Bailey v. Studman

Filing 4

ORDER ENTERED: Petitioner's motion 2 for leave to proceed in forma pauperis is granted. Petitioner is granted thirty (30) days from the date of this order to show cause why the petition should not be summarily dismissed. Petitioner's motion 3 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 12/20/2011. (Mailed to pro se party Darrell Bailey by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DARRELL BAILEY,
Petitioner,
v.

CASE NO. 11-3181-SAC

MICHAEL STUDMAN,
Respondent.

O R D E R
Before the court is a habeas corpus petition seeking relief
under 28 U.S.C.§ 2254, filed pro se by a prisoner incarcerated in an
Arkansas state facility.

Also before the court is petitioner’s

motion for leave to proceed in forma pauperis under 28 U.S.C. §
1915, and motion for appointment of counsel.
Petitioner

alleges

constitutional

conviction on 1990 charges of murder.

error

in

his

Kansas

That conviction became final

in 1992, and it appears petitioner was transferred out of the state
shortly thereafter.

Petitioner now claims he was denied his right

to the effective assistance of counsel in the Kansas criminal
proceeding, and names his defense counsel as the sole respondent in
this matter.

Having reviewed the petition, the court finds it is

subject to being summarily dismissed for the following reasons.
First, it is clear on the face of the petition that petitioner
did not file this action within the one year limitation period
imposed by 28 U.S.C. § 2244(d)(1) by the Antiterrorism and Effective
Death Penalty Act (AEDPA) in 1996. For a pre-AEDPA conviction, such
as the conviction being challenged in the instant action, petitioner

had a year from April 24, 1996, to seek federal habeas relief.

See

Miller v. Marr, 141 F.3d 976 (10th Cir.1998)(one year grace period
applies to state prisoners challenging pre-AEDPA convictions).
Finding no showing or suggestion of extraordinary circumstances
warranting equitable tolling of the § 2244(d)(1) limitation period,
the petition is subject to being dismissed as time barred.
Second, even if petitioner could establish the petition was
timely filed, it still would be subject to summary dismissal because
there is no indication that petitioner ever attempted to exhaust
state court remedies on his claim of being denied his right to
counsel under the Sixth and Fourteenth Amendments.

“Before a

federal court may grant habeas relief to a state prisoner, the
prisoner must exhaust his remedies in state court.

In other words,

the 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 US. 838, 842

(1999).
Petitioner is advised that if dismissal of the petition can be
avoided for the reasons stated above, then amendment of the petition
will be required to name a proper respondent, namely the state
officer having custody over petitioner.

See

Rule 2(a) of the Rules

Governing Habeas Corpus Petitions (“If the petitioner is currently
in custody under a state-court judgment, the petition must name as
respondent the state officer who has custody.”).
IT IS THEREFORE ORDERED that petitioner’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, and that petitioner
is granted thirty (30) days from the date of this order to show
cause why the petition should not be summarily dismissed for the
2

reasons stated by the court.
IT IS FURTHER ORDERED that petitioner’s motion for appointment
of counsel (Doc. 3) is denied without prejudice.
IT IS SO ORDERED.
DATED:

This 20th day of December 2011 at Topeka, Kansas.

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

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