Scott (ID 78080) v. Howes

Filing 9

MEMORANDUM AND ORDER ENTERED: Petitioner is granted until and including February 28, 2025, to submit any additional argument, in writing, why this matter should be stayed and held in abeyance rather than dismissed without prejudice. Signed by District Judge John W. Lungstrum on 01/28/25. Mailed to pro se party Michael Ray Scott by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL RAY SCOTT,
Petitioner,
v.

CASE NO. 24-3235-JWL

JESSE HOWES,
Respondent.
MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by Petitioner Michael Ray Scott, a state prisoner incarcerated at Lansing Correctional Facility in
Lansing, Kansas. The Court conducted an initial review of the petition under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts and it appears that the claims
within are not exhausted. Thus, on December 30, 2024, the Court issued a notice and order to show
cause (NOSC) directing Petitioner to show why this matter should not be dismissed without
prejudice to refiling after he exhausts his claims in state court. (Doc. 5.) This matter comes now
before the Court on Petitioner’s timely filed response to the NOSC. (Doc. 6.)
Background
In May 2024, in the District Court of Seward County, Kansas, Petitioner pled no contest to
and was found guilty of possession with intent to distribute a controlled substance within 1000 feet
of a school and criminal possession of a firearm by a convicted felon. (Doc. 1, p. 1.) In October
2024, he was sentenced to 114 months in prison with 36 months of postrelease supervision. Id.
Petitioner advises that he filed a notice of appeal and is pursuing a direct appeal. Id. at 2.
Petitioner filed his federal petition for writ of habeas corpus in this Court on December 23,
1

2024. (Doc. 1.) Therein, he asserts four grounds for relief challenging the validity of his
convictions and sentences on several fronts and alleging multiple constitutional violations. Id. at
5-6, 8; (Doc. 1-2, p. 1-7). As relief, Petitioner asks this Court to vacate his sentence and
convictions. (Doc. 1, p. 14.)
Exhaustion
As explained in the NOSC:
“‘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). 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. 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).
To satisfy the exhaustion requirement, Petitioner must have presented the
very issues raised in the federal petition to the Kansas Court of Appeals (KCOA),
which 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 he 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 Cir.
2020).
There is no indication that the KCOA has considered or denied the
arguments Petitioner makes in his petition to this Court. Petitioner advises that his
state-court direct appeal is currently ongoing and, even liberally construed, he does
not allege that he cannot raise these issues in his direct appeal or, where necessary
and proper, in a postconviction proceeding in the state courts. This Court offers no
opinion on the potential for success in either the currently pending direct appeal or
future state-court proceedings. It notes only that these avenues for state court relief
appear to remain available to Petitioner.
“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). A federal court can excuse a lack of exhaustion “only if there is no
opportunity to obtain redress in state court or if the corrective process is so clearly
deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454
2

U.S. 1, 3 (1981). The Tenth Circuit also has held that “exhaustion of state remedies
is not required where the state’s highest court has recently decided the precise legal
issue that petitioner seeks to raise on his federal habeas petition. In such a case,
resort to state judicial remedies would be futile.” See Goodwin v. Oklahoma, 923
F.2d 156, 157 (10th Cir. 1991).
The information currently before this Court does not demonstrate that
Petitioner lacks the opportunity to seek relief in the state court, that the state
corrective process is so clearly deficient that such efforts would be futile, or that
the Kansas Supreme Court has recently decided the precise legal issue raised in the
current federal habeas petition.
(Doc. 5, p. 2-3.)
Analysis
Because Petitioner is pro se, the Court liberally construes his 20-page response to the
NOSC. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). In the response, Petitioner
appears to assert that he has already exhausted his claims; he points out that he “need not present
the state with more than one opportunity.” (Doc. 8, p. 2.) At other points in the response, Petitioner
asserts that he has already provided notice to the State—by way of previous litigation—that he
believes his constitutional rights were violated. Id. at 8, 17. But the exhaustion requirement for
federal habeas claims does not focus on whether a state district court, an involved Sheriff’s
Department, or state prosecutors were aware of or had notice of the alleged constitutional
violations. Rather, it focuses on whether the claims have been presented to and rejected by a
Kansas appellate court. See Picard, 404 U.S. at 275-76; Kan. S. Ct. R. 8.03B(a) (“In all appeals
from criminal convictions or post-conviction relief on or after July 1, 2018, . . . when a claim has
been presented to the Court of Appeals and relief has been denied, the party is deemed to have
exhausted all available state remedies.”). On the information now before this Court, Petitioner’s
claims have not. Thus, they are unexhausted.
Liberally construing the response, Petitioner also argues that he should be excused from

3

the exhaustion requirement because state remedies would be ineffective. (Doc. 8, p. 2.) As the
Court stated in the NOSC:
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. See 28 U.S.C. § 2254(b)(1); see also Bland v.
Simmons, 459 F.3d 999, 1011 (10th Cir. 2006).
(Doc. 5, p. 2.) Petitioner broadly claims that there is an absence of available state court corrective
processes and that circumstances exist that render such process ineffective to affect his rights.
(Doc. 8, p. 6, 10.) Even liberally construing the response to the NOSC, however, he does not
explain or otherwise specifically support his contention that state-court remedies are either
unavailable or ineffective to protect his rights.
For example, the Tenth Circuit has held that the passage of “inordinate time” without
progress in a state-court appeal may render state remedies “ineffective” and allow a federal habeas
petitioner to avoid the exhaustion requirement. See Hill v. Reynolds, 942 F.2d 1494, 1495-98 (10th
Cir. 1991). In Hill, despite multiple requests to expedite his appeal, a state prisoner’s counsel did
not file the appellate brief until 2 years and 9 months after the notice of appeal was filed and
counsel was appointed. Id. at 1495. Moreover, at the time the Tenth Circuit issued its opinion
finding that state remedies were ineffective and exhaustion was excused, 3 years and 4 months had
passed and the state court appeal was still pending. No such delay is alleged in this case, nor does
Petitioner otherwise explain why he believes state remedies are ineffective or unavailable.
Petitioner further contends that the United States Supreme Court has held that exhaustion
“is not required when Federal courts are asked to remedy a violation of one’s civil rights pursuant
to the Civil Rights Act.” (Doc. 8, p. 2.) This is a federal habeas matter, under 28 U.S.C. § 2254,
which challenges the constitutionality of a state court conviction and seeks release. See Estelle v.

4

McGuire, 502 U.S. 62, 67-68 (1991); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); McIntosh
v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). In contrast, a civil rights
action under 42 U.S.C. § 19831 is the proper vehicle to assert the violation of one’s constitutional
rights by a state actor and seek relief that does not affect a prisoner’s release date. See West v.
Atkins, 487 U.S. 42, 48-49 (1988); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).
Simply put, a civil rights action is subject to different exhaustion requirements than a federal
habeas action. Thus, the rules regarding exhaustion of civil rights claims do not affect whether
Petitioner has exhausted the federal habeas claims he asserts in this matter.
Similarly, Petitioner’s references to state action, ejusdem generis, pendant state
proceedings, the Younger doctrine, the Heck bar, and the strength of his underlying constitutional
claims are not relevant to the exhaustion question now before the Court. (See Doc. 8, p. 4, 6, 1018.) The Court will address two points within those references, however. First, Petitioner directs
the Court’s attention to Cuadra v. Sullivan, 837 F.2d 56, 59 (2d Cir. 1988), for the proposition that
this Court should not dismiss his petition simply because he has not shown to certainty that a
constitutional violation occurred. (Doc. 8, p. 10.) Petitioner is assured that the Court’s decision on
whether the claims in this matter are exhausted is not based on the strength of those claims.
Second, in his response to the NOSC, Petitioner directs the Court’s attention to Heck v.
Humphrey, 512 U.S. 477 (1994). (Doc. 8, p. 8, 17.) Heck holds that only after a prisoner succeeds
in obtaining habeas corpus relief because of a violation of his constitutional rights may he bring a
civil action for damages against the person or persons whose misconduct led to the illegal

1

As Petitioner notes in his response, he has a currently pending 42 U.S.C. § 1983 action, assigned Case No. 24-cv3095-JWB-GEB, in which he is pursuing claims that his civil rights were violated. To the extent that the response to
the NOSC in this case can be construed as asserting errors or seeking relief for claims made in that proceeding (see
Doc. 8, p. 3-4), Petitioner is informed that no action will be taken under this case number. This federal habeas matter
is not the appropriate forum in which to challenge actions taken in Petitioner’s ongoing federal civil rights actions.

5

confinement, assuming that person does not have immunity. Id. at 486-87. This Court has
previously identified the Heck doctrine as a bar to Petitioner’s civil rights claims in a separate,
now-closed § 1983 action.
But the Heck doctrine does not affect whether the claims in this federal habeas action are
exhausted. See Scott v. Nash, Case No. 24-cv-3151-JWL, Doc. 13, p. 2 (D. Kan. Nov. 21, 2024)
(unpublished) (noting “the plaintiff must comply with the exhaustion of state court remedies
requirement” when seeking habeas relief that may allow a civil rights action for damages that is
not barred by Heck). Put another way, even when a state prisoner seeks federal habeas relief in
order to be able to later bring a civil rights action based on alleged violations that occurred during
or related to events that led to a criminal conviction, the prisoner must comply with the federal
habeas exhaustion requirements.
After careful consideration of Petitioner’s arguments, the information cited therein, and the
relevant caselaw, the Court concludes that the claims in this federal habeas matter are not
exhausted and that state-court remedies remain available for such exhaustion. In addition,
Petitioner has not shown that state-court remedies would be ineffective to protect his constitutional
rights, nor has Petitioner otherwise persuaded the Court that he should be excused from compliance
with the exhaustion requirement.
The response, liberally construed, includes a request that the Court stay this matter rather
than dismiss it without prejudice. (See Doc. 8, p. 1.) The United States Supreme Court has held
that a federal court faced with unexhausted habeas claims from a state prisoner may dismiss the
case without prejudice or may stay the federal habeas petition and hold it in abeyance while the
petitioner exhausts state-court remedies. See Rhines v. Weber, 544 U.S. 269, 276-78 (2005); See
also Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016). A federal district court may stay

6

habeas proceedings to permit exhaustion of state court remedies on a claim if (1) good cause exists
for the failure to exhaust the claim prior to filing the federal habeas petition; (2) the unexhausted
claim is not “plainly meritless”; and (3) the petitioner did not intentionally delay the proceedings.
Rhines, 544 U.S. at 277-78. In addition, this Court must consider whether Petitioner is “close to
the end of the 1-year period” to timely file his federal habeas petition under 28 U.S.C. § 2244(d).
Id. at 275.
The Court notes that it does not appear that Petitioner is close to the end of the 1-year
period in which he may timely file a petition for federal habeas relief under 28 U.S.C. § 2254. See
28 U.S.C. § 2244(d). To the extent that Petitioner refers in his response to the time at which his
Fourth Amendment claim became choate (Doc. 8, p. 9), such a date may be implicated in the
timeliness of a civil rights claim involving the Fourth Amendment. It is not clear why Petitioner
believes it is relevant to this federal habeas matter.
The Court will afford Petitioner time in which to submit, in writing, additional argument
restricted to whether this matter should be stayed and held in abeyance or dismissed without
prejudice so that Petitioner can exhaust state-court remedies. To be clear, the additional argument
should focus on whether this matter should be stayed or dismissed. A dismissal “without prejudice”
is “dismissal without barring the [petitioner] from returning later, to the same court, with the same
underlying claim.” See Styskal v. Weld County Bd. of County Com’rs, 365 F.3d 855, 858 (10th Cir.
2004) (internal quotation marks omitted) (quoting Semtek Intl. Inc. v. Lockheed Martin Corp., 531
U.S. 497, 505 (2001)). Thus, a dismissal of this matter without prejudice would not, by itself,
preclude Petitioner from refiling a § 2254 petition in this Court after he exhausts state-court
remedies.

7

IT IS THEREFORE ORDERED that Petitioner is granted until and including February
28, 2025, to submit any additional argument, in writing, why this matter should be stayed and held
in abeyance rather than dismissed without prejudice.

IT IS SO ORDERED.
DATED: This 28th day of January, 2025, at Kansas City, Kansas.

S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge

8