Bryant v. Kansas, State of

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion 3 for extension of time to perfect appeal, request 3 for appointment of counsel, and motion 4 for stay of execution pending appeal are denied. Petitioner is granted thirty (30) days in which to show good cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 1/21/2014. (Mailed to pro se party Melvin D. Bryant by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELVIN D. BRYANT,
Petitioner,
v.

CASE NO.

13-3153-SAC

STATE OF KANSAS,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed by Mr.
Bryant upon forms for filing pursuant to 28 U.S.C. § 2241 “by a person
in federal custody.”

The filing fee has been paid.

Having examined

the materials filed, the court requires petitioner to show cause why
this action should not be dismissed for the reasons discussed herein,
including that he was not “in custody” at the time this action was
filed.

FACTUAL BACKGROUND
Petitioner alleges the following facts in his petition.

The

“conviction or sentence under attack” was entered in Johnson County
District Court, where he was convicted by a jury of one count
securities fraud in Case No. 03-CR-7803.
months $50,000.”
counsel

was

He was sentenced to “17

His appeal claiming ineffective assistance of

“rejected”

in

2010

(Appellate

Case

No.

105836).

Opinions of the Kansas Court of Appeals (KCA) involving Bryant’s
1

state conviction and sentence provide more information.

In 2005,

Mr. Bryant was convicted upon trial by jury in the District Court
of Johnson County, Kansas, of securities fraud and sentenced to 24
months in prison.

See Bryant v. State, 279 P.3d 739, 2012 WL 2476985,

*1 (Kan.App. June 22, 2012), rev. denied, (Kan. Aug. 29, 2013).

He

appealed, and the KCA affirmed his conviction, but reversed his
sentence and remanded for resentencing.

Id. (citing State v.

Bryant, 40 Kan.App.2d 308, 191 P.3d 350 (Kan.App. Sept. 5, 2008),
rev. denied (Kan. Feb. 11, 2009)).

He was resentenced in July 2009

to 17 months’ imprisonment, and his “second sentencing appeal was
voluntarily dismissed.”

Id.

post-conviction

pursuant

motion

Petitioner thereafter filed a state
to

K.S.A.

60-1507,

ineffective assistance of trial and appellate counsel.

claiming

Id.

A full

evidentiary hearing was held; and on June 9, 2010, the district court
issued an opinion denying Bryant’s motion.

Id. at *1-*2.

The

denial was affirmed by the KCA and the Kansas Supreme Court denied
review on August 29, 2013.

DISCUSSION
Nothing in the petition indicates that Mr. Bryant is properly
proceeding under 28 U.S.C. § 2241.1

The sole federal remedy for a

petitioner to attack his state court conviction or sentence is a
1
Mr. Bryant has utilized outdated forms. He is not asserting a Rule 35 motion
or attacking a state detainer, and he is not a person in federal custody as indicated
on the form he has submitted. Nor is he challenging the execution of his sentence.

2

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Erlandson v. Northglenn Municipal Court, 528 F.3d 785, 787 (10th Cir.
2008), cert. denied, 555 U.S. 1112 (2009).

However, whether this

petition is viewed as one under § 2241 or § 2254, it fails for the
reason that Mr. Bryant was not “in custody” at the time it was filed.
It is well established that “[t]he ‘in custody’ language of § 2254
is jurisdictional.”2

Id. at 788; Kirby v. Janecka, 379 Fed.Appx.

781, 782-783 (10th Cir. 2010)(unpublished)3(citing 28 U.S.C. § 2254
as “providing that a ‘court shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United
States’”); see also Triplet v. Franklin, 365 Fed.Appx. 86 (10th Cir.
2010)(unpublished); McCormick v. Kline, 572 F.3d 841, 847–848 (10th
Cir.

2009)(“Section

jurisdictional”).

2254’s

in

custody

requirement

is

The statutory language has been interpreted by

the Supreme Court “as requiring that the habeas petitioner be ‘in
custody’ under the conviction or sentence under attack at the time
his petition is filed.”

Maleng v. Cook, 490 U.S. 488, 490–91 (1989);

2
Similarly, the court has jurisdiction to entertain an application for habeas
corpus relief under 28 U.S.C. § 2241 only by a person who is “in custody in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). “The fundamental purpose of a § 2241 habeas proceeding is to allow
a person in custody to attack the legality of that custody, and the traditional
function of the writ is to secure release from illegal custody.” Palma–Salazar
v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012)(quotation marks omitted).
3
Unpublished opinions are cited herein for persuasive reasoning and not as
controlling precedent.

3

Kirby, 379 Fed.Appx. at 782-783 (“Section 2254 authorizes federal
courts to review habeas petitions only if” the “petitioner raise(s)
his claims while he is in custody.”); Mays v. Dinwiddie, 580 F.3d
1136, 1139 (10th Cir.)(explaining that a petitioner satisfies the
status portion of the custody requirement if he is in custody “at
the time the habeas action is filed”)), cert. denied, 558 U.S. 1095
(2009).

It does not appear from the address given or any allegations

in the petition that Mr. Bryant was in either state or federal custody
at the time he filed the instant habeas petition.

It is the

petitioner’s burden to establish that the custody requirement is
satisfied.

See United States v. Bustillos, 31 F.3d 931, 933 (10th

Cir. 1994).
In addition, Mr. Bryant utterly fails to state any grounds for
federal habeas corpus relief.

He left blank all spaces in his form

petition where he was to set forth the grounds for his claim or claims
and the facts in support.

In order to obtain habeas corpus review

in federal court of a state court conviction or sentence, the
petitioner is required to file a federal habeas petition in which
he sets forth grounds for relief that are based upon a federal
constitutional violation together with facts in support of each
ground.

Along with his petition containing no grounds, Mr. Bryant

has submitted a “Notice of Appeal” informing this court that he
intends to appeal the judgment in Bryant v. Kansas, Appellate Case

4

No. 11-105836-A, District Court Case No. 09 CV 10404. 4

It thus

appears that Mr. Bryant mistakenly believes he can obtain federal
court review of his unsuccessful state post-conviction proceedings,
or his underlying state conviction or sentence, by simply filing a
“Notice of Appeal” in this court.

This court is not an appellate

court, so petitioner’s Notice of Appeal is an inappropriate and
inadequate way to obtain review in this court.5
Petitioner has also filed a Motion for Extension of Time to
Perfect Appeal (Doc. 3), which includes a request for appointment
of counsel, and a Motion for Stay of Execution (Doc. 4) “of fees and
restitution” pending the outcome of “petitioner’s appeal.”

No

factual or legal basis is presented to support either of these
motions, and they are denied.

Petitioner is not entitled to

appointment of counsel at this juncture since a hearing has not been
ordered and it appears that the court is without jurisdiction.
Accordingly, this request is denied as well.
4
Other than his form petition, all of petitioner’s pleadings are erroneously
encaptioned “IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF KANSAS.” This
court, which is the United States District Court for the District of Kansas, is
the trial court in the federal court system. The federal system is separate from
the state court system. The state appellate courts are the Kansas Court of Appeals
and ultimately the Kansas Supreme Court. Review may also be sought in the United
States Supreme Court.
5
Petitioner does not seek relief under 42 U.S.C. § 1983. However, even if
his petition could be construed to assert such a cause of action, it would likewise
be subject to dismissal. See Van Sickle v. Holloway, 791 F.2d 1431, 1436 (10th
Cir. 1986)(“A federal district court does not have the authority to review final
judgments of a state court in judicial proceedings; such review may be had only
in the United States Supreme Court.
Federal district courts do not have
jurisdiction over challenges to state-court decisions in particular cases arising
out of judicial proceedings even if those challenges allege that the state court’s
action was unconstitutional.”).

5

Finally, the court notes that petitioner does not specify what
relief he seeks in his petition.

Given his Motion for Stay of

Execution, it could be that he seeks to challenge the validity of
the state sentencing court’s “fees and restitution” order.

However,

a claim regarding “the payment of restitution or a fine, absent more,
is not the sort of ‘significant restraint on liberty’ contemplated
in the ‘custody’ requirement of the federal habeas statutes.”
Erlandson, 528 F.3d at 788 (citing Obado v. New Jersey, 328 F.3d 716,
717–18 (3rd Cir. 2003)(holding that payment of a fine or restitution
to be made by a petitioner after he completed his state prison
sentence did not satisfy the custody requirement of the federal
habeas corpus statute))(other citations omitted); Nichols v. Utah,
315 Fed.Appx. 740, 743 n. 3 (10th Cir. 2009)(unpublished)(the
repayment of restitution was not the sort of significant restraint
contemplated in the custody requirement of § 2254).

“The custody

requirement of the habeas corpus statute is designed to preserve the
writ of habeas corpus as a remedy for severe restraints on individual
liberty.”

Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

Mr. Bryant is given time to show cause why this action should
not be dismissed for the reasons stated herein.

If he fails to show

good cause within the prescribed time, this action may be dismissed
without further notice.
IT IS THEREFORE ORDERED that petitioner’s Motion for Extension
of Time to Perfect Appeal (Doc. 3), request for appointment of counsel
6

(Doc. 3), and Motion for Stay of Execution pending appeal (Doc. 4)
are denied.
IT IS FURTHER ORDERED that petitioner is granted thirty (30)
days in which to show good cause why this action should not be
dismissed

for

the

reasons

stated

herein

including

lack

jurisdiction and failure to state a claim for relief.
IT IS SO ORDERED.
Dated this 21st day of January, 2014, at Topeka, Kansas.

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

7

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