Janssen v. Commandant

Filing 10

MEMORANDUM AND ORDER: The Petitioner for relief under 28 U.S.C. § 2241 is dismissed without prejudice. Signed by District Judge John W. Lungstrum on 12/22/16. Mailed to pro se party David Jonathan Janssen by regular mail.(msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID JONATHAN JANSSEN,
Petitioner,
v.

CASE NO. 16-3180-JWL

COMMANDANT, United States
Disciplinary Barracks,
Respondent.

MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2241.
Petitioner challenges his parole revocation and loss of confinement credit (“street time”) for the
period of time he was released on parole. The Court issued an Order to Show Cause and
Respondent filed an Answer and Return (Doc. 7) (“A&R”). Petitioner failed to file a Traverse
within the allowed time, and the matter is ready for resolution. In the A&R, the Respondent
contends that the Court should deny the Petition because Petitioner has failed to present his
claims to the military courts. As set forth below, the Petition is dismissed without prejudice.
“[B]efore seeking collateral review in the civilian system, a military petitioner must
exhaust ‘all available military remedies.’” Banks v. United States, 431 F. App’x 755, 757 (10th
Cir. 2011) (emphasis in original) (quoting Schlesinger v. Councilman, 420 U.S. 738, 758
(1975)).

“This requires the petitioner to exhaust not just military court remedies but

administrative ones as well.” Id. (emphasis in original) (citations omitted). “[T]he failure to
exhaust available military remedies on any claim generally requires a civilian court to dismiss
without prejudice the petition in its entirety; until the petitioner takes advantage of all modes of
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relief available in the military system, civilian review must await another day.” Id. (emphasis in
original (citations omitted).
Petitioner concedes in his petition that he has not pursued any relief in the military courts
relating to his claims. The Respondent asserts in the A&R that review of Petitioner’s claims is
available in the military system. See A&R, Doc. 7, at 18 (“Petitioner’s petition ultimately targets
a perceived increase in his sentence and the process that led to that conclusion, and these are
issues that he must present to the military courts before bringing them before this one.”); see also
Hall v. Ledwith, No. 13-3175-RDR, 2014 WL 4824298 (D. Kan. Oct. 26, 2014) (“Administrative
determinations regarding the execution of a military sentence should be subject to review for
abuse by the military appellate courts and have in fact been reviewed in military courts by way
of ‘a petition for extraordinary relief.’”); United States v. Pena, 64 M.J. 259, 265–68 (C.A.A.F.
2007) (reviewing question of whether a mandatory supervised release program increased a
sentence); Fredenburg v. United States, No. 2009-10, 2009 WL 4250099 (A.F. Ct. Crim. App.
Nov. 9, 2009) (AFCCA has jurisdiction to hear habeas corpus petitions and has authority to
review the Air Force Clemency and Parole Board and its proceedings as they impact the
petitioner’s findings and sentence); United States v. Streete, No. 2010-04, 2010 WL 2308878
(A.F. Ct. Crim. App. Apr. 26, 2010) (AFCCA has jurisdiction to review a habeas corpus petition
and determine whether or not the issues raised by petitioner are issues that impact petitioner’s
findings and sentence); United States v. Seawell, ACM 35531, 2008 WL 65113 (A.F. Ct. Crim.
App. Dec. 28, 2007) (stating that issue of whether sentence has been unlawfully increased is an
issue the court reviews de novo, noting burden is on party challenging the conditions to
demonstrate there has been an increase in punishment imposed at trial, and finding no increase in
punishment where no credit was given for “street time” while on MSR); Huschak v. Gray, 642 F.
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Supp. 2d 1268, 1275–76, 1278 (D. Kan. 2009) (holding that argument that placement on MSR
resulted in an increase in punishment could have been raised before the military courts and
review in military courts was also available on petitioner’s contention of violation of his liberty
interest in good conduct time and earned abatement days without due process).
Petitioner has not filed a traverse to the Respondent’s A&R and, thus, does not contest
that review of his claims is available in the military system and that he has not pursued relief in
the first instance through that system. The Court, then, must dismiss the petition without
prejudice.1
IT IS THEREFORE BY THE COURT ORDERED that the Petitioner for relief under
28 U.S.C. § 2241 is dismissed without prejudice.
IT IS SO ORDERED.
Dated this 22nd day of December, 2016, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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The government urges that Petitioner has procedurally waived his claim by not asserting that claim in the
military system. But a claim is only waived (in the sense that the petitioner is barred from ever raising the
claim in a civilian court) if the petitioner asserts a claim that “could have [been] presented to military
officials but no longer may.” Banks, 431 F. App’x at 757. Because the government has not shown that
Petitioner’s claims are procedurally defaulted, the Court dismisses the petition without prejudice.

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