Hill (ID 100085 ) v. Schnurr

Filing 3

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for lack of jurisdiction. Signed by U.S. Senior District Judge Sam A. Crow on 03/06/18. Mailed to pro se party Kwame Otoyumaboya Hill by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KWAME OTOYUMABOYA HILL,
Petitioner,
v.

CASE NO. 18-3043-SAC

WARDEN DAN SCHNURR1,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254 by a prisoner in state custody. As required by Rule 4 of the
rules governing petitions filed under Section 2254, the Court has
examined the petition. For the reasons set forth, the Court concludes
this matter must be dismissed.
Background
Petitioner challenges his 2010 conviction in Case No. 09CR2729
of two counts of rape. State v. Hill, 285 P.3d 1045 (Table), 2012 WL
4677701 (Kan.App. Sep. 28, 2012), rev. denied, Jul. 19, 2013.
In May 2014, petitioner filed a federal petition for petition
for habeas corpus in this court which he voluntarily dismissed. Hill
v. Kansas, 2014 WL 1745645 (D. Kan. May 18, 2014). In June 2014, he
filed a state post-conviction action under K.S.A. 60-1507; that action
was summarily dismissed in July 2014. He did not appeal.
On February 12, 2015, petitioner filed a second federal habeas
corpus petition. On February 2, 2016, the Court dismissed that matter
The Court substitutes Warden Schnurr as the respondent on its own motion. 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.”).
1

as time-barred. Hill v. Heimgartner, 15-3028-SAC.
On February 23, 2015, petitioner filed a second action under
K.S.A. 60-1507. The state district court denied the petition on
October 28, 2015, and petitioner filed an appeal. The Kansas Court
of Appeals affirmed the dismissal. Hill v. State, 394 P.3d 154 (Table),
2017 WL 2001615 (May 12, 2017), rev. denied, Oct. 13, 2017.
On February 9, 2018, petitioner sought permission from the U.S.
Court of Appeals for the Tenth Circuit to file a successive habeas
corpus action. On February 26, 2018, the Tenth Circuit denied that
request. In re Hill, #18-3020.
Petitioner commenced this action on February 23, 2018, while his
request for leave to proceed was pending before the Tenth Circuit.
Discussion
Under federal law, “before a second or successive application
… if filed in the district court, 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). When
a petition is second or successive, and the appellate court has not
granted prior authorization, the district court lacks jurisdiction
to proceed. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
Here, the petitioner was unsuccessful in obtaining prior
authorization to proceed in this, his second habeas corpus
application, and this court lacks jurisdiction to consider it.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
for lack of jurisdiction.

IT IS SO ORDERED.
DATED:

This 6th day of March, 2018, at Topeka, Kansas.

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