Price v. Social and Rehabilitation Services, Department of et al

Filing 3

ORDER ENTERED: Petitioner is granted fourteen days from his receipt of this order to show cause to the Honorable Sam A. Crow why this petition should not be dismissed for lack of exhaustion of state court remedies. The petitioner is advised that the failure to file a response will waive appellate review of the legal and factual issues. Signed by Magistrate Judge David J. Waxse on 07/14/14. Mailed to pro se party David M. Price by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAVID M. PRICE,
Petitioner,
v.

CASE NO. 14-3079-SAC-DJW

STATE OF KANSAS SRS/DCFS
Respondent.

O R D E R

This matter is a petition for habeas corpus filed by a person
incarcerated in the Shawnee County Jail. Petitioner proceeds pro se
and submitted the filing fee. The matter has been referred for initial
proceedings pursuant to 28 U.S.C. § 636 (b)(1)(B) and (C).
Background
The petition reflects that petitioner is incarcerated following
a finding of contempt by a state district court; that finding arose
from petitioner’s noncompliance with a state court order requiring
him to pay child support. The petition states the contempt finding
was made on May 15, 2014.
The petition identifies two grounds for relief, namely (1)
abandonment of the original issues, severance of parental rights, and
denial of legal counsel and (2) holding the petitioner to a heightened
standard (Doc. 1, pp. 5-8).
A petitioner proceeding under 28 U.S.C. § 2254 must either
demonstrate exhaustion of state court remedies or show that there is
an absence of available state process or that circumstances rendered
the state process ineffective to protect the petitioner’s rights. 28

U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731
(1991)(“a

state

prisoner’s

federal

habeas

petition

should

be

dismissed if the prisoner has not exhausted available state remedies
as to any of his federal claims”). The exhaustion requirement is met
when the federal claim has been properly presented “to the highest
state court, either by direct review of the conviction or in a
postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d
1531, 1534 (10th Cir. 1994).
Here, petitioner states that he did not exhaust state remedies
on the first claim for relief, citing bias and prejudice by the State
of Kansas (Doc. 1, p. 6). His exhaustion of remedies concerning the
second issue is unclear, as he states both that he did not exhaust
state remedies because he was arrested and that he presented the second
claim through an appeal (id., p. 8). There is no reference in the
petition that suggests petitioner filed an appeal from the contempt
finding under which he is incarcerated. Accordingly, the court will
direct petitioner to show cause why this matter should not be dismissed
due to his failure to exhaust state court remedies before commencing
this action.
Motion for appointment of counsel
Petitioner moves for the appointment of counsel (Doc. 2). As
he recognizes, he has no constitutional right to counsel in this
action. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Rather,
“generally appointment of counsel in a § 2254 proceeding is left to
the [district] court’s discretion.” Swazo v. Wyo. Dep’t of Corr. State
Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). See also 18
U.S.C. §3006A(a)(2)(B)(the court may appoint counsel in an action
under §2254 where “the interests of justice so require”).

In considering whether the appointment of counsel is warranted
in a civil matter, the court should consider “the litigant’s claims,
the nature of the factual issues raised in the claims, the litigant’s
ability to present his claims, and the complexity of the legal issues
raised by the claims.” Long v. Shillinger, 927 F.2d 525, 526-27 (10th
Cir. 1991).
The court has reviewed the petition and finds the petitioner is
capable of expressing his arguments, that the matters presented are
not unusually complicated or novel, and that the action may be subject
to summary dismissal upon exhaustion grounds. The court therefore will
recommend the denial of the motion to appoint counsel.
IT IS, THEREFORE, BY THE COURT ORDERED the petitioner is granted
fourteen days from his receipt of this order to show cause to the
Honorable Sam A. Crow why this petition should not be dismissed for
lack of exhaustion of state court remedies. The petitioner is advised
that the failure to file a response will waive appellate review of
the legal and factual issues discussed herein.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
DATED:

This 14th day of July, 2014, at Kansas City, Kansas.

S/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge