Barber v. Kansas, State of et al

Filing 6

ORDER ENTERED: Respondents' motion 5 to dismiss the petition without prejudice is denied. Petitioner is granted thirty (30) days from the date of this order to file an amended petition if he chooses to raise additional claims. Respondents ar e granted additional time to file an answer and return, either sixty (60) days from the date of this order, or thirty (30) days from the date of petitioner's amendment of the petition, whichever date is later. Signed by Senior District Judge Sam A. Crow on 1/10/2012. (Mailed to pro se party Terry L. Barber by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRY L. BARBER,
Petitioner,
v.

CASE NO. 11-3014-SAC

STATE OF KANSAS, et al.,
Respondents.

O R D E R
Petitioner, a prisoner incarcerated in a Kansas correctional
facility, proceeds pro se on a petition seeking a writ of habeas
corpus under 28 U.S.C. § 2254 on allegations regarding the sentence
imposed for his conviction in Sedgwick County District Court on
charges of attempted rape and aggravated sexual battery.1

First,

he claims the state district court erred in allowing an Arkansas
rape case to be considered in his criminal history.

Second, he

claims the district court’s enhancement of the sentence based on
petitioner being a Persistent Sex Offender was unconstitutional.
Petitioner states he raised both claims without success in a postconviction

motion

under

K.S.A.

22-3504

to

correct

an

illegal

sentence.2
Before

the

court

is

respondents’

motion

to

dismiss

the

petitioner without prejudice, citing petitioner’s pending appeal

1

See State v. Barber, 157 P.3d 1129, 2007 WL 1461334 (Kan.App.,
May 18, 2007)(unpublished opinion), rev. denied (Sept. 27, 2007).
2

See Barber v. State, 238 P.3d 331, 2010 WL 3636272 (Kan.App.
Sept. 10, 2010)(unpublished opinion), rev. denied (Nov. 5, 2010).

from the denial of his post-conviction relief, K.S.A. 60-1507.
Although petitioner appears to claim he has fully exhausted state
court remedies on the two claims being raised in federal court,
respondents

point

out

that

while

petitioner’s

current

post-

conviction appeal is pending, petitioner’s state court records are
unavailable to respondents for purposes of preparing a response to
the petition.
The Kansas Appellate Courts public website3 discloses that
petitioner’s

post-conviction

appeal

has

now

been

resolved.4

Accordingly, because comity concerns no longer warrant dismissal of
the petition, the court denies respondents’ motion to dismiss.
Petitioner is granted thirty days to amend the petition, if he so
desires,

to

add

any

claim

reviewed

by

the

petitioner’s post-conviction motion and appeal.

state

courts

in

Respondents are

granted thirty days thereafter or after petitioner’s amendment of
the petition, whichever date is later, to file an Answer and Return.
IT IS THEREFORE ORDERED that respondents’ motion to dismiss the
petition without prejudice (Doc. 5) is denied.
IT IS FURTHER ORDERED that petitioner is granted thirty (30)
days from the date of this order to file an amended petition if he
chooses to raise additional claims.
IT IS FURTHER ORDERED that respondents are granted additional
time to file an answer and return, either sixty (60) days from the
date of this order, or thirty (30) days from date of petitioner’s

3

See www.kscourts.org (case inquiry system).

4

See Barber v. State, 2011 WL 6385646 (Kan.App. Dec. 16, 2011),
rev. denied (Jan. 6, 2012).
2

amendment of the petition, whichever date is later.
IT IS SO ORDERED.
DATED:

This 10th day of January 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

3