Washburn v. Marion County, Kansas et al
MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed without prejudice. Petitioner's motion to proceed in forma pauperis 3 is granted. Signed by U.S. Senior District Judge Sam A. Crow on 10/20/17. Mailed to pro se party Allen Dean Washburn by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALLEN DEAN WASHBURN,
CASE NO. 17-3172-SAC
MARION COUNTY, KANSAS,
MEMORANDUM AND ORDER
This matter is before the Court on a petition for habeas corpus.
Petitioner, a pretrial detainee, seeks the dismissal of the criminal
charges pending against him in Marion County, Kansas, in Case No.
17CR41,1 on speedy trial grounds. He also alleges that a conflict of
interest exists between the presiding judicial officer and persons
associated with the criminal case.
“Habeas corpus review is available under § 2241 if one is “in
custody in violation of the Constitution or laws or treaties of the
United States.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th
Cir. 1997)(quoting § 2241(c)(3)). As a pretrial detainee, petitioner
may proceed under § 2241. See Walck v. Edmondson, 472 F.3d 1227 (10th
Cir. 2007)(general grant of habeas authority under § 2241 applies to
challenges to pretrial detention of a state court defendant) and
Yellowbear v. Wyoming Attorney General, 525 F.3d 921, 924 (10th Cir.
2008)(challenge to pretrial detention is proper under § 2241).
The Court has reviewed the state court docket on-line, see https://www.kansas.gov,
and notes that the criminal action remains pending and that petitioner has presented
motions in the state district court that appear to assert the speedy trial ground
that he presents here.
However, a petitioner under § 2241 must exhaust available state
court remedies before proceeding in federal habeas corpus. Garza v.
Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). Although the petition
suggests that petitioner has sought relief in the state district
court, it does not appear that he has pursued relief in the state
appellate courts. Therefore, he has not exhausted available state
Finally, the United States Supreme Court has held that the
federal courts generally should not intervene in state criminal
prosecutions begun before the commencement of a federal action in
which the state court defendant seeks relief from the state court
proceedings. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme
Court held that a federal court should abstain from enjoining a state
court proceeding if the state court matter (1) is ongoing, (2) provides
an adequate forum to consider the petitioner’s federal claims, and
(3) involves important state interests. Id. at 43. Once these
conditions are found, abstention is not discretionary, absent
extraordinary circumstances that show a state court is unable to
provide the petitioner with a full and fair hearing on federal claims.
Crown Point I, LLC v. Intermountain Rural Elec. Ass’n., 319 F.3d 1211,
1215 (10th Cir. 2003).
An exception to the rule of mandatory abstention exists “in cases
of proven harassment or prosecutions undertaken by state officials
in bad faith without hope of obtaining a valid conviction and perhaps
in other extraordinary circumstances where irreparable injury can be
shown.” Perez v. Ledesma, 401 U.S. 82, 85 (1971). A petitioner has
a “heavy burden” to overcome the Younger bar by showing “more than
mere allegations of bad faith or harassment.” Phelps v. Hamilton, 122
F.3d 885, 889 (10th Cir. 1997)(quoting Perez, 401 U.S. at 85).
Here, the state criminal action against petitioner is
proceeding, the state courts provide an adequate opportunity for him
to present his federal claims, and the prosecution of a state court
defendant is an important state interest. See, e.g., Hicks v. Miranda,
422 U.S. 332, 349 (1975)(applying Younger abstention principles and
noting the Younger doctrine permits state courts to try state criminal
cases without a federal court’s interference). Therefore, the
conditions identified by Younger are met, and the petitioner has not
shown any extraordinary circumstances that excuse adherence to the
Younger doctrine. The Court concludes this matter must be dismissed
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed without prejudice.
IT IS FURTHER ORDERED petitioner’s motion to proceed in forma
pauperis (Doc. 3) is granted.
IT IS SO ORDERED.
This 20th day of October, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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