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Krallman v. State of Kansas - Document No. 4
Krallman v. State of Kansas - Document No. 4
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Case 5:07-cv-03056-SAC Document 4 Filed 03/13/2007 Page 1 of 5
MATTHEW KRALLMAN,
Petitioner,
STATE OF KANSAS,
Respondents.
O R D E R
for a new case number on the first page. The two cases referred to
have been closed for some time1. In the body of the pleading, Mr.
This court dismissed the civil complaint filed by Mr. Krallman in Krallman v. Sebelius, Case
No. 06-3060 on March 22, 2006. The court found the claim therein was in essence a challenge to
Mr. Krallman’s state conviction in Jefferson County, which had to be raised by petition for writ of
habeas corpus pursuant to 28 U.S.C. 2254. The court further found that exhaustion of state court
remedies had not been shown. The court also noted the allegations of double jeopardy made therein
were insufficient to entitle Krallman to a stay of an impending criminal trial in Shawnee County.
This court also dismissed a habeas corpus petition filed by Mr. Krallman on 28 U.S.C. 2241
forms in Krallman v. Shawnee County District Court, Case No. 06-3075, on April 6, 2006. In that
case petitioner attempted to raise the same claim of double jeopardy and challenge the same charges
or convictions in Jefferson and/or Shawnee Counties. The matter was treated as a petition under 28
U.S.C. 2254 and dismissed for failure to show exhaustion of state court remedies. Mr. Krallman did
not file a timely appeal in either prior action. He also did not file a timely Motion for
Reconsideration in either case, and has alleged no valid grounds to reopen.
Dockets.Justia.com
Case 5:07-cv-03056-SAC Document 4 Filed 03/13/2007 Page 2 of 5
about to order Mr. Krallman to state his claims upon forms provided
Motion for Voluntary Dismissal of this action under FRCP Rule 41(a)
This court was unable to tell from the papers filed, precisely what state conviction Mr.
Krallman sought to challenge and whether or not state court remedies have been exhausted on that
conviction. For future reference, if petitioner wishes to challenge more than one criminal case, he
must submit a separate form 2254 petition for each.
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As Mr. Krallman acknowledges, he was previously informed that all claims regarding a
particular state criminal conviction must be presented to the highest court in the state before he may
proceed in federal court. The court again emphasizes to Mr. Krallman that this means he must have
presented all his claims regarding a particular conviction to the state district courts in which he was
tried, and to the Kansas Court of Appeals, as well as the Kansas Supreme Court either on direct
appeal of his conviction(s); or by post-conviction motion filed first in the trial court and then
appealed through proper procedures to the highest state court. An example of a proper post-
conviction motion is one pursuant to K.S.A. 60-1507.
With respect to a state criminal proceeding which has not yet gone to trial or resulted in his
conviction, such as he suggests in Case No. 04CR990, petitioner is reminded that the statute of
limitations for challenging a state conviction in federal court does not begin to run until that
conviction is “final.” At the same time, the statute of limitations could be running in another case,
such as his conviction in Jefferson County, if no proper state post-conviction proceeding is pending
as to that conviction.
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Case 5:07-cv-03056-SAC Document 4 Filed 03/13/2007 Page 3 of 5
Without Prepayment of Fees (Doc. 2), which only includes the first
be granted.
remedies. The court notes that no legal or factual basis for this
time.
With this request for a stay, petitioner appears to suggest that the Court use a
stay-and-abeyance procedure to preserve his right to seek habeas relief in the event of the expiration
of the § 2244(d)(1) limitations period. The stay-and-abeyance procedure was approved by the
Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). In petitioner's case, it is impossible to tell
from the materials filed by him if the one-year § 2244(d)(1) limitations period has expired or is
about to expire, or even what conviction he seeks to challenge. The United States Supreme Court
has approved the use of a stay-and-abeyance procedure only "in limited circumstances” “when the
district court determines there was good cause for the petitioner's failure to exhaust his claims first
in state court.” Id. Petitioner has alleged no facts showing good cause under the standard
established in Rhines for administratively staying this habeas proceeding with unexhausted claims.
Furthermore, he moves to dismiss this action so he can exhaust his state court remedies.
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Case 5:07-cv-03056-SAC Document 4 Filed 03/13/2007 Page 4 of 5
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Case 5:07-cv-03056-SAC Document 4 Filed 03/13/2007 Page 5 of 5
before state court remedies have been fully and properly exhausted,
533 U.S. 167 (2001). It follows that no tolling has resulted from
IT IS SO ORDERED.
s/Sam A. Crow
U. S. Senior District Judge