Miller (ID 70471) v. Mitchell et al

Filing 3

ORDER ENTERED: Petitioner's motion 2 to proceed in forma pauperis is granted. Petitioner is granted thirty (30) days in which to submit his petition upon court-approved forms in which he states grounds, facts in support, and explains how he has exhausted each claim raised in his petition. Signed by Senior District Judge Sam A. Crow on 12/17/2012. (Mailed to pro se party Saul A. Miller by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAUL A. MILLER,
Petitioner,
v.

CASE NO.

12-3245-SAC

DEREK SCHMIDT,
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 Hutchinson Correctional
Facility,

Hutchinson,

Kansas.

Petitioner

has

also

filed

an

Application to Proceed in forma pauperis with the requisite financial
information in support indicating that it should be granted.
After a mistrial, Mr. Miller was convicted by a jury of Rape,
Aggravated

Criminal

Sodomy,

Liberties with a Child.

and

2

Counts

Aggravated

Indecent

His “first trial ended in a mistrial when

the State repeatedly violated the trial court’s pretrial order
limiting admission of the victim’s statement.”
264 P.3d 461, 465 (Kan. 2011).

See State v. Miller,

Miller directly appealed, and the

Kansas Court of Appeals (KCA) affirmed on June 5, 2009, in a published
opinion, State v. Miller, 208 P.3d 774 (Kan.App. 2009).

Mr. Miller

appealed to the Kansas Supreme Court, which affirmed in a published
opinion filed on October 28, 2011.
Having screened the petition, the court finds it is deficient
1

in the following ways.

First, it is not upon court-approved forms

as required by local court rule.

Petitioner will be provided with

the appropriate forms and is required to submit his petition upon
those forms.
Second, Mr. Miller has not alleged any grounds for relief or
facts in support in his petition.

He has attached what appears to

be his appellate brief, which reflects the issues he raised on appeal
in state court.1

However, he must set forth each ground upon which

he seeks relief in federal court in his federal petition.

He must

also state the facts that he believes support each ground.

His use

of the forms will facilitate his compliance with this order.

He is

required to answer all questions on the forms to the best of his
ability.
Third, Mr. Miller has not provided sufficient information
regarding exhaustion of state court remedies.

The forms will

require him to explain how he exhausted state court remedies on each
ground that he raises in federal court.
Petitioner is given time to cure these deficiencies.

If he

fails to comply with this order within the time allotted, this action
may be dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s Motion

1
Mr. Miller incorrectly states in his petition that opinions of the state
courts are attached. The only attachment received by the court appears to be his
appellate brief. Mr. Miller need not send in the opinions of the KCA or the KSC
following his retrial, as the court has access to them in the legal publications
cited herein.

2

to Proceed in forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that petitioner is granted thirty (30)
days in which to submit his petition upon court-approved forms in
which he states grounds, facts in support, and explains how he has
exhausted each claim raised in his petition.
The clerk is directed to send petitioner forms for filing a §
2254 petition.
IT IS SO ORDERED.
Dated this 17th day of December, 2012, at Topeka, Kansas.

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

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