Sawyer v. Ash et al

Filing 23

MEMORANDUM AND ORDER ENTERED: Respondents' motion 21 to dismiss is granted. To the extent petitioner seeks relief from the sentence imposed in the criminal conviction entered in Case No. 06CR2180, the dismissal is without prejudice due to la ck of subject matter jurisdiction. To the extent petitioner may seek relief from his civil commitment, his habeas corpus petition is premature and is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 4/9/2012. (Mailed to pro se party Myoun L. Sawyer by regular mail.) (Attachments: #(1) Docket Sheets) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MYOUN L. SAWYER,
Petitioner,
CIVIL ACTION
No. 11-3083-SAC

vs.

(FNU)(LNU), Superintendent, Larned State
Hospital, et al.,

Respondents.

MEMORANDUM AND ORDER
This matter, a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254, comes before the court on respondents’ motion
to

dismiss

(Doc.

21).

Petitioner

filed

a

motion

for

reconsideration (Doc. 22), which the court construes as a reply
to the motion to dismiss.
Background
Petitioner was convicted in the District Court of Wyandotte
County, Kansas, in Case No. 06CR2180 of eight counts of Lewd and
Lascivious Behavior pursuant to K.S.A. 21-3508 for misconduct in
the Wyandotte County Jail. State v. Sawyer, 219 P.3d 1243
(Table), 2009 WL 4639488 (Kan.App. 2009). His sentence for that
conviction has expired.
Petitioner is presently in custody under a civil commitment

entered by the Wyandotte County District Court in Case No. 2010PR-48 under the Kansas Sexually Violent Predator Act. An appeal
is pending in that action, Appellate Case No. 107269.
Petitioner also states that he filed a state habeas corpus
in May 2008 which remains pending.1
Discussion
Respondents move for the dismissal of this matter on the
grounds (1) that the court lacks jurisdiction to consider this
matter because petitioner is not in custody on the criminal
sentence he challenges and (2) that the petitioner has failed to
exhaust available state court remedies concerning his civil
commitment.
The “in custody” requirement
A federal court lacks jurisdiction to consider a habeas
corpus petition if the petitioner is no longer “‘in custody’
under the conviction or sentence under attack at the time his
petition

is

filed.”

Maleng

v.

Cook,

490

U.S.

488,

490-91

(1989)(per curiam). See also Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394, 401 (2001) (“[Petitioner] is no longer
serving the sentences imposed pursuant to his 1986 convictions,
and therefore cannot bring a federal habeas petition directed

1

Doc. 1, p. 3.
2

solely at those convictions,” citing 28 U.S.C. § 2254(a) and
Maleng).
It is uncontested that petitioner was no longer incarcerated under his criminal conviction at the time he commenced this
petition.

According

to

material

maintained

by

the

Kansas

Department of Corrections, petitioner was released from custody
on October 2, 2010, upon the expiration of sentence.2 This
petition was filed on April 22, 2011. Thus, this matter may not
proceed for lack of jurisdiction.
The exhaustion requirement
Respondents suggest the present petition may be construed
to seek relief from petitioner’s present custody under an order
of civil commitment. If so, they contend that petitioner’s
failure to exhaust state court remedies requires the dismissal
of this matter.
A petition for habeas corpus may not be granted unless it
appears that the petitioner has exhausted state court remedies
or that no adequate state remedy is available. See 28 U.S.C.
§2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever
v.

Kansas

State

Penitentiary,

36

F.3d

1531,

1534

(10th

Cir.1994). This exhaustion requirement is satisfied once the

2

A copy of the on-line record is attached.
3

federal claim has been presented fairly to the state courts,
including the state appellate courts. See Castille v. Peoples,
489 U.S. 346, 351 (1989).
As respondents point out, petitioner is pursuing state
court remedies from his civil commitment.3 Because petitioner has
not fully exhausted state court remedies, any related claim for
relief in this action is premature.
IT IS, THEREFORE, BY THE COURT ORDERED respondents’ motion
to dismiss (Doc. 21) is granted. To the extent petitioner seeks
relief from the sentence imposed in the criminal conviction
entered in Case No. 06CR2180, the dismissal is with prejudice
due to lack of subject matter jurisdiction. To the extent
petitioner may seek relief from his civil commitment, his habeas
corpus petition is premature and is denied without prejudice.
A copy of this order shall be transmitted to the petitioner.

3

See attached docket sheet, Kansas Court of Appeals Case No.
107269.
4

IT IS SO ORDERED.
Dated at Topeka, Kansas, this 9th day of April, 2012.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge

5