Montes v. Sedgwick County Courts et al

Filing 10

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice. Petitioner's motion to proceed in forma pauperis 6 is granted. Petitioner's motion to appoint counsel 8 is denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 03/15/18. Mailed to pro se party Francisco Montes, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FRANCISCO MONTES,
Petitioner,
v.

CASE NO. 18-3059-SAC

SEDGWICK COUNTY COURTS,
Respondent.

MEMORANDUM AND ORDER
This matter is a habeas corpus action filed under 28 U.S.C. §2254.
Petitioner proceeds pro se, and the Court grants leave to proceed in
forma pauperis. Petitioner challenges his conviction on speedy trial
grounds.
The Court has conducted a preliminary review of the petition
under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts. Rule 4 directs the Court to “promptly examine”
a petition and to dismiss the action “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is not
entitled to relief….”
A state prisoner is required to exhaust state court remedies
before seeking federal habeas corpus relief. See 28 U.S.C. §2254
(b)(1). The petitioner acknowledges that his direct appeal is pending
before the Kansas Court of Appeals.1 Accordingly, petitioner has not
yet exhausted state court remedies, as his claim must be “properly
presented to the highest state court, either by direct review of the
conviction or in a postconviction attacks.” Dever v. Kan. State

1

State v. Montes, Case No. 117916, Kan. Ct. App.

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Because petitioner’s
direct appeal is pending, this matter is premature and must be
dismissed.2
Petitioner also filed several pleadings (Docs. ##2-4) that
appear to be civil rights complaints seeking damages against the
District Court of Sedgwick County on speedy trial grounds.
Under Heck v. Humphrey, when a state prisoner seeks damages in
a civil action brought under 42 U.S.C. § 1983, the complaint must be
dismissed where a judgment in the prisoner’s favor would necessarily
imply the invalidity of his conviction or sentence, unless the
prisoner can show the conviction or sentence has been overturned or
otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Because petitioner’s direct appeal is pending, it is clear that his
conviction has not been overturned, and his civil claims for damages
must be dismissed as premature.
Conclusion
For the reasons set forth, the Court concludes petitioner’s
action for habeas corpus relief must be dismissed without prejudice
to allow him to fully exhaust state court remedies. Likewise, because
petitioner’s conviction has not been invalidated, his claims for
damages alleging speedy trial violations must be dismissed as
premature under Heck v. Humphrey.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
without prejudice.
IT IS FURTHER ORDERED petitioner’s motion to proceed in forma
pauperis (Doc. #6) is granted.

If petitioner is not successful in the Kansas Court of Appeals, he must seek review
in the Kansas Supreme Court to exhaust state court remedies.
2

IT IS FURTHER ORDERED petitioner’s motion to appoint counsel
(Doc. #8) is denied as moot.
IT IS SO ORDERED.
DATED:

This 16th day of March, 2018, at Topeka, Kansas.

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