Broxton v. LNU

Filing 4

MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days in which to satisfy the filing fee prerequisite by either paying the proper fee in full or submitting a properly supported motion to proceed without prepayment of fees. Within the same thirty-day period, petitioner is required to show cause why this action should not be dismissed for failure to state a claim and as frivolous. Signed by Senior District Judge Sam A. Crow on 04/03/14. (Mailed to pro se party Darrell L. Broxton by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARRELL L. BROXTON,
Petitioner,
v.

CASE NO.

14-3029-SAC

FNU LNU,
Respondent.
MEMORANDUM AND ORDER
This pro se action was filed as a petition for writ of
mandamus by an inmate of the Wyandotte County Detention Center,
Kansas City, Kansas.

Having examined the materials filed, the

court finds that the statutory filing fee prerequisite has not
been satisfied and the petition is clearly deficient in several
ways.

Mr. Broxton is given time to cure these deficiencies.

FILING FEE
The fees for filing a civil action in federal court total
$400.00 and consist of the statutory fee of $350.00 under 28
U.S.C. § 1914(a) plus an administrative fee of $50.00; or for
one that is granted leave to proceed in forma pauperis the fee
is $350.00.
$5.00.

The fee for filing a habeas corpus petition is

Mr. Broxton has neither paid the appropriate fee nor
1

submitted a Motion to Proceed without Prepayment of Fees.1

This

action may not proceed until the filing fee is satisfied in one
of these two ways.

Petitioner is given time to satisfy the

filing fee and warned that if he fails to do so within the
prescribed time, this action may be dismissed without prejudice
and without further notice.

ALLEGATIONS AND CLAIMS
Petitioner asserts “numerous constitutnal (sic) and state
statutory

violations

committed

by

Wyandotte

County

Kansas

judicial system” and claims that he has been kidnaped by the
judicial system.
speedy

trial

In addition, he asserts that his rights to a

under

the

Sixth

Amendment,

state

statutory

provisions regarding first appearance, and the Kansas State Bill
of

Rights

were

violated.

assertions,

petitioner

judge,

prosecutor,

the

Apparently

generally
and

his

as

complains
defense

support
of

for

actions

attorney

these
by

the

during

the

course of his state criminal proceedings and claims that they
conspired to “ignore the statutes.”
1

He alleges that: (1) Judge

28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil
action without prepayment of fees submit an affidavit described in subsection
(a)(1), and a “certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period immediately
preceding the filing” of the action “obtained from the appropriate official
of each prison at which the prisoner is or was confined.”
28 U.S.C. §
1915(a)(2). The clerk shall be directed to send petitioner forms for filing
a proper motion under 28 U.S.C. § 1915(a).

2

Burdette knowingly acted “in violation of the Code of Judicial
Conduct.”
not

He also alleges that his attorney Timothy Dupree did

provide

competent

representation,

broke

every

rule

of

professional conduct, knew a K.S.A. 60-455 motion had no merit,
failed to investigate, and failed to seek recusal and report
misconduct.

In addition, petitioner alleges rules violations,

malicious disregard for rights, and misconduct by the prosecutor
in “submitting evidence to the KBI lab a week before trial then
ask (sic) for another continuance.”

Petitioner also implies

that the prosecutor did not have probable cause to prosecute the
charges against him in Case No. 13-CR-421.2

He claims that he is

“facing 50 years for murder he clearly didn’t commit.”

Mr.

Broxton seeks a reinvestigation as well as release from custody
and dismissal of his criminal case with prejudice.

SCREENING
Because
officials,

petitioner

the

court

is

is

a

prisoner

required

by

suing

statute

to

government
screen

his

complaint and to dismiss the complaint or any portion thereof
that is frivolous, fails to state a claim on which relief may be
granted,

or

seeks

relief

from

2

a

defendant

immune

from

such

Petitioner attaches several motions to his petition, which were filed
pro se in his state criminal case. He does not explain the import of these
motions, and the court does not consider them as part of the petition.

3

relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Nevertheless, “when

the allegations in a complaint, however true, could not raise a
claim of entitlement to relief,” dismissal is appropriate.
Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).
litigant’s

“conclusory

allegations

without

supporting

Bell

A pro se
factual

averments are insufficient to state a claim upon which relief
can be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991).

court

The

“will

not

supply

additional

factual

allegations to round out a plaintiff’s complaint or construct a
legal theory on plaintiff’s behalf.”

Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).

The court is likewise

required to screen a federal habeas corpus petition.

Having

examined all materials filed, the court finds that this action
is subject to being dismissed as frivolous and for failure to
state a claim.

DISCUSSION
Petitioner’s many claims, including those of judicial bias,
prosecutorial

misconduct,

incompetency

of

his

former

defense

counsel, and questionable evidence are undoubtedly challenges to
4

his

state

criminal

proceedings

in

Case

No.

13-CR-421.

He

alleges that he has been charged with First Degree Murder, Auto
Burglary

and

two

counts

of

Theft,

and

hearing was held on August 30, 2013.

that

his

preliminary

However, he does not even

reveal if he has already been tried and convicted or is still
awaiting trial.
criminal
brought

In either circumstance, challenges to state

proceedings
in

mandamus.

federal

or
court

a

state
by

conviction

way

of

a

are

not

properly

petition

for

writ

of

Under 28 U.S.C. § 1651,3 a United States District

Court has original jurisdiction of any action in the nature of
mandamus to compel “an officer or employee of the United States
or any agency thereof to perform a duty owed to the plaintiff.”
Id.

This

officials.

court’s

mandamus

power

does

not

extend

to

state

Thus, this federal court has no authority to “direct

state courts or their judicial officers in the performance of
their duties.”

Van Sickle v. Holloway, 791 F.2d 1431, 1436, n.5

(10th Cir. 1986)(quoting Haggard v. State of Tennessee, 421 F.2d
1384, 1386 (6th Cir. 1970)); White v. Ward, 145 F.3d 1139, 1140
(10th Cir. 1998); Brownfield v. Stovall, 85 Fed.Appx. 123, 12627 (10th Cir. 2003).

State judges and state prosecutors are not

subject to this court’s mandamus authority.
3

Attorneys acting as

Petitioner does not cite the federal statute under which he seeks
mandamus relief. However, where “the district court lack(s) jurisdiction to
issue a mandamus writ pursuant to Section 1361, it also lack(s) any
jurisdiction over Petitioner’s Section 1651 request.” Cauthon v. Simmons, 74
F.3d 1248 (10th Cir. 1996)(Table).

5

defense

counsel

are

also

not

subject

to

federal

mandamus

authority and do not even act “under color of state law.”

It

follows that Mr. Broxton states no claim whatsoever for mandamus
relief in this court.

Furthermore, because § 1361 grants relief

only against federal officials, this court lacks jurisdiction
over petitioner’s mandamus claims.

Cauthon, 74 F.3d at 1248.

If petitioner has not yet been tried and convicted in state
court, his claims in federal court are barred by Younger v.
Harris, 401 U.S. 37, 45 (1971), which prohibits a federal court
from interfering in ongoing state criminal proceedings.4

Once

Mr. Broxton has been convicted in state court, the only proper
way to seek review in federal court of such challenges is by
petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254.

Although the Court might construe the instant petition as

4

“The Younger doctrine requires a federal court to abstain from hearing
a case where . . . (1) state judicial proceedings are ongoing; (2) [that]
implicate an important state interest; and (3) the state proceedings offer an
adequate opportunity to litigate federal constitutional issues.”
Buck v.
Myers, 244 Fed.Appx. 193, 197 (10th Cir. 2007)(citing Winnebago Tribe of Neb.
v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003)); Middlesex County Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). “Once these three
conditions are met, Younger abstention is non-discretionary and, absent
extraordinary circumstances, a district court is required to abstain.” Buck,
244 Fed.Appx. at 197 (citing Crown Point I, LLC v. Intermountain Rural Elec.
Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003)); Seneca—Cayuga Tribe of Oklahoma
v. State of Oklahoma ex rel. Thompson, 874 F.2d 709, 711 (10th Cir. 1989).
The Younger doctrine is based “on notions of comity and federalism, which
require that federal courts respect state functions and the independent
operation of state legal systems.”
Phelps v. Hamilton, 122 F.3d 885, 889
(10th Cir. 1997)(citing Younger, 401 U.S. at 44–45).
“The classic example
of” the Younger doctrine “is a federal suit to enjoin a pending state
criminal proceeding.”
D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223,
1227–28 (10th Cir. 2004)(citations omitted). Petitioner makes no attempt to
satisfy his heavy burden of overcoming the bar of Younger abstention.

6

one brought pursuant to 28 U.S.C. § 2254 upon proper notice to
petitioner, it declines to do so given that petitioner’s having
satisfied the statutory prerequisite to federal court review of
exhaustion of state court remedies appears highly unlikely.

It

has long been settled that an application for writ of habeas
corpus under either § 2254 (or 28 U.S.C § 2241) shall not be
granted unless the petitioner has properly and fully exhausted
all available state court remedies or demonstrated that such
remedies are either unavailable or ineffective.
2254(b)(1).
must

have

28 U.S.C. §

To satisfy the exhaustion prerequisite, petitioner
already

presented

the

very

issues

raised

in

his

federal petition to the trial court and ultimately to the Kansas
Supreme Court, either by way of direct appeal or by state postconviction proceeding.

Picard v. Connor, 404 U.S. 270 (1971).

The court notes other deficiencies in this petition.

Mr.

Broxton’s citations to constitutional provisions are completely
conclusory, and he utterly fails to provide facts from his own
case to support any of his violations claims.

His attachment of

pro se motions that he filed in his state criminal proceedings
do not serve to provide the requisite factual basis for any of
his

claims.

Furthermore,

petitioner’s

citations

to

state

disciplinary rules and statutes and his bald allegations that

7

these

state

provisions

were

violated

do

not,

without

more,

amount to a federal constitutional violation.
IT IS THEREFORE ORDERED that petitioner is granted thirty
(30) days in which to satisfy the filing fee prerequisite by
either paying the proper fee in full or submitting a properly
supported Motion to Proceed without Prepayment of Fees.
IT

IS

FURTHER

period petitioner

ORDERED

that

within

the

same

thirty-day

is required to show cause why this action

should not be dismissed for failure to state a claim and as
frivolous for the reasons stated herein.
The

clerk

is

directed

to

send

2254

and

IFP

forms

petitioner.
IT IS SO ORDERED.
Dated this 3rd day of April, 2014, at Topeka, Kansas.

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

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