Bailey (ID 2000069887) v. Schnurr

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER JARMALL BAILEY,
Petitioner,
v. 	CASE NO. 25-3221-JWL
STATE OF KANSAS 1 ,
Respondent.
MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by Petitioner Christopher Jarmall Bailey, a state prisoner incarcerated at Hutchinson Correctional
Facility in Hutchinson, Kansas. Petitioner’s fee status is pending. The Court conducted an initial
review of the petition and concluded that this matter is subject to dismissal in its entirety. Thus, on
October 15, 2025, the Court issued a notice and order to show cause (“NOSC”), identifying the
deficiencies that left the petition subject to dismissal and giving Petitioner time in which to show
cause why this matter should not be dismissed. (Doc. 4.) Petitioner has timely filed his response
to the NOSC. (Doc. 5.) For the reasons explained below. Petitioner will be granted time in which
to file a complete and proper amended petition in this matter and, if he fails to do so, this matter
will be dismissed without prejudice and without further prior notice to Petitioner.
1 Petitioner has named the State of Kansas 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, Dan Schnurr, the current warden of Hutchinson
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 Federal Rules of Civil Procedure 25(d)
and 81(a)(4).
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Background
Rule 4 of the Rules Governing § 2254 Cases in the United States District Court requires
the Court to review a habeas petition 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.” Rules
Governing § 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254. Because Petitioner is proceeding pro
se, the Court liberally construes the petition, but it may not act as Petitioner’s advocate. See 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.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
The petition submitted by Petitioner to begin this case identifies the judgment of conviction
he challenges as resulting from his 2011 convictions of two counts of attempted failure to register
as a sex offender. (Doc. 1, p. 1.) But in the portion of the form petition for setting forth his “claim[s]
that [he is] being held in violation of the Constitution, laws, or treaties of the United States,”
Petitioner does not identify constitutional or other federal rights he believes are violated by the
2011 judgment, as required to obtain relief under 28 U.S.C. § 2254. (See Doc. 4, p. 2-4.) To the
extent that the petition could be understood, Ground One appeared to seek a sentence reduction
under 18 U.S.C. 3582(c)(1)(A) and Ground Four appeared to seek an order vacating Petitioner’s
sentences under 28 U.S.C. § 2255. Id. at 2-3. Neither of these statutes apply to Petitioner because
he was sentenced in a state court under state law. See id. at 2-4. Thus, the Court issued the NOSC,
explaining these deficiencies to Petitioner and giving him time to show cause why this matter
should not be dismissed. Id. at 4.
In his response, Petitioner provides additional information and explanation of his asserted
grounds for relief. He argues that Rule 4 does not require dismissal of this matter, citing the Due
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Process Clause of the Fourteenth Amendment, other federal constitutional provisions, and Kansas
state caselaw. (Doc. 5, p. 1-2.) He attempts to rebut the Court’s statements that state prisoners
cannot obtain relief under 18 U.S.C. § 3582(c)(1)(A) or 28 U.S.C. § 2255, citing Kansas state
caselaw, statutes, and jury instructions. Id. at 2-3, 5-6. Petitioner also addresses Ground Two of
his petition, arguing that he intended to assert a violation of the Fourteenth Amendment. Id. at 4.
Similarly, he discusses his claims in Ground Three, clarifying that he asserts the violation of the
federal constitutional prohibition against double jeopardy, which he also asserts with respect to
Ground Four. Id. at 4-5.
The Court appreciates the clarification of Petitioner’s grounds for relief. Even in light of
the arguments in the response, however, the Court maintains its prior conclusions that Rule 4
applies to this matter and that, as a matter of law, Petitioner may not obtain relief under 18 U.S.C.
§ 3582(c)(1)(A) or 28 U.S.C. § 2255. Petitioner’s discussion of the Constitutional violations he
intended to assert in his petition, though, have convinced the Court to allow Petitioner the
opportunity to file an amended petition that complies with Rule 4 and states a plausible claim for
federal habeas relief. The Court therefore will direct the clerk to send Petitioner the appropriate
form on which to submit a complete and proper amended petition containing the claims for which
relief may be sought under 28 U.S.C. § 2254.
Petitioner is advised that any amended petition he files must be on the court-approved
forms and must be complete in and of itself. That means that he may not simply refer in the
amended petition to his initial petition to provide information nor may he attempt to incorporate
by reference in the amended petition other filings with this Court. Any grounds for relief not
included in the amended petition will not be considered part of this case. Petitioner must include
the case number of this action (25-3221) on the first page of the amended petition.
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For each ground for relief asserted in the amended petition, Petitioner must identify the
federal or constitutional right he believes was violated, and he must allege sufficient supporting
facts for each ground to allow the Court to determine whether he has stated a plausible claim for
habeas relief. The required Rule 4 review of a federal habeas petition assists the Court in
determining “whether the [respondent] should be ordered to ‘show cause why the writ should not
be granted’” or whether the petition should be summarily dismissed. See Mayle v. Felix, 545 U.S.
644, 656 (2005) (citation omitted). “If the court orders the [respondent] to file an answer, that
pleading must ‘address the allegations in the petition.’” Id. (citation omitted). This requires the
allegations to be clear enough that the respondent will be able to address them.
If Petitioner submits an amended petition on the appropriate form, the Court will review it
as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts and issue further orders. To the extent that the amended petition suffers the same
deficiencies as the initial petition, the Court may dismiss it or parts of it without further prior notice
to Petitioner. In addition, if Petitioner fails to timely file an amended petition, this matter will be
dismissed without prejudice and without further prior notice to Petitioner.
Finally, the Court notes that in his response to the NOSC, Petitioner requests an extension
of the deadline by which he must obtain his inmate account certificate and submit it to support his
motion for leave to proceed in forma pauperis. (Doc. 5, p. 7.) The current deadline is November
13, 2025. (See Doc. 3.) At this point, the Court declines to extend the deadline, since it is still more
than 2 weeks away. If Petitioner is unable to obtain his account certificate in time to submit it on
or before November 13, 2025, he may renew his request for more time by filing a motion for
extension of the deadline. In that motion, he must detail his efforts to obtain the certificate and
explain why he has been unable to timely comply.
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IT IS THEREFORE ORDERED that Dan Schnurr, Warden of Hutchinson Correctional
Facility, where Petitioner is confined, is substituted as Respondent in this matter.
IT IS FURTHER ORDERED that Petitioner is granted to and including December 2,
2025, to submit a complete and proper amended petition in this matter. If he fails to timely file an
amended petition, this matter may be dismissed without prejudice and without further prior notice
to Petitioner. If he timely files an amended petition, the Court will review it and issue further orders
as necessary. The clerk is directed to provide Petitioner with the required form for filing an
amended petition in this matter.
IT IS SO ORDERED.
DATED: 	This 27th day of October, 2025, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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