United States District Court, D. Kansas
ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the Court on a petition for habeas corpus
filed by a prisoner in state custody. Because petitioner
challenges the denial of parole, the Court liberally
construes this matter as a petition filed under 28 U.S.C.
proceeds pro se, and the Court grants leave to proceed in
forma pauperis. The Court has conducted an initial review of
the petition under Rule 4 of the Rules Governing Section 2254
Cases; see Rule 1(b)(allowing the district court to
apply rules to petitions filed under other sections) and
enters the following order.
was convicted in the District Court of Wyandotte County in
1993. Following a parole hearing before the Kansas Prisoner
Review Board (KPRB) in August 2018, he was denied parole and
was passed to February 2020. The notice issued by the KPRB
showed the denial was based upon the serious nature and
circumstances of his crime, his criminal history, and
first sought relief in No. 18-3303-SAC, Pierce v.
Cline, alleging that he had been subjected to extortion
in exchange for parole. In that matter, the Court directed
him to show cause why the matter should not be dismissed due
to his failure to exhaust state court remedies and, upon his
failure to show exhaustion, dismissed the matter without
next sought relief in No. 19-3033-SAC, Pierce v.
Cline, again alleging extortion. In that case, he
submitted a copy of an order entered by the Kansas Supreme
Court on February 28, 2019, summarily denying a petition for
habeas corpus. In an Order to Show Cause, the Court advised
petitioner that the action was subject to dismissal due to
his failure to plead specific facts to support his claim of
extortion, that the notice prepared by the KPRB provided a
plausible basis for the denial of parole, and that Kansas
state law authorizes supervision fees to a maximum of $30.00
monthly. The Court directed petitioner to show cause why the
matter should not be dismissed, and after reviewing his brief
response, which alleged taunting by other inmates and staff,
dismissed the petition and denied a certificate of
filed the present petition on April 30, 2019. The petition
states the sole ground for relief as “Evasive”
(Doc. 1, pp. 9 and 14; Attach. 1, pp. 1-4). The Court
construes the claim to refer to the summary dismissal of his
state habeas corpus action under filing restrictions imposed
in the District Court of Wyandotte County. Petitioner again
requests placement in the federal witness relocation program,
a remedy the Court previously advised him cannot be granted
by the Court.
obtain habeas corpus relief, a petitioner must show that
“[h]e is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). The core function of the writ of habeas
corpus is “to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475,
petition filed under § 2241 is the proper means for a
prisoner to seek release on parole. See Palma-Salazar v.
Davis, 677 F.3d 1031, 1037 n. 2 (10th Cir.
2012)(claims cognizable under § 2241 include
“those in which an individual seeks either immediate
release from, or a shortened period of physical imprisonment,
i.e., placement on parole….”) (citations
present petition does not present any new argument that
states a constitutional ground for relief from the denial of
parole. And, because petitioner's second petition, No.
19-3033, was dismissed on its merits, the present action is a
successive application for relief that is subject to
dismissal. See Stanko v. Davis, 617 F.3d 1262,
1269-70 (10th Cir. 2010)(holding that a district
court may refuse to consider a § 2241 petition that
seeks to relitigate claims that have been resolved or that
could have been raised in a previous petition).
these reasons, the Court will direct petitioner to show cause
why this matter should not be dismissed due to its successive
nature and due to his failure to present a claim of
constitutional dimension. The failure to file a timely
response may result in the dismissal of this matter without
THEREFORE, BY THE COURT ORDERED petitioner's motion for
leave to proceed in ...