Brown v. Kansas Department of Corrections

• Court: District Court, D. Kansas
• Decided: March 15, 2023
• Docket: 5:23-cv-03072
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

RICO J. BROWN, SR.,

Petitioner,

v. CASE NO. 23-3072-JWL

KANSAS DEPARTMENT OF CORRECTIONS1,

Respondent.

MEMORANDUM AND ORDER

This matter is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by state prisoner and Petitioner Rico J. Brown, Sr. (Doc. 1.) Petitioner has also filed a motion to proceed in forma pauperis (Doc. 2), which will be granted. After receiving the petition, the Court began its initial review as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The Court has reviewed Petitioner’s filings and concludes that a limited Pre-Answer Response (“PAR”) is appropriate in order to assist the Court with its Rule 4 review. See Wood v. Milyard, 566 U.S. 463, 467 (2012); Denson v. Abbott, 554 F. Supp. 2d 1206 (D. Colo. 2008). Accordingly, the Court directs Respondent to file such a response limited to addressing the affirmative defense of Petitioner’s failure to exhaust state court remedies under 28 U.S.C. § 2254(b)(1)(A). If Respondent does not intend to raise the failure to exhaust of state remedies as a defense, Respondent shall notify the Court of that decision in the PAR. Respondent will be granted

1 Petitioner has named the Kansas Department of Corrections as Respondent in this action, but the proper respondent in a federal habeas action by a state prisoner is the person who has custody over the petitioner. See Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“[I]n habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.”). Thus, Hazel M. Peterson, the current warden of Norton Correctional Facility, where Petitioner is confined, is hereby substituted as Respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts and Rules 25(d) and 81(a)(4) of the Federal Rules of Civil Procedure. to and including April 17, 2023 in which to file the PAR and Petitioner will be granted to and including May 4, 2023 in which to file a reply to the PAR if he desires. Upon receipt of the PAR and any reply from Petitioner, the Court will continue the Rule 4 review and issue further orders as necessary.

IT IS THEREFORE ORDERED that Hazel M. Peterson, Warden of Norton Correctional Facility, where Petitioner is confined, is substituted as Respondent in this matter. IT IS FURTHER ORDERED that the motion to proceed in forma pauperis (Doc. 2) is granted. IT IS FURTHER ORDERED that Respondent is granted until and including April 17, 2023 in which to file a Pre-Answer Response that complies with this order. IT IS FURTHER ORDERED that Petitioner is granted until and including May 4, 2023 in which to file a reply to the Pre-Answer Response if he desires.

IT IS SO ORDERED. DATED: This 15th day of March, 2023, at Kansas City, Kansas.

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