Davenport v. Seventh Judicial Dist.
1992 WL 112269
D.Kan.,1992.
April 20, 1992. (Approx. 1
page)
United
States District Court, D. Kansas.
Mark D. DAVENPORT,
Petitioner,
v.
SEVENTH JUDICIAL
DISTRICT, et al., Respondents.
No. 91-3315-S.
April 20, 1992.
William K. Rork, Topeka, Kan., for petitioner.
Susan G. Stanley, Jon P. Fleenor, Office of the Attorney General, Topeka, Kan.,
for respondents.
ORDER
SAFFELS, District Judge.
*1 Petitioner proceeds on a
petition for writ of habeas corpus, 28 U.S.C. § 2254. In his petition he raises
the claim that he was denied his federal right to due process in that he was
denied the opportunity for independent testing of his blood alcohol content.
Respondents, in their Answer and Return, argue that petitioner has not
exhausted state court remedies on this federal claim. Petitioner filed a
traverse, and claims he has adequately exhausted state court remedies.
Having reviewed the record, the court finds petitioner raised and argued the
issue of the opportunity and availability of independent testing, but only in
the context of the state's compliance with, and the constitutionality of, the
state statute. It does not appear that petitioner ever presented his federal
due process challenge to the state appellate courts for review.
In his brief to the Kansas Court of Appeals, petitioner argued that he was
denied a reasonable opportunity to obtain additional testing, and that this
violated his statutory rights under state statute. Petitioner's argument
regarding the constitutionality of the state statute was centered on his claims
that the statute was void for vagueness, and that it was arbitrary and
capricious for the state to use breath alcohol test results to indicate blood
alcohol content.
In his petition for review to the Kansas Supreme Court, petitioner argued that
he was denied the opportunity for independent testing, and that this raised the
issue of whether a foundation existed for admitting the test results. The
constitutionality argument petitioner presented to that court was that there
was no legal or scientific basis for the state legislature determining that
0.10% breath alcohol constitutes impairment.
In his traverse in the present action, petitioner essentially argues that a
federal due process claim under the fourteenth amendment is inherent to the
issues he presented to the Kansas appellate courts, and therefore, petitioner
is entitled to present his federal claims in the present action. This court
does not agree.
There is nothing in petitioner's state appellate briefs, nor in the state
appellate decisions, to indicate that those courts ever considered whether petitioner's
conviction involved a violation of petitioner's federal rights to due process.
Thus, the court finds that petitioner has not exhausted state court remedies on
all claims presented in his petition for habeas corpus relief. Because the
petition contains a mixture of exhausted and unexhausted claims, dismissal of
the petition without prejudice is appropriate. Rose v. Lundy, 455 U.S.
509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
IT IS ORDERED that the petition is dismissed without prejudice.
D.Kan.,1992.
Davenport v. Seventh Judicial Dist.