Jones v. Kansas, State of et al

Filing 13

MEMORANDUM AND ORDER ENTERED: Petitioner's motion 8 to proceed in forma pauperis is granted. This action is dismissed and all relief is denied, without prejudice, due to petitioner's failure to show full and proper of exhaustion of state court remedies. A certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 04/03/14. (Mailed to pro se party Joseph Lee Jones by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH LEE JONES,
Petitioner,
v.

CASE NO.

12-3233-SAC

STATE OF KANSAS,
et al.,
Respondents.
MEMORANDUM AND ORDER
This petition for writ of habeas corpus was filed pro se
pursuant to 28 U.S.C. § 2254 by Mr. Jones while he was an inmate
of the Shawnee County Jail, Topeka, Kansas.1

The court entered a

screening order in which it gave petitioner time to satisfy the
filing fee.

In addition, the court found several deficiencies

in the petition, dismissed some claims, and gave Mr. Jones time
to correct the deficiencies in his remaining claims.

Since that

order was entered, Mr. Jones has filed: Amended Petition for
Writ of Habeas Corpus (Doc. 7); Motion for Leave to Proceed in
forma pauperis (Doc. 8); and two Supplement(s) to his Amended
Petition (Docs. 11 and 12).
the

file,

the

court

Having considered all materials in

dismisses

this

action

for

reasons

that

follow.

1

Petitioner was transferred during the pendency of this action to the
Larned Correctional Mental Health Facility, and has recently been transferred
to the Hutchinson Correctional Facility.
Mr. Jones is reminded that it is
his responsibility to immediately notify the court of any change of address.

1

FILING FEE
Mr. Jones has filed a Motion to Proceed in forma pauperis
upon forms as directed along with pages entitled “Work with Fund
Ledger,” each showing an account balance of 0 for dates covering
the appropriate six-month period.

Based upon this financial

information the court grants petitioner’s motion to proceed in
forma pauperis in this case.

REVIEW OF AMENDED PETITION AND SUPPLEMENTS
In

his

conviction

of

Amended

Petition,

attempted

burglary

Mr.

Jones

upon

his

challenges
plea

of

his
nolo

contendere on December 6, 2011, in Shawnee County Case No. 11CR-523.2

He

incompetency.”

alleges

that

The court

sentencing

was

has discovered

“suspended
that

due

Mr. Jones

to
was

sentenced in this case on April 30, 2013.3
When asked in his Amended Petition about any direct appeal
of the conviction under challenge, Mr. Jones states that he did

2

In its screening order, the court dismissed any challenges to
petitioner’s conviction in Shawnee County Case No. 12-CR-1469 as premature
under the Younger doctrine as well as unexhausted, and held that Mr. Jones
could proceed in this action only upon challenges to his conviction in Case
No. 11-CR-523.
3

On-line records maintained by the Kansas Department of Corrections
(KDOC) regarding each offender currently in its custody, provide the
sentencing date on petitioner’s active convictions.

2

not directly appeal the judgment of conviction.4

To the general

question of “have all grounds for relief” been presented to the
highest state court,” petitioner answers “no” along with “just
the criminal history scoring challenge.”
As Ground (1) in his Amended Petition, Mr. Jones claims a
“Writ Right” under K.S.A. 60-1507 and 1501 “for no docket fee.”
As factual support for this ground, petitioner alleges that in
September

and

October

2012,

he

submitted

a

state

petition

claiming that he “was done with possible time” to the Shawnee
County Clerk and directly to the judge in his criminal case No.
11-CR-523.

With

respect

to

exhaustion

of

this

ground,

petitioner alleges that he raised this issue through a postconviction motion in a state trial court.

However, he also

states that he did not exhaust this ground because he was “being
messed around by everyone” and “wasn’t aware Appeals Courts does
(sic) habeas.”
As Grounds (2) and (3), petitioner asserts a due process
challenge as to
unproven

juvenile

“criminal history scoring,” and
adjudications

4

to

prove

person

“the

use of

crime

from

To the question had he “previously filed any other petitions . . .
concerning this judgment of conviction in any state court,” Mr. Jones
responded “yes.” However, he refers to a “habeas corpus” claiming his “jail
time was done” that the “clerk refused to file,” and states that he tried to
call it to Judge Braun’s attention and even tried to file it in his criminal
case. He also refers to exhibits “of federal case # 12-CV-3229-SAC.” None
of these events is shown to have been a proper petition or motion filed in
state court challenging this conviction.
Certainly, federal civil rights
complaints are not petitions filed in state court.

3

police reports (due process).”

In support of this ground, he

alleges that court records from his prior burglaries used to
calculate his criminal history score could not prove that the
crimes occurred in people’s homes.

He also alleges that he

“challenged his criminal history score” in the sentencing court
based on the D.A.’s wrongful use of “NCIC police reports.”

He

further alleges that he raised this same claim on his “prior
2007

sentence”

and

in

a

2010

habeas

appeals courts ruled against” him.

case,

and

“both

state

See State v. Jones, 206 P.3d

72 (Kan.App. Apr. 24, 2009), review denied (Kan. Jan. 8, 2010).
With respect to exhaustion, petitioner claims both that he has
exhausted and that he need not exhaust state

court

remedies

because he already exhausted this claim while challenging his
2007 sentence.

Again, he mentions as additional attempts to

exhaust his allegedly thwarted effort to file a state petition
and

his

federal

civil

rights

action.

Under

this

ground,

petitioner also reveals that he was “awaiting sentencing” in
Case No. 11-CR-523 at the time this Amended Petition was filed.
Petitioner was advised in the court’s prior order that it
was not appropriate for him to submit a stream of supplemental
materials after filing his petition, and that he must state all
his

claims

and

allegations

in

his

Amended

Petition.

Nevertheless, he has submitted two supplements to his Amended
Petition.

In

his

first

Supplement
4

(Doc.

11)

he

sets

forth

allegations, dates, and exhibits intended to show that when he
is sentenced on the conviction under attack he is entitled to a
certain amount of jail credit.

In his second Supplement (Doc.

12), petitioner attempts to present new allegations that he is
“in the presumptive non-imprisonment because K.S.A. 21-4711 has
been repealed” and that this “was the statute that classified
juvenile burglaries as person crimes.”

DISCUSSION
The court finds that Mr. Jones has not

fully

exhausted

state court remedies on any challenge he may have to his 2011
conviction or his 2013 sentence in Shawnee County Case No. 11CR-523.

As he was previously informed, in order to have fully

exhausted he must have properly presented all his claims to the
trial court during the criminal proceedings, on direct appeal to
the Kansas Court of Appeal (KCA), and ultimately to the Kansas
Supreme Court (KSC).
reason

his

claims

He was also informed that if for some

could

not

have

been

presented

on

direct

appeal, he had to fully exhaust them by way of a proper state
post-conviction motion filed in the trial court, the denial of
which must have been appealed to the KCA and the KSC.

It is now

clear from petitioner’s responses in his Amended Petition that
at the time he filed this action, he had not exhausted state
court remedies on any challenge to his conviction or sentence in
5

Case No. 11-CR-523 either by way of direct appeal or a proper
state post-conviction motion.

The court takes judicial notice

of the Kansas Appellate Courts Docket for Appellate Case Number
110001, which is a direct criminal appeal filed by Mr. Jones in
District Case No. 11-CR-523.

Mr. Jones has provided this court

with no information regarding his filing of this direct appeal
or its pendency, despite the court’s finding upon screening that
he had not provided “sufficient information regarding his direct
appeal in Case No. 11-CR-523 or other exhaustion of state court
remedies.”

The docket indicates that the motion of Mr. Jones to

file a direct appeal out of time was granted on June 24, 2013,
and

counsel

was

appointed.

The

docket

also

shows

that

appellee’s briefs were received in March 2014, and the matter is
currently pending in the KCA.
In

addition,

Amended Petition.

the

court

finds

other

deficiencies

in

the

With respect to Ground (1), the court first

finds that neither the claim nor the allegations made in support
present

a

recognizable

challenge

to

petitioner’s

conviction.

Petitioner repeats allegations that he was prevented from filing
a state habeas petition.

This claim, even if true, does not

entitle him to release and, in any event, this matter was found
to have been resolved in another of petitioner’s cases.

He also

repeats that he submitted a petition to the county clerk and
directly to the judge claiming he “was done with possible time.”
6

In

its

prior

order

in

this

case,

the

court

specifically

dismissed petitioner’s claim that he was “done with his time”
for

lack

of

adequate

factual

support;

failure

to

show

full

exhaustion; and as an attack upon the execution of his sentence,
which

must

be

raised

in

federal

pursuant 28 U.S.C. § 2241.

court

in

a

petition

filed

Petitioner presents no additional

facts or authority in his Amended Petition that allows him to
continue to argue this dismissed claim.
With respect to petitioner’s claim that his prior juvenile
offenses

were

improperly

considered

as

person

felonies,

the

court rejects petitioner’s theory that this claim is exhausted
for present purposes simply because he litigated a similar claim
in connection with

his

2007

conviction.

The sentence under

challenge in this action is currently being reviewed in state
court on direct appeal.
information
unaware

about

if

this

proceedings.
appeal,

it

his

As noted, Mr. Jones has revealed no

pending

particular

appeal
claim

and
is

thus
at

the

issue

court
in

is

those

If this claim is not presented in that direct
is

unlikely

exhausted in the future.

that

it

will

be

considered

properly

Certainly, Mr. Jones does not present

adequate facts from which this court could now find that he has
fully

and

properly

exhausted

state

court

remedies

on

this

challenge to his 2013 sentence.
The same is true as to petitioner’s arguments regarding
7

K.S.A.

21-4711,

which

second supplement.

he

improperly

attempts

to

add

in

his

Mr. Jones makes no effort to demonstrate

that this claim has been fully litigated on direct or collateral
appeal.

In summary, the court finds that Mr. Jones currently

has a direct appeal pending as to the sentence he seeks to
attack herein and dismisses this action for failure to exhaust
state court remedies.
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, instructs that “[t]he district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
U.S.C.

§

2253,

appealability

the

“only

if

court
the

may

issue

applicant

a

has

Pursuant to 28
certificate

made

a

of

substantial

showing of the denial of a constitutional right,” and the court
“indicates

which

showing.”

A

demonstrating

specific
petitioner

that

the

issue
can

issues

or

issues

satisfy
raised

satisfy

that
are

[that]

standard

debatable

by

among

jurists, that a court could resolve the issues differently, or
that

the

questions

deserve

further

proceedings.

Slack

v.

McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In addition, when the court’s ruling is
based on procedural grounds, a petitioner must demonstrate that
“jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
8

that

jurists

of

reason

would

find

it

debatable

whether

district court was correct in its procedural ruling.”

the

Slack,

529 U.S. at 484.
The court finds that a certificate of appealability should
not

issue

in

this

case.

Nothing

suggests

that

the

court’s

ruling resulting in the dismissal of this action for failure to
exhaust is debatable or incorrect.

The record is devoid of any

authority suggesting that the Tenth Circuit Court of Appeals
would resolve the issues in this case differently.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

petitioner’s

Motion to Proceed in forma pauperis (Doc. 8) is granted.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied, without prejudice, due to petitioner failure
to show full and proper of exhaustion of state court remedies.
IT IS FURTHER ORDERED that a certificate of appealability
is denied.
IT IS SO ORDERED.
Dated this 3rd day of April, 2014, at Topeka, Kansas.

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

9