Jones v. Kansas, State of et al
Filing
6
ORDER ENTERED: Petitioner is given thirty (30) days in which to file a proper motion to proceed in forma pauperis upon court-approved forms that has the requisite financial information attached. Within the same thirty-day period, petitioner is requ ired to cure the deficiences in this petition by submitting an amended petition upon court-provided forms in which he challenges his conviction and or sentence in Case No. 11-CR-523 only, states all grounds together with all facts in support, and sho ws that he has properly and fully exhausted state court remedies on all his claims. Petitioner's challenges to his conviction or sentence in Case No. 12-CR-1469 are premature and are dismissed without prejudice. Petitioner's challenge to his sentence and good time credit computation is dismissed without prejudice. Petitioner's motion 4 for injunctive relief is denied and his supplemental materials in documents 3 and 5 will not be considered further because all his claims and allegations must be presented in his amended petition. Signed by Senior District Judge Sam A. Crow on 11/27/2012. (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.
O R D E R
This petition for writ of habeas corpus was filed pro se pursuant
to 28 U.S.C. § 2254 by an inmate of the Shawnee County Jail, Topeka,
Kansas.
The court has screened the application and finds several
deficiencies in this petition.
Some claims are dismissed without
prejudice, and Mr. Jones is given time to correct deficiencies in
other claims.
If he fails to comply with this Order within the time
allotted, this action may be dismissed without further notice.
FILING FEE
The
fee
for
filing
a
habeas
corpus
petition
is
$5.00.
Petitioner has neither paid the fee nor submitted a proper Motion
to Proceed in forma pauperis upon forms as required by local court
rule.
Federal law requires that a prisoner seeking such leave submit
a proper motion containing an affidavit that sets forth all his assets
together with a certified statement of his inmate account that
1
includes all transactions over the six-month period immediately
preceding the filing of the lawsuit.
The inmate litigant is required
to request and obtain this certified account statement from each
institution at which he has been confined over the relevant six-month
period.
Mr. Jones has filed nothing more than his statement that
he has no funds.
Petitioner must comply with the requirements of
federal law, or provide sufficient allegations or documentation
showing that he has made adequate and proper efforts to comply.
He
will be provided forms for filing a proper motion and given time to
provide the requisite financial information or proof that he has
properly sought that information and is unable to provide it through
no fault of his own.
SEPARATE PETITIONS MUST BE FILED FOR SEPARATE CONVICTIONS
A habeas petitioner must file a separate petition for each
separate
conviction
or
sentence
that
he
seeks
to
challenge.
Petitioner appears to be attempting to challenge two state criminal
convictions that were imposed at different times for different crimes
in this single habeas corpus action.
Obviously, Case No. 11-CR-523
initiated in 2011 is a separate criminal case from Case No.
12-CR-1469, which was initiated in 2012.
For this reason, the court
finds that Mr. Jones may proceed in this action only upon challenges
to his conviction in Case No. 11-CR-523.
the
court
further
finds
that
For reasons that follow,
petitioner’s
2
challenges
to
his
conviction or sentence in Case No. 12-CR-1469 must be dismissed from
this action without prejudice.
CASE NO. 12-CR-1469
With regard to Case No. 12-CR-1469, Mr. Jones alleges that he
was convicted of “attempted theft or car burglary.”
However, he
appears to be attempting to challenge this criminal case before he
has been sentenced.
This federal court has long been precluded by
Supreme Court precedent from interfering in ongoing state criminal
proceedings.
See Younger v. Harris, 401 U.S. 37 (1971).
A state
prisoner may only challenge his state conviction or sentence in
federal court after he has been convicted and sentenced.
In addition, before a state prisoner may file an action in
federal court challenging a state conviction or sentence, he must
have properly presented all his claims in the courts of the state.
Thus, Mr. Jones is first required to raise all his claims on direct
criminal appeal to the Kansas Court of Appeals (KCA) and, if
dissatisfied with the result, to the Kansas Supreme Court (KSC).
Mr.
Jones has obviously not yet directly appealed his conviction or
sentence, since he has not been sentenced.
If a state prisoner fails
for some reason to present his claims on direct appeal, he must fully
exhaust them by way of a state post-conviction motion, meaning the
denial of such a motion must also be appealed to the KCA and then
3
the KSC.1
The court concludes that any claims in this petition that
are challenges to petitioner’s conviction or sentencing in Case No.
12-CR-1469 are premature under the Younger doctrine and have not been
exhausted.
Accordingly,
these
claims
are
dismissed
without
prejudice.
CASE NO. 11-CR-523
It follows from the foregoing, that in this action Mr. Jones
may challenge his conviction and/or his sentence in Case No.
11-CR-523 only.
However, it is impossible to tell from the instant
petition which claims are challenges to the conviction or sentence
in that case.2
He does not even specify the charge or charges he was
convicted of in 11-CR-523.
He appears to claim that his conviction
1
Petitioner claims that he has been given a filing restriction in
Shawnee County District Court and currently can do nothing in state court without
paying the $120 filing fee. He cannot avoid the exhaustion doctrine in a habeas
case by alleging that he has filed so many or such frivolous civil actions in state
court that he must submit the filing fee before he may file another civil action
there. He does not allege facts indicating that after his conviction and direct
appeals were final, he sought to file a proper and timely 60-1507 motion or other
post-conviction motion that was either improperly refused or dismissed. He states
that he has already had a 60-1507 and a 60-1501 petition denied in Shawnee County
Court, but does not provide the dates of filing or disposition, the issues raised,
or the basis for the court’s decision in either of those state cases.
2
Petitioner makes several claims without making clear in which case
the challenged events took place. For example, he claims that he was coerced to
enter a nolo contendere plea agreement. He also alleges that he objected to prior
burglaries in his criminal history, and claims that they were not proven to be
person crimes but were treated as such based upon unproven police reports. In
addition, he claims that the “entire case” should be dismissed with prejudice after
he proves his appointed counsel and the County Attorney conspired to manipulate
him to enter pleas. His complaint that he has been ordered to Larned for a
competency exam appears to relate to his pending criminal case. He alleges that
he has severe, persistent mental illness but is not incompetent and states that
he has refused certain parts of the test on the ground that it might incriminate
him.
4
in this case was based upon juvenile police reports that were
“unproved (sic)” and sealed records that cannot be viewed for errors.
In addition, he alleges that “they” lied, tricked and coerced him
into believing that if he pled he would get probation.
He seeks
release from and dismissal of Case No 11-CR-523 and the sealing of
juvenile
police
reports.
These
sparse
allegations
are
not
sufficient to state a claim as they do not include dates or any other
facts
regarding
circumstances.
Nor
does
petitioner
provide
sufficient information regarding his direct appeal in Case No.
11-CR-523 or other exhaustion of state court remedies.
In order to cure these deficiencies, Mr. Jones is required to
file an Amended Petition.
He must write the number of this case
(12-3233) and “Amended Petition” on the top of the first page of his
new petition.
In his “Amended Petition” he may challenge his
conviction or sentence in Case No. 11-CR-523 only, and must clearly
state grounds and facts in support for his challenges.
In addition,
he must answer all questions to the best of his ability, including
those regarding his direct appeal, any collateral appeals, and issues
raised.
Petitioner will be provided forms upon which he must file
his Amended Petition.
If he fails to file an Amended Petition within
the time allotted by the court this action will be dismissed without
further notice based upon the deficiencies discussed herein.
EXECUTION OF SENTENCE CLAIM IS ALSO A SEPARATE CLAIM
5
In connection with Case No. 11-CR-523, Mr. Jones makes the
additional claim that he is “done with the time.”
In support, he
alleges that the maximum sentence was 12 months, although he does
not disclose what sentence was actually imposed or the date of its
imposition.
He simply states that with good time, he is done.
However, he does not provide the dates on which he was awarded good
time or the amounts.
Nor does he provide either the custodian’s or
his own calculations of his sentence credits.
He alleges that he
submitted jail records to a court showing the dates he was “in and
out” on case No. 11-CR-523, but he has not submitted those records
to this court.
If he disagreed with a ruling of a state court after
he submitted records, he should have appealed that court’s ruling
to the Kansas Court of Appeals.
This federal court does not sit as
a super appellate court for the Kansas state courts.
Furthermore, the facts alleged by petitioner to support his
claim that he has served this entire sentence do not establish that
he is entitled to immediate release.
His other allegations indicate
that he is currently being held in connection with Case No. 12-CR-1469
and that he has yet to be sentenced in this current matter.
In any event, a challenge to the calculation of a state prison
sentence is a challenge to the execution of the sentence by state
officials.
itself.
It is not a challenge to the conviction or sentence
Challenges to sentence computation must be presented in
federal court in a habeas corpus petition filed pursuant to 28 U.S.C.
6
§ 2241.
Before such claims may be raised in federal court, the
petitioner must have exhausted all available administrative and
state court remedies.
Mr. Jones does not show that he has properly
exhausted all available state remedies on this claim.
Accordingly,
petitioner’s claim that he was entitled to release from this sentence
due to his accumulation of good time credit is dismissed, without
prejudice.
Even if petitioner can show full and proper exhaustion
of state remedies on this claim, he must file a § 2241 petition to
raise it in federal court.
Mr. Jones filed other pleadings after this case was opened
(Docs. 3, 4, and 5).3 Having considered these pleadings, the court
finds they are not appropriate motions or supplements, and no relief
is requested or warranted based upon these materials.
Petitioner is advised that it is not appropriate to send in a
stream of supplemental materials after filing what should have been
a complete habeas petition, that all materials he sends in must relate
to his habeas petition, and that he must state all his claims and
3
These pleadings were also submitted in the civil rights action filed by Mr.
Jones that he has attempted to connect to this case. The court recently screened
that action and discussed these pleading in detail. The first (Doc. 3) is a letter
to the clerk with a letter to the Attorney General of Kansas attached. No court
action is requested. Any claims regarding unwanted continuances in his current
criminal proceedings must be presented to the trial court and on direct appeal.
Petitioner’s Motion for injunctive relief (Doc. 4) concerns legal mail, which Mr.
Jones has recently been advised is a conditions of confinement claim that may only
be raised in his civil rights complaint. His other claims regarding “guns, money
and jewelry seized from him as a juvenile” are not shown to provide any basis for
federal habeas corpus relief. Petitioner must follow proper state procedures to
challenge the state’s seizure of property. In any event, as was explained in the
civil action, Mr. Jones utterly fails to set forth any of the factors that would
entitle him to preliminary injunctive relief. Any allegations in these materials
intended to support petitioner’s habeas claims will only be considered if they
are presented in his Amended Petition.
7
allegations in his Amended Petition.
IT IS THEREFORE BY THE COURT ORDERED that petitioner is given
thirty (30) days in which to file a proper motion to proceed in forma
pauperis upon court-approved forms that has the requisite financial
information attached.
IT IS FURTHER ORDERED that within the same thirty-day period
petitioner is required to cure the deficiencies in this petition by
submitting an Amended Petition upon court-provided forms in which
he challenges his conviction and or sentence in Case No. 11-CR-523
only, states all grounds together with all facts in support, and shows
that he has properly and fully exhausted state court remedies on all
his claims.
IT IS FURTHER ORDERED that petitioner’s challenges to his
conviction or sentence in Case No. 12-CR-1469 are premature and are
dismissed, without prejudice.
IT IS FURTHER ORDERED that petitioner’s challenge to his
sentence and good time credit computation is dismissed, without
prejudice.
IT IS FURTHER ORDERED that petitioner’s Motion for Injunctive
Relief (Doc. 4) is denied, and his supplemental materials in
documents (3) and (5) will not be considered further because all his
claims and allegations must be presented in his Amended Petition.
The clerk is directed to send 2254 and IFP forms to Mr. Jones.
IT IS SO ORDERED.
8
Dated this 27th day of November, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?