Bejarano v. Kansas, State of et al

Filing 2

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 Nicholas Bejarano by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NICHOLAS BEJARANO,
Petitioner,
v.

CASE NO.

14-3035-SAC

STATE OF KANSAS, et al.,
Respondents.
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. Bejarano 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. Bejarano 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
Amendment

to

violated.

asserts

be

free

that
of

his

cruel

right

and

under

unusual

the

Eighth

punishment

was

He further asserts that his constitutional rights

under (one), (five), (Sixth), (nine), (ten), (14th), (Eighteen),
and his statutory rights were violated.
these

assertions,

petitioner

alleges

As factual support for
that:

(1)

Judge

Robert

Serra and Judge Wesley Griffin acted “in violation of the Code
of

Judicial

Conduct”;

his

attorney

Chris

Williams

acted

“in

violation of the Rules of Professional Conduct” and did not
provide competent representation; and his right to speedy trial
and state statutory time limitations were violated.

Petitioner

also alleges rules violations, maliciousness, and misconduct by
1

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

the prosecutor in “submitting evidence to the KBI lab a week
before

trial

implies

then

that

the

ask

(sic)

prosecutor

for
did

another

not

have

continuance,”
probable

and

cause

prosecute the charges against him in Case No. 13-CR-1133.

to
In

support of this claim he alleges that there was “no doctors
evidence,

no

rape

kit,

no

DNA.”

Plaintiff

is

prisoner

seeks

“a

proper

investigation.”

SCREENING
Because
officials,

Mr.

the

Bejarano

court

is

a

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

a

defendant

immune

from

such

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.
3

1991).

The

court

“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 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

is

obviously

attempting

to

challenge

criminal proceedings in Case No. 13-CR-1133.

state

However, he does

not even reveal whether or not he has already been tried and
convicted in that case or is still awaiting trial.
circumstance,

challenges

to

state

criminal

In either

proceedings

or

a

state conviction are not properly brought in federal court in a
petition for writ of mandamus.

Under 28 U.S.C. § 1651,2 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

court’s

2

mandamus

power

does

not

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).

4

extend to state court officials.

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,

126-27

(10th

Cir.

2003).

State

judges and state prosecutors are not subject to this court’s
mandamus authority.

Attorneys acting as defense counsel are

likewise not subject to federal mandamus authority and do not
even act “under color of state law.”

It follows that this court

lacks jurisdiction over petitioner’s mandamus claims.
74 F.3d at 1248.

Cauthon,

The court concludes that Mr. Bejarano states

no claim whatsoever for mandamus relief in this court.
The only proper way to seek review in federal court of
challenges to a state criminal conviction is by petition for
writ

of

habeas

corpus

filed

pursuant

to

28

U.S.C.

§

2254.

Although the Court might construe the instant mandamus petition
as one brought pursuant to 28 U.S.C. § 2254 upon proper notice
to petitioner, it declines to do so given that petitioner’s full
exhaustion of state court remedies appears 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
5

and

fully

exhausted

all

available

state

court

remedies

or

demonstrated

remedies are either unavailable or ineffective.
2254(b)(1).

that

such

28 U.S.C. §

To satisfy the exhaustion prerequisite, petitioner

must have presented the very issues raised herein to the Kansas
Supreme Court either by way of direct appeal or by state postconviction proceeding.

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

More specifically, he must initially present all his claims to
the trial court, then appeal any adverse decision to the Kansas
Court of Appeals, and ultimately he must seek review in the
Kansas Supreme Court.
The court notes other deficiencies in this petition.

Mr.

Bejarano’s citations to numerous constitutional provisions are
completely conclusory, and he utterly fails to allege facts to
support any claim of constitutional violation.

His attachment

of a docket sheet with no explanation in his petition of its
import does not serve to provide the requisite factual basis for
any

claim.

disciplinary

Furthermore,
rules

and

petitioner’s

statutory

citations

provisions

and

to
his

state
bald

allegations that these state laws and rules 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.
6

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 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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to