Opinion
CASE NO. 10-3120-SAC.
June 8, 2010
ORDER
This petition for writ of habeas corpus was filed, citing to 28 U.S.C. § 2241, by an inmate of the Hutchinson Correctional Facility, Hutchinson, Kansas. Petitioner has also filed two motions for leave to proceed in forma pauperis (Docs. 2 3), which the court finds should be granted based upon the current balance in his inmate account. Having examined the petition, the court finds as follows.
The following factual background is judicially noticed from the federal habeas corpus petition previously filed by Mr. Jones in Jones v. Cline, Case No. 09-3202-RDR (Doc. 1). In 1978, Mr. Jones was convicted in Reno County District Court (of Indecent Liberties With a Child) and sentenced to a term of 4-20 years. In 1983, apparently while on parole, he was convicted in Reno County (of attempted rape and aggravated burglary) and sentenced to two consecutive terms of 15 to 30 years, or 30 to 60 years. Kansas Department of Corrections offender records available on-line (KASPER) indicate the specific offenses of which he was convicted in these two cases and that they are both currently "active".
Mr. Jones was also released on parole in July 2004. However, he was arrested for violating conditional release and returned to custody.
Mr. Jones asserts that he is presently being held illegally and that his federal constitutional rights are being violated. He generally refers to "motion attacking illegal sentences imposed on him in Case No. 78 CR 35 and 83 CR 171," and claims he is incarcerated "on two cases that the court had no jurisdiction to impose any sentences." He makes the conclusory statement that he has a right to habeas corpus relief "in this criminal actions (sic) where proceeding, information, or indictment or sentencing are void so that court acquired no jurisdiction." With respect to Case No. 78 CR 35, he more specifically alleges that he was sentenced on May 5, 1978, in that case "under K.S.A. 21-3503, making this an illegal sentence" because "the court was without jurisdiction to sentence the petitioner." He additionally alleges that he "was in custody" from Jan. 21, 1978 to May 5, 1978 "without a hearing or a preliminary examination for 104 days." With respect to Case No. 83 CR 171, he specifically alleges "there is no record of the petitioner every being sentenced," and "the criminal appearance docket shows that the petitioner was never sentenced".
However, the copy of the "Criminal Appearance Docket" from Case 83 CR 171 exhibited by Mr. Jones includes the following entry: "9/16/83 . . . J.E. of sentencing filed and recorded 83-3". KASPER records indicate Mr. Jones was sentenced in this case on September 2, 1983.
What factual basis petitioner may have, if any, to support his claims for habeas corpus relief is not at all clear from these allegations. However, it is clear that he seeks to challenge his state convictions. Accordingly, the court finds that this action must be construed as a petition for writ of habeas corpus under 28 U.S.C. § 2254. Having screened the pro se petition, the court finds several reasons why it must be dismissed.
First, petitioner may not challenge two distinct state criminal convictions in a single federal habeas corpus petition. Moreover, he has not complied with the local rule requiring that § 2254 petitions be submitted on forms provided by the court. Thus, in order to properly present challenges to his 1978 conviction, petitioner must submit a petition for writ of habeas corpus on forms for filing a petition under § 2254. Then, to challenge his 1983 conviction, he must submit a § 2254 petition on court-provided forms, and it must be submitted as a separate action. He must answer all questions on each set of § 2254 forms to the best of his ability, and as to each separate conviction.
Second, petitioner fails to show that he has exhausted state court remedies on any of his claims. It is well-settled that before a state prisoner may seek habeas corpus relief in federal court, he must have properly and fully presented all his claims to the courts of the state.See 28 U.S.C. 2254(a). If Mr. Jones completes the court-provided forms he will be required to answer questions regarding exhaustion.
Third, it appears likely from the face of the instant petition, that any challenges Mr. Jones has to either his 1978 or his 1983 convictions are time-barred. The statute of limitations for filing a federal habeas corpus petition is set forth in 28 U.S.C. § 2244(d)(1), as follows:
A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from . . . (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . .Id. This statute did not become effective until April 24, 1996, while petitioner's convictions clearly became "final" years before that date. It is well-settled that for a state prisoner whose conviction became final prior to April 24, 1996, the one-year statute of limitations began to run on April 24, 1996. Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). Thus, the one-year limitations period, within in which Mr. Jones was required to file a federal habeas corpus petition challenging either his 1978 or his 1983 convictions and/or sentences, started on April 24, 1996. Unless petitioner can demonstrate that he is entitled to statutory or equitable tolling, the limitations period expired a year later on April 24, 1997. When Mr. Jones completes the court-provided forms he will be required to answer questions regarding the timeliness of his petition and must take that opportunity to state any facts showing he is entitled to tolling of the limitations period.
Even if Mr. Jones can clear the foregoing hurdles, it appears that he has filed prior petitions challenging his 1983 and his 1978 convictions . If that is the case, the instant petition is subject to being dismissed as "second and successive". Under 28 U.S.C. § 2244(b)(3)(A), a second or successive habeas corpus petition may be filed in the federal district court only if the applicant first obtains an order from the appropriate federal court of appeals authorizing the district court to consider the petition. Id. There is no indication in the materials filed herein that petitioner has obtained the necessary authorization from the United States Court of Appeals for the Tenth Circuit. As a result, this court lacks jurisdiction to address the merits of any § 2254 claim asserted in the Petition. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008); United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).
In Jones v. Roberts, Case No. 89-3207 (Apr. 4, 1991), Mr. Jones explicitly challenged his 1983 conviction on several grounds. This petition was denied, and the denial was affirmed by the Tenth Circuit on November 27, 1991. In Jones v. Nelson, Case No. 98-3032 (June 11, 1998), Mr. Jones claimed his confinement was illegal because he has served his sentence in 78-CR-35, and error in his sentencing under state law. Thus, it appears that he has filed prior § 2254 petitions challenging both his 1983 and 1978 convictions or sentences, that have been denied. See also,Jones v. Lyle, Case No. 96-3369 (Jan. 30, 1997) (dismissed without prejudice to allow petitioner to seek authorization to file petition in district court); Jones v. Lyle, Case No. 97-3116 (June 19, 1997) (action filed pursuant to 42 U.S.C. § 1983 seeking damages on claim that defendants failed to correct illegal sentence dismissed, with court noting that petitioner's "application for leave to file a second petition pursuant to 28 U.S.C. § 2254 was denied by the United States Court of Appeals"). However, many of Mr. Jones' prior cases are so old that the actual documents are not available on-line. If petitioner disagrees that he has filed a prior habeas corpus petition challenging his 1978 conviction, he must notify the court in response to this Order.
This district court may transfer this action pursuant to 28 U.S.C. § 1631 to the Tenth Circuit for prior authorization if it is in the interest of justice to do so, or dismiss it for lack of jurisdiction. In re Cline, 531 F.3d at 1252. However, the court finds that the interest of justice would not be served by transfer of the instant action to the Tenth Circuit Court of Appeals, and that it should be dismissed instead. See U.S. v. Espinoza-Saenz, 235 F.3d 501, 504 (10th Cir. 2000). The facts showing this case is time-barred lead the court to conclude that transfer of this action would raise "false hopes," and waste judicial resources on a case that is "clearly doomed." Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000).
Section 1631 provides in relevant part:
Whenever a civil action is filed . . . and [the] court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed. . . .Id.
Having found that this action is subject to being dismissed for several reasons, the court also finds that petitioner is not entitled to appointment of counsel at this time. IT IS THEREFORE ORDERED that petitioner's motions to proceed in forma pauperis (Docs. 2, 3) are granted, and petitioner's Motion to Appoint Counsel (Doc. 4) is denied.
IT IS FURTHER ORDERED that petitioner is given thirty (30) days in which to show cause why this action should not be dismissed for the reasons stated herein.
The clerk is directed to send two sets of § 2254 forms to Mr. Jones.
IT IS SO ORDERED.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KIM LEE MILLIGAN, SR., Plaintiff, v. CASE NO. 10-3112-SAC JOHN P. BENNETT, et al., Defendants.
ORDER
This civil rights complaint, 42 U.S.C. § 1983, was filed by an inmate of the Johnson County Adult Detention Center, Olathe, Kansas. Mr. Milligan sues John P. Bennett in "his official capacity as a judge" and Ted Baird in his official capacity as Assistant District Attorney (DA) for Johnson County, Kansas.Having considered the complaint and attachments together with plaintiff's "Supplement to Complaint" and attachments (Doc. 4), the court finds as follows. On October 9, 2003, Mr. Milligan was convicted in Johnson County District Court (Case No. 01-CR-247) of "Attempted Obstruction of Legal Process (M)" and was placed on probation for twelve months on that date. His probation was revoked and reinstated on March 4, 2004, for a period of twelve months. On June 18, 2004, a "Motion to Revoke Probation" was filed by Mr. Nordeen, who was then acting as an Assistant District Attorney for Johnson County, Kansas. Milligan was alleged to have violated conditions of his probation by consuming alcohol and testing positive for cocaine on April 20, 2004. In addition he "failed to return to the Residential Center as directed" on April 21, 2004, and was "declared Absent Without Leave (AWOL)" on that date. Plaintiff also exhibits an "Amended Warrant" issued from Johnson County dated March 12, 2010, which indicated that on April 21, 2004, he escaped from the Johnson County Department of Corrections Residential Treatment Center, where he was in custody upon conviction of a misdemeanor in Johnson County District Court case number 01-CR-247.
A Motion to Revoke Probation filed by Mr. Nordeen on January 12, 2004, in Johnson County District Court Case No. 01-CR-247 is exhibited by plaintiff. Therein, Mr. Milligan was alleged to have "failed to report for intake since being placed on probation" and to make any payment as ordered as a condition of his probation.
Plaintiff also exhibits a copy of a "Bench Warrant" issued out of Johnson County dated June 18, 2004, finding he was convicted of Obstruction in Johnson County District Court, he was placed on probation on October 9, 2003, and there was probable cause to believe that he violated conditions of probation. His arrest was ordered for hearing on the "motion to revoke said probation."
Plaintiff alleges in his "Supplement to Complaint" that in September 2008 and January 2004, he was "also unlawfully extradicted across state line" by another Assistant District Attorney on amended felony warrants from misdemeanor charges solely for extradition purposes. However, the only DA named as a defendant in this action is Ted Baird.
On February 11, 2010, Mr. Milligan was arrested in Kansas City, Missouri, and confined in the Jackson County Detention Center. A detainer was lodged against him by Johnson County authorities "on two felony warrants". Milligan refused extradition, and defendant Johnson County DA Ted Baird advised a judge in Missouri that his office was seeking a Governor's Warrant. At a hearing on February 17, 2010, the Missouri judge set a fugitive bond of $50,000, and directed that court appearances be set every 30 days until Johnson County came to get plaintiff. The charges against Milligan were not amended to felonies until March 15, 2010, which was 34 days after he had already been incarcerated.
Plaintiff spells this defendant's name as "Ted Baird" in the caption and initial paragraph in his complaint, but in attachments he refers to "Ted Bried". The court assumes this is one and the same person, and that Ted Baird is the correct spelling. If this is not correct, plaintiff must notify the court.
Plaintiff lost his job, and is now being "housed with state and felony offenders" in a cell. He has never been charged with a felony crime in Johnson County or anywhere in Kansas, and his charge is a misdemeanor from six years ago.
Upon his arrival at the JCADC, plaintiff was booked on two misdemeanor counts. On April 8, 2010, he was appointed public defender Mr. Kelbreg to represent him on misdemeanor escape in Div. 1. He was also appointed now public defender Mr. Nordeen to represent him on a different count in Div. 18 before defendant Judge Bennett. Mr. Nordeen was the former district attorney who filed the motions to revoke his probation in 2004.
Mr. Nordeen advised plaintiff at their first meeting that he could request his withdrawal, and Nordeen withdrew as counsel ten days later. However, plaintiff was "informed" that Nordeen had gone "into his case history" and payment information and had talked to the Assistant District Attorney currently handling the case, even though Milligan had not asked that he do anything. Plaintiff was also "informed that some of (his) case files had been destroyed on August 15, 2008". On April 30, 2010, Judge Bennett allowed Nordeen to withdraw, and appointed Mr. Kelberg to represent plaintiff on both matters.
Based upon these facts, plaintiff claims that he was "illegally extradited" to Kansas due to misdemeanor offenses, probation violation, attempted obstruction legal process misdemeanor, and misdemeanor escape, which he contends are non-extradictable offenses that were improperly "amended to a felony warrant for the sole purpose of extraditing" him. He also claims that defendant Baird misled the judge in Missouri "about charges being felonies." He further contends that he was "falsely imprisoned" from February 11, to March 15, 2010, by "Johnson County District Attorney Office and District Court;" and that his detention in Missouri to await the receipt of the governor's warrant was in "direct violation of Uniform Mandatory Disposition of Detainer Act." He asserts that his Fourth and Fourteenth Amendment rights were violated as a result.
Mr. Milligan seeks compensatory and punitive damages. He also seeks "immediate release from Johnson County custody" and dismissal of charges with prejudice.
FILING FEE
The fee for filing a civil rights complaint in federal court is $350.00. Plaintiff has filed an Application to Proceed Without Prepayment of Fees. He is forewarned that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed in this court without prepayment of fees does not relieve a plaintiff of the obligation to pay the full amount of the filing fee. Instead, it merely entitles an inmate to proceed without prepayment of the full fee, and to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2) . Furthermore, § 1915 requires that a prisoner seeking to bring a civil action without prepayment of fees submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing" of the action "obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). Plaintiff provides financial information only for the time he has been confined in the JCADC which is less than a one-month period. Based upon this very limited information, the court finds the average monthly balance in plaintiff's account is $31.78, and the average monthly deposit is not provided. The court therefore assesses an initial partial filing fee of $6.00, twenty percent of the average monthly balance, rounded to the lower half dollar. Plaintiff must pay this initial partial filing fee before this action may proceed further, and will be given time to submit the fee to the court. His failure to submit the initial fee in the time allotted may result in dismissal of this action without further notice.
In each month that the amount in the prisoner's account exceeds $10.00, until the $350.00 filing fee is paid, the agency having custody of the prisoner is authorized to assess, deduct from the prisoner's account, and forward to the Clerk of the Court an installment payment equal to 20% of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2).
SCREENING
Because Mr. Milligan is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b). Having screened all materials filed, the court finds the complaint is subject to being dismissed for the following reasons.
HABEAS CORPUS CLAIM
A petition for writ of habeas corpus is a state prisoner's sole remedy in federal court for a claim of entitlement to immediate release.Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); McIntosh v. United States Parole Commission, 115 F.3d 809, 811 (10th Cir. 1997); see Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) ("Habeas corpus is the only avenue for a challenge to the fact or duration of confinement, at least when the remedy requested would result in the prisoner's immediate or speedier release."). Thus, any challenge plaintiff has to the legality of his current confinement in the State of Kansas must be litigated in a habeas corpus action. Moreover, any such claim must first be presented in an orderly fashion throughout the state judicial system and ultimately to the highest state court before it may be raised in federal court. See 28 U.S.C. § 2254(b)(1). From the dates alleged in the pleadings, it appears that plaintiff could not have exhausted available state court remedies. It follows that his claims for immediate release and dismissal of state charges are not properly raised in this civil rights complaint, and if this action were construed as a habeas corpus petition, it would be dismissed for failure to exhaust state remedies.
Plaintiff is cautioned that he must timely and properly raise all factual bases for challenging any pending state charges or parole violation charges in the state court proceedings on those charges, or he may be found to have waived later review either on appeal in state court or in a federal habeas corpus petition.
28 U.S.C. 2254(b)(1) provides:
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ."
"A state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Generally, the exhaustion prerequisite is not satisfied unless all claims asserted have been presented by "invoking one complete round of the State's established appellate review process." Id. at 845. In this district, that means the claims must have been "properly presented" as federal constitutional issues "to the highest state court, either by direct review of the conviction or in a post-conviction attack." Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). In other words, petitioner must seek relief in the appropriate state district court; if relief is denied by that court he must appeal to the Kansas Court of Appeals; and if that court denies relief petitioner must file a Petition for Review by the Kansas Supreme Court.
Plaintiff's claim of a violation of the Uniform Mandatory Disposition of Detainer Act is not grounds for habeas corpus relief in federal court, is not supported by sufficient allegations showing either a demand was made or a violation of that Act or exhaustion of state remedies. See Carchman v. Nash, 473 U.S. 716, 725-26 (1985). Moreover, the Interstate Agreement on Detainers Act has been held not to apply to detainers lodged for probation violations. Plaintiff does not allege facts showing an unreasonable delay or that no probable cause determination has been made with regard to the charges on which he is currently being held.
FAILURE TO STATE A § 1983 CLAIM
"To state a claim under section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48-49 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978);Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A pro se complaint must be given a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, the court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Plaintiff sues only two individuals, Judge Bennett and DA Baird, and he sues them in their official capacities for actions taken within those capacities. State judges and district attorneys, acting within the scope of their duties are absolutely immune to suit from money damages. See Pierson v. Ray, 386 U.S. 547, 554-55 (1967) (The common-law absolute immunity of judges for "acts committed within their judicial discretion" found to be preserved under § 1983.); Imbler v. Pachtman, 424 U.S. 409, 422-25 (1976) (A prosecutor, acting within the scope of his or her duties in initiating and prosecuting a case, has absolute immunity from liability for damages under § 1983); Arnold v. McClain, 926 F.2d 963, 967 (10th Cir. 1991). Consequently, this action is plainly subject to being dismissed under 28 U.S.C. § 1915A(a) and (b) as seeking relief from defendant immune from such relief.
Furthermore, plaintiff's claim of false imprisonment is not supported by sufficient facts, given he exhibits a warrant that issued for his arrest. See United States v. Hauk, 412 F.3d 1179, 1190 (10th Cir. 2005) ("An arrest warrant gives the police unquestioned authority to detain the suspect."). The court finds that plaintiff has failed to state sufficient facts to support a claim of federal constitutional violation.
Plaintiff is given time to show cause why this action should not be dismissed, without prejudice, for the reasons discussed herein. If he fails to file a satisfactory response within the time allotted, this action will be dismissed without further notice.
Plaintiff has filed a notice that under facility rules he was not provided copies of "some of the exhibits." That notice has been filed herein; however, plaintiff is advised that this court does accept hand-written copies.
IT IS THEREFORE ORDERED that plaintiff is granted twenty (20) days in which to submit to the court an initial partial filing fee of $6.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice.
IT IS FURTHER ORDERED that within the same twenty-day period plaintiff is required to show cause why this action should not be dismissed, without prejudice, for the reasons stated herein.