Terrell v. 18 District Court et al

Filing 6

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice. Petitioner's motion to proceed in forma pauperis 2 is granted. Signed by U.S. Senior District Judge Sam A. Crow on 03/29/17. Mailed to pro se party Edward E. Terrell, Sr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EDWARD E. TERRELL, SR.,
Petitioner,
v.

CASE NO. 17-3039-SAC

18th DISTRICT COURT,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
held at the Sedgwick County Jail. By an order entered March 10, 2017
(Doc. #4), the Court, noting that it appears petitioner is proceeding
in state district court with appointed counsel, directed him to show
cause why this matter should not be dismissed without prejudice to
allow him to fully exhaust state court remedies.
Petitioner filed a timely response (Doc. #5). The Court has
examined that pleading but finds no basis to allow this matter to
proceed at this time. It is settled that a habeas petitioner is
generally required to exhaust his claims by presenting them to the
state courts, including the state appellate courts, before seeking
federal relief. Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.
2000)(“A habeas petitioner is generally required to exhaust state
remedies whether his action is brought under § 2241 or § 2254.”)(citing
Coleman v. Thompson, 501 U.S. 722, 731 (1991)).
Likewise, unless unusual circumstances exist, a federal court
ordinarily should not intervene in ongoing state criminal
proceedings. See Younger v. Harris, 401 U.S. 37 (1971). Generally,
a court should abstain under Younger when: (1) there is an ongoing

state criminal action that began before the federal action was filed;
(2) the state court provides an adequate forum for the petitioner to
present the claims presented; and (3) the state proceedings implicate
important state interests. Amanatullah v. Col. Bd. of Med. Examiners,
187 F.3d 11160, 1163 (10th Cir. 1999)(applying Younger). However, if
a plaintiff or petitioner shows that there is an immediate likelihood
of significant, irreparable injury, intervention may be warranted.
Younger, 401 U.S. at 46.
The Court has examined the entire record and concludes that this
matter should be dismissed without prejudice. This dismissal will
allow the state courts to consider petitioner’s claims, as
contemplated by the exhaustion requirement. If petitioner is not
successful in the state courts, he then may present his claims to the
federal court.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
without prejudice.
IT IS FURTHER ORDERED petitioner’s motion to proceed in forma
pauperis (Doc. #2) is granted.
IT IS SO ORDERED.
DATED:

This 29th day of March, 2017, at Topeka, Kansas.

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