Walling (ID 41769) v. Norwood et al

Filing 6

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 08/11/17. Mailed to pro se party Terry F. Walling by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRY F. WALLING,
Petitioner,
v.

CASE NO. 17-3086-SAC

JOSEPH NORWOOD, et al.,
Respondents.

MEMORANDUM AND ORDER
By its order entered on May 17, 2017, the Court liberally
construed this civil action as a petition for habeas corpus filed under
28 U.S. § 2241. Because a state prisoner seeking relief under § 2241
must exhaust state court remedies, see, e.g. Garza v. Davis, 596 F.3d
1198, 1203 (10th Cir. 2010), and because it appeared that petitioner
has a pending matter in the District Court of Johnson County, Kansas,
concerning the execution of his sentence,1 the Court directed him to
show cause why this matter should not be dismissed without prejudice
to allow him to exhaust his claims in the state courts. Petitioner
filed two responses (Docs. #4 and #5).
In a habeas petition filed by a state prisoner, the exhaustion
requirement is satisfied once the federal claim has been fairly
presented to the state courts. The exhaustion requirement provides
the state courts with the initial opportunity to correct alleged
errors of federal law. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). The fair presentation of a claim requires that the federal
1

See Doc. #1, Attach. 1, p. 5, Letter of Dawn Lewis-Walling asserting that
petitioner’s Johnson County sentence expired in June 2016 and stating “Terry and
his attorneys have pending litigation since April 4, 2017 in the Johnson County
District Court, Division 18, Judge Timothy McCarty in case 17CV01939.”

claim be asserted to the highest state court. See Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). A petitioner has
the burden of showing that he has exhausted available state court
remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Petitioner’s responses do not suggest that he has exhausted state
court remedies by presenting his claims to the Kansas appellate
courts. Accordingly, the Court will dismiss this matter without
prejudice to allow petitioner to fully exhaust his state court
remedies.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
without prejudice.
IT IS SO ORDERED.
DATED:

This 11th day of August, 2017, at Topeka, Kansas.

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