Opinion
112,052 112,053 112,054 112,055.
06-12-2015
Terry F. WALLING, Appellant, v. David RIGGIN, et al., Appellees.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Michael J. Smith, of Kansas Department of Corrections, Whitney L. Casement, assistant attorney general, and Derek Schmidt, attorney general, for appellees.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant.
Michael J. Smith, of Kansas Department of Corrections, Whitney L. Casement, assistant attorney general, and Derek Schmidt, attorney general, for appellees.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this consolidated appeal, Terry F. Walling challenges the decision of the district court to dismiss four different petitions for writ of habeas corpus under K.S.A. 60–1501. He argues the district court erred by finding that his petition in case number 13–CV–463 was untimely, an abuse of remedy, and barred by the doctrine of res judicata. He argues that the district court erred in case number 13–CV–464 by finding that his petition failed to state a claim upon which relief can be granted. He argues the district court erred in case number 13–CV–465 by finding that his petition failed to raise a constitutional issue and by finding that it was untimely. Finally, in case number 13–CV–466, he asserts the district court incorrectly found that his claim was frivolous and meritless.
This consolidated appeal involves four cases. The relevant facts of each case are different. All four cases were originally filed in Labette County District Court but were transferred to and summarily dismissed by the Butler County District Court. To avoid confusion, the facts and analysis for each individual case are set out under the appropriate heading below.
Case number 13–CV–463
On December 20, 2013, Walling filed a petition for writ of habeas corpus under K.S.A. 60–1501. In it, he alleged that he was being wrongfully imprisoned. Specifically, he claimed that at a March 12, 2013, parole revocation hearing, the Kansas Prisoner Review Board (PRB) improperly considered two theft convictions from a previous case when it revoked his parole. He asserted he was only convicted of a single count of theft in that case and, as a result, the PRB relied on inaccurate information when it revoked his parole.
The State filed a verified answer and motion to dismiss Walling's petition. It argued that the petition should be dismissed for two reasons. First, it alleged the petition was a successive habeas action and was therefore barred by K.S.A. 60–1507(c) as well as the doctrine of res judicata. Second, it alleged the petition was filed outside of the 30–day time limit established by K.S.A. 60–1501(b). In his response to the State's motion, Walling summarily denied the State's allegations without elaboration. The district court granted the State's motion to dismiss. Specifically, the court found that it lacked jurisdiction both because the petition was filed more than 30 days after the State's final action and because the petition was a second or successive motion for similar relief.
Summary dismissal of a K.S.A. 60–1501 petition “is appropriate if, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists.”Johnson v. State, 289 Kan. 642, 648–49, 215 P.3d 575 (2009). This court reviews a summary dismissal de novo. 289 Kan. at 649.
K.S.A. 60–1501(b) establishes a statute of limitations for habeas corpus petitions. Battrick v. State, 267 Kan. 389, 394, 985 P.2d 707 (1999). The statute states:
“Except as provided in K.S.A. 60–1507, and amendments thereto, an inmate in the custody of the secretary of corrections shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the inmate's timely attempts to exhaust such inmate's administrative remedies.” K.S.A. 60–1501(b).
Walling received and signed a document titled, “Violation Hearing Action Notice” on March 27, 2013. This documentation formally notified Walling that his parole was revoked. Nevertheless, Walling did not file his 60–1501 petition based on the PRB's action until September 6, 2013, which was well outside the 30–day statute of limitations. In an attempt to justify the untimeliness of his petition, Walling argues that he was pursuing administrative remedies by writing letters on June 10, June 17, and July 10, 2013, to the PRB. These letters are not contained in the record on appeal. Rather, the only mention of them in the record is in a response from the PRB denying Walling's request for a new hearing. K.A.R. 45–200–2(b) allows an inmate to request reconsideration of a PRB decision. But even assuming these letters represented attempts to exhaust administrative remedies that could have tolled the 30–day deadline in K.S.A. 60–1501(b), Walling readily concedes the first letter he sent in pursuit of an administrative remedy was not mailed until over 2 months after the date the PRB's parole decision was received by Walling.
Walling urges this court to remand the case for a hearing on the merits because the State has failed to establish that it was prejudiced by the delay in filing his 60–1501 petition. But K.S.A. 60–1501(b) does not contain an exception for lack of prejudice. More than 30 days elapsed from the date the State's action was final before Walling filed his petition in this case, and Walling made no timely attempts to exhaust administrative remedies. Therefore, the district court properly found that Walling's petition was time-barred by K.S.A. 60–1501(b).
Because Walling's petition was clearly time-barred, it is unnecessary to consider whether K.S.A. 60–1507(c) or the doctrine of res judicata also justified dismissal of the case.
Case number 13–CV–464
While incarcerated at the Oswego Correctional Facility, Walling filed a 60–1501 petition on September 25, 2013, alleging that he had been deprived of his right to appeal a classification decision. As factual support for his allegation, Walling asserts his program agreement was amended on June 11, 2013, but he was never provided a copy of the amended agreement. He claimed this prevented him from appealing the decision affecting his classification.
The State filed an answer and motion to dismiss. It argued that Walling's petition failed to state a claim upon which relief could be granted because it did not allege a deprivation of a constitutional right. On February 26, 2014, the district court summarily dismissed Walling's petition because it found that prisoner classification is not a fundamental right protected by the constitution.
As stated above, this court reviews a summary dismissal of a 60–1501 petition de novo. Johnson, 289 Kan. at 648–49. To avoid summary dismissal of a 60–1501 petition, the inmate must assert the deprivation of some constitutionally protected interest. Hardaway v. Lamed Correctional Facility, 44 Kan.App.2d 504, 504–05, 238 P.3d 328 (2010). In determining whether summary dismissal was proper, this court must accept the inmate's alleged facts as true. Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).
Walling's petition alleged that he was denied his right to appeal the Kansas Department of Corrections' (KDOC) classification decision. This was the basis for his claim for relief under K.S.A. 60–1501. But the Kansas Supreme Court already has determined that an inmate's custody classification does not involve a liberty interest. Bankes v. Simmons, 265 Kan. 341, 351, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998). On appeal, Walling acknowledges this. Nevertheless, he asserts that the State violated his constitutional due process rights by not allowing him to participate in the process of amending his program agreement. This assertion is meritless. Walling cannot base his 60–1501 petition on the State's failure to allow him to appeal a decision regarding his classification because the decision itself did not deprive him of a constitutionally protected liberty or property interest. See Hardaway, 44 Kan.App.2d at 504–05. Therefore, the district court did not err by summarily dismissing his petition.
Case number 13–CV–465
In July 2013, Walling filed a grievance with the KDOC. In it, he alleged that on February 21, 2012, a female parole officer conducted a urinalysis test by observing and collecting the sample. On August 8, 2013, Walling's unit team manager responded to the grievance, noting that it was filed more than 1 year after the drug test and therefore was untimely under K.A.R. 44–15–101b.
Walling appealed the grievance to the warden of the El Dorado Correctional Facility. On August 23, 2013, the Warden found that no further action was necessary. On August 27, 2013, Walling filed an appeal to the secretary of corrections, asserting that he had not received the warden's response. The secretary's designee responded in a letter received by Walling on September 23, 2013, that the response by the staff at the facility to his grievance was appropriate and that no further action would be taken.
On October 3, 2013, Walling filed a 60–1501 petition relating to the drug test. First, he alleged that his constitutional rights to due process, equal protection, and to be free from cruel and unusual punishment had been violated when a female parole officer observed Walling as he provided a urine sample on February 21, 2012. Second he asserted that the parole officer had tampered with his sample, rendering it invalid. The district court dismissed the petition. It found that Walling did not properly allege a claim of constitutional stature. It also found that Walling's grievance had been filed over a year after the drug test.
Walling argues the district court erred by summarily dismissing his 60–1501 petition. Specifically, he argues that he suffered shocking and intolerable conduct of a constitutional stature during his February 21, 2012, urinalysis test. As already mentioned, this court exercises unlimited review of a summary dismissal of a 60–1501 petition. Johnson, 289 Kan. at 648–49.
Walling focuses his arguments in his brief almost entirely on the district court's finding that he failed to allege a deprivation of a constitutionally protected interest. He largely ignores the district's court's dispositive finding that his petition was not timely. According to K.S.A. 60–1501(b), Walling was required to file his 60–1501 petition within 30 days from the date the action was final. This time period may be extended during the pendency of an inmate's timely attempts to exhaust his or her administrative remedies. See K.S.A. 60–1501(b). Additionally, K.A.R. 44–15–10lb states: “Grievances shall be filed within 15 days from the date of the discovery of the event giving rise to the grievance, excluding Saturdays, Sundays and holidays. No grievance, regardless of time of discovery, shall be filed later than one year after the event.”
Walling's February 21, 2012, drug test was the subject of his 60–1501 petition in this case. It is unclear from the record exactly when he discovered that the test was positive for cocaine, but it was apparently no later than March 2, 2012, when he was served a form stating the charges against him relating to the test results and providing notice of initiation of the parole revocation process. He did not file his grievance until July 15, 2013. Therefore, his grievance was untimely under K.A.R. 44–15–101b both because he failed to file it within 15 days of discovering the event and because he failed to file it within 1 year of the event giving rise to the grievance. Because Walling's attempts to exhaust his administrative remedies were not timely, the 30–day time limit for filing his 60–1501 petition was not tolled. See K.S.A. 60–1501(b). He filed his petition on October 3, 2013, well beyond the expiration of the 30–day deadline.
On appeal, Walling asks this court to ignore the time limitations found in K.A.R. 44–15–101b and remand the case for a hearing on the merits of his claim. But administrative regulations have the force and effect of law. See K.S.A. 77–425. And K.A.R. 44–15–101b does not contain any exceptions to the inmate filing deadlines. Walling's time to file a habeas corpus petition was not tolled, and the district court did not err when it summarily dismissed his petition. Because the petition was time-barred, this court need not address whether Walling's petition raised an allegation of constitutional stature.
Case number 13–CV–466
On August 22, 2013, Walling received a disciplinary report. It alleged that on the previous day, Walling violated K.A.R. 44–12–211 by handing another inmate the telephone during a conversation and allowing that inmate to carry on the telephone conversation. This violation was a Class I offense. A disciplinary hearing was held on August 28, 2013.
At the hearing, Walling argued that the disciplinary case should be dropped because he did not receive an inmate rule book upon arriving at the facility. He stated that he did not know the rules about telephone usage. Because Walling did not receive an inmate rule book, the hearing officer amended the charge. Instead of the original charge, he found Walling guilty of violating a published order as prohibited by K.A.R. 44–12–1002. This was a Class III offense. He sentenced Walling to a restriction of privileges for 7 days.
Walling appealed to the warden, who approved the disciplinary decision. Walling then filed a timely 60–1501 petition. Among other things, he asserted that the facility's failure to provide him with proper notice of the rules governing the facility was a violation of his due process rights. He also alleged that he did not receive a timely response to his appeal to the warden, which in turn denied him timely access to the courts. Later, Walling filed an amended petition that appears to have been intended to supplement rather than replace his original petition. In this amended petition, he acknowledged the receipt of the disposition of his appeal but asserted that it was insufficient.
The district court dismissed Walling's petition. The court found the claim alleging that he was denied timely access to the court was patently spurious and false. The court also found that the claim alleging that he was denied access to administrative and prison regulations was false and contrary to documents in the district court's file. The court concluded its order by finding the action was frivolous and meritless.
As with the previous cases discussed above, this court's review of the district court's summary dismissal of Walling's petition is de novo. Johnson, 289 Kan. at 648–49.
On appeal, Walling argues only that the evidence presented at his disciplinary hearing was insufficient to find that he had violated a rule or regulation. But he does not address a critical threshold issue. As established above, to survive summary dismissal of his petition and be entitled to court review of his alleged denial of due process, a 60–1501 petition must allege the deprivation of a constitutionally protected interest. Hardaway, 44 Kan.App.2d at 504–05. Walling's petition did not do so.
Walling was sentenced to 7 days of restricted privileges as a result of his disciplinary hearing. “A protected liberty interest may arise when prison authorities impose a restraint on a prisoner's already quite-limited freedom, and the restraint is atypical and a significant hardship on the inmate in relation to the ordinary incidents of prison life.” Schuyler v. Roberts, 285 Kan. 677, 682, 175 P.3d 259 (2008). This court, however, has held—as a matter of law—that 30 days' loss of privileges did not constitute an atypical or significant hardship for the purposes of due process analysis. Ramirez v. State, 23 Kan.App.2d 445, 447, 931 P.2d 1265, rev. denied 262 Kan. 962 (1997). Given that Walling only lost 7 days of privileges, his claim under K.S.A. 60–1501 similarly fails to invoke a protected liberty interest.
Walling also claims that good-time credits were taken from him. In contrast to a loss of privileges, a sanction that removes good-time credits already earned does implicate a constitutionally protected liberty interest. Hardaway, 44 Kan.App.2d at 505. We note, however, that this claim does not appear in Walling's petition for habeas corpus. Rather, Walling vaguely claimed that “good time credits have been taken from the Petitioner” in his response to the State's motion to dismiss. In order to properly state a claim for relief under K.S.A. 60–1501, a petition must allege “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” See Johnson, 289 Kan. at 648. Because we find Walling's petition fails to allege a deprivation of good-time credits, we decline to address this particular claim for relief.
But even assuming the petition had alleged a deprivation of earned good-time credits, the district court still properly dismissed it. As already noted above: “[I]f, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists,” then summary dismissal is proper. Johnson, 289 Kan. at 648–49. This court must take Walling's allegations as true when determining whether summary dismissal was proper. See Hogue, 279 Kan. at 850. But the holding in Johnson makes clear that we also need not ignore uncontroverted evidence.
To that end, Walling failed to provide any documentation showing that the State had taken away good-time credits as a result of his disciplinary infraction. On the other hand, he did file with the district court a document titled “Disposition and Hearing Record” showing that the only sentence imposed as the result of his disciplinary hearing was a 7–day loss of privileges. In fact, a Class III offense does not subject the inmate to a loss of good-time credits. K.A.R. 44–12–1303. Based on these uncontroverted facts, we find no merit to Walling's claim the he lost good-time credits as a result of his disciplinary action and thus the district court did not err when it summarily dismissed his petition.
Affirmed.