Burgett v. Johnson County Adult Detention Center

Filing 4

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM VIRGIL LEE BURGETT,
Petitioner,
v.

CASE NO. 17-3051-SAC

SHERIFF, JOHNSON COUNTY, KANSAS,1
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a pretrial
detainee held at the Johnson County Adult Detention Center. Petitioner
proceeds pro se and seeks leave to proceed in forma pauperis.
The Court liberally construes the petition to allege error in
the petitioner’s arrest and detention and in the placement of his
children in the care of other family members.
A petitioner seeking federal habeas corpus relief ordinarily
must exhaust available state court remedies before proceeding in
federal court. This exhaustion requirement allows the state courts
to consider a prisoner’s claims before they are presented to a federal
court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also
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
1

The Court sua sponte substitutes the Sheriff of Johnson County as respondent.
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973)(writ
of habeas corpus acts upon the person who holds the petitioner “in what is alleged
to be unlawful custody.”).

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.
Because petitioner is the subject of ongoing state criminal
proceedings, and because the petition does not suggest that there is
any immediate risk of irreparable harm in the absence of federal
intervention, the Court concludes this matter should be dismissed
without prejudice.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
proceed in forma pauperis (Doc. #2) is provisionally granted.
IT IS FURTHER ORDERED this matter is dismissed without prejudice.
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