Hughes (ID 96576) v. Schnurr et al

Filing 4

MEMORANDUM AND ORDER ENTERED: This petition 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 05/16/17. Mailed to pro se party Charley Hughes by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLEY HUGHES,
Petitioner,
v.

CASE NO. 17-3081-SAC

DAN SCHNURR,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
in state custody. Petitioner proceeds pro se.
Screening
Under Rule 4, the Court must review a habeas corpus petition
promptly and must summarily dismiss a petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief….” Rule 4, Rules Governing 2254
Cases in the United States District Courts. The Court may dismiss a
petition based on a failure to exhaust state court remedies where it
is “clear from the face of [the] petition.” Allen v. Zavaras, 568 F.3d
1197, 1202 (10th Cir. 2009).
Because the petitioner does not challenge the validity of his
conviction but rather seeks release from confinement based on credits
he alleges he is entitled to receive due to his completion of certain
programs, the Court liberally construes it as a petition filed under
28 U.S.C. § 2241. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996)(“A petition under 28 U.S.C. §2241 attacks the execution of a
sentence…”).

Section 2241 does not have an express exhaustion requirement,
but precedent in the Tenth Circuit requires a state prisoner to exhaust
state court remedies before filing a federal habeas corpus petition.
See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)(holding that
the exhaustion requirement in 28 U.S.C. § 2254 applies to petitions
brought under § 2241). A petitioner satisfies the exhaustion
requirement by presenting the claims to the state courts, including
the highest state court. See Brown v. Shanks, 185 F.3d 1122, 1124 (10th
Cir. 1999)(quoting Dever v. Kan. State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994)).
Here, while the petition suggests that petitioner has used
administrative grievances to seek relief, it does not appear that he
has sought relief in the state courts. Accordingly, the Court
concludes this matter must be dismissed to allow petitioner to seek
relief in the state courts.
IT IS, THEREFORE, BY THE COURT ORDERED the petition is dismissed
without prejudice to allow petitioner to present his claims in the
state courts.
IT IS SO ORDERED.
DATED:

This 16th day of May, 2017, at Topeka, Kansas.

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