Hunter v. Douglas County District Court et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Petitioner is required to submit his petition for habeas corpus relief upon 2254 forms and to cure all the defects discussed by the court in that form petition. Petitioner's motion 3 for leave to proceed in forma pauperis is granted. Petitioner's motion 5 to appoint counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 04/16/14. (Mailed to pro se party Charles Curtis Hunter by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES CURTIS HUNTER,
Petitioner,
v.

CASE NO.

14-3048-SAC

DOUGLAS COUNTY
DISTRICT COURT, et al.,
Respondents.
MEMORANDUM AND ORDER
This action was initiated when Mr. Hunter, a state inmate
confined at the Larned State Hospital (LSH), submitted a document
entitled “Motion for Evidentiary Hearing” (Doc. 1) and other motions.
The court briefly reviewed the filings before docketing, and directed
the clerk to file this motion as a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 for several reasons.1

Having considered

all the materials submitted by petitioner, the court finds that the
petition is deficient in several ways.
cure these deficiencies.

Mr. Hunter is given time to

If he fails to do so within the time

prescribed by the court, this action may be dismissed without further
notice.

FILING FEE
1

First, a person cannot file motions in the court unless that person has a
pending case. Mr. Hunter had no cases pending in this court when his motions were
received. Second, the relief sought by Mr. Hunter is obviously habeas corpus in
nature and his claims are challenges to his state conviction.

1

The statutory fee for filing a habeas corpus petition is $5.00.
Mr. Hunter has filed a motion to proceed in forma pauperis (Doc. 3)
with a “Resident Trust Fund” sheet attached (Doc. 3-1), and an
“Affidavit of Financial Status” (Doc. 4) that provides no additional
information. 2

Although it is not clear that the “Resident Trust

Fund” statement, which is not certified, or the other two filings
comply with the requirements in 28 U.S.C. § 1915,3 the court grants
leave to proceed in forma pauperis based upon petitioner’s affidavit
and record showing that he has insufficient funds to pay the filing
fee at this time.

In doing so, the court accepts as true petitioner’s

allegation that the “Balance” shown on his account record is
“Mandatory Savings.”

This grant is subject to change should

significantly different financial information come to the court’s
attention.

FACTUAL BACKGROUND

2

In a letter to the court (Doc. 2) submitted with his initial pleadings, Mr.
Hunter asks that he not be charged a filing fee and declares that he is “truly”
indigent. He states that if the court decides to have him “pay for any of these
proceedings,” his motion is to be returned and his case disregarded. If this
action had been filed as a civil complaint instead of a habeas corpus petition,
Mr. Hunter would be obligated to pay the filing fee of $350.00 or $400.00 for filing
a civil action over time through automatic payments from his inmate account.
3

28 U.S.C. § 1915 requires that a prisoner seeking to bring an action without
prepayment of fees submit a motion on court-approved forms that contains 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 six-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).

2

Mr. Hunter does not provide a detailed factual background for
this action.

The court has gleaned some background information from

the Kansas Department of Corrections (KDOC) website (KASPER) that
contains information on all KDOC offenders as well as the opinion
of the state court in State v. Hunter, 41 Kan.App.2d 507, 203 P.3d
23 (Kan.App. 2009).

In addition, the court takes judicial notice

of the several prior habeas corpus actions filed by Mr. Hunter in
this court: Hunter v. Kansas, Case No. 92-cv-3136-DES (D.Kan. Apr.
10, 1992)(dismissed without prejudice for failure to state claim);
Hunter v. State of Kansas, Case No. 92-cv-3181-DES (D.Kan. May 20,
1992)(dismissed as repetitive of prior case); Hunter v. Kansas, Case
No. 92-cv-3280-DES (D.Kan. Aug. 3, 1992)(dismissed as repetitive of
two prior cases); Hunter v. State of Kansas, Case No. 94-cv-3497-DES4
(D.Kan. July 19, 1995)(petition denied); Hunter v. Douglas County,
Case No. 95-3261-SAC (D.Kan. July 19, 1995).
In 1982, Mr. Hunter was tried and convicted in Douglas County
District Court Case No. CR7924 of four counts of rape, two counts
of attempted rape, and 7 counts of aggravated burglary.

He has been

“confined in various correctional facilities” since these offenses
were committed in 1978.

State v. Hunter, 203 P.3d at 25.

In his

initial pleading, Mr. Hunter alleges that the court set aside his
sentence and ordered him committed to the Larned State Security
4

In Case No. 95-3261, the court took “judicial notice of the Answer and Return
filed in (94-3497) in which counsel for state respondents detail that petitioner
has challenged his conviction through a direct appeal and six motions for
post-conviction relief, K.S.A. 60-1507.”

3

Hospital “for care and treatment in leu (sic) of imprisonment” but
four years later he was “cast into prison.”

He also alleges that

he has been receiving treatment for severe mental illness since 1979
when he was 16 years old, and that this is his tenth admission to
LSH.
In 2005 while Mr. Hunter was incarcerated at the Larned State
Correctional

Facility

he

was

charged

with

battery

of

a

law

enforcement officer as the result of an incident during which he hit
a Corrections Officer between the eyes and several times on the head
with the metal end of his belt and tried to kick the officer in the
head after the officer fell.

State v. Hunter, 203 P.3d at 25-26.

The trial court in that case ordered an “evaluation of competency
and mental examination” under Kansas statutes, and following the
evaluation found that Hunter was “competent to stand trial.”
at 26.

Id.

Mr. Hunter’s “defense at trial was that he suffered from a

mental disease or defect that rendered him incapable to form the
requisite intent to commit the crime.”

Id.

Mr. Hunter and several

mental health professionals testified at his trial.

The jury found

Hunter guilty of the offense, and he was sentenced in 2007 “to a prison
term of 130 months, which was to run consecutive to the prison
sentence he was currently serving.”
Hunter

“committed

to

the

Larned

Id. at 28.
State

The court ordered

Security

Hospital

for

psychiatric care, treatment, and maintenance under K.S.A. 22-3430.”
Id.

According to KDOC offender records, Mr. Hunter’s “active
4

sentences” are those from 1982 (CR7924) and 2005 (Pawnee County Case
No. 05CR120).

GROUNDS
Mr. Hunter initially sets forth two grounds for relief in his
motion/petition.

First, he claims that his court-appointed counsel

in state criminal proceedings was ineffective for failing to “put
in” a mental defense or for failing to have him plead not guilty by
reason of insanity.

In support, he alleges that the doctors at LSH

diagnosed him with psychosis and mental and emotional disorders.

He

attaches a medication order form listing his medications for
psychosis, mood and depression as well as “Integrated Treatment Plan”
from LSH showing a principal diagnosis of Schizophrenia, Paranoid
Type and Antisocial Personality Disorder.

Second, petitioner

alleges that the Douglas County District Court erred in finding him
guilty in Case No. 79 CR 24 after he was evaluated by “state doctors
for the Douglas County Attorney Office . . . (and) found to be in
need of psychiatric treatment.”

Mr. Hunter states that “in the past

years” he has “filed several motions” in the trial court to no avail.
He alleges that he is mentally ill and ignorant of court proceedings,
and that the court took advantage and kept dismissing his cases for
failure to state a claim.

5

Mr. Hunter also claims that “due to recurring psychosis”
affected and “caused by long incarceration,” he was denied parole
by the Kansas Parole Board.5
Petitioner asks the court to order his conviction reversed or
to set an evidentiary hearing date to determine if there is reason
for a retrial or modification of his sentence, to order his release
from the Kansas Department of Corrections, and to vacate/modify his
sentence.

Petitioner also asks the court to review his “mental

evaluation and medical reports” in his criminal case and at LSH, his
prison health records, and his parole board records.

CHALLENGES TO 1982 CONVICTIONS
The court finds that the motion/petition filed by Mr. Hunter
in this case attempting to challenge his 1982 state convictions is
defective in that it is not upon court-approved forms, does not
clearly state the grounds for relief, does not adequately set forth
exhaustion of state court remedies as to each ground, and does not
address the obvious threshold issues that the petition appears to
be untimely as well as successive.
5

Petitioner exhibits KDOC “Prisoner Review Board Action Notice” dated
November 26, 2013. At a hearing on this date at LSH, Mr. Hunter was “passed to
December 2016.” Reasons given included: “Serious nature/circumstances of crime;
History of criminal activities; Objections; The community is exceedingly opposed
to the inmate’s release; The inmate’s current needs are unstable and community
resources cannot provide sufficient support to meet those needs and to provide
for public safety; The inmate continues to demonstrate high risk despite
programmatic interventions to mitigate risk; The inmates inability to function
in a less structured environment.” Petitioner writes on this Notice that denying
him parole due to his having mental illness “may violate (his) human rights.”

6

Any challenges that Mr. Hunter may have to either his 1982
convictions or his 2005 conviction may only be raised in federal court
by his filing a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

Local court rule requires that Section 2254 petitions

be on court-approved forms.

Only one criminal case may be challenged

in a single 2254 petition.

If in fact Mr. Hunter is attempting to

challenge his 1982 convictions, as the court believes,6 then he must
submit a 2254 petition upon court forms.
sent to Mr. Hunter.

The proper forms will be

In any 2254 petition submitted upon forms by

Mr. Hunter, he must answer all questions to the best of his ability.
The court in particular directs Mr. Hunter to carefully answer all
questions regarding exhaustion of state court remedies as to each
claim, and cautions that his petition may be dismissed if he is
attempting to raise claims in federal court that he has not raised
in the state courts.
Mr. Hunter is also directed to take particular care in answering
the question regarding the timeliness of his petition.

It is likely

that a challenge to convictions entered in 1982 is barred by the
statute of limitations for federal habeas corpus petitions because

6

If Mr. Hunter wants to attack his 2005 conviction or sentence and not his
1982 convictions, then the information he provides in the 2254 forms must pertain
to his 2005 conviction only. If he wants to attack his 1982 convictions AND his
2005 conviction, he may not do so in a single action. Instead, he must file a
separate 2254 form petition attacking his 2005 conviction, which will be given
a different case number and proceed as a separate action.

7

that limitation period is one year.

See 28 U.S.C. § 2244(d)(1).7

Petitioner baldly claims actual innocence and new evidence, which
could have a bearing upon the timeliness question.

However, he must

state sufficient facts in his form petition to support these bald
allegations, or it is likely that this action will be dismissed as
time-barred.
In addition, it appears that this petition is “successive” since
Mr. Hunter has filed at least one prior 2254 petition in this court
that was denied on the merits.

If this application is successive,

it may be dismissed for lack of jurisdiction given that there is no
indication that Mr. Hunter complied with 28 U.S.C. § 2244(b)(3)(A)

7

This statute provides:
(d)(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of-(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.

8

by obtaining preauthorization for its filing from the Tenth Circuit
Court of Appeals.8
In sum, Mr. Hunter is ordered to submit his challenges to his
1982 convictions upon the court-approved 2254 forms and is given time
to comply.

If he fails to comply within the time prescribed, this

action may be dismissed without further notice.

CHALLENGE TO DENIAL OF PAROLE
Mr. Hunter complains regarding the reasons he was given for
denial of his parole application.9

He may not challenge the denial

of parole and his state conviction or sentence in a single habeas
corpus petition.

Instead, he may be able to challenge a denial of

parole is by filing a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241.

A Section 2241 habeas petition must be filed

upon court-approved 2241 forms, which are available for free upon
request from the clerk.

Furthermore, before a state inmate may

challenge a decision by a state parole board in federal court, he
must have fully exhausted all available administrative remedies,

8

Section 2244(a)(3)(A) provides:
Before a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application.

9

If a state inmate seeks to challenge the procedures utilized by the parole
board, rather than the individual decision rendered in his case, and for relief
seeks only to have his future applications considered under new procedures, then
he must proceed by filing a civil rights complaint.

9

that is administrative appeals of the parole board’s decision as well
as all remedies available in the state courts.

MOTION TO APPOINT COUNSEL
Petitioner has filed a Motion to Appoint Counsel (Doc. 5).

The

court finds that appointment of counsel is not warranted at this time
due to the likelihood that this action will be dismissed as either
successive or untimely.

Accordingly, this motion is denied, without

prejudice.
IT IS THEREFORE ORDERED that petitioner is required to submit
his petition for habeas corpus relief upon 2254 forms and to cure
all the defects discussed by the court in that form petition.
IT IS FURTHER ORDERED that petitioner’s motion for leave to
proceed in forma pauperis (Doc. 3) is granted, and petitioner’s
Motion to Appoint Counsel (Doc. 5) is denied without prejudice.
The clerk is directed to send 2254 and 2241 forms to petitioner.
IT IS SO ORDERED.
Dated this 16th day of April, 2014, at Topeka, Kansas.

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

10