pauperis supported by the requisite financial information, which shall be granted.
Mr. Lee seeks to challenge his jury conviction in Shawnee County District Court, Case No. 13-CR-110, of one count of Criminal Threat and one count of Assault. He was sentenced on February 21, 2014. The sole claim he asserts is "double jeopardy." As facts in support, he alleges that he "cannot be punished for both" assault and criminal threat because "all the elements of assault... are identical to some of the elements of criminal threat" and "assault is a lesser included offense of criminal threat." He describes assault by referring to 21-5412(a) and as "placing another person in reasonable apprehension of immediate bodily harm." He describes criminal threat by referring to 21-5415(a) and as "place another in fear." Having examined the materials filed, the court finds that this action is subject to dismissal without prejudice because petitioner fails to show that he fully and properly exhausted state court remedies prior to filing this federal petition.
Under Rule 4 of the Rules Governing Section 2254 Cases, 28 U.S.C.A. foll. § 2254 (HC Rule 4), the assigned judge is required to review a habeas petition upon filing and to sua sponte dismiss the petition without ordering a responsive pleading "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Id. ; Mayle v. Felix, 545 U.S. 644, 655 (2005); see also McFarland v. Scott, 512 U.S. 849, 856 (1994).
"A state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). It is the petitioner's burden to prove that he fully exhausted all available state court remedies prior to filing his petition in federal court. Generally, the exhaustion prerequisite is not satisfied unless all claims asserted have been presented by "invoking one complete round of the State's established appellate review process." Id. at 845. This means that each claim must have been "properly presented" to "the highest state court, either by direct review of the conviction or in a post-conviction attack." Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). It has long been established that a § 2254 petition containing federal claims which have not been exhausted in state court must be dismissed. See Rose v. Lundy, 455 U.S. 509, 513-20 (1982).
Mr. Lee attempted to obtain federal court review of his double jeopardy claim in a prior action, Lee v. State of Kansas, Case No. 14-3055-SAC (May 21, 2014)(Doc. 4). Therein, he argued that he had exhausted the available state court remedies by having filed an "original action" under Sup.Ct.Rule 9.01 directly in the Kansas Supreme Court (KSC). The court rejected this argument holding that this extraordinary procedure did not amount to full and proper exhaustion. Mr. Lee was ordered to "show how he properly proceeded through the state courts" on his double jeopardy claim. Id. (Doc. 3) at 3. However, he failed to respond to the court's order, and his prior action was dismissed for failure to prosecute. Id. In the instant action, Mr. Lee raises the same "double jeopardy" claim and makes the same allegation that he satisfied the exhaustion prerequisite by filing a Rule 9.01(b) petition directly in the KSC that was denied. He simply ignores the court's prior ruling that this filing did not amount to full and proper exhaustion. Generally, when a petitioner disagrees with a court ruling, his recourse is to appeal. Petitioner did not follow through with the action and appeal or respond in any way. Mr. Lee's repetitive arguments regarding exhaustion might be disregarded under principles of res judicata.
Even if the court were authorized to "reconsider" Mr. Lee's arguments by way of this repetitive action, it would hold that his allegations still fail to show either full and proper exhaustion or that regular state court remedies were unavailable or ineffective for his particular claim. Petitioner presents no new, adequate facts showing that his filing a Rule 9.01 petition directly in the KSC, rather than the usual Notice of Appeal of his criminal conviction in the Kansas Court of Appeals (KCA), amounted to proper and full exhaustion. His allegation that his "presentence" motion for dismissal based on double jeopardy was denied by the trial court does not suggest that other remedies were unavailable. His bald allegation that he "had no other relief before being placed in double jeopardy" also fails to demonstrate that the normal state court remedies of direct appeal and state post-conviction proceedings pursuant to K.S.A. 60-1507 were unavailable. Mr. Lee was tried and convicted once and was not facing a second prosecution for the same offenses absent a favorable ruling upon his double jeopardy claim. While the double jeopardy clause protects the criminal defendant from multiple punishments for the same offense, Brown v. Ohio, 432 U.S. 161, 165 (1977); petitioner's claim that he was tried and convicted on two charges that were multiplicious is one that can and must be presented through the direct appeal process.
Despite petitioner's repetitive arguments, the court finds that review of his double jeopardy claim remains subject to dismissal for failure to exhaust. Mr. Lee alleges in his new petition that he has appealed his conviction to the KCA but the case has "not been docketed yet." Since his direct appeal is pending in state court at this time, it is clear that he has not fully exhausted all available state court remedies and that this action is subject to dismissal as a result.
Finally, the court notes that in addition to release, petitioner seeks "compensation." Compensation is not a proper remedy ...