govinfo:USCOURTS-ksd-5_19-cv-03088-3

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF KANSAS 
 
 
PIDY T. TIGER, 
 
 Petitioner, 
 
v. CASE NO. 19-3088-SAC 
 
SAM CLINE, 
 
 
 Respondent. 
 
 
MEMORANDUM AND ORDER 
 
This matter comes before the Court on Petitioner’s response 
(Doc. 8) to the Court’s July 29, 2021 Memorandum and Order (“MO”). 
For the reasons explained below, the Court will hold this matter in 
abeyance while Petitioner exhausts available state-court remedies. 
Background 
On May 8, 2019, Petitioner filed in this Court a petition for 
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) After 
conducting an initial review of the Petition under Rule 4 of the 
Rules Governing Section 2254 Cases in the United States Courts, the 
Court identified several deficiencies and directed Petitioner to 
show cause why the Court should not dismiss some of his asserted 
grounds for relief.(Doc. 3.) In his response, Petitioner added a 
new ground for relief, arguing for the first tim e that his 
convictions and sentence are illegal under McGirt v. Oklahoma, 140 
S. Ct. 2452 (2020). (Doc. 4, p. 4 -6.) That ground for relief is 
hereinafter referred to as the McGirt claim. 
On July 9, 2021, the Court issued a second Memorandum and Order 
(MO) dismissing several asserted grounds for relief and allow ing 

Petitioner the opportunity to file an amended petition that 
presented only the four surviving claims from the initial petition 
and the McGirt claim. (Doc. 5.) Noting that it appeared Petitioner 
had not exhausted his state court remedies with respect to the 
McGirt claim nor did he appear to be procedurally barred from doing 
so, the Court also directed Petitioner, in his amended petition, to 
further address the exhaustion of the McGirt claim. Id. at 7. 
On July 23, 2021, Petitioner filed his amended petition, in 
which he included additional information about exhaustion of the 
McGirt claim. (Doc. 6.) The Court reviewed the amended petition and 
concluded that Petitioner had not met his burd en to show he has 
exhausted available state remedies on the McGirt claim. Thus, on 
July 29, 2021, the Court issued a third MO, seeking additional 
information related to exhaustion of the McGirt claim. (Doc. 7.) 
Specifically, the Court directed Petitioner to inform the Court 
whether the McGirt claim is included in any action currently pending 
in a state court. 
Petitioner filed his response to the MO on August 13, 2021. 
(Doc. 8.) Therein, he has provided additional information about the 
ongoing state -court proceedings, which include a petition for 
mandamus before the Kansas Supreme Court in case number 124,192, 
and an appeal from the denial of a motion to correct illegal 
sentence before the Kansas Court of Appeals in case number 124,184.1 
The mandamus action and the appeal both raise the McGirt claim. 
(See Doc. 8, p. 2-3.) 
In his response to the most recent MO, Petitioner argues that 
 
1 The Kansas Appellate Courts’ online records reflect that this case is 
currently remanded to the district court for appointment of counsel. 

the exhaustion requirement does not apply to claims that a state 
court lacked subject matter jurisdiction. Id. at 3-4. The Court 
disagrees. See Blanket v. Watkins, 44 F. App’x 350, 351 (10th Cir. 
2002) (unpublished opinion) (“[Petitioner’s] proffered reason for 
not exhausting—that the State . . . lacks jurisdiction over these 
claims—lacks merit.”); Waddell v. Crow, 2021 WL 2932742, *1 (W.D. 
Okla. July 12, 2021) (un published order) (rejecting claim that 
“Petitioner . . . did not have to exhaust his state court remedies 
because Oklahoma lacks subject matter jurisdiction under the 
Supreme Court’s recent decision in McGirt”). 
Petitioner also argues that even if exhaust ion is required, 
the Court should consider his McGirt claim regardless because the 
state court clearly abused its discretion. (Doc. 8, p. 4 -5.) In 
support, he cites Magnan v. Trammell , 719 F.3d 1159 (10th Cir. 
2013), and Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017). Those 
cases are unpersuasive and materially distinguishable because in 
both Magnan and Murphy, the petitioners exhausted their claims in 
state court. See Murphy, 875 F.3d at 910; Magnan, 875 F.3d at 1162. 
In addition, “[t]he exhaustion require ment is not one to be 
overlooked lightly” and instead should be “‘strictly enforced.’” 
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995.) 
Finally, Petitioner asks that if exhaustion is required and 
the Court declines to overlook the failure to exh aust, the Court 
hold the current petition in abeyance while he exhausts his state-
court remedies. (Doc. 8, p. 5-6.) 
 
“A district court confronted with a mixed petition [including 
both exhausted and unexhausted claims] may either ‘(1) dismiss 
the entire petition without prejudice in order to permit 
exhaustion of state remedies, or (2) deny the entire petition 
on the merits.’ The court may also permit the petitioner to 

delete the unexhausted claim from his petition and p roceed 
only on the exhausted claims, or, if the equities favor such 
an approach, it may stay the federal habeas petition and hold 
it in abeyance while the petitioner returns to state court to 
exhaust the previously unexhausted claims.” Wood v. McCollum, 
833 F.3d 1272, 1273 (10th Cir. 2016). 
 
The Court has carefully considered all the information before 
it and concludes that equities favor holding the petition in 
abeyance until the conclusion of the relevant state-court 
proceedings. Petitioner shall promptly notify the Court, in 
writing, upon the conclusion of the mandamus action proceeding under 
case number 124,192 and upon the conclusion of the appeal currently 
proceeding in the KCOA under case number 124,184. When both matters 
are concluded and Petitioner has exhausted his state-court remedies 
with respect to his McGirt claim, the Court will lift the order of 
abeyance and this habeas action will proceed. 
 
IT IS THEREFORE ORDERED that this matter is held in abeyance 
and stayed pending Petitioner’s exhaustion of available state-court 
remedies. 
IT IS FURTHER ORDERED that Petitioner shall notify the Court, 
in writing, at the conclusion of the state -court proceedings as 
directed. 
 
 IT IS SO ORDERED. 
 DATED: This 29th day of September, 2021, at Topeka, Kansas. 
 
 S/ Sam A. Crow 
 SAM A. CROW 
U.S. Senior District Judge 

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