Burnett v. KVC/DCF et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted to and including February 8, 2018, to clarify the nature of his claim as explained, and to show cause why this matter should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 01/26/18. Mailed to pro se party Antonio Jamaul Burnett by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTONIO JAMAUL BURNETT,
Petitioner,
v.

CASE NO. 18-3008-SAC

KVC/DCF, et al.,
Respondents.

NOTICE AND ORDER TO SHOW CAUSE
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, a district court must promptly review
a habeas corpus filing, and, if it plainly appears that the petitioner
is not entitled to relief, the court must dismiss the application.
Background
Petitioner is held at the Montgomery County Jail (“MCJ”).
However, it is unclear from the petition whether he is challenging
a conviction, or whether he seeks review of a matter that is pending
in the state courts. The petition refers to indictments related to
the Child Indian Act and a life sentence (Doc. #1, p. 1), but petitioner
also has attached an alias summons served on him at the MCJ dated
December 19, 2017 (Doc. #1, Attach. p. 2) and a notice of hearing to
be held on February 9, 2018 (id., p. 3).
The claims identified in the petition read, in part, as follows:
Ground One: (N:CINC): “Nexting” commercial; exploitation
of children indeeded – Nobel – Cause Corruption IDEA Act

violation (Doc. #1, p.5)
Ground Two: Tri-County Interlocal (OHIO) drawer consprta,
(OHIO)(Tiny-K) Otdence. Heath Care. Information.
Obstruction. EMS Obstruction. (id., p. 6).
Ground Three: R.P.G.: DARE: Letters and speeches convet
(RPG) Routine Patterning Genocidal (DARE) DEF ABUSE
resistance Errioniens. (id., p. 8).
Analysis
A petition filed under Section 2254 is the remedy to challenge
a state court conviction. However, by statute, a state prisoner must
present the claims for relief to the state courts before proceeding
in a federal habeas corpus action. 28 U.S.C. § 2254(b). Exhaustion
requires the petitioner to give the state courts “one full opportunity
to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). The petitioner has the burden of
showing exhaustion. See Olson v. McKune, 9 F.3d 95, 95 (10th Cir.
1993).
Therefore, if petitioner is challenging a state conviction, he
must identify the conviction and must show either that he has presented
his claims for relief to the state courts or that there is no available
remedy.
In the alternative, if petitioner is seeking review of pretrial
detention, the habeas corpus remedy arises under 28 U.S.C. § 2241.
Under § 2241(c)(3), the writ of habeas corpus extends to a pretrial
detainee with pending state criminal charges only if he is in custody
in violation of the Constitution or laws or treaties of the United

States. Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir.
2007)(“We…hold that § 2241 is the proper avenue by which to challenge
pretrial detention….”) Likewise, in order to proceed under § 2241,
a habeas petitioner challenging state action must exhaust state court
remedies before proceeding under § 2241. See Montez v. McKinna, 208
F.3d 862, 866 (10th Cir. 2000)(“A habeas petitioner is generally
required to exhaust state remedies whether his action is brought under
§ 2241 or § 2254.”).
Finally, if petitioner is seeking to stop pending state court
action concerning the severance of his parental rights, he cannot
proceed under habeas corpus. The federal courts do not have
jurisdiction under the federal habeas statute to review collateral
challenges to state child-custody decisions. Lehman v. Lycoming
County Children’s Servs. Agency, 458 U.S. 502, 511-12
(1982)(“Although a federal habeas corpus statute has existed ever
since 1867, federal habeas has never been available to challenge
parental rights or child custody…. Moreover, federal courts
consistently have shown special solicitude for state interests “in
the field of family and family-property arrangements.”)(internal
quotation marks and citation omitted).
Because it is unclear why petitioner is incarcerated and whether
he is seeking review of a conviction, pretrial review of charges
against him, or pretrial intervention in pending child custody
matters, the Court directs him to clarify the petition to explain his
status, and also to show cause why this matter should not be dismissed

for the reasons explained herein.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner is granted to
and including February 8, 2018, to clarify the nature of his claim
as explained, and to show cause why this matter should not be
dismissed.
IT IS SO ORDERED.
DATED:

This 26th day of January, 2018, at Topeka, Kansas.

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