Fulbright v. Biltort

336 F. Supp. 3d 1347
CourtDistrict Court, D. Kansas
DecidedAugust 27, 2018
DocketCASE NO. 18-3213-SAC
StatusPublished
Cited by1 cases

This text of 336 F. Supp. 3d 1347 (Fulbright v. Biltort) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fulbright v. Biltort, 336 F. Supp. 3d 1347 (D. Kan. 2018).

Opinion

SAM A. CROW, U.S. Senior District Judge

Mr. Fulbright, a pre-trial detainee confined in the Shawnee County Jail, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff's complaint includes few details but seems to allege constitutional defects with Mr. Fulbright's 2014 Kansas conviction for sexual battery1 , along with defamation in connection with his arrest. As relief, Plaintiff requests removal from registration as a sex offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901, et seq., as well as monetary damages.

I. Background

On May 29, 2014, Mr. Fulbright pled nolo contendre to a violation of K.S.A. 21-5505(a), sexual battery, pursuant to a plea agreement. He was sentenced to 8 months incarceration. As a result of his conviction, he was required to register as a sex offender pursuant to the Kansas Offender Registration Act ("KORA"). K.S.A. 22-4902(b)(5). Under K.S.A. 21-4906(a)(1)(A), Plaintiff is required to register for 15 years from the date of his release from confinement. The KORA online registry site gives an "end of registration" date of *1350December 19, 2029. Plaintiff completed his incarceration, then apparently failed to register for some period of time after his release. Kansas court records show that Mr. Fulbright has been charged with a violation of K.S.A. 22.4903(c)(1)(A), for failing to register and remains in custody awaiting trial. See online records for Shawnee County District Court, Case No. 2017-CR-000320 and Case No. 2017-CR-001194.2

Plaintiff filed this complaint on August 15, 2018, and has filed ten (10) other actions against various defendants with essentially the same allegations.

I. Complaint

Plaintiff baldly asserts that his rights under the Second and Fourteenth Amendments were violated in connection with his 2014 conviction. He alleges ineffective assistance of counsel. ECF Doc. 1, at 5. He also claims the officer who arrested him in 2014 defamed his character. Id. at 2. Mr. Fulbright names as defendants the arresting officer and an official of the Shawnee County Jail. He states he is seeking " 'possible forensic, monetary, and punitive reward with removal from (K.O.R.A.) registration with defective conviction.' " Id. at 5.

II. Discussion

Mr. Fulbright filed this action as a § 1983 civil rights complaint. However, because the complaint challenges his 2014 state criminal conviction and requests removal from KORA registration, that portion of the complaint is properly considered as a petition for writ of habeas corpus.3 See Preiser v. Rodriguez , 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ; U.S. v. Furman , 112 F.3d 435, 438-39 (10th Cir. 1997), cert. denied, 513 U.S. 1050, 115 S.Ct. 651, 130 L.Ed.2d 555 (1994).

A. Habeas Corpus

The Court has a duty to summarily dismiss a petition for habeas corpus "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rules Governing § 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254. Having examined Mr. Fulbright's petition, the Court finds that this action is subject to dismissal because Plaintiff is no longer in custody pursuant to the challenged conviction, therefore depriving this Court of jurisdiction to consider his claim. Furthermore, Plaintiff has not exhausted the remedies available to him in state court and filed this action outside the period of limitations.

1. Lack of Jurisdiction

Section 2254(a) provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner seeking habeas relief must be in custody under the challenged conviction or sentence at the time the application is filed. Maleng v. Cook , 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Habeas relief is generally not available when a petitioner seeks to challenge a prior conviction for which he is no longer "in custody." See *1351Lackawanna Cnty. Dist. Att'y v. Coss , 532 U.S. 394

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336 F. Supp. 3d 1347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulbright-v-biltort-ksd-2018.