Davis (ID 06598) v. Schmidt

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to proceed in forma pauperis 3 is granted. Petitioner is granted to and including June 6, 2017, to show cause why this matter should not be dismissed without prejudice to allow petitioner to exhaust state court remedies. The failure to file a timely response may result in the dismissal of this action without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 05/23/17. Mailed to pro se party Anthony Leroy Davis by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY LEROY DAVIS,
Petitioner,
v.

CASE NO. 17-3087-SAC

WARDEN DAN SCHNURR1,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
in state custody. Because petitioner challenges the execution of his
sentence, claiming that his sentence has expired, the Court liberally
construes the petition as a filing under 28 U.S.C. § 2241. See Montez
v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000)(Section 2241 is the
appropriate remedy for state prisoners to collaterally attack the
execution of their state sentences).
A state prisoner proceeding under § 2241 is required to exhaust
state court remedies before seeking federal habeas relief. See Montez,
208 F.3d at 866 (“A habeas petitioner is generally required to exhaust
state remedies whether his action is brought under § 2241 or § 2254.”).
A federal court should abstain from proceeding in an action brought
under § 2241 if the issues presented in petition may be resolved in
the state courts. Capps v. Sullivan, 13 F.3d 350, 354 n. 2 (10th Cir.
1993). Because the petition states that a state court action is pending
1

The proper respondent in a petition under 28 U.S.C. § 2241 is the petitioner’s
custodian. See 28 U.S.C. §2242; Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“the
proper respondent [in a petition for habeas corpus] is the warden of the facility
where the prisoner is being held, not … some other remote supervisory official.”)
The Court therefore substitutes Dan Schnurr, Warden of the Hutchinson Correctional
Facility, as the respondent in this action.

in the sentencing court, see Doc. #1, p. 7, the Court will direct
petitioner to show cause why this matter should not be dismissed
without prejudice to allow him to exhaust available remedies.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
proceed in forma pauperis (Doc. #3) is granted.
IT IS FURTHER ORDERED petitioner is granted to and including June
6, 2017, to show cause why this matter should not be dismissed without
prejudice to allow petitioner to exhaust state court remedies. The
failure to file a timely response may result in the dismissal of this
action without additional prior notice.
IT IS SO ORDERED.
DATED:

This 23rd day of May, 2017, at Topeka, Kansas.

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