Brown v. Howard et al

Filing 3

ORDER ENTERED: Plaintiff is granted twenty (20) days to show cause why the complaint should not be liberally construed as a petition filed under 28 U.S.C. 2254 and dismissed without prejudice. Plaintiff is granted leave to proceed in forma pauperis to the extent he seeks relief under 28 U.S.C. 2254. Signed by Senior Judge Sam A. Crow on 04/06/06. (smnd)

Download PDF
Brown v. Howard et al Doc. 3 Case 5:06-cv-03094-SAC Document 3 Filed 04/06/2006 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ISIAC BROWN, Plaintiff, v. SCOTT HOWARD, et al., Defendants. CASE NO. 06-3094-SAC ORDER Plaintiff, a prisoner confined in the Wyandotte County Detention Center in Kansas City, Kansas, proceeds pro se on a form complaint submitted under 42 U.S.C. 1983. Plaintiff claims a Kansas City detective violated plaintiff's constitutional rights while interrogating plaintiff, claims his appointed defense counsel misled him into entering a plea of guilty to an illegal offense, and claims both defendants misrepresented the law and defamed plaintiff's character. Plaintiff broadly seeks "relief of illegally accused charge of robbery." When a prisoner seeks to challenge the length or fact of his confinement, he must pursue relief through a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973). an applicant must demonstrate full To obtain such relief, of state court exhaustion remedies on all claims raised for habeas relief, or demonstrate that such remedies are unavailable or ineffective under the circumstances. 28 U.S.C. 2254(b)(1). In the present case, plaintiff acknowledges no exhaustion of state court remedies regarding the challenged criminal conviction, Dockets.Justia.com Case 5:06-cv-03094-SAC Document 3 Filed 04/06/2006 Page 2 of 3 and further states he is in the process of obtaining counsel for an appeal. The court thus directs plaintiff to show cause why the complaint should not be liberally construed by the court as seeking relief under 28 U.S.C. 2254, and dismissed without prejudice based on plaintiff's failure to exhaust state court remedies. Plaintiff is granted leave to proceed in forma pauperis to the extent plaintiff seeks habeas corpus relief. See United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997)(filing fee provisions in 28 U.S.C. 1915 as amended by the Prison Litigation Reform Act do not encompass state habeas actions filed under 28 U.S.C. 2254, or appeals therefrom). With the complaint, plaintiff provided original pleadings captioned for filing in the Wyandotte District Court in plaintiff's state criminal proceeding. In the event these pleadings were intended for filing in the state district court, copies of said pleadings are to be substituted in this court's record, and the original pleadings are to be forwarded to the Clerk of the Wyandotte County District Court. IT IS THEREFORE ORDERED that plaintiff is granted twenty (20) days to show cause why the complaint should not be liberally construed as a petition filed under 28 U.S.C. 2254, and dismissed without prejudice. IT IS FURTHER ORDERED that plaintiff is granted leave to proceed in forma pauperis to the extent he seeks relief under 28 U.S.C. 2254. The clerk's office is to copy plaintiff's original pleadings captioned for filing in his state criminal case, substitute the 2 Case 5:06-cv-03094-SAC Document 3 Filed 04/06/2006 Page 3 of 3 copies for the original pleadings in this court's record, and forward the original pleadings and a copy of this order the Clerk of the Wyandotte County District Court. IT IS SO ORDERED. DATED: This 6th day of April 2006 at Topeka, Kansas. s/ Sam A. Crow SAM A. CROW U.S. Senior District Judge 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?