Flournoy (ID 68439) v. Kansas, State of

Filing 4

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for lack of jurisdiction. Petitioner's motions to proceed in forma pauperis 2 and for the appointment of counsel 3 are denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 01/23/18. Mailed to pro se party Vaughn L. Flournoy by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

VAUGHN L. FLOURNOY,
Petitioner,
v.

CASE NO. 18-3006-SAC

STATE OF KANSAS,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner, a prisoner in state custody, challenges the
validity of his sentence.
Screening
Under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court must review habeas corpus
petitions promptly and must dismiss a petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.”
The Court has conducted a preliminary review of the petition and
finds that this matter is a second application for habeas corpus. The
first application was adjudicated in Flournoy v. McKune, 2007 WL
2317141 (D. Kan. Aug. 9, 2007), aff’d, 266 Fed.Appx. 2008 WL 467015
(Feb. 20, 2008).
Before a petitioner may proceed in a second or successive
application for habeas corpus relief, “the applicant shall move in
the appropriate court of appeals for an order authorizing the district
court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Where
a petitioner fails to obtain the prior authorization, a federal court

must dismiss the matter or, “if it is in the interest of justice”,
transfer the petition to the court of appeals for possible
authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
Petitioner seeks relief from his sentence under Alleyne v. United
States, 570 U.S. 99 (2013).1 However, because the U.S. Supreme Court
has not declared that the Alleyne holding is retroactive, the Court
finds no ground to transfer this matter to the Tenth Circuit Court
of Appeals. Petitioner may seek authorization by applying to that
court.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
for lack of jurisdiction.
IT IS FURTHER ORDERED petitioner’s motions to proceed in forma
pauperis (Doc. #2) and for the appointment of counsel (Doc. #3) are
denied as moot.
IT IS SO ORDERED.
DATED:

This 23rd day of, 2018, at Topeka, Kansas.

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

1

In Alleyne, the Supreme Court held that facts increasing a mandatory minimum
sentence must be submitted to a jury and proven beyond a reasonable doubt. This
holding announced a new rule of constitutional law but was not made retroactive to
cases on collateral review. See In re Payne, 733 F.3d 1027 (10th Cir. 2013)(denying
authorization for second or successive application under 28 U.S.C. § 2255 based upon
Alleyne).