Opinion
Case No. 01-3189-DES.
June 8, 2001
MEMORANDUM AND ORDER and REPORT AND RECOMMENDATION. Motion for appointment of counsel.
Petitioner seeks appointment of counsel asserting complexity of the issues presented and his limited knowledge of the law. Petitioner has no absolute right to counsel and the decision whether to appoint counsel in a habeas corpus proceeding lies within the sound discretion of the court. Swazo v. Wyoming Dep't of Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). Because the issues presented in this action are simple and do not warrant an evidentiary hearing, petitioner's motion for appointment of counsel is denied.
IT IS THEREFORE ORDERED that petitioner's motion for appointment of counsel (Doc. 2) is DENIED.
II. Report and Recommendation for Dismissal.
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Ellsworth Correctional Facility, proceeds pro se.
Rule 4 of the rules governing § 2254 cases provides for dismissal of a petition "[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the petitioner is not entitled to relief . . . ." See 28 U.S.C. § 2254, Rule 4; see also Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (recognizing appropriateness of summary dismissal when a petitioner's claim is "readily susceptible to resolution without resort to the transcript."). A claim presenting only a question of state law is not appropriate for habeas review. Cummings v. Evans, 161 F.3d 610, 618 (10th Cir. 1998).
In this action, petitioner claims his constitutional right to due process under the Fourteenth Amendment was violated by the sentencing court's failure to credit him with 170 days he spent in jail preceding sentencing in Case No. 00CR0129. The petition and supporting documents filed by petitioner demonstrate the following:
1. On April 2, 2000, petitioner was arrested on a warrant in Case No. 99CR855.
2. On April 21, 2000, his probation was revoked in Case No. 99CR855.
3. On April 22, 2000, petitioner was arrested in Case No. 00CR1029 and ultimately convicted of aggravated escape from custody.
4. Petitioner claims he was held on both matters for 170 days — from April 22, 2000, the date of his second arrest, until October 12, 2000, the day he was sentenced on the charge of aggravated escape in Case No. 00CR1029.
5. The 170 days was credited as time served for his sentence in Case No. 99CR855. 6. Petitioner filed a motion for correction of sentence in Case No. 00CR1029 seeking credit for the time he was held on both charges. The District Court of Sedgwick County denied the motion:
Because Case No. 00CR1029 is consecutive to 99CR855, credit for time served while held on both matters must first be applied to Case No. 99CR855 and may not be credited toward both matters.
The Kansas Court of Appeals denied relief and the Kansas Supreme Court denied review.
Although couched in constitutional terms, petitioner's claim is that the state court erroneously construed Kansas statutes when sentencing petitioner in Case No. 00CR1029. More specifically, petitioner argues "the provisions of K.S.A. 21-4614 and K.S.A. 1983 Supp. 21-4608(6) are mandatory . . . and [require] that defendants receive credit for all time spent in custody on the charges for which they are sentenced." (Doc. 1 at p. 6).
K.S.A. 21-4614 does provide for a sentencing credit for "time which the defendant has spent incarcerated pending the disposition of the defendant's case." Thus, petitioner argues the sentencing court in Case No. 00CR1029 erred in failing to grant him jail time credit for the 170 days spent in custody pending sentencing in that case.
Petitioner directs this court to several Kansas cases and requests this court to interpret state statutes in light of Kansas law. This is beyond the scope of habeas review. See Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (noting issues concerning state law interpretation are not reviewable under § 2254).
Petitioner's argument ignores Campbell v. State, 223 Kan. 528, 530-31 (1978), which held that credit was due only for those days "spent in jail solely on account of the pending charge . . . ." (emphasis added).
Petitioner's second ground for relief asserts that the Kansas Supreme Court erred when it refused to hear his petition for review. The decision to grant review of a state appellate court decision is purely a matter of state law.
Because the petition seeks to correct alleged errors of state law which do not implicate the United States constitution, the claims are not appropriate for habeas review.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed and all relief denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to timely file objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985) and Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner. A copy of both this Report and Recommendation and the Petition shall also be mailed to the office of the Attorney General for the State of Kansas.
The filing of this report and recommendation terminates the referral of this case to the undersigned.
Dated this ___ day of June, 2001, at Topeka, Kansas.
______________________________ CATHERINE A. WALTER U.S. Magistrate Judge