Micheaux v. Sedgwick County Parole Office et al

Filing 5

MEMORANDUM AND ORDER ENTERED: The petition is dismissed without prejudice. No certificate of appealability shall issue. Signed by U.S. Senior District Judge Sam A. Crow on 01/23/18. Mailed to pro se party Codee Micheaux by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CODEE MICHEAUX,
Petitioner,
v.

CASE NO. 18-3010-SAC

SEDGWICK COUNTY PAROLE OFFICE,
et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus. Because petitioner
challenges his detention under a warrant issued by the Kansas
Department of Corrections, the Court has construed this action as a
petition filed under 28 U.S.C. §2241.1
By an order entered on January 16, 2018, the Court directed
petitioner to show cause why this matter should not be dismissed
without prejudice due to his failure to exhaust state court remedies
before commencing this action. A response on behalf of petitioner was
filed on January 19, 2018 (Doc. #4).
It is established in the Tenth Circuit that “[a] habeas
petitioner is generally required to exhaust state remedies whether
his action is brought under § 2241 or § 2254.” Montez v. McKinna, 208
F.3d 862, 866 (10th Cir. 2000)(citing Coleman v. Thompson, 501 U.S.
722, 731 (10th Cir. 1991)). To satisfy the exhaustion requirement,
a petitioner must haven “given the state courts a full opportunity
to resolve any constitutional issues by invoking one complete round
1

See Castro v. United States, 540 U.S. 375, 377 (2003)(“Federal courts sometimes
will ignore the legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different legal category.”)

of the State’s established appellate review process.” Tanguma v.
Golder, 177 Fed.Appx. 829, 830 (10th Cir. 2006)(quoting O’Sullivan
v. Boerckel, 526 U.S. 838, 345 (1999)). Petitioner has the burden to
show that he has exhausted available state remedies. McCormick v.
Kline, 572 F.3d 841, 851 (10th Cir. 2009).
Here, petitioner’s response fails to address the exhaustion
requirement, and, because he commenced this action within a day of
being taken into custody on the warrant, the Court concludes he has
not yet presented his claims to the state courts. Accordingly, this
matter must be dismissed without prejudice.
Certificate of Appealability
Because the Court concludes this matter must be dismissed, it
must consider whether to issue a certificate of appealability (COA),
a jurisdictional prerequisite to an appeal from this action. 28 U.S.C.
§ 2253(c)(1)(A).
In order to receive a COA, a petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §2253
(c)(2). Because the dismissal of this matter is based upon procedural
grounds, petitioner must show both that “jurists of reason would find
it debatable whether the [application] states a valid claim of the
denial of a constitutional right” and that “jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, the Court finds no ground to grant a COA. There is no showing
that petitioner has exhausted state court remedies, and that finding
is not reasonably debatable.
IT IS, THEREFORE, BY THE COURT ORDERED the petition is dismissed
without prejudice.

IT IS FURTHER ORDERED no certificate of appealability shall
issue.
IT IS SO ORDERED.
DATED:

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

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