Long (ID 38855) v. Waddington et al

Filing 2

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 06/14/17. Mailed to pro se party Michael Ernest Long by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL ERNEST LONG,
Petitioner,
v.

CASE NO. 17-3098-SAC

DOUG WADDINGTON, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
in state custody. Petitioner proceeds pro se and submitted the filing
fee. Because this action appears to challenge the decision of the
Kansas Department of Corrections Prisoner Review Board to pass
petitioner to May 2019, the Court liberally construes the petition
as a filing under 28 U.S.C. § 22411.
Background
Petitioner was convicted in the District Court of Riley County,
Kansas. Long v. State, 770 P.2d 497 (Table)(Kan.App. Feb. 17, 1989).
On April 6, 2017, the Prisoner Review Board entered an Action
Notice passing him to May 2019 (Doc. #1, p. 15).
Analysis
Before petitioner may pursue federal habeas corpus, he must show
that he has exhausted state court remedies. See Coleman v. Thompson,
501 U.S. 722, 731 (1991)(state prisoner must exhaust available state
remedies) and Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000)(“A
habeas petitioner is generally required to exhaust state remedies
1

Petitioner must proceed under 28 U.S.C. § 2241 because he presents a challenge
to the execution of his sentence, rather than the validity of his conviction. See
Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).

whether his action is brought under § 2241 or 2254.”)
Here, it does not appear petitioner has sought relief under state
court remedies. While he states that he filed a state court action
under K.S.A. 60-1501 concerning an earlier denial of parole, he does
not state that he sought relief in the state appellate courts, as he
must in order to exhaust available remedies, nor does he allege that
he presented a claim in the state district court concerning the most
recent action of the Prisoner Review Board.
Because petitioner has not yet exhausted state court remedies,
the Court must dismiss this matter without prejudice. Petitioner may
refile his federal petition after he presents his claims to the state
district court, the Kansas Court of Appeals, and the Kansas Supreme
Court.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
without prejudice.
IT IS SO ORDERED.
DATED:

This 14th day of June, 2017, at Topeka, Kansas.

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