Tinner v. Tenth Judicial District of Kansas et al

Filing 2

MEMORANDUM AND ORDER ENTERED: The petition is dismissed without prejudice. Signed by Senior District Judge Sam A. Crow on 1/18/2013. (Mailed to pro se party Fabian D. Tinner by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FABIAN D. TINNER,
Petitioner,
v.

CASE NO. 12-3241-SAC

TENTH JUDICIAL DISTRICT
OF KANSAS, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254. Petitioner proceeds pro se and submitted the full
filing fee. The court has reviewed the petition and enters the
following order of dismissal.
Petitioner owes a considerable arrearage of child support. In
September 2012, a hearing officer entered a confinement order
scheduled to begin in November 2012 that would require him to serve
weekends in jail unless he began to pay on the child support
obligation. That order was stayed by petitioner’s appeal to a state
court. The court has found no record of any state appellate court
action concerning this matter.
This habeas corpus action is governed by 28 U.S.C. § 2254. Under
§ 2254(b)(1), a habeas corpus petition may not be granted unless it
appears that the petitioner has exhausted state court remedies or that
no adequate remedy exists. See O’Sullivan v. Boerckel, 526 U.S. 838
(1999). The exhaustion requirement is met when the federal claim for
relief has been properly presented “to the highest state court, either

by direct review of the conviction or in a postconviction attack.”
Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Petitioner has the burden of showing his exhaustion of available
state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.
1992). Here, the record does not suggest that petitioner has pursued
his claims in the state appellate courts. Until petitioner has done
so, this court must dismiss this matter without prejudice.
IT IS, THEREFORE, BY THE COURT ORDERED the petition is dismissed
without prejudice.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
DATED:

This 18th day of January, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge