Metcalfe v. Kansas Attorney General
ORDER ENTERED: This action is dismissed without prejudice on account of petitioner's failure to exhaust state court remedies. Signed by Senior District Judge Sam A. Crow on 9/12/2011. (Mailed to pro se party Hercules C. Metcalfe by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HERCULES C. METCALFE,
KANSAS ATTORNEY GENERAL,
O R D E R
This petition for writ of habeas corpus was filed pursuant to
28 U.S.C. § 2254 by an inmate of the Chase County Jail, Cottonwood
The filing fee has been paid.
Having considered te
petition and Supplement (Doc. 2) filed by petitioner, the court
finds as follows.
Mr. Metcalfe alleges that he was convicted in the Morris County
District Court, Council Grove, Kansas, in four different criminal
It appears from on-line offender records and petitioner’s
exhibits of Complaint/Information documents that in Case No. 08-CR21 he was convicted of theft and sentenced on February 3, 2009; and
that he is currently in custody on this conviction.
occurred on or about November 25, 2007.
Petitioner adds the vague
statement that “case is pending probation revocation.”
In Case No.
08-CR-39, Mr. Metcalfe alleges that he was convicted of four arson
charges including arson of a dwelling, and adds “case still pending
These offenses occurred on or about September 23,
In Case No. 08-CR-40, he was convicted of burglary of a non-
dwelling and adds that this is “pending sentencing.”
occurred on or about November 3, 2007.
In Case No. 08-CR-42, he was
convicted of arson of a dwelling, and adds “pending sentencing.”
This offense occurred on or about November 5, 2007.
alleges that “all pending sentencing is scheduled for September 6,
The grounds for Mr. Metcalfe’s petition are not clearly stated,
contradictory statements in his petition that he was convicted by a
jury and that his court-appointed attorney “coherst (sic)” him into
taking a plea agreement.
He also makes conclusory allegations that
his evidence and witnesses “were never brought forth in the court.”
In his attachments, petitioner appears to be complaining about a
sentencing grid that was used by his attorney.
It is also claimed
by his wife, who indicates she helped him complete this petition,
and in other exhibits that Mr. Metchalfe did not commit the crimes.
Petitioner seeks release from custody and “proper convictions of the
A person convicted in state court may challenge his convictions
in federal court by filing a petition pursuant to 28 U.S.C. § 2254.
However, before an inmate may proceed with a § 2254 petition in
federal court, he must have properly and fully exhausted all
remedies available in the state courts.
28 U.S.C. § 2254(b)(1)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that –- (A)
the applicant has exhausted the remedies available in the
courts of the State. . . .
Alternatively, the applicant must show that State corrective process
is either unavailable or ineffective.
28 U.S.C. § 2254(b)(1)(B).
“A state prisoner must give the state courts an opportunity to act
on his claims before he presents those claims to a federal court in
a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842
Generally, the exhaustion prerequisite is not satisfied
unless all claims asserted have been presented by “invoking one
complete round of the State’s established appellate review process.”
Id. at 845.
That means that all petitioner’s claims must have been
highest state court, either by direct review of the conviction or in
a post-conviction attack.”
Dever v. Kansas State Penitentiary, 36
F.3d 1531, 1534 (10th Cir. 1994).
Mr. Metcalfe admits that he did not directly appeal any of his
He states that he wanted to appeal but his court-
appointed attorney would not assist him. He also states that he has
not sought further review and has not filed any action concerning
these convictions in the state courts.
It appears that at this
time, Mr. Metcalfe must seek to file a late appeal or appeals in the
state courts, if available.
If not available, he must seek post-
conviction relief, such as by filing a motion or motions pursuant to
If relief is denied by that court he must appeal to the
Kansas Court of Appeals; and if that court denies relief he must
file a Petition for Review in the Kansas Supreme Court.
finds that petitioner has made no showing that he exhausted any
state court remedies on his claims.
Mr. Metcalfe does not show that state court remedies are
unavailable or ineffective.
To the contrary, he states that a
Statements made by Mr. Metcalfe in his exhibits suggest that he may
have absconded prior to being sentenced for the offenses committed in 2007, which
would have made it difficult to directly appeal. He does not allege that he
sought to file a late appeal.
sentencing proceeding is scheduled, which might give him some
opportunity to raise his claims or to seek a direct appeal after
Accordingly, the court finds that this action
must be dismissed, without prejudice, for failure to exhaust state
The court cautions Mr. Metcalfe that a one-year statute of
limitations applies to federal habeas corpus petitions, which may
have already expired in his case.2
For that and other reasons, he
would be well-advised to immediately proceed diligently to exhaust
all available state court remedies.
Mr. Metcalfe is also advised that generally a habeas petitioner
may not challenge convictions for offenses committed on different
dates and tried at different proceedings in a single federal habeas
Thus, if he seeks habeas relief in federal court
after he has exhausted his state court remedies, he must file a
separate federal petition for each state criminal case.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed, without prejudice, on account of petitioner’s failure to
exhaust state court remedies.
IT IS SO ORDERED.
Dated this 12th day of September, 2011, at Topeka, Kansas.
This court does not have sufficient facts before it at this time to
determine whether or not the federal statute of limitations has expired in this
case, and is not obliged to make that determination at this juncture.
s/Sam A. Crow
U. S. Senior District Judge
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