Askew (ID 125411) v. Meyer

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted until and including October 7, 2021, in which to file a complete and proper amended petition in compliance with the directions in this order or to file a notice to the Court that he does not intend to do so. The failure to file at least one of these documents will result in the action being dismissed without further notice. Signed by U.S. Senior District Judge Sam A. Crow on 9/7/2021. Mailed to pro se party William Askew by regular mail. (jal)

Case 5:21-cv-03202-SAC Document 3 Filed 09/07/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM ASKEW,
Petitioner,
v.

CASE NO. 21-3202-SAC

CRAWFORD COUNTY DISTRICT COURT,
Respondent.

NOTICE AND ORDER TO SHOW CAUSE

This matter comes before the Court on Mr. William Askew’s
motion filed August 30, 2021. (Doc. 1.) For the reasons explained
below, the Court construes the motion as a petition for writ of
habeas

corpus

pursuant

to

28

U.S.C.

§

2241

and

will

direct

Petitioner to file, on or before October 7, 2021, a complete and
proper amended petition on court-approved forms or an notice to the
Court that he does not intend to do so.
Background
According to Kansas’ online district court records, in June
2018, Mr. Askew pled no contest in the district court for Crawford
County, Kansas, to one count of aggravated battery. State v. Askew,
Case No. 2018-CR-63. In October 2018, the Crawford County District
Court

(CCDC)

sentenced

him

to

18

months’

probation

with

an

underlying prison sentence of 14 months.
In 2019, Mr. Askew pled guilty in the United States District
Court for the Western District of Missouri to one count of being a
felon in possession of a firearm. United States v. Askew, Case No.
19-5057-01-CR-SW-MDH

(W.

D.

Mo.).

In

September

2020,

he

was

Case 5:21-cv-03202-SAC Document 3 Filed 09/07/21 Page 2 of 5

sentenced to 84 months in the custody of the federal Bureau of
Prisons. Id.
At some point, Mr. Askew returned to Kansas state courts and
in February 2021, he pled no contest in CCDC to one count of feeling
or eluding a law enforcement officer. State v. Askew, Case No. 2019CR-268. On April 9, 2021, CCDC held a hearing at which the district
judge sentenced Mr. Askew to 12 months’ imprisonment in 2019-CR268 and revoked his probation in 2018-CR-63, ordering him to serve
his underlying prison sentence in that case. The CCDC ordered that
the

state

sentences

would

run

consecutive

to

each

other

but

concurrent to the federal sentence. Mr. Askew is currently an inmate
at Lansing Correctional Facility (LCF) in Lansing, Kansas.
Rule 35 Motion
On August 30, 2021, he filed in this Court a form document
naming himself as movant and the CCDC as respondent. (Doc. 1.) Mr.
Askew checked the box on the form indicating that it is intended to
be a motion to reduce or correct sentence pursuant to Rule 35 of
the Federal Rules of Criminal Procedure. If Mr. Askew intends this
document to constitute a Rule 35 motion seeking to reduce or correct
his federal sentence, such a motion must be filed in his federal
criminal case in the Western District of Missouri. The Court notes,
however, that Rule 35 motions brought by a criminal defendant must
be filed “[w]ithin 14 days after sentencing,” so any such motion
would likely be untimely and a federal district court would lack
jurisdiction over it. See Fed. R. Crim. P. 35(a); United States v.
McGaughy, 670 F.3d 1149, 1158 (10th Cir. 2012)(holding that “Rule
35(a)’s deadline [has] jurisdictional force.”)
In the pleading filed in this Court, Mr. Askew identifies the

Case 5:21-cv-03202-SAC Document 3 Filed 09/07/21 Page 3 of 5

conviction or sentence under attack as those imposed by the CCDC on
March 22, 2020. The Court cannot locate a conviction or sentence
that occurred on that date. Nevertheless, the substance of Mr.
Askew’s challenge is that the CCDC ordered his state sentences to
run concurrently with his federal sentence, but he is serving his
state sentences “in a consecutive manner instead of being released
to start serving [his federal] term while finishing [his state]
sentence concurrently.” Id. at 6-7. Thus, it appears that Mr. Askew
is challenging the execution of the sentences imposed in cases 2018CR-63 and 2019-CR-268, which he believes should be served in a
federal prison. To the extent that Mr. Askew is challenging his
state sentences, a motion brought pursuant to Rule 35 of the Federal
Rules of Criminal Procedure is not the proper vehicle to challenge
state-court-imposed sentences.
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241
Mr. Askew may wish to seek relief under 28 U.S.C. § 2241, which
“‘[is] used to attack the execution of a sentence . . . .” Sandusky
v. Goetz, 944 F.3d 1240, 1246 (10th Cir. 2019); see also Mayes v.
Dowling, 780 Fed. Appx. 599, 601 (10th Cir. 2019) (unpublished)
(“In this circuit, a state prisoner may challenge the execution of
his state sentence via a § 2241 petition.”).
Under Local Rule 9.1(a), however, a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 must be filed on an official
form. See D. Kan. Rule 9.1(a). The Court will direct the clerk to
send Mr. Askew the appropriate form and, if Mr. Askew wishes to do
so, he may submit a complete and proper amended petition containing
the claims for which relief may be sought under 28 U.S.C. § 2241.
If Mr. Askew submits an amended petition, it must be on court-

Case 5:21-cv-03202-SAC Document 3 Filed 09/07/21 Page 4 of 5

approved forms and must be complete in and of itself1; it may not
refer back to an earlier version of the petition or attempt to
incorporate by reference other filings with this Court, in this
case or another. Any grounds for relief not included in the amended
petition will not be considered before the Court. Mr. Askew must
include the case number of this action (21-3202) on the first page
of the amended petition. If Mr. Askew submits an amended petition
on the appropriate form, the Court will proceed with an initial
review of the amended petition as required by Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts.
If Mr. Askew does not wish to pursue a § 2241 petition at his time,
he shall file a notice with this Court advising it of that decision.
If Mr. Askew fails to submit an amended petition or a notice
consistent with these directions, this action may be dismissed
without further notice.
Conclusion
For the reasons stated above, the Court will direct Mr. Askew
to file, on the appropriate court-approved forms, a petition for
writ of habeas corpus under 28 U.S.C. § 2241 or to inform the court,
in writing, if he does not wish to do so at this time. A failure to
timely comply with the Court’s order may result in this action being
dismissed without further prior notice to Mr. Askew.

IT IS THEREFORE ORDERED that Petitioner is granted until and
including October 7, 2021, in which to file a complete and proper
To obtain relief under § 2241, Mr. Askew must show that “[h]e is in custody
in violation of the Constitution or laws or treaties of the United States.” See
28 U.S.C. § 2241(c)(3). Moreover, the proper respondent in a § 2241 action is
the person who has custody over the petitioner—the warden—not the district
court that imposed the sentence at issue. See Rumsfeld v. Padilla, 542 U.S.
426, 443 (2004).
1

Case 5:21-cv-03202-SAC Document 3 Filed 09/07/21 Page 5 of 5

amended petition in compliance with the directions in this order or
to file a notice to the Court that he does not intend to do so. The
failure to file at least one of these documents will result in the
action being dismissed without further notice. The clerk of court
shall transmit a form petition to Petitioner.
IT IS SO ORDERED.
DATED:

This 7th day of September, 2021, at Topeka, Kansas.

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