United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
case comes before the Court on petitioner Andrew Alexander
Brown II's petition for writ of habeas corpus under 28
U.S.C. § 2254. Petitioner proceeds pro se and seeks
leave to proceed in forma pauperis. The Court finds that
Petitioner has failed to exhaust his state remedies. The
petition is therefore subject to dismissal.
January 9, 2014, Petitioner pled guilty in Wabaunsee County
District Court to three counts of violating K.S.A.
21-5506(b)(1), aggravated indecent liberties with a child,
intercourse with a child who is 14 or more years of age but
less than 16 years of age. In February of 2014, he was
sentenced to 24 months in prison, 36 months post-release
supervision, and 15 years offender registration. Mr. Brown
did not appeal his convictions.
filed a motion to correct an illegal sentence with the
sentencing court on May 28, 2019. Mr. Brown alleges his
original sentence was altered in March of 2014, when he was
not present in court, to lifetime post-release supervision
and lifetime registration. He further disputes that he pled
to the charge of aggravated indecent liberties.
Petitioner did not become aware of the altered sentence until
just prior to filing his motion. After Petitioner filed his
motion, it was discovered that all records, recordings, and
transcripts of the case are missing. A hearing was held on
September 9, 2019, and the judge continued the case
indefinitely pending action by the defense.
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. § 2254.
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
(10th Cir. 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 is currently in the process of
presenting the issues he raises here to the state court. He
must allow the Wabaunsee County District Court to rule, and
then must, if necessary, appeal that ruling in the Kansas
state courts. Mr. Brown has not “fairly
presented” the claims he raises here to the Kansas
state courts and therefore has not exhausted his claims in
state court as required by 28 U.S.C. § 2254(b)(1).
the Court directs Petitioner to show cause why this action
should not be summarily dismissed without prejudice for
failure to exhaust his state remedies.
to proceed in forma pauperis (ECF No. 2)
Court finds Petitioner lacks the financial resources to pay
the costs of this action and grants the motion. See
D. Kan. R. 9.1(g) (governing in forma pauperis applications
in prisoner actions).
IS THEREFORE ORDERED that Petitioner is granted to
and including February 7, 2020, to show
cause why this matter should not be dismissed as barred by
the exhaustion requirement. The failure to file a response