Kemp v. State of Iowa

Filing 4

ORDER granting 3 Pro Se Motion for Leave to Proceed in forma pauperis filed by Jeffery Kemp. The Petitioner's 1 Pro Se Petition for Writ of Habeas Corpus is denied without prejudice. Signed by Chief Judge Linda R Reade on 12/28/2015 (copy w/NEF mailed to Plt). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

JEFFERY KEMP,
Petitioner,

No. C15-2102-LRR

vs.
STATE OF IOWA,1

ORDER

Respondent.

This matter is before the court on the petitioner’s application for a writ of habeas
corpus (docket no. 1), filed on November 24, 2015, supplement (docket no. 2), filed on
November 24, 2015, and application to proceed in forma pauperis (docket no. 3), filed on
December 3, 2015. The petitioner did not pay the required filing fee. See 28 U.S.C.
§ 1914.
Based on the petitioner’s statements, the court concludes that the petitioner does not
have sufficient funds to pay the required filing fee. 28 U.S.C. § 1914(a) (requiring $5.00
filing fee). Thus, the plaintiff’s application to proceed in forma pauperis is granted. See
generally 28 U.S.C. § 1915.

1

The petitioner brings this action against the State of Iowa, but the proper
respondent in a federal habeas corpus action is “the person having custody of the person
detained.” 28 U.S.C. § 2243; see also 28 U.S.C. § 2242 (stating application shall allege
the name of the person who has custody over him); Braden v. 30th Judicial Circuit Ct. of
Ky., 410 U.S. 484, 494-95 (1973) (“The writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who holds him in what is alleged to be
unlawful custody.”). Thus, the petitioner improperly named the State of Iowa as the
respondent.

Regarding the petitioner’s application for a writ of habeas corpus, the petitioner did
not comply with Rule 2(d) of the Rules Governing Section 2254 Cases, which requires him
to substantially follow the form that is typically utilized by those seeking relief under 28
U.S.C. § 2254. Moreover, before seeking a writ of habeas corpus in this court, the
petitioner must exhaust the remedies that are available in the Iowa courts. The petitioner’s
application for a writ of habeas corpus clearly demonstrates that the petitioner did not
comply with 28 U.S.C. § 2254(b)(1)(A).2 Accordingly, the petitioner’s application for a
writ of habeas corpus is denied without prejudice.
IT IS SO ORDERED
DATED this 28th day of December, 2015.

2

The court notes that a review of state court records indicates that the Iowa District
Court for Black Hawk County granted a motion to dismiss on December 11, 2015. Iowa
state court criminal and civil records may be accessed online at:
http://www.iowacourts.gov/For_the_Public/Court_Services/Docket_Records_Search/in
dex.asp. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (addressing
court’s ability to take judicial notice of public records).
2