Lee (ID 74977) v. Kansas, State of et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner's motion 2 to proceed in forma pauperis is granted. Petitioner is granted thirty (30) days in which to show good cause, in writing, to the Honorable Sam A. Crow, United States Senior District Judge, why this action should not be dismissed, without prejudice, for failure to exhaust state court remedies. Signed by Magistrate Judge David J. Waxse on 07/14/14. Mailed to pro se party Milton Gilmore Lee by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MILTON GILMORE LEE,
Petitioner,
v.

CASE NO.

14-3089-SAC

STATE OF KANSAS,
Respondent.
NOTICE AND ORDER TO SHOW CAUSE
TO PETITIONER MILTON GILMORE LEE:
Petitioner Milton Gilmore Lee is hereby required to show
good cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why this action should not be dismissed
for failure to exhaust state court remedies.

I.

Nature of the Matter before the Court
This pro se petition for writ of habeas corpus was filed

pursuant to 28 U.S.C. § 2254 by a state inmate.

Petitioner has

also filed a Motion to Proceed in forma pauperis supported by
the requisite financial information, which shall be granted.
Mr. Lee seeks to challenge his jury conviction in Shawnee
County

District

Court,

Case

No.

13-CR-110,

of

one

count

of

Criminal Threat and one count of Assault.

He was sentenced on

February

asserts

21,

jeopardy.”

2014.

The

sole

claim

he

is

“double

As facts in support, he alleges that he “cannot be
1

punished for both” assault and criminal threat because “all the
elements of assault . . . are identical to some of the elements
of criminal threat” and “assault is a lesser included offense of
criminal threat.”1
5412(a)2

and

He describes assault by referring to 21-

as

“placing

another

person

in

reasonable

apprehension of immediate bodily harm.” He describes criminal
threat

by

fear.”
that

referring

to

21-5415(a)3

and

as

“place

another

in

Having examined the materials filed, the court finds

this

action

is

subject

to

dismissal

without

prejudice

because petitioner fails to show that he fully and properly
exhausted

state

court

remedies

prior

to

filing

this

federal

petition.

II.

Screening

1

several counts of
92, 94 (Kan.App.
punishments for a
Id.

2

placing

“Multiplicity is the charging of a single offense in
a complaint or information.”
State v. Gomez, 143 P.3d
2006).
Multiplicity “creates the potential for multiple
single offense in violation of the Double Jeopardy Clause.”

K.S.A. 21-5412(a) currently provides: “Assault is knowingly
another person in reasonable apprehension of immediate bodily harm.”
3

K.S.A. 21-5415(a) currently provides in pertinent part:
(a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to place another
in fear, or to cause the evacuation, lock down or disruption
in regular, ongoing activities of any building, place of
assembly or facility of transportation, or in reckless
disregard of the risk of causing such fear or evacuation,
lock down or disruption in regular, ongoing activities . . .
.

2

Under Rule 4 of the Rules Governing Section 2254 Cases, 28
U.S.C.A.

foll.

§

2254

(HC

Rule

4),

the

assigned

judge

is

required to review a habeas petition upon filing and to sua
sponte

dismiss

the

petition

without

ordering

a

responsive

pleading “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court. . . .”

Id.; Mayle v. Felix, 545 U.S.

644, 655 (2005); see also McFarland v. Scott, 512 U.S. 849, 856
(1994).

III.

Discussion
“A state prisoner must give the state courts an opportunity

to

act

on

his

claims

before

he

presents

federal court in a habeas petition.”
526 U.S. 838, 842 (1999).

those

claims

to

a

O’Sullivan v. Boerckel,

It is the petitioner’s burden to

prove that he fully exhausted all available state court remedies
prior to filing his petition in federal court.4
exhaustion

prerequisite

is

not

satisfied

Generally, the

unless

all

claims

asserted have been presented by “invoking one complete round of
the State’s established appellate review process.”

Id. at 845.

This means that each claim must have been “properly presented”
4

28 U.S.C. § 2254(b)(1) provides:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted unless it appears that - (A) the applicant has exhausted
the remedies available in the courts of the State. . . .

3

to “the highest state court, either by direct review of the
conviction or in a post-conviction attack.”

Dever v. Kansas

State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

It has

long been established that a § 2254 petition containing federal
claims which have not been exhausted in state court must be
dismissed.

See Rose v. Lundy, 455 U.S. 509, 513-20 (1982).

Mr. Lee attempted to obtain federal court review of his
double jeopardy claim in a prior action, Lee v. State of Kansas,
Case No. 14-3055-SAC (May 21, 2014)(Doc. 4).

Therein, he argued

that he had exhausted the available state court remedies by
having

filed

an

“original

action”

under

directly in the Kansas Supreme Court (KSC).

Sup.Ct.Rule

9.015

The court rejected

this argument holding that this extraordinary procedure did not
amount to full and proper exhaustion.

Mr. Lee was ordered to

“show how he properly proceeded through the state courts” on his
double jeopardy claim.
5

Id. (Doc. 3) at 3.

However, he failed

Rule 9.01(b) provides:
An appellate court ordinarily will not exercise original
jurisdiction if adequate relief appears to be available in a
district court. If relief is available in the district court, a
petition
must
state--in
addition
to
all
other
necessary
allegations--the reason why the action is brought in the
appellate court instead of in the district court.
If the
appellate court finds that adequate relief is available in the
district court, it may dismiss the action or order it transferred
to the appropriate district court.
A dismissal under this
subsection is not an adjudication on the merits.

Petitioner does not establish that this was the proper procedure for his
claim as he alleges no facts showing that “adequate relief” was not
“available in the district court” or that the KSC’s dismissal of this action
was an adjudication on the merits.

4

to

respond

to

the

court’s

order,

dismissed for failure to prosecute.

and

his

prior

action

was

Id.

In the instant action,

Mr. Lee raises the same “double jeopardy” claim and makes the
same allegation that he satisfied the exhaustion prerequisite by
filing a Rule 9.01(b) petition directly in the KSC that was
denied.

He simply ignores the court’s prior ruling that this

filing did not amount to full and proper exhaustion.

Generally,

when a petitioner disagrees with a court ruling, his recourse is
to appeal.

Petitioner did not follow through with the action

and

or

appeal

arguments

respond

regarding

in

any

exhaustion

way.
might

Mr.
be

Lee’s

repetitive

disregarded

under

principles of res judicata.
Even

if

the

court

were

authorized

to

“reconsider”

Mr.

Lee’s arguments by way of this repetitive action, it would hold
that his allegations still fail to show either full and proper
exhaustion or that regular state court remedies were unavailable
or ineffective for his particular claim.

Petitioner presents no

new, adequate facts showing that his filing a Rule 9.01 petition
directly in the KSC, rather than the usual Notice of Appeal of
his criminal conviction in the Kansas Court of Appeals (KCA),
amounted to proper and full exhaustion.

His allegation that his

“presentence” motion for dismissal based on double jeopardy was
denied by the trial court does not suggest that other remedies
were unavailable.

His bald allegation that he “had no other
5

relief before being placed in double jeopardy” also fails to
demonstrate

that

the

normal

state

court

remedies

of

direct

appeal and state post-conviction proceedings pursuant to K.S.A.
60-1507 were unavailable.

Mr. Lee was tried and convicted once

and was not facing a second prosecution for the same offenses
absent a favorable ruling upon his double jeopardy claim.

While

the double jeopardy clause protects the criminal defendant from
multiple punishments for the same offense, Brown v. Ohio, 432
U.S. 161, 165 (1977); petitioner’s claim that he was tried and
convicted on two charges that were multiplicious is one that can
and must be presented through the direct appeal process.6
Despite petitioner’s repetitive arguments, the court finds
that review of

his

double jeopardy

dismissal for failure to exhaust.

claim

remains

subject to

Mr. Lee alleges in his new

petition that he has appealed his conviction to the KCA but the
case has “not been docketed yet.”

Since his direct appeal is

pending in state court at this time, it is clear that he has not
6

Kansas appellate courts have considered multiplicity claims for the
first time on appeal and in motions under K.S.A. 60-1507.
See e.g., id.;
Brown v. State, 269 P.3d 886 (Kan.App. 2012). “When a defendant is convicted
of violations of multiple statutes arising from the same course of conduct,
the test to determine whether the convictions violate (double jeopardy) is
the same-elements test: Whether each offense requires proof of an element not
necessary to prove the other offense.
State v. Potts, 281 Kan. 863 (Kan.
2006). “If so, the charges stemming from a single act are not multiplicitous
and do not constitute a double jeopardy violation.” Id. Petitioner alleges
no facts whatsoever in his federal petition to establish that his two
offenses arose from the “same act” or course of conduct. Nor does he plainly
present the elements of each offense and demonstrate that each did not
require proof of an element not necessary to prove the other.
Had he
presented a factual basis for his claim, the court would express no opinion
as to its merits.

6

fully exhausted all available state court remedies and that this
action is subject to dismissal as a result.
Finally,

the

court

notes

that

petitioner seeks “compensation.”

in

addition

to

release,

Compensation is not a proper

remedy in a federal habeas corpus action.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

petitioner’s

Motion to Proceed in forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that petitioner is granted thirty
(30)

days

in

which

to

show

good

cause,

in

writing,

to

the

Honorable Sam A. Crow, United States Senior District Judge, why
this

action

should

not

be

dismissed,

without

prejudice,

failure to exhaust state court remedies.
IT IS SO ORDERED.
Dated this 14th day of July, 2014, at Topeka, Kansas.

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

7

for