Kinnell (31576) v. Kansas, State of et al
ORDER granting petitioner's 2 MOTION for Leave to Proceed in forma pauperis. This action is dismissed as against all named respondents except Warden McKune. The following motions filed by petitioner Rolly O'Dell Kinnell are denied: M OTION for Stay - Immediate Release 3 4 ; Motion to Recuse 5 ; MOTION to Amend 6 ; motions improperly imbedded in documents 9 and 10 ; and MOTION for Relief 11 . Petitioner is granted 15 days to show cause why this action should not be dismissed for the reasons stated in this order. Signed by District Judge Sam A. Crow on 10/18/2012. Mailed to pro se party Rolly O'Dell Kinnell by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROLLY O’DELL KINNELL,
STATE OF KANSAS,
O R D E R
This petition for writ of habeas corpus was filed pro se pursuant
to 28 U.S.C. § 2241 by an inmate of the Lansing Correctional Facility,
The only proper respondent in a habeas corpus
action is the petitioner’s current custodian.
action is dismissed as against all named respondents other than
Warden David McKune.
In 1998, Mr. Kinnell was convicted of aggravated battery and
assault, and he was sentenced to imprisonment.
In 2010, he was
re-incarcerated for violating parole conditions.
It is not at all
clear from the allegations in the original petition whether Mr.
Kinnell seeks to challenge the revocation of his parole or his
underlying state criminal convictions.
On the one hand, he appears
to complain about the revocation of his parole by claiming he was
arrested on July 23, 2012, without a warrant; he was “kidnapped” by
officers used false parole conditions.
On the other hand, Mr.
Kinnell complains regarding his 1998 conviction by claiming that the
charging information was void, the “State did not have lawful
jurisdiction upon conviction,” he was subjected to false arrest, and
the trial judge was partial and denied all his motions.
to state parole revocation may properly be brought in a § 2241
petition, while challenges to convictions may not.
Since filing the petition, Mr. Kinnell has submitted at least
7 additional motions or supplements.
Having examined the petition
and other filings, the court finds that the petition is subject to
being dismissed for failure to state facts showing that Mr. Kinnell
is entitled to relief under § 2241 and for failure to show exhaustion
regarding his parole revocation.
Any challenges that Mr. Kinnell
may have to the revocation of his state parole must have been raised
in the first instance in the hearing that resulted in the revocation
of his parole and on administrative appeal.
In addition, Mr. Kinnell
must have fully and properly exhausted all state court remedies that
are available before he may challenge a state parole decision in
His efforts to raise claims in various courts by
apparently improper means are not shown to have amounted to proper
Moreover, he states that he has an action pending in
Shawnee County involving his claims.
The court thus finds that Mr.
Kinnell has not properly and fully exhausted administrative and state
court remedies on any parole revocation claim.
Petitioner is given
time to allege additional facts showing that revocation of his state
parole violates his federal constitutional rights and to show
If he fails to adequately make these showings within
the allotted time, this action will be dismissed without further
The court dismisses the many claims and allegations made by Mr.
Kinnell that do not concern the revocation of his state parole because
they are not properly raised in this § 2241 petition and for other
reasons that have been repeatedly explained to Mr. Kinnell in prior
Mr. Kinnell has repeatedly been informed that the only way
he may challenge his 1998 state convictions in federal court is by
filing a habeas corpus petition pursuant to 28 U.S.C. § 2254.
has also repeatedly been advised that any such petition filed by him
would be “second and successive” since he has already had a first
§ 2254 petition considered and denied.
As a result, he must obtain
authorization from the Tenth Circuit Court of Appeals before he may
file another § 2254 petition in this court.
Accordingly, to the
extent that Mr. Kinnell may be attempting to challenge his 1998
convictions in this action, those claims are dismissed for lack of
Petitioner’s vague references to the three strikes provision
are not grounds for any relief in this habeas corpus action, as 28
U.S.C. § 1915(g) applies to civil actions only.
Mr. Kinnell has
repeatedly attempted to challenge this provision and to sue many
judicial officials and courts in civil rights actions.
He has been
informed on numerous occasions that such challenges and all civil
rights complaints by him are subject to an upfront filing fee of
$350.00 because he is a three-strikes litigant.
To the extent that
Mr. Kinnell is attempting to raise any civil rights claims herein,
they are dismissed because he has not paid the full fee or shown that
he is in imminent danger of serious physical injury and such claims
are not properly brought in a § 2241 petition.
Petitioner is given 15 days in which to show good cause why the
instant habeas corpus petition brought under § 2241 should not be
dismissed for the foregoing reasons.
If he fails to show good cause
within the time allotted, this action will be dismissed without
Petitioner may file one response only to this order
and it must not exceed 5 pages.
by him will be stricken.
Any extra papers or filings submitted
The first page of petitioner’s response
must have “Response” written at the top and must contain the correct
caption and case number.
This action might also be dismissed because it does not comply
with filing restrictions previously imposed upon Mr. Kinnell by this
court that are still in effect.
Any action submitted by Mr. Kinnell
in the future may be returned by the clerk without being filed or
stricken or summarily dismissed by the court upon filing if it fails
to comply with the long-standing filing restrictions and the
Mr. Kinnell is directed to conform his
filings to the following:
Any allegation that is a challenge to his state convictions
may only be raised in a habeas corpus petition brought
pursuant to 28 U.S.C. § 2254 that is submitted upon § 2254
forms obtained from the clerk of the court, which may not be
filed in this court without Mr. Kinnell having first obtained
preauthorization from the Tenth Circuit Court of Appeals.
Any claim of a federal civil rights violation must be
submitted on § 1983 forms obtained from the clerk, and any
such complaint submitted by Mr. Kinnell is subject to his
upfront payment of the $350.00 filing fee unless he shows
imminent danger of serious physical harm.
Only certain types of claims involving the execution of an
inmate’s sentence may be raised in a petition under 28 U.S.C.
§ 2241, and challenges to a state conviction and civil rights
claims are not among them.
Mr. Kinnell has repeatedly named various courts and judges
as defendants in an obvious effort to judge-shop, which is
improper; and his claims against judges are based upon
judicial rulings, for which judges enjoy absolute judicial
If any judge is named as either a defendant or
respondent in any type of action filed by Mr. Kinnell without
adequate factual grounds being alleged in the body of the
pleading, the judge will immediately be dismissed from the
Mr. Kinnell has been repeatedly advised of the
pleading requirements that he name proper defendants in the
caption and that he describe the acts of each defendant in
The court has considered petitioner’s Motion to Proceed in forma
pauperis (Doc. 2) and finds that it should be granted to satisfy the
$5.00 fee for this § 2241 petition based upon his lack of funds.
court has also considered petitioner’s supplemental materials (Docs.
3, 4, 5, 6, 7, 8, 9) and finds that they add nothing and are mostly
irrelevant to this § 2241 petition.
These pleadings are repetitive,
abusive filings that are customarily filed by Mr. Kinnell.
content either makes no sense or is a rehash of claims that have
repeatedly been dismissed, which led to his well-deserved status as
a three-strikes litigant.
Only a few items in these supplementary
materials warrant separate discussion.
As part of Document 3, petitioner “files for stay-immediate
He has attached a duplicate of this motion to the back
of Document 4.
This is not a proper “Motion for Stay,” and valid
grounds for issuance of a stay are not presented.
Nor has petitioner
presented any facts regarding revocation of his parole to support
a claim that he is entitled to immediate release.
petitioner’s motion for stay-immediate release is denied.
Petitioner has attached to Document 3 exhibits regarding the
Preliminary Hearing on his parole revocation held in July 2012.
These exhibits indicate that he was charged with and found guilty
of violating two release conditions: (1) “personal conduct” by
engaging in threatening and assaultive behavior towards parole
officers and (2) “treatment programs and placement” by refusing to
access mental treatment through the VA.
They also show that he was
provided notice and a summary of the hearing.
own exhibits contradict rather than support any claim that his parole
revocation was unconstitutional.
Petitioner’s remarks regarding
Judge Hendricks and state civil case No. 12CV79 are not only
irrelevant to this action but also spurious and often nonsensical.
Petitioner attaches to Document 4 a “Motion” on which he, and
not the clerk of the court, has written a case number (12-CV-3183)
consecutive to his.
This case number has already been assigned to
another case by the clerk.
In this motion, Mr. Kinnell purports to
speak on behalf of Mario Martin and seeks to submit evidence of “KDOC
abuse” of Mr. Martin.
Mr. Kinnell may not submit motions in this
case on behalf of another inmate.
If Mr. Martin wishes to file an
action in this court and submit motions therein, he must file his
own complaint or petition on forms that he may obtain upon request
to the clerk of the court.
No action will be taken on this improperly
imbedded, unrelated motion.
Document 5 is another improperly-styled motion or filing.
first page is a copied notice of filing that was received by Mr.
Kinnell, at the bottom of which he writes “Affidavit of Prejudice
Against Sam A. Crow.”
The other statements made on this page are
The attached pages present no proper or credible grounds
Petitioner mainly complains of the court’s application
of the three-strikes provision to him.
grounds for recusal.
Rulings of the court are not
The court finds that good cause for recusal
is not presented.
Document 6 is petitioner’s “Motion to Amend and Supplement this
In this motion, petitioner discusses a debt collection
action and social security overpayment that have no relevance to this
He also complains regarding his state convictions.
The court repeats that monetary claims and challenges to petitioner’s
Accordingly, this motion is denied.
Documents 9 and 10 appear to contain multiple pleadings.
Kinnell is again instructed that all motions must contain the caption
of the case at the top of the first page and a descriptive title.
The top pages transmitted by him with some documents may be intended
to introduce some of his filings, but are not properly-styled
As a result, some of his motions were not filed separately.
In any event, the motions imbedded within Documents 9 and 10 are
frivolous for reasons already provided to Mr. Kinnell.
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s Motion
for Leave to Proceed in forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that this action is dismissed as against
all named respondents except Warden McKune.
IT IS FURTHER ORDERED that the following motions filed by
petitioner are denied: Motion for stay-immediate release (Docs. 3,
4); Motion to Recuse (Doc. 5); Motion to Amend (Doc. 6); motions
improperly imbedded in Docs. 9 and 10; and Motion for Relief (Doc.
IT IS FURTHER ORDERED that petitioner is granted fifteen (15)
days in which to show cause why this action should not be dismissed
for the reasons stated herein.
IT IS SO ORDERED.
Dated this 18th day of October, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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