Robinson (ID 93050) v. Norwood

Filing 8

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for clarification 7 is granted. Signed by U.S. Senior District Judge Sam A. Crow on 05/17/17. Mailed to pro se party Elgin R. Robinson, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ELGIN R. ROBINSON,
Petitioner,
v.

CASE NO. 16-3247-SAC

JOE NORWOOD,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On December 21, 2016, the Court dismissed this matter without
prejudice to allow petitioner to exhaust state court remedies, noting
that petitioner’s state post-conviction action filed under K.S.A.
60-1507 is pending in the state appellate courts. Petitioner has filed
a response (Doc. #6) and a motion to clarify (Doc. #7).
Petitioner points out that he seeks to present claims presented
in a post-trial motion arising under Brady v. Maryland, 373 U.S. 83
(1963), Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United
States, 405 U.S. 150 (1972).1 It does not appear that petitioner has
presented these claims to the state appellate courts.
To proceed in habeas corpus, petitioner must show that the
claims have been presented to the state courts. Under 28 U.S.C. §2254
(b)(1)(A), a state prisoner must exhaust state court remedies before
seeking federal habeas corpus relief. “In other words, the state
prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas

1

The Court will refer to these claims, collectively, as the Brady claims.

petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
Therefore, petitioner must show that he has exhausted the Brady claims
or that “there is an absence of available State corrective process”
or that “circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B).
Petitioner has not yet made this showing.
Likewise, before proceeding on these claims, petitioner should
consider the fact that if he pursues relief on the Brady claims before
his state court remedies are completed on other claims, he may be
barred from presenting them, or claims presented in his direct appeal,
in a future petition for habeas corpus. A petitioner may bring a second
or successive application for habeas corpus relief only if he obtains
prior authorization in the appropriate federal court of appeals. See
28 U.S.C. § 2244(b)(3)(A).
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
clarification (Doc. #7) is granted, as set forth herein.
IT IS SO ORDERED.
DATED:

This 17th day of May, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge