943 F. 2d 57 - Owens v. Roberts

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

This matter is before the court on petitioner's motion for leave to proceed in forma pauperis. We grant petitioner's motion and proceed to the merits of the case.

Mr. Raymond Owens pled guilty in a Kansas court to one count of taking indecent liberties with a child, in violation of K.S.A. § 21-3503. Mr. Owens ultimately was sentenced to three to ten years, the minimum sentence, but was denied probation. Mr. Owens appealed his sentence to the state appellate court.

Because Mr. Owens was appealing the minimum sentence, the state appellate court presumed that he was appealing the denial of probation. The Kansas state appellate court held that it was without jurisdiction to hear direct appeals from the denial of probation. Accordingly, the appellate court dismissed the appeal.

Without undertaking any collateral state action, Mr. Owens next brought this habeas corpus action in federal district court. The district court dismissed because Mr. Owens failed to exhaust state remedies. We review the dismissal de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986).

It appears that those courts do have jurisdiction to entertain a collateral challenge. See K.S.A. § 60-1507. Thus, Mr. Owens must exhaust that state remedy before bringing a federal habeas corpus action. We therefore need not pass on Mr. Owens' motions requesting additions to the record on appeal.

The order of the district court is therefore AFFIRMED. The mandate shall issue forthwith.