Fagan v. Roberts et al
MEMORANDUM AND ORDER ENTERED: The petition is dismissed. Signed by Senior District Judge Sam A. Crow on 5/24/2012. (Mailed to pro se party Michael R. Fagan by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL R. FAGAN,
CASE NO. 11-3210-SAC
RAY ROBERTS, et al.,
MEMORANDUM AND ORDER
Petitioner proceeds pro se on a petition for habeas corpus
relief under 28 U.S.C. § 2241, and has submitted the full filing
Petitioner is a prisoner in the custody of the Kansas
Department of Corrections (KDOC), and asserts three grounds for
relief related to allegations of error in the execution of his state
Having reviewed the materials submitted by petitioner, the
court finds petitioner is entitled to no relief under § 2241.
While on postrelease supervision for his conviction in a 2000
He filed a state habeas petition in the district court,
alleging legal error in KDOC’s computation of the sentence to be
served in the two cases.
When the district court summarily denied
the petition, petitioner filed an appeal claiming Kansas sentencing
statutes should be interpreted to prohibit his sentences from
running consecutively, to cap the amount of postrelease supervision
time that can be converted to a prison term, and to require full
credit be given against the postrelease supervision on his 2000
crime for the time served in jail on his 2009 crime.
Court of Appeals affirmed the district court’s decision, finding no
Petitioner did not thereafter seek timely
review by the Kansas Supreme Court of that decision.
28 U.S.C. § 2241
A state prisoner habeas petition challenging the execution of
his sentence, rather than the validity of his state conviction or
the sentence imposed, is properly brought under 28 U.S.C. § 2241.
Davis v. Roberts, 425 F.3d 830, 833 (10th Cir.2005); Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir.2000).
state court remedies is required.
Full exhaustion of
See Montez, 208 F.3d at 866
(habeas petitioner is "generally required to exhaust state remedies
whether his action is brought under Section 2241 or Section 2254").
Ground I - Access to the Courts
Petitioner first claims the Kansas appellate clerk’s office
violated his constitutional right of access to the courts by not
allowing him to file an untimely petition for the Kansas Supreme
See Fagan v. Riggin, 2011 WL 4358359 (Kan.App., Sept. 16,
Petitioner cites correspondence with the appellate clerk’s
office in which petitioner states he never received a copy of the
Court of Appeals opinion when it was decided, he first learned of
the Court of Appeals decision when he contacted the appellate court
clerk’s office for information regarding
his appeal, and the
appellate court clerk’s office subsequently provided petitioner with
a copy of the Court of Appeals decision.
When petitioner then
submitted his motion for discretionary review by the Kansas Supreme
Court, the appellate court clerk’s office returned the motion as
untimely submitted, stating it no longer had appellate jurisdiction
jurisdiction over his claim of being denied access to the courts
petitioner’s sentencing claims.
Petitioner’s allegations of being denied his constitutional
right of access to the courts, however, do not implicate the
legality or execution of his state criminal sentence.
petitioner is not entitled to any relief under § 2241 on this claim
of constitutional deprivation.
To the extent petitioner maintains
a person acting under color of state law violated petitioner’s
rights under the Constitution or laws of the Untied States, the
remedy on such a claim lies in a non-habeas civil action seeking
relief under 42 U.S.C. § 1983.
See West v. Atkins, 487 U.S. 42, 48
To the extent petitioner suggests the state appellate court’s
handling of his untimely petition excuses his failure to fully
exhaust state court remedies, the court disagrees.
“The Supreme Court has explained that if state court remedies
are no longer available because the prisoner failed to comply with
the deadline for seeking review, the prisoner's procedural default
generally functions as a bar to federal habeas review.”
Parker, 490 F.3d 816, 819 (10th Cir.2007)(citing Woodford v. Ngo,
548 U.S. 81, 92 (2006)).
See O'Sullivan v. Boerckel, 526 U.S. 838,
848 (1999)(procedural default doctrine preserves integrity of the
(1991)(a "habeas petitioner who has defaulted his federal claims in
where the appellate mandate had been entered, and the record had
been returned to the district court.
state court meets the technical requirements for exhaustion ...
[because] there are no state remedies any longer 'available' to
him," and, thus, that the procedural default doctrine prevents a
habeas petitioner from circumventing the policy underlying the
The procedural default doctrine applies in
the present case where the court finds no showing or argument that
the deadline for filing a petition for discretionary review in the
Kansas Supreme Court, or the handling of petitioner’s untimely
petition, was not pursuant to a procedural ground based solely on
state law regularly followed and applied.
The procedural default doctrine precludes federal habeas review
of a federal claim that a state court has declined to consider due
to the petitioner's noncompliance with state procedural rules unless
petitioner can show: (1) both cause and prejudice, or (2) manifest
Coleman, 501 U.S. at 750.
Finding neither showing is
evident on the face of the instant record, the court concludes the
petition should be dismissed because federal habeas review of
petitioner’s claims is barred by petitioner’s procedural default in
presenting his constitutional claims to the state courts.
But even if the procedural default bar could be overcome,
petitioner’s remaining claims entitle him to no habeas corpus
Ground II - Due Process
Petitioner contends the Kansas Court of Appeals’ interpretation
of state sentencing statutes is erroneous and violates petitioner’s
rights under the Fourteenth Amendment by requiring him to serve two
and a half years beyond the period mandated by Kansas law as
interpreted by petitioner.
However, the United States district courts are authorized to
grant a writ of habeas corpus to a prisoner "in custody in violation
of the Constitution or laws or treaties of the
violation of state law are not cognizable in a federal habeas
Montez, 208 F.3d at 865.
Here, petitioner’s arguments are all based upon state statutes
and his interpretation of those statutes, and thus fail to state a
cognizable federal constitutional violation.
The Kansas Court of
Appeals has soundly rejected petitioner’s legal arguments, and a
federal habeas court is bound by the state’s interpretation of its
own sentencing laws.
House v. Hatch, 527 F.3d 1010, 1028 (10th
Ground III - Equal Protection
Petitioner additionally contends he is being denied equal
treatment by the state courts due to his pro se status, claiming
another prisoner proceeding with counsel obtained relief on similar
allegations of error in the interpretation of state sentencing
statutes regarding that prisoner’s sentence.
The court first notes
there is no suggestion in the record that petitioner ever raised or
attempted to raise an equal protection claim in the state courts.
Nonetheless, petitioner’s claim of unequal treatment is conclusory
at best, and presents no factual or legal basis for establishing a
claim of constitutional error in the execution of petitioner’s state
sentence that would entitle him to federal habeas corpus relief.
The court thus concludes the petition should be dismissed
because it is clear on the face of the record that federal habeas
review is barred by petitioner’s procedural default in presenting
his claims to the state courts, and that even if there were no
procedural bar, petitioner’s claims entitle him to no relief under
IT IS THEREFORE ORDERED that the petition is dismissed.
IT IS SO ORDERED.
This 24th day of May 2012 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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