Guerra (ID 98705) v. Mott et al

Filing 2

ORDER ENTERED: This action is dismissed and all relief is denied as against Judge William R. Mott and Court Appointed Attorney Michael C. Brown. Petitioner is granted thirty (30) days in which to satisfy the filing fee by either paying $5.00 t o the court or submitted a properly supported Motion for Leave to Proceed in forma pauperis upon court-approved forms. Within the same thirty-day period, petitioner is required to show caues why this action should not be dismissed for failure to sta te facts in support of his remaining claims and failure to show exhaustion of state court remedies on those claims. (See Order for further details.) Signed by Senior District Judge Sam A. Crow on 1/17/2014. (Mailed to pro se party Thomas M. Guerra by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THOMAS M. GUERRA,
Petitioner,
v.

CASE NO.

13-3211-SAC

JUDGE WILLIAM R. MOTT,
et al.,
Respondents.
O R D E R
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2254 by an inmate of the Larned Correctional Mental
Health Facility, Larned, Kansas.

Mr. Guerra seeks to challenge his

state convictions in three separately-numbered criminal cases.
Having examined the materials filed, the court finds that the
petition is deficient in several ways.

Petitioner is given time to

show cause why this action should not be dismissed for failure to
state supporting facts and failure to show full and proper exhaustion
of state court remedies.

If he fails to show good cause within the

prescribed time, this action may be dismissed without further notice.
The court first finds that petitioner’s filings are deficient
because he has neither paid the statutory filing fee of $5.00 nor
submitted a motion to proceed in forma pauperis (IFP) with financial
information in support.

Mr. Guerra has previously been informed

that a filing fee is required in order to file an action in federal

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court.

The filing fee must be satisfied in one of these two ways

before this action may proceed further.

Petitioner is given time

to satisfy the fee.
Second, petitioner names persons as respondents who are not
proper respondents.

The only proper respondent in a habeas corpus

petition is the petitioner’s current custodian.

Neither the

sentencing judge nor petitioner’s court-appointed attorney is a
proper respondent in this action.

Accordingly, these two named

respondents are dismissed from this action.
Third, petitioner may not challenge more than one state
conviction in a single habeas corpus petition.

Here, he attempts

to challenge convictions that he indicates were entered in three
separate criminal cases.

He states that the convictions he seeks

to challenge were entered in Sumner County District Court and lists
them

as

follows:

Case

No.

09CR6,

Attempt

to

Commit

Sexual

Exploitation of a Child; Case No. 09CR72, Rape; and Case No. 10CR211,
Battery against a Corrections Officer.1

Petitioner was sentenced in

both 09 cases on November 18, 2010, and thus arguably may be allowed
to challenge these two convictions in this single petition.

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However, he provides no reason why he should be allowed to challenge
1
The court takes judicial notice of State of Kansas v. Guerra, 313 P.3d 836
(Kan. Nov. 27, 2013), a “sentencing appeal” in which Guerra contended that the
Sumner County District Court abused its discretion in case No. 10CR211 by denying
his request for a downward sentencing departure. The Kansas Supreme Court found
no sentencing error. They noted that Mr. Guerra was sentenced in this case for
“his two battery against a correctional officer convictions.”
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These offenses occurred in July 2008 and April 2009, respectively.

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his unrelated battery conviction, for which he was sentenced in
October 2011, in this action.3

Accordingly, the court dismisses from

this action any claim that petitioner may have in regard to his
conviction or sentence for battery in case No. 10CR211. 4

This

dismissal is without prejudice to Mr. Guerra filing a separate habeas
corpus petition pursuant to 28 U.S.C. § 2254 to challenge his battery
conviction or sentence.5
Fourth, petitioner fails to show that he has fully and properly
exhausted state court remedies on any of his claims.

Mr. Guerra

filed a previous action in this court in which he improperly attempted
to challenge these same convictions by civil rights complaint.

In

that action, Guerra v. Mott, Case No. 13-3119-SAC (Aug. 14, 2013),
he was informed that 28 U.S.C. § 2254(b)(1) provides:

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The records of Kansas Department of Corrections’ offenders available online
(KASPER) indicate that Mr. Guerra is currently serving three active sentences,
including those in cases 09CR6 and 09CR72. However, case No. 10CR211 is not listed
as active. A third active sentence is listed, but it is for case No. 11CR806 in
which Mr. Guerra was sentenced in August 2012 in Leavenworth County for one count
of attempted “Battery State Corrections Officer or Employee.”
4
The court might have directed the clerk to copy this single petition and
use the copy to open a separate 2254 action challenging Guerra’s battery conviction
in 10CR211. However, this unrelated case is dismissed instead for at least two
reasons. First, Mr. Guerra does not make a single allegation in this petition
that could be viewed as a habeas corpus challenge to his battery conviction or
sentence. Second, it does not appear that Mr. Guerra is currently serving a
sentence in case No. 10CR211. Generally, he must be “in custody” on a particular
conviction or sentence in order to challenge it by way of federal habeas corpus.
If Mr. Guerra has a federal claim with regard to any battery conviction or sentence,
he must file a separate 2254 petition in which he states claims and supporting
facts relevant to that conviction or sentence only. Such a new petition must be
presented upon court-approved forms, which he may obtain by requesting 2254 forms
from the clerk’s office.
5
Mr. Guerra is again reminded of the one-year time limit for filing a federal
habeas corpus petition challenging a state conviction, and that it is not tolled
by a habeas corpus action pending in federal, rather than state, court.

3

An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that – (A)
the applicant has exhausted the remedies available in the
courts of the State . . . .
He was further informed that this statutory exhaustion prerequisite
is not satisfied unless all claims asserted have been presented by
“invoking one complete round of the State’s established appellate
review process.”

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

The court also explained that this means his claims must have been
“properly presented” to “the highest state court, either by direct
review of the conviction or in a post-conviction attack.”

Dever v.

Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Fifth, petitioner utterly fails to allege facts to support four
of the claims he presents and fails to state a claim for habeas corpus
relief in his other two grounds.

Although petitioner presents his

claims as four grounds, he actually sets forth six claims.

As Ground

One he claims: (1) he was not read his Miranda rights when he was
arrested and questioned; (2) he was refused the right to confront
the State’s witnesses against him; and (3) he was refused the right
to present witnesses in his favor.

As Ground Two, he claims (4) that

he was refused the right to have his bail reduced, while in Ground
Two and Three he claims (5) that he was subjected to cruel and unusual
punishment and denial of due process when he was “beaten by six
different sheriff deptudies (sic) 22 different times while he was
in the Sumner County Jail.”

Finally, as (Ground Four) he claims (6)
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that he was wrongfully convicted because of racial discrimination
by Judge Mott.

Petitioner’s first three claims listed in Ground One

are nothing more than conclusory statements.
completely conclusory.

His Ground Four is also

Petitioner must allege facts to support

these claims including dates, content of potential cross-examination
or witness testimony, facts showing discrimination by the judge, or
a description of other relevant circumstances.

Otherwise, these

claims will be dismissed for failure to state any supporting facts
whatsoever.
Petitioner’s allegation that he was denied a reduction in bail
or that his bail was excessive does not present grounds entitling
him to release from his convictions and sentences.

Likewise,

petitioner’s allegations that he was beaten while in the Sumner
County Jail are not a habeas corpus claim that, if proven, would
entitle him to release from valid convictions and sentences.
non-habeas

claims

are

dismissed

from

this

petition,

These

without

prejudice.
Mr. Guerra is given time to show cause why his remaining claims,
which are those involving his 2009 sex-offense convictions and
sentences, should not be dismissed on account of his failure to allege
facts in support as well as his failure to plainly allege facts
showing that he raised each of these claims in the trial court, then
to the Kansas Court of Appeals, and finally to the Kansas Supreme
Court.

If he fails to show good cause within the prescribed time,
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this action will be dismissed without further notice for failure to
state supporting facts and failure to show exhaustion.
IT IS THEREFORE ORDERED that this action is dismissed and all
relief is denied as against Judge William R. Mott and Court Appointed
Attorney Michael C. Brown, as they are not proper respondents.
IT IS FURTHER ORDERED that any claims petitioner may be raising
regarding his conviction for battery on a correctional officer in
Case No. 10CR211 are dismissed from this action without prejudice
to his filing another 2254 petition challenging only that separate
conviction.
IT IS FURTHER ORDERED that petitioner’s non-habeas claims, that
he was denied bail and beaten while in jail, are dismissed without
prejudice.
IT IS FURTHER ORDERED that petitioner is granted thirty (30)
days in which to satisfy the filing fee by either paying $5.00 to
the court or submitting a properly supported Motion for Leave to
Proceed in forma pauperis upon court-approved forms.
IT IS FURTHER ORDERED that within the same thirty-day period
petitioner is required to show cause why this action should not be
dismissed for failure to state facts in support of his remaining
claims and failure to show exhaustion of state court remedies on those
claims.
The clerk is directed to send IFP forms to petitioner.
IT IS SO ORDERED.
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Dated this 17th day of January, 2014, at Topeka, Kansas.

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

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