Sawyer v. Burke et al

Filing 3

MEMORANDUM AND ORDER: It is ordered by the court that the petition for habeas corpus is dismissed without prejudice to allow petitioner to complete the exhaustion of state court remedies. Signed by District Judge Sam A. Crow on 2/2/2012. Mailed to pro se party Myoun Sawyer by regular mail. (bt) (Additional attachment(s) added on 2/2/2012: # 1 Exhibit) (bt).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MYOUN SAWYER,
Petitioner,
CIVIL ACTION
No. 12-3006-SAC

vs.
CHRISTOPHER BURKE, et al.,

Respondents.

MEMORANDUM AND ORDER
This matter is before the court on a petition for habeas
corpus filed pursuant to 28 U.S.C. § 2254 by a person under
civil commitment as a sexual predator. He proceeds pro se, and
the court grants leave to proceed in forma pauperis.
The court liberally construes the present action as a
challenge to the commitment proceedings.
A petitioner seeking federal habeas corpus review generally
must

satisfy

the

exhaustion

requirement.

Under

28

U.S.C.

§2254(b)(1), a petitioner must show the claims presented in the
habeas corpus action (1) have been presented to the state
courts, including the highest state court, or (2) that no
adequate state court remedies are available or effective. See
O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas

State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.1994).
Because the materials appended to the petition show that a
direct appeal is pending in the Kansas appellate courts1, the
court will dismiss this matter without prejudice. Petitioner has
not presented his claims to the highest state court; rather, he
has a pending appeal in the civil case related to his status as
a sexual predator.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for
habeas corpus is dismissed without prejudice to allow petitioner
to complete the exhaustion of state court remedies.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 2d day of February, 2012.

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

1

The petition reflects a pending appeal in the Kansas
appellate courts, and the court’s research reflects that the
appeal remains pending; a copy of the appellate docket sheet
is appended to this order.
2