Walker v. Kansas, State of
MEMORANDUM AND ORDER ENTERED: Petitioner's motion to appoint counsel (Doc. 3 ) is denied. This matter is dismissed for lack of jurisdiction. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 7/19/2021. Mailed to pro se party Earnest Eugene Walker, Jr. by regular mail. (jal)
Case 5:21-cv-03150-SAC Document 7 Filed 07/19/21 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EARNEST EUGENE WALKER, JR.,
CASE NO. 21-3150-SAC
STATE OF KANSAS,
MEMORANDUM AND ORDER
Petitioner filed this pro se habeas case under 28 U.S.C. §
2254. Although Petitioner raises multiple constitutional arguments,
he did not allege in his petition that he was in custody. Thus, in
a Notice and Order to Show Cause (NOSC) issued on July 1, 2021, the
Court directed Petitioner to provide further information about his
custodial status and the type of relief he seeks through this
action. (Doc. 4.) On July 14, 2021, Petitioner filed a response to
the NOSC and a notice of change of address. (Docs. 5 and 6.) Having
reviewed the documents, the Court concludes that this matter must
be dismissed because Petitioner seeks relief not available under in
a federal habeas corpus action under § 2254. Because the Court
dismisses the action, it also denies Petitioner’s pending motion to
appoint counsel (Doc. 3) as moot.
To obtain habeas corpus relief, under § 2254, Petitioner must
demonstrate that he is “in [State] custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
Case 5:21-cv-03150-SAC Document 7 Filed 07/19/21 Page 2 of 3
Dinwiddie, 580 F.3d 1136, 1139 (10th Cir. 2009). The United States
Supreme Court has held that “a habeas petitioner does not remain
‘in custody’ under a conviction ‘after the sentence imposed for it
has fully expired.’” Alaska v. Wright, 141 S. Ct. 1467, 1468
(2021)(quoting Maleng v. Cook, 490 U.S. 488, 492 (1989
As the Court noted in the NOSC, the information available does
not reflect that Petitioner was in custody at the time he filed
this federal habeas petition. See Dickey v. Allbaugh, 664 Fed. Appx.
690, 692 (10th Cir. 2016) (jurisdictional custody requirement “is
determined as of the time the habeas petition is filed”). The Court
therefore instructed Petitioner to inform the Court whether he is
challenge, and inform the court whether the sentences for those
convictions have expired. Id.
In his response, Petitioner acknowledges that he is not in
custody and he identifies the relief he seeks as a determination of
“whether the sentences served were illegal.” (Doc. 6, p. 2.) This
sort of relief is not available through habeas corpus proceedings.
“[T]he traditional function of the writ is to secure release from
illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973);
see Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012).
Even liberally construing Petitioner’s petition and response to the
NOSC, Petitioner has not demonstrated that he is “in [State] custody
in violation of the Constitution or laws or treaties of the United
States.” See 28 U.S.C. 2254(a). Thus, § 2254 does not provide
jurisdiction for the Court to consider the merits of Petitioner’s
Petitioner asks the Court to consider the merits of his case
Case 5:21-cv-03150-SAC Document 7 Filed 07/19/21 Page 3 of 3
regardless of whether it is a proper habeas claim, but he does not
assert any alternative cause of action. (Doc. 6, p. 3.) And although
the Court must construe Petitioner’s pro se pleadings liberally, it
must not serve as Petitioner’s advocate. See James v. Wadas, 724
F.3d 1312, 1315 (10th Cir. 2013). “[T]he court cannot take on the
constructing arguments.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). It “‘may not rewrite a petition
to include claims that were never presented.’” Childers v. Crow, 1
F.4th 792, 798 (10th Cir. 2021) (citation omitted).
For the reasons set forth above, the Court concludes that it
lacks jurisdiction over the present petition because Petitioner is
not in State custody. The Court will therefore dismiss this matter
procedural ruling in this matter is not subject to debate among
appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE ORDERED THAT Petitioner’s motion to appoint
counsel (Doc. 3) is denied.
IT IS FURTHER ORDERED THAT this matter is dismissed for lack
of jurisdiction. No certificate of appealability will issue.
IT IS SO ORDERED.
This 19th day of July, 2021, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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