United States District Court, D. Kansas
ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants
leave to proceed in forma pauperis.
Court has conducted an initial review of the petition under
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. Under Rule 4, as district
court must “promptly examine” a petition and must
dismiss the action “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” However,
before entering a summary dismissal, the district court must
provide the petitioner “fair notice and an opportunity
to present [his] position.” Day v.
McDonough, 547 U.S. 198, 210 (2006); see Allen v.
Zavaras, 568 F.3d 1197, 1203 (10th Cir.
2009)(district court properly allowed petitioner opportunity
to respond before entering summary dismissal on exhaustion
reasons set forth below, the Court will direct petitioner to
show cause why this matter should not be dismissed to allow
him to exhaust his claims in the state courts.
petition states that petitioner was sentenced in the District
Court of Montgomery County, Kansas, in April 2019 to a term
of 90 months.
seeks relief from his conviction, alleging his rights to due
process and a speedy trial were violated; that he was denied
“SD 123”; that the district attorney lied to the
courts and arresting officers lied at the preliminary
hearing; and that his plea of no lo contendere was induced by
physical, sexual, and mental abuse.
matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). Under the AEDPA, a petitioner seeking
relief from a state court conviction ordinarily must exhaust
available state court remedies as to each of his federal
claims before seeking relief in federal habeas corpus. 28
U.S.C. § 2254(b)(1). This requirement “is designed
to give the state courts a full and fair opportunity to
resolve federal constitutional claims before those claims are
presented to the federal courts.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). To meet the
exhaustion requirement, “a federal habeas petitioner
must have first fairly presented the substance of his federal
claim to state courts.” Hawkins v. Mullin, 291
F.3d 658, 668 (10th Cir. 2002).
not appear that petitioner has presented his claims to the
state courts either by a direct appeal or by a
post-conviction action filed under K.S.A. 60-1507. The
petition reflects that petitioner is “filing to appeal
sentence” (Doc. 1, p. 12) but it is unclear whether he
presents the same claims he advances here.
petitioner has not yet exhausted his claims in the Kansas
courts, the Court will direct him to show cause why this
petition should not be dismissed without prejudice to allow
him to do so.
to Show Cause
Court directs petitioner to show cause in writing why this
matter should not be dismissed without prejudice to allow him
to present his claims for relief in the state courts.
Petitioner is granted to and including June 7, 2019, to show
cause. The failure to file a timely response may result in
the dismissal of this matter without prejudice.
THEREFORE, BY THE COURT ORDERED petitioner's motion to
proceed in ...