United States District Court, D. Kansas
JAMES H. YOUNG, SR., Petitioner,
STATE OF KANSAS, Respondent.
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.
of the petition
was convicted in the District Court of Cloud County of
possession of methamphetamine with intent to distribute
within 1, 000 feet of school property, unlawful use of
communication facility, unlawful possession of oxycodone, and
possession of methamphetamine without a tax stamp. State
v. Young, 356 P.3d 1077 (Table), 2015 WL 5750541
(Kan.Ct.App. Oct. 2, 2015), rev. denied, Apr. 27,
appeal, the Kansas Court of Appeals found error with the
instruction given on possession of oxycodone, a drug that had
been prescribed to petitioner. On remand, the State dismissed
the charge related to oxycodone. Petitioner is serving a
sentence of 136 months.
also filed a post-conviction action under K.S.A. 60-1507 in
which he alleged that a prosecution witness testified falsely
at his trial that she was teaching in the school until
October 2013, after the time of his arrest. The district
court denied relief, and petitioner did not
habeas corpus petition presents two grounds for relief.
First, petitioner challenges the sufficiency of the evidence
concerning the weight of the methamphetamine in his
possession.Second, petitioner challenges the
State's claim that alleged an intent to distribute within
1, 000 feet of a school on the ground that the building in
question had not been occupied for over a year.
petition for habeas corpus ordinarily may not be granted
unless the petitioner has exhausted state court remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838 (1999);
Dever v. Kansas State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994). “The exhaustion
requirement is satisfied if the federal issue has been
properly presented to the highest state court, either by
direct review of the conviction or in a postconviction
attack.” Dever, id.
case, petitioner presented the claim of insufficiency of the
evidence concerning the amount of methamphetamine in his
direct appeal. That claim was considered by the Kansas Court
of Appeals and was properly exhausted.
petitioner's claim challenging the charge of intent to
distribute within 1, 000 feet of a school has not been
exhausted. Petitioner did not present that claim on his
direct appeal, and he did not appeal from the denial of his
petitioner's second claim was not exhausted by
presentation to the state courts, this matter is a mixed
habeas petition, that is, one that contains both exhausted
and unexhausted claims. See Pliler v. Ford, 542 U.S.
225, 227 (2004).
a federal court may not adjudicate a mixed petition and must
dismiss such a petition in its entirety. See Rose v.
Lundy, 455 U.S. 509, 522 (1982). However, the federal
habeas court may also consider other courses. First, in
appropriate circumstances, the federal court may stay and
abate a habeas action allowing the petitioner to return to
state court to pursue relief on the unexhausted claims.
See Rhines v. Weber, 544 U.S. 269, 275, 277
(2005).This avenue is appropriate only if the petitioner
shows good cause for the failure to exhaust, the unexhausted
claims are potentially meritorious, and there is no evidence
of intentionally dilatory tactics by the petitioner.
Id. at 278.
the petitioner may dismiss the unexhausted claims and proceed
only on those claims that were properly exhausted. Wood