United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
matter is a civil action filed by a prisoner in state
custody. Plaintiff names as defendants the State of Kansas,
the 18th Judicial District Court, the Chief Judge of that
district, and the Chief District Attorney.
complaint alleges that the state district judge refused to
compel DNA testing, which plaintiff sought under K.S.A.
21-2512. As relief, plaintiff asks this court to
set aside the judgment, discharge him from his present
custody, resentence him, grant a new trial, and grant
immediate relief (Doc. #1, p. 5).
matter was referred to U.S. Magistrate Judge Waxse for
initial screening under 28 U.S.C. § 636. Judge Waxse
entered an order liberally construing this matter as a
petition for habeas corpus because plaintiff seeks relief
from his conviction and custody. Because plaintiff has sought
relief in earlier applications for habeas corpus, Judge
Waxse's order directed plaintiff to show cause why this
matter should not be dismissed due to his failure to seek
prior authorization from the U.S. Court of Appeals for the
Tenth Circuit. See 28 U.S.C. §
2244(b)(governing second or successive petitions and
requiring prior authorization from the appropriate federal
court of appeals).
has filed a timely response (Doc. #5). He argues that his
action should proceed under § 1983, and he now appears
to allege a violation of equal protection. Plaintiff's
bare allegation of equal protection appears to rest on the
denial of DNA testing in his criminal case, while that
testing has been allowed in other, unrelated cases.
Court rejects plaintiff's claim. It is settled that the
federal courts have no supervisory jurisdiction over state
courts and do not direct the courts or their officers in the
performance of their duties. Van Sickle v. Holloway,
791 F.2d 1431, 1436 n. 5 (10th Cir. 1986).
he may appeal, and has appealed, an unfavorable decision in
the trial court to the Kansas appellate courts, plaintiff may
not challenge the decision of a state judge in an action
under Section 1983. Judicial immunity shields a judge not
only from damages in a civil action also from the suit
itself. Mireles v. Waco, 502 U.S. 9, 11 (1991).
There are only two exceptions to this rule; first, there is
no judicial immunity “for actions not taken in the
judge's judicial capacity”, and second, there is no
immunity for judicial actions taken “in the complete
absence of all jurisdiction.” Mireles, 502
U.S. at 11-12. Neither exception applies here.
the construction of this matter as an unauthorized,
successive application for habeas corpus, the court notes
that plaintiff has sought relief concerning DNA testing in
the state courts on multiple occasions.
Kansas Court of Appeals has summarized his efforts as
The … issue regarding retesting of his DNA was raised
by Payton in pro se motions he filed during 2006 in 97 CR
12038 and 97 CR 1537. The district court denied the motions,
and the files and records of our court show that Payton
appealed the adverse decisions in State v. Payton,
case No. 96, 637. Payton moved for summary disposition
pursuant to Supreme Court Rule 7.041 (2008 Kan. Ct. R. Annot.
55), and the State filed a response. Our court summarily
affirmed on November 9, 2006: “Where there is no
possibility that DNA testing could assist in exculpating the
defendant, no additional DNA testing is required by K.S.A.
2005 Supp. 21-2512(c). [Citation omitted.]”
Payton's petition for review by the Kansas Supreme Court
was denied on February 14, 2007.
This … issue … has been fully litigated.
Accordingly, we decline to reconsider it.
State v. Payton, 198 P.3d 212 (Table), *1
(Kan.Ct.App. Jan. 9, 2009).
Waxse's order notes that plaintiff has filed at least
three earlier federal petitions for habeas corpus relief, and
this court agrees that it is reasonable to dismiss this
matter without prejudice. Plaintiff has been made aware of
the need for prior authorization to file a successive
application for habeas corpus and, until he obtains that