Cochran (ID 2000073941) v. Schnurr

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES M. COCHRAN,
Plaintiff,
v. 	CASE NO. 26-3381-JWL
DANIEL J. SCHNURR,
Defendant.
MEMORANDUM AND ORDER
Petitioner James M. Cochran filed this pro se petition for writ of habeas corpus under 28
U.S.C. § 2241. Petitioner is incarcerated at the Hutchinson Correctional Facility in Hutchinson,
Kansas. The Court grants Petitioner leave to proceed in forma pauperis. The Court screened the
Petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts, and finds that the Petition should be dismissed for failure to state a claim, and as
duplicative, frivolous or malicious.
Habeas Rule 4 requires the Court to review a habeas petition upon filing and to dismiss it
“[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4, 28 U.S.C.A. foll. § 2254. Because Petitioner is proceeding
pro se, the Court liberally construes the Petition, but “will not act as his advocate.” 	James v.
Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). “[T]he court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The Court “may not rewrite
a petition to include claims that were never presented.” Childers v. Crow, 1 F.4th 792, 798 (10th
Cir. 2021) (citation omitted).
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To obtain federal habeas corpus relief, a state prisoner must demonstrate that he or she “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). 	A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 “‘[is] used to
attack the execution of a sentence . . . .” Sandusky v. Goetz, 944 F.3d 1240, 1246 (10th Cir. 2019)
(citing McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (citations omitted));
see also Mayes v. Dowling, 780 F. App’x 599, 601 (10th Cir. 2019) (unpublished) (“In this circuit,
a state prisoner may challenge the execution of his state sentence via a § 2241 petition.”) (citations
omitted) (emphasis in original). It may also be used to seek “to compel the state to bring [a pretrial
detainee] to trial.” Smith v. Crow, 2022 WL 12165390, at *2 (10th Cir. 2022) (citing Dolack v.
Allenbrand, 548 F.2d 891, 893–94 (10th Cir. 1977)).
The Court has briefly reviewed the Petition, as required by Rule 4, and, even liberally
construed, neither of the two grounds for relief Petitioner asserts challenge the execution of his
sentence. Ground One of the Petition alleges that Petitioner’s sentence is unconstitutional because
he was not proven guilty beyond a reasonable doubt of a material element of the crime of
conviction. (Doc. 1, p. 6–7.) Ground Two asserts that the state district court lacked subject matter
jurisdiction to sentence him. 	Id. at 7. 	These are challenges to the validity of Petitioner’s
convictions and sentences, not the execution of Petitioner’s sentence.1
Petitioner raised these same claims in a prior § 2241 petition filed in this Court. 	See
Cochran v. Schnurr, Case No. 26-3313 (D. Kan.). The Court found that the petition in that case
challenged the validity of his convictions and sentences, and not the execution of his sentence. Id.
at Doc. 3. The Court found that:
Because nothing in the petition now before the Court
1 For example, the argument that time served was not properly credited to determine a proper release date is a challenge
to the execution of a sentence. See Eldridge v. Berkebile, 791 F.3d 1239, 1241–43 (10th Cir. 2015). It is not a
challenge to the conviction or to the imposition of a sentence; it merely challenges how the sentence is being executed.
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indicates that Petitioner seeks to challenge the execution of his
sentence, Petitioner has failed to state a claim on which relief may
be granted under 28 U.S.C. § 2241. Petitioner will be granted time
in which to show cause, in writing, why this case should not be
dismissed under Rule 4 because it plainly appears from the petition
that Petitioner is not entitled to relief under 28 U.S.C. § 2241.
On the other hand, if Petitioner seeks to challenge the
validity of a state-court conviction or sentence, he must do so in a
petition for writ of habeas corpus under 28 U.S.C. § 2254 instead of
28 U.S.C. § 2241. If Petitioner wishes to proceed in this case under
28 U.S.C. § 2254, he may ask the Court to recharacterize this case
as one seeking relief under § 2254. Before making such a request,
however, 	Petitioner 	should 	carefully 	consider 	“the 	potential
consequences with respect to any § 2254 claim he may wish to file
in the future. AEDPA places strict limitations on second or
successive claims. See 28 U.S.C. § 2244(b), 2255.” 	See Davis v.
Roberts, 425 F.3d 830, 834–35 (10th Cir. 2005). 	If this matter is
recharacterized as a § 2254 petition, any future § 2254 petition likely
will be subject to the restrictions on second or successive motions.
Id. at 3–4.
In response, Petitioner filed an amended § 2241 petition in Case No. 26-3313 that asserted
the same grounds for relief and challenged the validity of his sentence and underlying conviction,
not the execution of his sentence. Id. at Doc. 5. The Court dismissed the petition, finding that “it
states only grounds that cannot lead to relief under 28 U.S.C. § 2241.” Id. at Doc. 7, at 3. The
case was dismissed on October 2, 2026. Id.
On October 6, 2026, Petitioner filed the same claims in the instant Petition under § 2241.
The Petition in the instant case fails to state a claim on which relief may be granted under 28 U.S.C.
§ 2241. The Court dismisses this matter for failure to state a claim, and as duplicative, frivolous
or malicious. The general policy against duplicative cases exists because:
When a pro se litigant files complaints that are repetitive, duplicative of other
filings, without merit, or frivolous, he abuses the district court process. See Werner
v. Utah, 32 F.3d 1446, 1447, 1449 (10th Cir. 1994). 	“[R]epetitious litigation of
virtually identical causes of action may be dismissed under [28 U.S.C.] § 1915 as
frivolous or malicious.” 	McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir.
1997) (internal quotation marks omitted) (first alteration in original). “The
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unnecessary burden placed upon the judicial process in adjudicating these frivolous
and malicious lawsuits is obvious.” Van Sickle v. Holloway, 791 F.2d 1431, 1437
(10th Cir. 1986). 	“[T]here is no constitutional right of access to the courts to
prosecute an action that is frivolous or malicious . . . . No one, rich or poor, is
entitled to abuse the judicial process.” Tripati v. Beaman, 878 F.2d 351, 353 (10th
Cir. 1989) (per curiam).
Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013); see also Erwin v. Zmuda, 2024 WL
2768460, at *2 (10th Cir. 2024) (unpublished) (affirming dismissal as frivolous where case was
duplicative of two previous complaints and stating that “repetitious litigation of virtually identical
causes of action may be dismissed under [28 U.S.C.] § 1915 as frivolous or malicious”) (citing
Childs, 713 F.3d at 1265).
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or
deny a certificate of appealability (“COA”) upon entering a final adverse order. The Tenth Circuit
has held that this requirement also applies to petitions brought under 28 U.S.C. § 2241 by a state
prisoner. See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000).
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The failure to satisfy either prong requires the denial
of a COA. Id. at 485. The Court concludes that its procedural ruling in this matter is not subject
to debate among jurists of reason. 	Therefore, the Court declines to issue a certificate of
appealability.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner is granted leave to
proceed in forma pauperis.
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IT IS FURTHER ORDERED that this matter is dismissed for failure to state a claim,
and as duplicative, frivolous or malicious. No certificate of appealability will issue.
IT IS SO ORDERED.
Dated October 8, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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