Hardaway v. Kansas, State of et al

Filing 16

ORDER ENTERED: Plaintiff's/Petitioner's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff's/Petitioner's correspondence faxed on November 22, 2011, be docketed as his "Partial Response to Order"; and that his "Motion for Acceptance of All Documents" with Exhibit D initially attached to Doc. 12 as an exhibit be docketed as a separate motion. Plaintiff's/Petitioner's motion for acceptance of all documents is granted. Any c laim in this action raised under 1983 are dismissed without prejudice. To the extent that Mr. Hardaway has presented any habeas corpus claims in this action, they are found to be "second and successive" and are dismissed without prejudice for lack of jurisdiction. Plaintiff's/Petitioner's motion 12 to stay and motion 13 for appointment of counsel are denied. Signed by Senior District Judge Sam A. Crow on 3/14/2012. (Mailed to pro se party Tyron L. Hardaway by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TYRON L. HARDAWAY,
Petitioner,
v.

CASE NO.

11-3059-SAC

STATE OF KANSAS,
et al.,
Respondents.
O R D E R
This civil action was filed under 42 U.S.C. § 1983 by a
former prison inmate.

The court screened the pro se complaint and

entered a Memorandum and Order that set forth deficiencies in the
complaint.

Mr. Hardaway was granted time to take certain actions,

which included show cause why his complaint should not be dismissed
for the reasons stated in the court’s screening order.

Hardaway

thereafter filed a Motion to Stay, which the court treated as a
motion for extension of time, and he was granted an additional 90
days in which to respond to the screening order.

The matter is now

before the court upon Hardaway’s second Motion to Stay (Doc. 12),
and his Motion for Appointment of Counsel (Doc. 13).

Having

considered all materials submitted by Mr. Hardaway, the court finds
that he intended to file a habeas corpus petition rather than a
civil rights action, so that any claim conceivably presented under
42 U.S.C. § 1983 is denied without prejudice; and that his habeas
corpus

claims

must

also

be

dismissed

at

this

time,

without

prejudice, because this is a second and successive application over

which this court lacks jurisdiction.1

DISMISSAL OF CIVIL RIGHTS CLAIMS
The

court

initially

screened

this

as

a

civil

rights

complaint because Mr. Hardaway styled it as such and named persons
as defendants.

He stated no clear grounds and no request for

relief under § 1983.

In the court’s screening order, it found that

Mr. Hardaway’s civil claims against the three individual defendants
were subject to dismissal because he failed to state facts to
support a constitutional claim and his claims for relief against
these persons appeared to be barred by the statute of limitations.2
In addition, the court found that his claims against defendant
Judge Walker and defendant County Attorney Kauffman appeared to be
based upon their involvement in his criminal prosecution, and as
such were subject to being dismissed due to the absolute immunity
of these defendants.

Mr. Hardaway was ordered to show cause why

his civil complaint should not be dismissed for the reasons stated
in the screening order.
Mr. Hardaway’s statements in his pending motions and his
letter addressed to the undersigned judge now plainly reveal that
he intended to file a habeas corpus petition challenging his 1997
state conviction rather than a civil rights complaint.

He alleges

in his two pending motions that he “just received all transcripts,”

1
The filing fee for a habeas action is $5.00, while for a civil
complaint it is $350.00. Since this matter is a habeas action, the fee for a
civil complaint is not assessed. The financial information furnished by Mr.
Hardaway in response to the court’s prior order indicates that he has
insufficient funds and should be granted leave to proceed in forma pauperis.
2

The court did not discuss defendant State of Kansas.
its agencies are absolutely immune to suit under § 1983.

2

The State and

which will allow him to provide facts to support the constitutional
violations he has alleged, and that there “will be a motion filed
in the 10th Cir . . . under actual innocence.”

He also requests

appointment of counsel to assist him in filing “the motion in the
10th Cir . . . for permission to file a second habeas corpus under
actual innocence.”

In addition, he argues that he is “still under

restraint” because he is under parole supervision until June 2015.3
Finally, with his most recent motion Mr. Hardaway faxed a letter
addressed to the undersigned judge4 plainly stating that he is
“trying to get permission from the 10th Cir to file a second
petition pursuant to 28 U.S.C. Sec. 2254” and he is “not trying to
file a civil complaint under 42 U.S.C. § 1983.”

The court thus

concludes that Mr. Hardaway is seeking to challenge his state
criminal conviction.
The court additionally concludes that Mr. Hardaway has
voluntarily withdrawn any claim he may have presented herein under
§ 1983.

For that reason and for the reasons stated in the court’s

screening order the court dismisses, without prejudice, any such

3

The court expresses no opinion as to the merit of this argument. It
notes that papers faxed by petitioner included a “Motion for Acceptance of all
Documents” with a certificate attached, which the clerk docketed as an attachment
to petitioner’s motion for appointment of counsel (Doc. 13). The clerk will be
directed to separately docket this motion and it will be granted. The court has
considered all attachments submitted by Mr. Hardaway.
4

Mr. Hardaway is advised that it is inappropriate to directly
correspond with the judge assigned to his pending lawsuit, and that all papers
pertaining to his case must have the caption and a title at the top of the first
page and be submitted to the clerk of the court.
Furthermore, this letter
appears to be, at least in part, a response to the court’s screening order since
it clarifies that Mr. Hardaway intended to file a § 2254 petition and not a §
1983 complaint. The clerk will be directed to file this letter as petitioner’s
“Partial Response to Order”.

3

claim.5

DISMISSAL OF HABEAS CORPUS CLAIMS
The court also finds that even if all or a portion of this
matter is construed as a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254, it must be dismissed, without
prejudice, for the following reasons.
As
screening

Mr.

Hardaway

order,

habeas

was

plainly

corpus

informed

review

of

in

his

the

state

court’s
criminal

conviction may only be sought by his filing a habeas corpus
petition pursuant to 28 U.S.C. § 2254.6

Mr. Hardaway has still not

submitted a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 upon court-approved forms.

Nor has he properly and

adequately set forth grounds and supporting facts for relief under
§ 2254.
In its screening order, the court did not give Mr. Hardaway
the opportunity

to

cure

the

deficiencies in

a

habeas corpus

petition because he did not file a habeas petition.

However, it

did warn him that if he were to file an actual habeas corpus
petition in the future, he would face two serious obstacles.
First, he would have to meet the “in custody” requirement, which

5
Claims for money damages or injunctive relief against state officials
based upon their involvement in a criminal prosecution are also barred by Heck
v. Humphrey, 512 U.S. 477, 487 (1994), wherein the U.S. Supreme Court held that
in such a § 1983 suit, “the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already been invalidated.”
Id.
6
Local court rules require that a habeas corpus petition be submitted
upon forms for filing a petition under § 2254 that are provided by the clerk of
the court upon request.

4

would be difficult given his release from confinement.

Second,

since he has already litigated a § 2254 petition in federal court,
he “must obtain authorization from the Tenth Circuit Court of
Appeals before he may file another § 2254 petition in federal
district court.”
Under 28 U.S.C. § 2244(b)(3)(A), a second or successive
petition for writ of habeas corpus may be filed in federal district
court only if the applicant first obtains an order from the
appropriate federal Court of Apeals authorizing the district court
to consider the petition.
filed

without

the

Id.

When a second habeas application is

petitioner

having

first

obtained

such

preauthorization, the district court lacks jurisdiction over the
petition and must either dismiss the action or transfer it to the
Tenth Circuit Court of Appeals for a determination as to whether or
not the application may proceed in district court.
It is clear from Mr. Hardaway’s statements in his motions
and letter treated as his Partial Response that he did not comply
with

the

provisions

of

§

2244(b),

and

that

he

filed

this

“application” without obtaining prior authorization from the Tenth
Circuit. As a result, this court lacks jurisdiction to address the
merits of any § 2254 claim that may be raised herein.
531 F.3d 1249, 1251 (10th Cir. 2008);

In re Cline,

United States v. Nelson, 465

F.3d 1145, 1148 (10th Cir. 2006). This district court may transfer
this action pursuant to 28 U.S.C. § 16317 to the Tenth Circuit for
7

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. . . .

5

prior authorization if it is in the interest of justice to do so.
In re Cline, 531 F.3d at 1252. However, the court determines 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.

The three primary considerations

governing a court’s decision whether to transfer or dismiss are:
(1) whether the action was in good faith filed in the wrong court;
(2) whether dismissal might make it difficult for the petitioner to
comply with the one-year federal limitations period; and (3)
whether the claim is likely to have merit.

See id. at 1251.

The first consideration does not support transfer in this
case because the statutory requirement for prior authorization of
second or successive habeas applications has been in effect for
over 15 years, making it difficult for petitioner to show that the
initial filing of his petition in this Court was done in good
faith.

See id at 1252.

Second, a dismissal will not make it any

more difficult for petitioner to comply with the applicable oneyear limitations period, because it is likely to have already
expired with respect to his 15-year old conviction.8

Third,

petitioner has not adequately alleged either facts or claims from
which the court might make a finding of likely merit. Finally, the
likelihood

that

this

case

is

time-barred

leads

the

court to

conclude that transfer of this action would raise “false hopes,”
and waste judicial resources on a case that is “clearly doomed.”

Id.
8
The court does not have facts before it to actually determine whether
or not the statute of limitations has expired in this case, and need not and does
not express an opinion as to when or if the limitations period has expired.

6

Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000).

For these

reasons, the court declines to transfer this Petition to the Tenth
Circuit, and finds it should be dismissed for lack of jurisdiction
in accordance with § 2244(b)(3).

MOTION FOR STAY
The court has considered Mr. Hardaway’s second Motion for
Stay and has obviously determined that it should be denied.

This

motion is again based mainly upon reports that his 5-year old
daughter is being treated for a serious illness.

While the court

is

is

concerned

for

Mr.

Hardaway’s

daughter,

it

not

at

all

convinced that any legitimate purpose is served or that some
significant benefit flows to Mr. Hardaway by this action being
retained on the court’s docket.9
presented

any

facts

or

Certainly, Mr. Hardaway has not

arguments

that

establish

justification for granting a stay of this action.

a

legal

The court is not

convinced that it even has authority to grant a stay in an action
over which it lacks jurisdiction.
The court repeats that Mr. Hardaway may only challenge his
state criminal conviction by submitting a habeas corpus petition on
court-approved § 2254 forms and may only file such a petition in
this court after he has obtained authorization from the Tenth
Circuit Court of Appeals.

Staying this action will not excuse Mr.

Hardaway from having to satisfy these prerequisites.

Nor does the

court perceive of how dismissing this action without prejudice

9
Mr. Hardaway does not seek a stay for exhaustion purposes. However,
he is reminded that before he can raise any habeas corpus claim in federal court
that claim must have been presented to the courts of the state.

7

might impede his ability to file his habeas petition if he receives
Circuit authorization.

Under either circumstance, Mr. Hardaway

will still face the difficult obstacles of possible time-bar and
the in-custody requirement.

MOTION FOR APPOINTMENT OF COUNSEL
Mr. Hardaway seeks appointment of counsel to assist him in
filing

motions

authorization

in
from

this

court

and

the

Tenth

Circuit

successive application.

to

assist
to

him

file

a

in

seeking

second

and

There is no constitutional right to

assistance of counsel, even after a state prisoner has properly
initiated a federal habeas corpus proceeding.

If petitioner had

submitted a proper habeas petition, this court would still lack
jurisdiction to hear his habeas claims at this time due to his
failure to obtain preauthorization.

It logically follows that

appointment of counsel to file motions in this court is clearly not
warranted.
Mr. Hardaway presents no grounds and no legal authority for
this court to appoint counsel in this non-capital case to assist
him in seeking authorization from the Tenth Circuit Court of
Appeals to file a second and successive petition. As noted, he has
yet to present any facts or grounds in his pleadings, other than
the bald statement “under actual innocence,” from which this court
might determine that he has a potentially meritorious claim.

For

these reasons, the court finds that this motion to appoint counsel
must be denied.
IT

IS

THEREFORE

ORDERED

8

that

plaintiff’s/petitioner’s

motion for leave to proceed in forma pauperis (Doc. 2) is granted.
IT

IS

FURTHER

ORDERED

that

plaintiff’s/petitioner’s

correspondence faxed on November 22, 2011, be docketed as his
“Partial Response to Order”; and that his “Motion for Acceptance of
All Documents” with Exhibit D initially attached to Doc. 13 as an
exhibit be docketed as a separate motion.
IT IS FURTHER ORDERED that plaintiff’s/petitioner’s Motion
for Acceptance of All Documents is granted.
IT IS FURTHER ORDERED that any claims in this action raised
under § 1983 are dismissed, without prejudice.
IT IS FURTHER ORDERED that to the extent that Mr. Hardaway
has presented any habeas corpus claims in this action, they are
found to be “second and successive” and are dismissed, without
prejudice, for lack of jurisdiction.
IT IS FURTHER ORDERED that plaintiff’s/petitioner’s motion
to

Stay (Doc. 12) and Motion for Appointment of Counsel (Doc. 13)

are denied.
IT IS SO ORDERED.
Dated this 14th day of March, 2012, at Topeka, Kansas.

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

9