Jones (ID 59073) v. Kansas, State of et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days in which to satisfy the filing fee requirement by either paying the fee of $5.00 or submitting a properly completed and supported motion for leave to proceed in forma pauperis on court-approved forms. All conditions claims improperly raised are dismissed without prejudice; all 2254 claims raised, if any, are dismissed without prejudice for failure to state adequate grounds and facts in support and failure to exhaust stat e remedies. This action is construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. Within the same thirty-day period, petitioner is required to file a response in which he states sufficient facts to support a claim that revoca tion of his state parole was unconstitutional and in which he shows full and proper exhaustion of administrative and state court remedies on his claim regarding parole revocation, or this action will be dismissed. Signed by Senior District Judge Sam A. Crow on 04/01/14. (Mailed to pro se party Joseph Lee Jones by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH LEE JONES,
Petitioner,
v.

CASE NO.

14-3034-SAC

STATE OF KANSAS, et al.,
Respondents.
MEMORANDUM AND ORDER
This pro se action was filed as a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 by an inmate while he was confined
at the Larned Correctional Mental Health Facility, Larned, Kansas.
Having examined the materials filed, the court finds that Mr. Jones
has not satisfied the statutory filing fee prerequisite and that the
petition is deficient in several ways.
satisfy the filing fee.

Mr. Jones is given time to

In addition, most of petitioner’s claims

are dismissed and he is given the opportunity to cure the deficiencies
in his only remaining claim.

FILING FEE
The statutory fee for filing a federal habeas corpus petition
is $5.00.
a lawsuit.

This fee is to be submitted with the initial pleading in
Petitioner

has previously been informed of this

prerequisite, but has again neither paid the fee nor submitted a

1

motion to proceed in forma pauperis (IFP).

This action may not

proceed until the filing fee is satisfied in one of these two ways.
If petitioner elects to file a motion to proceed in forma pauperis,
it must be submitted upon court-approved forms.

He must also submit

a certified accounting of the funds available to him in his
institutional account.

D.Kan.Rule 9.1(g); 1 see Rules Governing

Section 2254 Cases in the United States District Courts, Rule
3(a)(2)(habeas petition must be accompanied by “a motion for leave
to proceed in forma pauperis, the affidavit required by 28 U.S.C.
§ 1915, and a certificate from the warden or other appropriate officer
of the place of confinement showing the amount of money or securities
that the petitioner has in any account in the institution”).

The

clerk shall be directed to send forms for filing a proper IFP motion.

BACKGROUND
The court has examined the Petition and “Exhibit” in support
filed herein.
as follows.

As the background for this action, Mr. Jones alleges
He was convicted upon his pleas of nolo contendere in

Shawnee County District Court, Topeka, Kansas, of Attempted Theft
and Attempted Car Burglary.
1

In April 2013, he was sentenced to 12

D.Kan.Rule 9.1(g)(2)(A) provides:
Where a petitioner, movant, or plaintiff is an inmate of a penal
institution and desires to proceed without prepayment of fees, he or
she must also submit a certificate executed by an authorized officer
of the institution in which he or she is confined. The certificate
must state the amount of money or securities on deposit to his or her
credit in any account in the institution.

2

months in prison.2

He appealed the judgment of conviction to the

Kansas Court of Appeals (KCA), but the appeal was dismissed in October
2013.

“[T]he failure to have a restitution hearing robbed (him) of

(his) time to file an appeal.”

Mr. Jones recently filed a motion

regarding this conviction in Shawnee County District Court pursuant
to K.S.A. §§ 60-1501 and 1507 seeking injunctive relief, which he
mailed on February 5, 2014.

He did not “even know if it was received”

at the time he filed the instant federal petition.

CLAIMS AND ALLEGATIONS
Petitioner sets forth four grounds in his petition: (1)
violation of First Amendment Right to Communicate and Access to the
Courts, (2) violation of due process with regard to parole violation
charges, (3) violation of right to medical treatment and taking of
leg brace, and (4) cruel and unusual punishment.

As facts in support

of Ground (1), petitioner alleges a “pattern of problems” with his
“captors” losing his legal papers, a check, and his leg brace, moving
him around, and “mail being slowed” seemingly “by design.”

As facts

in support of Ground (2) petitioner alleges that he was not given
a “Morrisey hearing” because his parole officer incorrectly stated
that he was observed by the arresting officer committing the
2
The records available on-line regarding offenders within the Kansas
Department of Corrections (KDOC) indicate that Mr. Jones is currently confined
on two active convictions: Case No. 11CR523 (Attempted Burglary of Vehicle) and
Case No. 12CR1469 (Attempted Theft). These offenses were committed in different
years, but petitioner was sentenced in both cases on April 30, 2013.

3

violation offense.

In support of Ground (3) petitioner alleges that

his leg brace was stolen and then lost and he was not taken to a
doctor’s appointment.

As support for Ground (4), petitioner alleges

that “they” are denying his “needed mental health benefits and
services” knowing of his pre-existing problems in order to play on
his illness and have stolen his legal papers, money, and leg brace
so he can’t win his civil lawsuits.

Mr. Jones seeks release from

prison as well as a doctor’s appointment in the free world for a new
leg brace.

DISCUSSION
Mr. Jones is no stranger to this court.

In this action he again

improperly attempts to lump together three distinct types of claims
that cannot be litigated in a single action.

His conditions claims

are dismissed because such claims are not properly raised in a habeas
corpus petition.

His § 2254 claims are dismissed for failure to

state adequate grounds and facts in support to challenge his state
conviction(s) and for clear failure to exhaust state remedies.

His

remaining claim challenging parole revocation is treated as one under
28 U.S.C. § 2241, and he is given time to state facts showing a
constitutional violation and to show exhaustion of state remedies.
None of the grounds presented in this petition is a challenge

4

to either of petitioner’s active convictions or sentence.3

Grounds

(1), (3), and (4) are claims regarding his conditions of confinement.
Mr. Jones has previously been informed that conditions of confinement
claims may only be raised in a civil rights complaint.

See Jones

v. Kansas, 2012 WL 5933066, *3 n.3 (D.Kan. Nov. 27, 2012).

The

conditions of which he complains do not entitle him to release from
prison, which is the relief available in a habeas corpus action.4
Furthermore, even if any of the grounds in the petition based
on conditions claims could somehow be construed as legitimate grounds
for habeas corpus relief, petitioner’s responses in his petition to
questions regarding exhaustion plainly show that he has not exhausted
state

remedies

on

either

of

his

active

state

convictions.

Petitioner states that he appealed to the KCA but adds that the KCA
appeal was dismissed and admits that he did not appeal to the highest
state court.

The court takes judicial notice of the docket of the

Kansas Appellate Courts in Dist. Case No. 12-CR-1469, showing that
Mr. Jones filed a Petition for Review in that state criminal appeal
on August 28, 2013, that appears to be pending.

The court also takes

judicial notice of the appellate docket in Case No. 11-CR-523 showing

3
Mr. Jones was informed in a prior defective 2254 petition that he could not
challenge these two convictions in the same habeas petition. In the instant
petition he names the offenses from both convictions but does not provide the case
number of either. Thus, it is not even clear which of his two active state
convictions he seeks to challenge in this petition.
4
Mr. Jones is warned that improperly attempting to use a habeas corpus
petition to litigate conditions claims may count as a strike against him under
28 U.S.C. § 1915(g).

5

that briefs have been filed in that criminal appeal, which is
currently pending before the KCA.

These records demonstrate that

Mr. Jones has not exhausted his appeals in either of his two active
criminal cases.
Petitioner’s references to other cases and motions he has filed
in federal court do not show the requisite exhaustion of state court
remedies.5

Nor does petitioner properly present any claims or facts

in the instant petition by baldly referring the court to his other
cases or motions.6
Ground (2) suggests that Mr. Jones seeks to challenge the
revocation of his state parole.

A state prisoner’s claim of

entitlement to immediate release based on allegations of improper
parole revocation should be brought pursuant to 28 U.S.C. § 2241
because it is an attack upon a revocation decision and not the
petitioner’s criminal conviction or sentence.
298

F.3d

946,

953

(10th

Cir.

2002);

See Reed v. McKune,

McIntosh

v.

U.S.Parole

Commission, 115 F.3d 809, 812 (10th Cir. 1997); Stoltz v. Sanders,
242 F.3d 390, *1 (10th Cir. 2000)(“To the extent Mr. Stoltz is
challenging the revocation of his (suspended) sentence, we construe
5
Mr. Jones lists his civil rights action recently filed in federal court,
Jones v. Biltoff, Case No. 14-3031-SAC, and incorrectly claims it as another action
filed concerning his state judgment of conviction. In the first place, his federal
civil rights case was not filed in state court. Secondly, plaintiff’s description
of the grounds in his civil complaint does not match the actual grounds. Finally,
as plaintiff has previously been informed, challenges to state convictions may
not be litigated in a federal civil rights complaint.
6
More specifically, petitioner does not add any claim or factual allegation
to this action by simply writing in various spaces on his petition: “see Case
14-CV-3031-SAC” or the motion to appoint counsel that he filed in that case.

6

his petition as filed under 28 U.S.C. § 2241 because it challenges
the

execution

of

his

sentence,

rather

than

its

validity).

Furthermore, a “habeas petitioner is generally required to exhaust
state remedies whether his action is brought under § 2241 or § 2254.”
Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000); 28 U.S.C.
2254(b)(1)(A).
In the instant petition, Mr. Jones does not allege sufficient
background facts with regard to the state revocation proceedings that
he seeks to challenge.

For example, he does not provide the date

and location of the revocation proceedings, the violations with which
he was charged, or the written findings of the parole board as to
the charged violation(s).

He vaguely alleges that his parole

officer’s statement that he was seen committing an offense was untrue
and that he was denied a Morrissey hearing7 as a result.

The court

finds that these allegations fail to show that revocation of
petitioner’s parole violated his federal constitutional rights.
Furthermore, petitioner does not show that he administratively
appealed any adverse parole decision, or that he has fully and
properly exhausted all available state court remedies on this
challenge or any other he may have to his state parole revocation
7
Petitioner provides no description whatsoever of his parole revocation
proceedings. In Morrissey v. Brewer, 408 U.S. 471, 489 (1972), the Supreme Court
held that a parole violator is not entitled to the full panoply of rights afforded
to a defendant in a criminal proceeding. Rather, due process requires: (1) written
notice of the claimed violation; (2) disclosure of the evidence against the
defendant; (3) the opportunity to be heard and present evidence; and (4) the right
to cross-examine adverse witnesses. Petitioner does not allege that he was denied
any element of the requisite due process.

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proceedings.

Mr. Jones has previously been informed that he must

exhaust state remedies on parole revocation claims.
In summary, this action is treated as a motion for habeas corpus
relief pursuant to 28 U.S.C. § 2241.

Mr. Jones is given time to state

sufficient facts to support a claim that revocation of his state
parole was unconstitutional and to show full and proper exhaustion
of administrative and state court remedies on his claim regarding
parole revocation.

The court repeats for emphasis that all the

conditions claims that Mr. Jones improperly attempts to raise in this
habeas corpus petition are dismissed from this action without
prejudice, and petitioner’s challenges to his two active state
convictions, if any, are dismissed for failure to state grounds and
facts in support as well as failure to exhaust.

Mr. Jones is directed

to file a single response to this order only, and in this response
to address his parole revocation claim and exhaustion of that claim
only.

Any non-complying filing submitted by Mr. Jones may be

disregarded or stricken.
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days in which to satisfy the filing fee requirement by either paying
the fee of $5.00 or submitting a properly completed and supported
motion for leave to proceed in forma pauperis on court-approved
forms.
IT IS FURTHER ORDERED that that all conditions claims improperly
raised herein are dismissed, without prejudice; and that all § 2254
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claims raised herein, if any, are dismissed without prejudice for
failure to state adequate grounds and facts in support and failure
to exhaust state remedies.
IT IS FURTHER ORDERED that this action is construed as a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
IT IS FURTHER ORDERED that within the same thirty-day period
petitioner is required to file a response in which he states
sufficient facts to support a claim that revocation of his state
parole was unconstitutional and in which he shows full and proper
exhaustion of administrative and state court remedies on his claim
regarding parole revocation, or this action will be dismissed.
The clerk is directed to send IFP forms to petitioner.
IT IS SO ORDERED.
Dated this 1st day of April, 2014, at Topeka, Kansas.

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

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