United States District Court, D. Kansas
BRIAN A. CAMPBELL, Petitioner,
JEFF EASTER, et al., Respondent.
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241 by a prisoner in state custody. Petitioner
proceeds pro se and in forma pauperis.
Petitioner claims a fugitive detainer placed on him from the
Mississippi Department of Corrections and Lowndes County
Court is illegal. Petitioner seeks a finding that the
Mississippi sentence has expired and withdrawal of the
fugitive warrant. Defendants filed a motion to dismiss (Doc.
7), alleging Petitioner failed to exhaust and that he is in
custody because he faces additional state criminal charges
unrelated to the claims raised in his habeas petition. The
Court granted Petitioner's motion for extension of time,
extending the deadline to respond to the motion to dismiss to
November 10, 2017. (Doc. 11.) Petitioner filed a response on
November 16, 2017. The motion can therefore be granted for
failure to file a timely response. The motion can also be
granted for failure to exhaust, as described more fully
failed to file a response to the motion to dismiss before the
time to do so expired. Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney
who fails to file a responsive brief or memorandum within the
time specified in D. Kan. Rule 6.1(d) waives the right to
later file such brief or memorandum. If a responsive brief or
memorandum is not filed within the Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion. Ordinarily, the court will grant
the motion without further notice.
pro se litigant is not excused from complying with
the rules of the court, and is subject to the consequences of
noncompliance. Ogden v. San Juan Cnty., 32 F.3d 452,
455 (10th Cir. 1994) (citing Nielsen v. Price, 17
F.3d 1276, 1277 (10th Cir. 1994) (insisting that pro
se litigants follow procedural rules and citing various
cases dismissing pro se cases for failure to comply
with the rules)). As a result of Petitioner's failure to
timely respond, the Court may grant Respondents' motion
to dismiss as uncontested.
Court also finds that the Petition must be dismissed for
failure to exhaust. Respondents note that Petitioner has an
active appeal in the state courts challenging the same
custody and raising the same claims he raises in this Court.
See Campbell v. Easter, No. 118, 308, docketed in
the Kansas Court of Appeals on September 27, 2017.
Respondents also note that Petitioner is not in custody
solely because of the challenged Mississippi fugitive
warrant. Petitioner is also in custody to face state criminal
proceedings in both Sedgwick and Butler Counties. (Doc. 7-2.)
Petitioner does not raise a challenge to his custody related
to those proceedings.
claims raised by Petitioner in his state proceedings are
substantively the same as those he raises in his federal
habeas petition, and his state litigation is still underway.
Petitioner is appealing the denial of his state habeas corpus
action, raising the following claims:
I. Whether the fugitive from justice warrant from the State
of Mississippi violates the Uniform Criminal Extradition Act?
II. Whether the fugitive from justice warrant from the State
of Mississippi violates K.S.A. 22-2710?
III. Whether the fugitive from justice warrant from the State
of Mississippi meets the requirements of Michigan v.
Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521
(1978), and Article IV, Section 2, of the U.S. Constitution?
IV. Did the District Court commit error by summarily
dismissing Petitioner-Appellant's K.S.A. 60-1507 [state
habeas corpus] petition?
Doc. 7-1, at 4, Civil Docketing Statement in Campbell v.
Easter, Kansas Court of Appeals.
claims are not yet exhausted. “States should have the
first opportunity to address and correct alleged violations
of state prisoner's federal rights.” Coleman v.
Thompson, 501 U.S. 722, 731 (1991). “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). Generally, federal
habeas corpus relief is not available to a state prisoner
unless all state court remedies were exhausted before the
petition was filed. 28 U.S.C. § 2254(b)(1)(A); see
also Wainwright v. Sykes, 433 U.S. 72, 80-81 (1977).
Exhaustion is required whether the action is brought pursuant
to § 2241 or § 2254. Montez v. McKinna,
208 F.3d 862, 866 (10th Cir. 2000).
claims in his response that the Court may rule on the merits
despite a failure to exhaust, citing 28 U.S.C. §
2254(b)(2). Section (b)(2) provides that “[a]n
application for a writ of habeas corpus may be
denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(2) (emphasis added). The section does
not provide an avenue for granting a petition despite a
failure to exhaust. The Petition is dismissed without
prejudice for failure to exhaust.
IS THEREFORE ORDERED BY THE COURT that
Respondents' Motion to ...