Miles (ID 67725) v. Conover

Filing 4

MEMORANDUM AND ORDER ENTERED: Petitioner is granted to and including December 13, 2017, to show cause why this matter should not be dismissed without prejudice to allow him to exhaust his claims in the state courts. The Clerk of the Court shall modify the docket to name Warden Emmalee Conover as the respondent. Signed by U.S. Senior District Judge Sam A. Crow on 11/21/17. Mailed to pro se party Maurice L. Miles, Jr. by regular mail.(smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MAURICE L. MILES, JR.,
Petitioner,
v.

CASE NO. 17-3197-SAC

EMMALEE CONOVER1,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and his fee status is pending.
Screening
Under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court must promptly examine a
habeas filing and, if it plainly appears the petitioner is not entitled
to relief, must dismiss the matter.
The petition shows that petitioner was sentenced in three
criminal cases in March 2017 under his plea of nolo contendere.
Petitioner presents three claims for relief: (1) the decision of the
court did not follow the plea agreement; (2) the criminal charges were
improperly stacked and illegal; and (3) petitioner was incompetent
at the time he entered the agreement due to being removed from his
medications.
Before a state prisoner may seek federal habeas corpus relief,
he must exhaust state court remedies by presenting his claims to the
1

The Court substitutes Warden Emmalee Conover as the respondent to this action.
See Rule 2(a), Rules Governing Section 2254 Cases in the United States District
Courts (“If the petitioner is currently in custody under a state-court judgment,
the petition must name as respondent the state officer who has custody.”).

state appellate courts by invoking one complete round of the state’s
appellate review procedures. See 28 U.S.C. § 2254(b); O’Sullivan v.
Boerckel, 526 U.S. 838, 842, 845-47 (1999). “[A] state prisoner’s
federal petition should be dismissed if the prisoner has not exhausted
available state remedies.” Coleman v. Thompson, 501 U.S. 722, 731
(1991). A petitioner may be excused from the exhaustion requirement
only if exhaustion would be futile due to “an absence of available
State corrective process or because circumstances exist that render
such process ineffective to protect the rights of the applicant.”
Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009)(internal
citations and quotations omitted).
It does not appear petitioner has presented the claims to the
state appellate courts in a direct appeal or that he has filed a
post-conviction action under K.S.A. 60-1507. Because it appears he
has a state court remedy, the Court will direct him to show cause why
this matter should not be dismissed without prejudice to allow him
to pursue relief in the state courts.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner is granted to
and including December 13, 2017, to show cause why this matter should
not be dismissed without prejudice to allow him to exhaust his claims
in the state courts.
IT IS FURTHER ORDERED the Clerk of the Court shall modify the
docket to name Warden Emmalee Conover as the respondent.
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