Price v. Armbrister

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is directed to show cause, in writing, on or before June 20, 2023, why this matter should not be dismissed without prejudice. Signed by District Judge John W. Lungstrum on 05/18/23. Mailed to pro se party John Timothy Price by regular mail. (smnd)

Case 5:23-cv-03104-JWL Document 3 Filed 05/18/23 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN TIMOTHY PRICE,
Petitioner,
v.

CASE NO. 23-3104-JWL

J. ARMBRISTER,
Respondent.
NOTICE AND ORDER TO SHOW CAUSE
This matter is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
Petitioner John Timothy Price, who proceeds pro se, is being held at the Douglas County Jail (DCJ)
in Lawrence, Kansas. According to the online records of the Douglas County District Court,
Petitioner has been charged with felony battery on a law enforcement officer and his preliminary
hearing is scheduled for next month. See Online Records of Douglas County, Kansas, Case No.
2023-CR-000042. Petitioner has paid the statutorily required filing fee.
Rule 4 of the Rules Governing § 2254 Cases requires this Court to review a habeas petition1
upon filing and to dismiss it “[i]f it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4,
28 U.S.C.A. foll. § 2254. The Court has conducted a preliminary review of the petition and will
direct Petitioner to show cause, in writing, why this action should not be dismissed without
prejudice for the reasons explained below.
In his petition, Petitioner list four grounds for relief. (Doc. 1, p. 6-7.) Because Petitioner is

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Rule 1(b) authorizes district courts to apply the Rules to habeas petitions not brought under § 2254, such as those
brought under § 2241.

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proceeding pro se, the Court liberally construes the petition, but it may not act as Petitioner’s
advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). “[T]he court cannot take on
the responsibility of serving as the litigant’s attorney in 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). The Court has liberally construed the petition in this matter, but if the Court has
misunderstood any of the arguments Petitioner intended to make in the petition, Petitioner may so
inform the Court in his response to this order.
Liberally construing the petition, Ground One alleges that defense counsel provided
unconstitutionally ineffective assistance—presumably in the ongoing criminal prosecution
referenced above—by failing to object to or remediate misconduct and misrepresentation by the
prosecuting attorney. Id. at 6. Ground Two alleges “insufficient process” in the ongoing Douglas
County criminal prosecution of Petitioner, asserting that the prosecution was begun under false
pretenses and is based upon false statements made under penalty of perjury. Id. Ground Three
asserts a Double Jeopardy violation based on the allegation that the same acts underly both the
criminal prosecution and a previous DCJ disciplinary proceeding. Id. Ground Four alleges perjury,
asserting that unnamed “[p]ublic servants of qualified authority falsely swore to documented filing
to the court and/or sheriff’s office, under penalty [of] perjury[, w]hich they knew to be false.” Id.
at 7. As relief, Petitioner asks for “Redress/Recourse/Remedy – Issuance [of] writ of habeas corpus
§ 2241.” Id.
As the Court understands them, all four grounds for relief challenge Petitioner’s current
detention by the State of Kansas, and 28 U.S.C. § 2241 “is the proper avenue by which to challenge
pretrial detention.” See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007). Nevertheless,

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requests for pretrial federal habeas corpus relief are not favored. Jones v. Perkins, 245 U.S. 39192 (1918). Although “the traditional function of the writ [of habeas corpus] is to secure release
from illegal custody,” see Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), the United States
Supreme Court has long held that federal courts generally should not exercise their power to
discharge a person being detained by a state for trial on a state crime, even where the person alleges
that the detention is unconstitutional.
In 1886, the United States Supreme Court described some very limited circumstances in
which such intervention might be proper, such as when the individual is in custody for an allegedly
criminal act that was required by federal law or federal court order, when the individual is a citizen
of a foreign country and is in state custody for an allegedly criminal act done under the authority
of that foreign country, when the matter is urgent and involves the United States’ relations with
foreign nations, or when there is some reason why the state court may not resolve the constitutional
question in the first instance. under Ex Parte Royall, 117 U.S. 241, 251-52 (1886). Otherwise,
federal courts must abstain from interfering with the process of state courts. Id. at 252 (stating that
federal courts’ non-interference with state courts “is a principle of right and law, and therefore of
necessity”).
Nearly a century later, the United States Supreme Court reaffirmed that principles of
comity dictate that generally a federal court is not to intervene in ongoing state criminal
proceedings unless “irreparable injury” is “both great and immediate.” See Younger v. Harris, 401
U.S. 37, 46 (1971). Under Younger, federal courts must abstain when “(1) the state proceedings
are ongoing; (2) the state proceedings implicate important state interests; and (3) the state
proceedings afford an adequate opportunity to present the federal constitutional challenges.”
Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). If these three circumstances are present,

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federal abstention is mandatory unless extraordinary circumstances require otherwise. Brown ex
rel. Brown v. Day, 555 F.3d 882, 888 (10th Cir. 2009) (quoting Amanatullah v. Co. Bd. of Med.
Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999)). Extraordinary circumstances that warrant
federal intervention in ongoing state criminal proceedings include cases “‘of proven harassment
or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid
conviction.’” Amanatullah, 187 F.3d at 1165. However, a petitioner asserting such circumstances
must make “‘more than mere allegations of bad faith or harassment.’” Id.
The petition in this case does not allege the type of circumstances under which Ex Parte
Royall allows federal-court intervention in a state criminal prosecution. Petitioner does not allege
that the state criminal charge against him is based on actions he took under the authority of a
federal law or foreign government, nor does this case involve foreign relations or present any
indication that the State of Kansas should not be allowed to resolve Petitioner’s constitutional
claims. Similarly, the three conditions in Younger appear to be satisfied. The criminal case against
Petitioner is ongoing. See Online Records of Douglas County, Kansas, Case No. 2023-CR-000042.
The State of Kansas has an important interest in prosecuting crimes that involve the violation of
Kansas laws. See In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007). And Kansas’ state courts
provide Petitioner the opportunity to present his challenges, including any federal constitutional
claims, whether in the state district court or, if necessary, on appeal or in further proceedings. See
Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993). Thus, it appears that Ex Parte Royall and
Younger require this Court to decline to interfere in the ongoing criminal proceedings against
Petitioner in Douglas County.
Petitioner is therefore directed to show cause, in writing, on or before June 20, 2023, why
this matter should not be dismissed in its entirety because Ex Parte Royall and Younger require

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the Court to abstain from granting relief on any of the grounds asserted in the petition. The failure
to file a timely response to this order will result in this matter being dismissed without further prior
notice to Petitioner.

IT IS THEREFORE ORDERED that Petitioner is directed to show cause, in writing, on
or before June 20, 2023, why this matter should not be dismissed without prejudice for the reasons
set forth above.

IT IS SO ORDERED.
DATED: This 18th day of May, 2023, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge

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