United States District Court, D. Kansas
MEMORANDUM AND ORDER
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 submitted the
Petitioner was convicted in the District Court of Johnson
County, Kansas, of two counts of solicitation to commit the
first-degree murder of his former spouse. He was acquitted of
a third charge. State v. Johnson, 404 P.3d 362
(Table), 2017 WL 4558235 (Kan. App. Oct. 13, 2017), rev.
denied, Aug. 31, 2018.
has filed six motions: first, an emergency motion to stay the
order of the state district court (Doc. 3), a motion for an
order that would allow petitioner to submit a later petition
for habeas corpus without that future petition being
construed as a second or successive application (Doc. 4), a
motion requesting early release from incarceration (Doc. 7),
a motion to appoint counsel (Doc. 9), a second emergency
motion to stay the order of the state district court (Doc.
10), and a motion for summary judgment (Doc. 11).
motions to stay the order of the state district court (Docs.
3 and 10) seek an order staying a state court action to
terminate his parental rights. This court, however, cannot
direct the state courts in the management of their dockets.
See Knox v. Bland, 632 F.3d 1290, 1292
(10th Cir. 2011)(rejecting petition for mandamus
and stating the federal court had “‘no authority
to issue such a writ to direct state courts or their judicial
officers in the performance of their
duties.'”)(quoting Van Sickle v. Holloway,
791 F.2d 1431, 1436 n. 5 (10th Cir. 1986)). The
motions are denied.
motion for an order that would “pre-allow him to file a
future second and successive 2254” action (Doc. 4) must
be denied for lack of jurisdiction. Under 28 U.S.C. §
2244(3)(a), a petitioner must seek authorization by a motion
“in the appropriate court of appeals” for leave
to file a second or successive habeas corpus petition under
28 U.S.C. § 2254.
also moves for pre-release from incarceration during the
pendency of this action (Doc. 7). A federal habeas court has
the inherent power to release a state prisoner on bond during
the pendency of the petition. Pfaff v. Wells, 648
F.2d 689, 693 (10th Cir. 1981). However,
“[a]n inmate seeking federal habeas relief must, in
order to obtain release pending determination on the merits
of his petition, make a showing of exceptional circumstances
or demonstrate a clear case on the merits of his habeas
petition.” United States v. Palermo, 191
Fed.Appx. 812, 813 (10th Cir. 2006)(citing
Pfaff, id.)). The Court has examined the petition
and finds that petitioner has not met these criteria.
Petitioner's motion is denied.
next moves for the appointment of counsel (Doc. 9). An
applicant for habeas corpus relief has no constitutional
right to the appointment of counsel. See Swazo v. Wyo.
Dept. of Corr., 23 F.3d 332, 333 (10th Cir.
1994)(“[T]here is no constitutional right to counsel
beyond the appeal of a criminal conviction, and …
generally appointment of counsel in a § 2254 proceeding
is left to the court's discretion.”). Rather, the
court may appoint counsel when “the interests of
justice so require” for a petitioner who is financially
eligible. See 18 U.S.C. § 3006A(1)(2)(b).
Because petitioner appears to be capable of presenting his
claims for relief, the Court declines to appoint counsel at
petitioner moves for summary judgment (Doc. 11). He reasons
that because respondent has not replied to his petition, the
facts he alleges are now undisputed. However, because the
Court has not yet directed a response in this matter, this
of state court remedies
a state prisoner seeking habeas corpus must exhaust available
state court remedies before seeking federal relief unless it
appears there is an absence of available state remedies or
the remedies are ineffective to protect the petitioner's
rights. See 28 U.S.C. § 2254(b)(1); see Harris v.
Champion, 15 F.3d 1538, 1554 (10thCir.