Barry L. Wesley v. State of Kansas State of Colorado Mike Hill, Sheriff Sedgwick County, Kansas, 974 F.2d 1346, 10th Cir. (1992)

974 F.
2d 1346
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Barry L. WESLEY, Petitioner-Appellant,

v.
STATE OF KANSAS; State of Colorado; Mike Hill, Sheriff
Sedgwick County, Kansas, Respondents-Appellees.
No. 92-1053.
United States Court of Appeals, Tenth Circuit.

Aug. 19, 1992.
Before LOGAN, BARRETT and EBEL, Circuit Judges.

ORDER AND JUDGMENT*
BARRETT, Circuit Judge.
After examining the briefs and the 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); Tenth Cir.R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Barry L. Wesley (Wesley), appearing pro se, appeals form the district court's
order denying his Motion for Reconsideration of the court's dismissal of his 28
U.S.C. 2254 habeas corpus petition. On appeal, Wesley argues that the State
of Kansas and the State of Colorado both violated "the agreement of the
U.C.E.A."
Wesley was extradited from the State of Colorado to Sedgwick County, State of
Kansas, for some sort of a probation violation. In Wesley's "Statement of
Facts," Vol. I, Tab 3, pp. 1-2, he alleged that the extradition was illegal
because, inter alia, he was never served copies of the Governor's warrant, he
was denied the right to contest the contents of the Governor's warrant, and he
was not properly represented or advised by legal counsel. Predicated thereon,
Wesley alleged that there was no legal authority to order his return to the State
of Kansas.
4
The matter was referred to the Magistrate Judge who issued his
Recommendations, finding that in light of Wesley's initial petition and his
response to an order to show cause, there were no facts clearly setting forth
Wesley's claims. The judge could not discern whether Wesley's claims were
against the State of Colorado, the State of Kansas, or both states. Finally, the
magistrate judge concluded that "what is clear is that, no matter what state
allegedly violated Petitioner's rights, Petitioner has failed to exhaust his state
court remedies." Id., Tab 10, p. 2. The court cited to 28 U.S.C. 2254(b) and
(c); Rose v. Lundy, 455 U.S. 509, 515 (1982); and Picard v. Connor 404 U.S.
270, 275-76 (1971). Id. Petitioner filed vague, uncertain objections thereto.
The district court entered an Order dismissing Wesley's Petition,

finding/concluding that "This Court cannot construe Petitioner's vague and
conclusory allegations to constitute violations of constitutionally protected
rights. It may also be improper, depending on the nature of his unspecified
claims in the Petition, for this action to be in the United States District Court
for the District of Colorado." Id., Tab 15, p. 2.
We AFFIRM substantially for the reasons set forth in the District Court's Order
of February 5, 1992, a copy of which is attached hereto.
AFFIRMED.
ATTACHMENT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel B. Sparr
Civil Action No. 91-S-1946
8Barry L. Wesley, Petitioner,
9v.
State
10 of Kansas, et al., Respondents.
Feb. 5, 1992.
11
ORDER
12
THIS MATTER comes before the Court on a petition for writ of habeas corpus
pursuant to 28 U.S.C. 2241 filed by Petitioner Barry Wesley. Pursuant to Rule
605 of the Local Rules of Practice of the United States District Court for the
District of Colorado, this matter was referred to Magistrate Judge Borchers.
Magistrate Judge Borchers filed a Recommendation of United States Magistrate
on December 9, 1991. The Court is required to make a de novo determination
of those portions of the Magistrate's proposed findings or recommendations to
which objection is made. 28 U.S.C. 636(b)(1).
13
Petitioner filed his petition pursuant to 2241, attacking a state detainer. In

answering the questions relevant to state detainers on the form petition,
Petitioner failed to specify the location of the court which issued the detainer,
but this appears to concern a county and county officers of Sedgwick County,
Colorado.
14
At the present time, Petitioner appears to be in the custody of a Kansas state

correctional facility in Hutchinson, Kansas. It does not appear that Petitioner
has complied with the Interstate Agreement on Detainers, at C.R.S. 24-60501, et seq. It also appears that Petitioner initially sought to "challenge" his
extradition to Kansas in the United States District Court for the District of
Kansas, but his habeas corpus petition was dismissed. Petitioner attached a
copy of the order dismissing his petition in that court to his objection to the
Recommendation filed December 12, 1991. In an order signed October 4, 1991
by the Honorable Dale E. Saffels, the habeas corpus petition was dismissed as
improper because the petitioner's quarrel is properly with Colorado, the sending
state.
15
Magistrate Judge Borchers issued an Order to Show Cause on November 12,

1991, to which the Petitioner responded on November 26, 1991. In the
response, Petitioner for the first time provides some details regarding his
extradition. Petitioner alleges that a "false warrant" was issued in Sedgwick
County, pursuant to which Petitioner was later arrested in Denver. He alleges
that the warrant violated the double jeopardy clause.
16
It appears to the Court that Petitioner was arrested for a probation violation.
Petitioner's fact description is vague and haphazard. After describing his
detention after arrest in Denver, Petitioner describes a hearing to set bond

which he alleges was based on a false warrant from the state of Kansas.
Petitioner also alleges that he was denied due process for failure to be served
with a Governor's warrant, and for failing to be adequately represented by a
Public Defender in Denver. After some further legal proceedings in the Denver
court, the Petitioner was apparently extradited to Kansas, where he claims to
have been sentenced for a probation violation. Petitioner also alleges that the
State of Kansas committed unspecified illegal acts, and that the State of
Colorado acted as its agent in the furtherance of the commission of these acts.
17
The Magistrate Judge issued his Recommendation on December, 9, 1991.

Although the Recommendation indicated it was reviewing a petition filed
pursuant to 28 U.S.C. 2254, the Court concurs with the substance of the
Recommendation. Petitioner filed three separate objections to the
Recommendation on December 12, 19, and 20, 1991, alleging essentially that
the States of Colorado and Kansas entered into a conspiracy to enslave the
Petitioner or otherwise to deprive him of civil rights.
18
As Petitioner is proceeding pro se, his complaint must be construed liberally.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Collins v. Cundy, 603 F.2d
825, 827 (10th Cir.1989). The Tenth Circuit has considered this to mean that if
the court can reasonably read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so despite the plaintiff's failure to cite
proper legal authority, his confusion of various legal theories, his poor syntax
and sentence construction, or his unfamiliarity with pleading requirements. That
court also noted that, at the same time, "we do not believe it is the proper
function of the district court to assume the role of advocate for a pro se
litigant." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). This Court
cannot construe Petitioner's vague and conclusory allegations to constitute
violations of constitutionally protected rights. It may also be improper,
depending on the nature of his unspecified claims in the Petition, for this action
to be in the United States District Court for the District of Colorado. A
complaint should not be dismissed unless, accepting plaintiff's allegation as
true, it appears beyond doubt that plaintiff can prove no set of facts to support
the claim for relief. Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989).
19
In light of the standards outlined above, this Court must DISMISS the Petition.
BY THE COURT:
Daniel B. Sparr
Daniel B. Sparr
United States District Judge
This Order and Judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3

Barry L. Wesley v. State of Kansas State of Colorado Mike Hill, Sheriff Sedgwick County, Kansas, 974 F.2d 1346, 10th Cir. (1992)

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974 F.

Barry L. WESLEY, Petitioner-Appellant,

United States Court of Appeals, Tenth Circuit.

Before LOGAN, BARRETT and EBEL, Circuit Judges.

The district court entered an Order dismissing Wesley's Petition,

Petitioner filed his petition pursuant to 2241, attacking a state detainer. In

At the present time, Petitioner appears to be in the custody of a Kansas state

Magistrate Judge Borchers issued an Order to Show Cause on November 12,

detention after arrest in Denver, Petitioner describes a hearing to set bond

The Magistrate Judge issued his Recommendation on December, 9, 1991.

As Petitioner is proceeding pro se, his complaint must be construed liberally.

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