Bryant v. Kansas, State of

Filing 7

MEMORANDUM AND ORDER ENTERED: Petitioner's second request 6 for appointment of counsel imbedded in his response is denied. This petition for writ of habeas corpus is denied, without prejudice, for lack of jurisdiction and/or for failure to state a claim. Signed by Senior District Judge Sam A. Crow on 11/05/14. Mailed to pro se party Melvin D. Bryant, Jr. 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
Upon screening this pro se petition for
corpus

the

court

entered

a

Memorandum

and

writ of habeas
Order

(SCRNORD)

requiring Mr. Bryant to show good cause why this action should
not be dismissed for the reasons stated therein “including lack
of jurisdiction and failure to state a claim for relief.”

Mr.

Bryant was warned that if he failed to show good cause within
the

prescribed

further

time,

notice.

this

action

Petitioner

has

could
filed

be
a

dismissed

Response

without

(Doc.

6).

Having considered all materials in the file together with the
relevant legal authority, the court concludes that petitioner
has failed to show good cause why this action should not be
dismissed

for

either

failure

to

satisfy

the

“in

custody”

requirement or failure to state a claim.

FACTUAL BACKGROUND
The

factual

background

set
1

forth

in

the

SCRNORD

is

summarized here.
the

Johnson

In 2005, Mr. Bryant was convicted by a jury in

County

District

Court

sentenced to 24 months in prison.

of

securities

fraud

and

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 Kansas Court of

Appeals (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),
denied (Kan. Feb. 11, 2009)).

rev.

He was resentenced in July 2009

to 17 months’ imprisonment, and his “second sentencing appeal
was voluntarily dismissed.”1
state

post-conviction

Id.

motion

Petitioner thereafter filed a
pursuant

to

K.S.A.

60-1507,

claiming ineffective assistance of trial and appellate counsel.
Id.

A full evidentiary hearing was held; and on June 9, 2010,

the district court denied 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.

The instant federal habeas

petition,

should

which

Mr.

Bryant

agrees

be

treated

as

one

brought under 28 U.S.C. § 2254, was timely filed on September
13, 2013.

THE “IN CUSTODY” REQUIREMENT

1

In the
$50,000.”

petition,

Mr.

Bryant

describes

2

his

sentence

as

“17

month

The court held in the SCRNORD that “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.”
Mr. Bryant was advised that the language of § 2254 “has been
interpreted by the Supreme Court ‘as requiring that the habeas
petitioner

be

“in

custody”

under

the

conviction

or

under attack at the time his petition is filed.’”
Cook,

490

U.S.

Fed.Appx.

781,

488,

490–91
(10th

782-783

(1989);
Cir.

Kirby

v.

sentence
Maleng v.

Janecka,

379

2010)(unpublished)2(“Section

2254 authorizes federal courts to review habeas petitions only
if”

the

“petitioner

custody.”);

Mays

v.

raise(s)

his

Dinwiddie,

claims

580

F.3d

while
1136,

he

is

1139

in

(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).
Petitioner was further advised that “[t]he ‘in custody’ language
of

§

2254

is

jurisdictional,”

and

the

burden

is

on

establish that the custody requirement is satisfied.
v.

Northglenn

2008),

cert.

Municipal
denied,

Court,

555

U.S.

528
1112

F.3d

785,

788

(2009)(the

him

to

Erlandson
(10th

“in

Cir.

custody”

requirement is jurisdictional in nature); McCormick v. Kline,
572

F.3d

841,

847–848

(10th

Cir.

2

2009)(“Section

2254’s

in

Unpublished opinions are cited herein for persuasive reasoning and not
as controlling precedent.
3

custody requirement is jurisdictional”); Kirby, 379 Fed.Appx. at
782-783; see also Triplet v. Franklin, 365 Fed.Appx. 86 (10th
Cir.

2010)(unpublished);

United

931, 933 (10th Cir. 1994).

States

v.

Bustillos,

31

F.3d

Petitioner was also informed that

“[t]he 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 corpus statutes.’”
Erlandson, 528 F.3d at 788 (citations omitted); Nichols v. Utah,
315 Fed.Appx. 740, 743 n. 3 (10th Cir. 2009)(unpublished); see
also Hensley v. Municipal Court, 411 U.S. 345, 351 (1973)(“The
custody requirement of the habeas corpus statute is designed to
preserve

the

writ

of

habeas

corpus

as

a

remedy

for

severe

allege

facts

restraints on individual liberty.”).
In

his

Response,

petitioner

does

not

establishing that he was in custody at the time he filed this
petition.

Instead,

he

makes

arguments

that

various

alleged

circumstances either nullify or satisfy the custody requirement.
First, petitioner claims that he is subject to a “restraint of
liberty” other than physical custody.

As support, he alleges

that he “cannot challenge the wrongful conviction until after”
he pays restitution and that he cannot afford and should not
have to pay restitution.

Based on these allegations, he argues

that:
the payment of restitution as an impossible burden and
4

condition precedent to the challenge of a wrongful
conviction could be construed a restraint of liberty
and, as such, a constitutional violation of a right to
due process.
He cites K.S.A. 21-4169,3 which has been recodified as K.S.A. 216614

and

amended

challenging

several

this

times.

burdensome

He

states

requirement

as

that
well

he
as

is
the

restitution.
K.S.A.

21-4169

expungement

of

and

K.S.A.

certain

21-6614

convictions

basically

under

permit

circumstances

enumerated therein, which may include expiration of a number of
years after the offender has served the sentence imposed or was
discharged from parole.4
holding

that

he

is

Petitioner provides no legal authority

prohibited

from

either

challenging

his

conviction or seeking expungement until he has paid restitution.
He refers to no language whatsoever in the state expungement
statute.
lengthy
wrongful

Nor does he make any attempt to explain how this
statute

prohibits

conviction

until

him
he

from
has

challenging

paid

an

restitution.

allegedly
In

any

3

The Kansas Court of Appeals held that K.S.A. 21-6614a(d) “contains no
clear language indicating the legislature intended the statute to apply
retrospectively” and thus it applies only prospectively so that Coker had a
“right to seek expungement as that right existed when he was convicted.”
State v. Coker, 304 P.3d 363, *5 (Kan.App. 2013). Petitioner has alleged no
facts and cites no particular statutory language suggesting that it matters
which version of the expungement statute applies to him.
4

The current statute provides that in order for the state court to
consider expungement, it must find that “no proceeding involving any such
crime is presently pending.” K.S.A. 21-4619(e)(1). Petitioner does not cite
this language and make his argument based upon it or any other statutory
language.

5

event, petitioner’s vague assertion of an impediment to seeking
expungement is not a challenge to his conviction based on a
federal constitutional violation and is not grounds for federal
habeas corpus relief.

Furthermore, petitioner’s assertion that

he is unable to challenge his “wrongful conviction” due to his
inability

to

pay

restitution

is

irreconcilable

procedural history of this case showing
permitted

to

and

did

challenge

his

with

the

that Mr. Bryant was

conviction

on

numerous

grounds on direct appeal as well as in state post-conviction
proceedings.
Petitioner next argues that the term “in custody” is “very
elastic,” “does not necessarily mean actual physical detention,”
and “is synonymous with restraint of liberty.”5

However, he

fails to explain how these “formulaic recitations” entitle him
to

relief

in

light

of

the

holding

of

the

Tenth

Circuit

in

Erlandson cited herein and in the SCRNORD that, “[t]he 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

corpus

statutes.’”

Petitioner’s suggestion that his “framing of the issue” amounts
to the “more” exception in this holding is supported by no facts
or legal authority and is simply illogical.
5

As legal authority, petitioner cites Black’s Dictionary and a 1970 case
from the District of Wisconsin, which is not controlling authority in this
court and was decided long before the controlling authorities cited in the
court’s SCRNORD. Petitioner’s legal authority is not convincing.
6

Finally, petitioner alleges that he is also “challenging a
wrongful
somehow

conviction
allows

However,

him

federal

and
to

imprisonment”
bypass

habeas

the

corpus

and

“in

implies

custody”

petitions

are

that

this

requirement.

challenges

to

wrongful convictions and/or imprisonment, and it is precisely
such

challenges

requirement.

that

are

subject

to

the

“in

custody”

This argument, like the last, is not grounded in

fact or law and is illogical.
The court concludes that Mr. Bryant has not met his burden
of showing that he was “in custody” at the time he filed this
action, and that as a result this action must be dismissed for
lack of jurisdiction.

FAILURE TO STATE A CLAIM
Even

if

requirement,

petitioner
he

still

habeas corpus relief.

had

fails

satisfied

to

the

present

grounds

“in
for

custody”
federal

This court found in the SCRNORD that Mr.

Bryant “utterly fails to state any grounds for federal habeas
corpus relief” in his federal form petition because he “left
blank all spaces” for grounds and supporting facts as well as
for relief sought.
In his Response, petitioner makes no attempt to set forth
his grounds for habeas relief together with facts in support.
He alleges in his Response that an attorney representing him
7

“told the court after (petitioner’s) conviction that he had in
his possession at trial evidence that, if presented, would have
been

sufficient

to

justify

an

acquittal,”

but

“for

reasons

unrelated to (petitioner’s) case, chose not to present it to the
court.”

Petitioner does not present these vague allegations as

grounds for this federal petition but as part of his argument of
being denied due process in connection with restitution.

He

does not present any of the claims that he raised on direct
appeal

or

in

post-conviction

if

the

proceedings

as

grounds

in

this

petition.6
Even

petition

and

Response

could

be

read

as

presenting some ground for federal habeas corpus relief, this
court lacks jurisdiction to consider challenges to Mr. Bryant’s
state conviction or sentencing, including any restitution order,
because he does not satisfy the “in custody” requirement.

SECOND REQUEST FOR COUNSEL
Petitioner
counsel

in

federal

habeas

counsel

when

imbeds

appointment

his

of

a

Response.
petitioner

a

hearing
counsel

is

second

request

As

was

is

he

not

has

not

not

6

for

appointment

previously

entitled
been

warranted

to

advised,

appointment

ordered.
where

the

of
a
of

Clearly,
court

is

If petitioner is trying to challenge his attorney’s failure to present
some exculpatory evidence or the restitution order, it is not at all apparent
from the record that he exhausted state court remedies on such claims.
8

without jurisdiction to consider the claim.

This request is

denied.

DENIAL OF CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, instructs that “[t]he district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
U.S.C.

§

2253,

appealability

the

“only

if

court
the

may

issue

applicant

a

has

Pursuant to 28
certificate

made

a

of

substantial

showing of the denial of a constitutional right,” and the court
“indicates

which

showing.”

A

demonstrating

specific
petitioner

that

the

issue
can

issues

or

issues

satisfy
raised

satisfy

that
are

[that]

standard

debatable

by

among

jurists, that a court could resolve the issues differently, or
that

the

questions

deserve

further

proceedings.

Slack

v.

McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)).

In addition, when the court’s ruling is

based on procedural grounds, a petitioner must demonstrate that
“jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that

jurists

of

reason

would

find

it

debatable

whether

district court was correct in its procedural ruling.”
529 U.S. at 484.
9

the

Slack,

The
should

court

not

concludes

issue

in

that

this

a

certificate

case.

Nothing

of

appealability

suggests

that

the

court’s rulings resulting in the dismissal of this action for
lack of jurisdiction or failure to state a claim are debatable
or incorrect.

The record is devoid of any authority suggesting

that the Tenth Circuit Court of Appeals would resolve the issues
in this case differently.
IT
second

IS

THEREFORE

request

for

BY

THE

COURT

appointment

of

ORDERED
counsel

that

petitioner’s

imbedded

in

his

Response (Doc. 6) is denied.
IT IS FURTHER ORDERED that this petition for writ of habeas
corpus, 28 U.S.C. § 2254, is denied, without prejudice, for lack
of jurisdiction and/or for failure to state a claim.
IT IS FURTHER ORDERED that a certificate of appealability
is denied.
IT IS SO ORDERED.
Dated this 5th day of November, 2014, at Topeka, Kansas.

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

10