Belles v. Franklin County Adult Detention Center et al

Filing 5

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice to allow petitioner to present his claims in the state courts. Signed by U.S. Senior District Judge Sam A. Crow on 04/27/17. Mailed to pro se party Anthony J. Belles by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY J. BELLES,
Petitioner,
v.

CASE NO. 17-3036-SAC

FRANKLIN COUNTY ADULT
DETENTION CENTER, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On March 7, 2017, the Court directed petitioner to show cause
why this matter should not be dismissed without prejudice to allow
him to exhaust state court remedies. Petitioner filed a timely
response, in which he explains that he sent letters to both the Kansas
Court of Appeals and the Kansas Supreme Court. He did not receive a
response to these letters, and he appears to contend that he has
satisfied the exhaustion requirement.
The Court has examined on-line records maintained by the Kansas
appellate courts1 and finds no record of an appeal or a post-conviction
action related to petitioner’s incarceration.
Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner must exhaust
available state court remedies before commencing a federal habeas
corpus action. “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 petition.” O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999).
1

See http://www.kscourts.org/inquiry-system.asp.

Ordinarily, a habeas corpus petition that presents unexhausted
claims is subject to dismissal unless “there is an absence of available
State corrective process” or “circumstances exist that render such
process ineffective to protect the rights of the applicant.” 28 U.S.C.
§ 2254(b)(1)(B).
In Kansas, a state post-conviction action may be filed within
one year from the final order of the last state appellate court to
exercise jurisdiction on a direct appeal or the termination of
appellate jurisdiction. K.S.A. 60-1507(f). Because it appears that
petitioner has available state post-conviction remedies, the Court
concludes that dismissal of this action without prejudice is
appropriate.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
without prejudice to allow petitioner to present his claims in the
state courts.
IT IS SO ORDERED.
DATED:

This 27th day of April, 2017, at Topeka, Kansas.

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