Campbell v. Easter et al
MEMORANDUM AND ORDER ENTERED: Respondents' Motion to Dismiss 7 is granted. The petition is dismissed without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 11/21/17. Mailed to pro se party Brian A. Campbell by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN A. CAMPBELL,
CASE NO. 17-3145-SAC
JEFF EASTER, et al.,
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241 by a prisoner in
state custody. Petitioner proceeds pro se and in forma pauperis. Petitioner claims a fugitive
detainer placed on him from the Mississippi Department of Corrections and Lowndes County
Court is illegal.
Petitioner seeks a finding that the Mississippi sentence has expired and
withdrawal of the fugitive warrant. Defendants filed a motion to dismiss (Doc. 7), alleging
Petitioner failed to exhaust and that he is in custody because he faces additional state criminal
charges unrelated to the claims raised in his habeas petition. The Court granted Petitioner’s
motion for extension of time, extending the deadline to respond to the motion to dismiss to
November 10, 2017. (Doc. 11.) Petitioner filed a response on November 16, 2017. The motion
can therefore be granted for failure to file a timely response. The motion can also be granted for
failure to exhaust, as described more fully below.
Plaintiff failed to file a response to the motion to dismiss before the time to do so expired.
Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney who
fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.
A pro se litigant is not excused from complying with the rules of the court, and is subject to the
consequences of noncompliance. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994)
(citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (insisting that pro se litigants
follow procedural rules and citing various cases dismissing pro se cases for failure to comply
with the rules)). As a result of Petitioner’s failure to timely respond, the Court may grant
Respondents’ motion to dismiss as uncontested.
The Court also finds that the Petition must be dismissed for failure to exhaust.
Respondents note that Petitioner has an active appeal in the state courts challenging the same
custody and raising the same claims he raises in this Court.
See Campbell v. Easter,
No. 118,308, docketed in the Kansas Court of Appeals on September 27, 2017. Respondents
also note that Petitioner is not in custody solely because of the challenged Mississippi fugitive
warrant. Petitioner is also in custody to face state criminal proceedings in both Sedgwick and
Butler Counties. (Doc. 7–2.) Petitioner does not raise a challenge to his custody related to those
The claims raised by Petitioner in his state proceedings are substantively the same as
those he raises in his federal habeas petition, and his state litigation is still underway. Petitioner
is appealing the denial of his state habeas corpus action, raising the following claims:
I. Whether the fugitive from justice warrant from the State of Mississippi violates
the Uniform Criminal Extradition Act?
II. Whether the fugitive from justice warrant from the State of Mississippi
violates K.S.A. 22-2710?
III. Whether the fugitive from justice warrant from the State of Mississippi meets
the requirements of Michigan v. Doran, 439 U.S. 282, 99 S. Ct. 530, 58 L.Ed.2d
521 (1978), and Article IV, Section 2, of the U.S. Constitution?
IV. Did the District Court commit error by summarily dismissing PetitionerAppellant’s K.S.A. 60-1507 [state habeas corpus] petition?
Doc. 7–1, at 4, Civil Docketing Statement in Campbell v. Easter, Kansas Court of
Petitioner’s claims are not yet exhausted. “States should have the first opportunity to
address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson,
501 U.S. 722, 731 (1991). “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). Generally, federal habeas corpus relief is not available to a
state prisoner unless all state court remedies were exhausted before the petition was filed. 28
U.S.C. § 2254(b)(1)(A); see also Wainwright v. Sykes, 433 U.S. 72, 80–81 (1977). Exhaustion is
required whether the action is brought pursuant to § 2241 or § 2254. Montez v. McKinna, 208
F.3d 862, 866 (10th Cir. 2000).
Petitioner claims in his response that the Court may rule on the merits despite a failure to
exhaust, citing 28 U.S.C. § 2254(b)(2). Section (b)(2) provides that “[a]n application for a writ
of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2) (emphasis
added). The section does not provide an avenue for granting a petition despite a failure to
exhaust. The Petition is dismissed without prejudice for failure to exhaust.
IT IS THEREFORE ORDERED BY THE COURT that Respondents’ Motion to
Dismiss (Doc. 7) is granted.
IT IS FURTHER ORDERED that the petition is dismissed without prejudice.
IT IS SO ORDERED.
Dated this 21st day of November, 2017, at Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow
U. S. Senior District Judge
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