Rayford v. Kansas, State of

Filing 4

MEMORANDUM AND ORDER ENTERED: This matter is liberally construed as a petition for habeas corpus relief and is dismissed without prejudice. Plaintiff's motion 3 for leave to proceed in forma pauperis is denied. Signed by Senior District Judge Sam A. Crow on 2/27/2013. (Mailed to pro se party Robert L. Rayford by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT L. RAYFORD,
Plaintiff,
v.

CASE NO. 12-3264-SAC

STATE OF KANSAS,
Defendant.

MEMORANDUM AND ORDER

This matter is a civil action filed by a prisoner at the Sedgwick
County Jail, Wichita, Kansas. Plaintiff proceeds pro se.
By its order of January 17, 2013, the court liberally construed
the action as a challenge the fairness of state criminal proceedings
pending against plaintiff and concluded the matter should be construed
as a petition for habeas corpus. Finding plaintiff had not exhausted
the claims by presenting them to the state appellate courts, the court
advised him that it was considering the dismissal of this matter
without prejudice to allow him to pursue available state court
remedies. Plaintiff was directed him to show cause why this matter
should not be dismissed on or before February 15, 2013. Finally, the
court directed plaintiff to submit the filing fee or a motion to
proceed in forma pauperis.
Plaintiff filed an appropriate motion, but he has not submitted
a financial statement in support of his request. Likewise, plaintiff
has made no response to the court’s construction of this matter as
a petition for habeas corpus or to the proposed dismissal of this
matter as premature.

Having considered the record, the court concludes this matter
should be dismissed for the reasons set forth in its order of January
17, 2013. As explained in the court’s earlier order, the plaintiff’s
sole federal remedy for challenging the constitutionality of the state
criminal proceedings is a petition for habeas corpus. See Preiser v.
Rodriguez, 411 U.S. 475, 504 (1973). However, such a petition
ordinarily may not be brought until an applicant satisfies the
exhaustion requirement by pursuing available state court remedies.
28 U.S.C. § 2254(b); see Montez v. McKinna, 208 F.3d 862, 866 (10th
Cir. 2000). Because plaintiff has not shown that he has exhausted
available state court remedies, the court will dismiss this matter
without prejudice.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is liberally
construed as a petition for habeas corpus relief and is dismissed
without prejudice.
IT IS FURTHER ORDERED the motion for leave to proceed in forma
pauperis (Doc. 3) is denied.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 27th day of February, 2013, at Topeka, Kansas.

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