Roudybush v. Attorney General of Kansas

Filing 4

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for leave to proceed in forma pauperis 3 is granted. The petition for habeas corpus is dismissed without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 08/11/17. Mailed to pro se party John Roudybush by regular mail. (Attachments: # 1 Appellate Docket Sheet) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN ROUDYBUSH,
Petitioner,
v.

CASE NO. 17-3135-SAC

ATTORNEY GENERAL OF KANSAS,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis.
Background
Petitioner was convicted in the District Court of Saline County,
Kansas, in July 2015. His direct appeal was dismissed on June 30, 2016,
due to his failure to file a brief. The mandate was issued on August
15, 2016. Petitioner did not seek review in the Kansas Supreme Court.1
Analysis
Before seeking federal habeas corpus relief, a state prisoner
must first properly exhaust available state court remedies. 28 U.S.C.
§ 2254(b)(1). To meet the exhaustion requirement, “[a] state prisoner
must give the state courts an opportunity to act on his claims before
he presents those claims to a federal court in a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
In Kansas, this requires the petitioner to present the federal
constitutional claims “to the highest state court, either by direct

1

A copy of the appellate docket sheet is attached.

review of the conviction or in a post-conviction attack.” Dever v.
Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Therefore, before proceeding in federal court, a state prisoner must
exhaust available state court remedies, show that there is an absence
of available state remedies, or show that the state process is
ineffective to protect the prisoner’s rights. 28 U.S.C. § 2254(b)(1).
A habeas petitioner has the burden of demonstrating that he has
exhausted available state court remedies. McCormick v. Kline, 572 F.3d
841, 851 (10th Cir. 2009).
Under Rule 4 of the Rules Governing Section 2254 Proceedings,
a federal court must review a petition and should summarily dismiss
the matter “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” The federal
court may not excuse the petitioner from compliance with the
exhaustion requirement unless the state remedies are inadequate to
protect the petitioner’s rights. 28 U.S.C. § 2254(b)(1).
Here, the record does not suggest that the remedies available
in the Kansas courts are ineffective; rather, it appears petitioner’s
appeal was dismissed after he failed to file briefing. Where it appears
that a petitioner has failed to exhaust available state court
remedies, the federal court may dismiss the matter without prejudice
to allow the petitioner to pursue state court remedies. Demarest v.
Price, 130 F.3d 922, 939 (10th Cir. 1997). Because it appears
petitioner may have remaining, available post-conviction remedies,
the Court will dismiss this matter without prejudice.
Finally, the Court notes that petitioner’s claim in Ground Three
(Doc. #1, p. 8) seeks damages for an injury he sustained while
incarcerated. Because this claim does not concern the validity of his

conviction, it is not properly presented in a petition for habeas
corpus; instead, petitioner may present this claim in a civil rights
action. See McInstosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th
Cir. 1997)(“A habeas corpus proceeding attacks the fact or duration
of a prisoner’s confinement and seeks the remedy of immediate release
or a shortened period of confinement. In contrast, a civil rights
action … attacks the conditions of the prisoner’s confinement and
requests monetary compensation for such conditions.”)(citation
omitted).
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
leave to proceed in forma pauperis (Doc. #3) is granted.
IT IS FURTHER ORDERED the petition for habeas corpus 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