United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
case comes before the Court on petitioner Jonathan Paul
Johnson's petition for writ of habeas corpus under 28
U.S.C. § 2254. Petitioner proceeds pro se. The
Court finds that it lacks subject matter jurisdiction over
this petition. Moreover, Petitioner has failed to exhaust his
state remedies. The petition is therefore subject to
26, 2016, Petitioner was convicted of three counts of
misdemeanor stalking and one count of felony stalking. He was
sentenced to 6 months in prison on the felony and 8 months in
the county jail for each of the misdemeanor convictions, with
the misdemeanor sentences to run consecutively but
concurrently with the felony. The district judge then put
petitioner on probation from these sentences for 12 months.
Mr. Johnson appealed his convictions, and the Kansas Court of
Appeals affirmed on April 13, 2018. Petitioner then filed a
petition for review in the Kansas Supreme Court, which was
denied on October 30, 2018.
4 Review of Petition
of the Rules Governing § 2254 Cases requires the Court
to review a habeas petition upon filing and to dismiss it
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.” Rules Governing §
2254 Cases, Rule 4, 28 U.S.C.A. foll. Â§ 2254.
appears that this Court may not reach the merits of Mr.
Johnson's petition because the Court lacks subject matter
jurisdiction. Section 2254(a) provides that “a district
court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” A petitioner seeking habeas
relief must be in custody under the challenged conviction or
sentence at the time the application is filed. Maleng v.
Cook, 490 U.S. 488, 490-91 (1989). Habeas relief is
generally not available when a petitioner seeks to challenge
a prior conviction for which he is no longer “in
custody.” See Lackawanna Cnty. Dist. Att'y v.
Coss, 532 U.S. 394, 401 (2001). It appears from the
record before the Court that Mr. Johnson has completed his
sentence for the 2016 convictions that he challenges here and
is no longer incarcerated under those convictions.
petitioner may be found to be “in custody” for
purposes of the habeas corpus act in situations where the
petitioner is not physically incarcerated. The custody
requirement can be met where there is a severe restraint on a
person's liberty imposed because of the individual's
criminal conviction. Hensley v. Mun. Court, 411 U.S.
345, 351 (1973). Hence, courts have found petitioners to be
“in custody” when they are on parole or
probation, or even released on their own recognizance pending
execution of sentence, due to the significant restraints on
liberty. See id.; Jones v. Cunningham, 371
U.S. 236, 242-43 (1963); Olson v. Hart, 965 F.2d
940, 942-43 (10thCir. 1992).
it appears Mr. Johnson may have completed the probation or
work release portion of his sentence as well. If so, this
Court does not have jurisdiction to reach the merits of Mr.
Johnson's petition because he is not “in
custody” under the conviction or sentence he attacks.
Petitioner is directed to show cause why his petition should
not be dismissed for lack of jurisdiction.
Court does have subject matter jurisdiction over Mr.
Johnson's claims, he faces another obstacle to review. A
federal court cannot grant a state prisoner's habeas
petition unless the petitioner has exhausted his claims in
state court. See 28 U.S.C. § 2254(b)(1).
Exhaustion requires that a state prisoner give state courts
“one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see Pavatt v. Carpenter, 928 F.3d 906, 923
(10thCir. 2019). “A claim is exhausted only
after it has been fairly presented to the state court.”
Pavatt, 928 F.3d at 923 (quoting Simpson v.
Carter, 912 F.3d 542, 564 (10th Cir. 2018)).
Petitioner bears the burden of showing exhaustion. See
Olson v. McKune, 9 F.3d 95, 95 (10th Cir.
appears that Petitioner has not raised the issue he raises
here in the state courts. Mr. Johnson describes his challenge
as follows: “The prosecutor violated my right to an
unbiased trial by allowing his witness to lie on the witness
stand. The alleged victim Dale Johnson stated that there was
no button to block a jailhouse phone call. In the discovery .
. . it shows that there is a button to press to block a
jailhouse number. The prosecutor was suppose[d] to correct
his witness[‘s] lie.” ECF No. 3 at 5. Mr. ...