Slavinski (ID 124450) v. Kansas, State of
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted until and including December 17, 2021, to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this matter should not be dismissed without prejudi ce so that Petitioner may exhaust her claims in state court. Petitioner's motion to proceed in forma pauperis (Doc. 6 ) is granted. Signed by U.S. Senior District Judge Sam A. Crow on 11/17/21. Mailed to pro se party Helen L. Slavinski by regular mail. (smnd)
Case 5:21-cv-03240-SAC Document 8 Filed 11/17/21 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HELEN L. SLAVINSKI,
CASE NO. 21-3240-SAC
NOTICE AND ORDER TO SHOW CAUSE
This matter is a pro se petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254. Petitioner has filed a motion
for leave to proceed in forma pauperis (Doc. 6), which is granted.
The Court also has conducted an initial review of the amended
petition under Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts and it appears that the claims
Petitioner to show why this matter should not be dismissed without
prejudice to refiling after she exhausts her claims in state court.
In July 2020, in Smith County District Court, Petitioner Helen
L. Slavinski pled no contest to and was convicted of one count of
aggravated battery. (Doc. 1-1, p. 55.) In October 2020, the district
court sentenced her to 41 months in prison and ordered her to
register as a violent offender for 15 years after she is eventually
paroled, discharged, or released. Id. at 56, 61. Petitioner pursued
a direct appeal of her sentence, which the Kansas Court of Appeals
(KCOA) summarily dismissed under Kansas Supreme Court Rule 7.041A,
Case 5:21-cv-03240-SAC Document 8 Filed 11/17/21 Page 2 of 4
and the Kansas Supreme Court (KSC) denied her petition for review
on August 27, 2021. On October 15, 2021, Petitioner filed in this
Court her petition for writ of habeas corpus. (Doc. 1.)
Upon initial review of the petition, the Court concluded that
it could not identify Petitioner’s asserted grounds for relief. It
therefore directed Petitioner to file an amended petition on courtapproved forms. (Doc. 5.) Petitioner filed her amended petition on
November 16, 2021 and the Court has conducted an initial review of
the amended petition. (Doc. 7.)
Liberally construing the amended petition, as is appropriate
since Petitioner proceeds pro se, Petitioner raises the following
(Grounds 1, 4, 5, 6, 7, 8, and 9); insufficient evidence to support
her conviction (Ground 2); insufficient treatment for her medical
and mental health needs (Ground 4); and her plea was involuntary
and coerced (Grounds 6 and 7). As relief, Petitioner asks this Court
to dismiss the charges against her, vacate her conviction and the
accompanying registration requirement, and order compensation for
her pain, suffering, and loss of time with her family and friends.1
(Doc. 7, p. 17.)
“‘A threshold question that must be addressed in every habeas
case is that of exhaustion.’” Fontenot v. Crow, 4 F.4th 982, 1018
(10th Cir. 2021) (quoting Harris v. Champion, 15 F.3d 1538, 1544
(10th Cir. 1994). As the Court pointed out in its prior memorandum
To the extent that Petitioner seeks “compensation,” the Court notes that money
damages are not available as relief in a habeas corpus petition. Only after a
prisoner succeeds in obtaining habeas corpus relief because of a violation of
her constitutional rights may she bring a civil action for damages against the
person or persons whose misconduct led to the illegal confinement, assuming that
person does not have immunity. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Case 5:21-cv-03240-SAC Document 8 Filed 11/17/21 Page 3 of 4
and order, a state prisoner must exhaust all available state-court
remedies before pursuing federal habeas relief unless it appears
there is an absence of available state corrective process or
circumstances exist that render such process ineffective to protect
the petitioner’s rights.2 See 28 U.S.C. § 2254(b)(1); see also Bland
v. Simmons, 459 F.3d 999, 1011 (10th Cir. 2006). The exhaustion
requirement exists to “give state courts a fair opportunity to act
on [his] claims.” O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)
(citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
To satisfy the exhaustion requirement, Petitioner must have
presented the very issues raised in the federal petition to the
KCOA and the KCOA must have denied relief. See Picard v. Connor,
404 U.S. 270, 275-76 (1971); Kansas Supreme Court Rule 8.03B(a).
Petitioner bears the burden to show she has exhausted available
state remedies. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.
1992); see also Parkhurst v. Pacheco, 809 Fed. Appx. 556, 557 (10th
presented to the state courts the grounds for relief asserted in
her federal habeas petition. (Doc. 7, p. 5-14.) She appears to
assert that she has instead chosen to file the present petition for
federal habeas relief. See id. But a federal habeas petition is not
a substitute for seeking relief in state court. Rather, Petitioner
must exhaust available state-court remedies before seeking habeas
Petitioner alleges this absence as Ground 3 for habeas relief, but she does
not explain how it applies in this case. As noted in the Court’s previous
memorandum and order, there appear to be avenues for Petitioner to obtain relief
in state court, such as by filing a motion under K.S.A. 60-1507. In addition, to
the extent Petitioner alleges that her plea was coerced on involuntary, K.S.A.
22-3210 provides the circumstances under which a plea of guilty or no contest
may be withdrawn after conviction and sentencing.
Case 5:21-cv-03240-SAC Document 8 Filed 11/17/21 Page 4 of 4
relief in federal court. Because Petitioner has not presented her
grounds for relief to the state courts, they are unexhausted.
available. “Generally, a federal court should dismiss unexhausted
claims without prejudice so that the petitioner can pursue available
state-court remedies.” Grant v. Royal, 886 F.3d 874, 891-92 (10th
Cir. 2018) (internal citations and quotation marks omitted).
IT IS THEREFORE ORDERED that Petitioner is granted until and
including December 17, 2021, to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this matter
should not be dismissed without prejudice so that Petitioner may
exhaust her claims in state court.
IT IS FURTHER ORDERED that Petitioner’s motion to proceed in
forma pauperis (Doc. 6) is granted.
IT IS SO ORDERED.
This 17th day of November, 2021, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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