Hughes v. Schnurr

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NOT DESIGNATED FOR PUBLICATION

No. 118,552

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH HUGHES,
Appellant,

v.

DAN SCHNURR,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed August 3, 2018.
Affirmed.

Wendie C. Miller, of Kenneth B. Miller, Atty At Law, LLC, of Wichita, for appellant.

Jon D. Graves, legal counsel, of Kansas Department of Corrections, for appellee.

Before SCHROEDER, P.J., MALONE, J., and STUTZMAN, S.J.

PER CURIAM: Joseph Hughes appeals the district court's summary dismissal of his
K.S.A. 2017 Supp. 60-1501 petition for habeas corpus relief. Hughes sought relief from
the decision of the Kansas Department of Corrections (KDOC) to manage him as a sex
offender during his imprisonment. The district court found it lacked jurisdiction to
consider Hughes' petition because it was not timely filed. We agree and affirm.

FACTS AND PROCEDURAL BACKGROUND

In March 2016, a Shawnee County jury convicted Hughes of attempted second-
degree murder, robbery, aggravated burglary, criminal damage to property, aggravated
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battery, and domestic battery. Hughes also was charged with rape but was acquitted. The
district court sentenced him to prison for a controlling term of 27 months, consecutive to
a 14-month sentence from another case.

In September 2016, KDOC gave Hughes notice of a due process hearing
concerning its plan to manage him as a sex offender based on a prosecutor's affidavit
stating that Hughes' actions were sexually motivated and that he had been charged with
rape. The affidavit acknowledged Hughes was not convicted of rape. The notice told
Hughes he would have the chance to present evidence of mitigating circumstances and
could request witnesses for the hearing.

The due process hearing was scheduled for September 30, 2016, at 10 a.m. and
Hughes received the notice of hearing on September 28 at 12:35 p.m., less than 48 hours
in advance of the scheduled hearing date and time. KDOC procedure called for notice of
hearing to be served at least 72 hours in advance of the scheduled hearing and inmates
who want to present witnesses are directed to return a witness request form at least 48
hours before the hearing. This timeframe allowed for Hughes to know 24 hours prior to
his hearing if his witness request was approved so he could make arrangements to secure
the witness' appearance, whether in person, by phone, or by written statement. Hughes
asked for his trial attorney as a witness, but the request was denied.

KDOC issued Hughes a letter decision bearing the same date as the due process
hearing, informing him that the hearing showed sexual motivation in the case in which he
had been charged with rape and he "[would] now be managed as a sex offender." The
letter further said he would be evaluated to determine whether sex offender treatment was
needed.

The decision stated "[t]his shall be the final decision and no appeal shall be
allowed." Notwithstanding that seemingly conclusive declaration, however, the decision
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further stated Hughes could "seek modification of some or all of the decision through the
override process." Hughes did avail himself of that further remedy, as the record contains
another letter from KDOC dated February 9, 2017, which acknowledged Hughes had
submitted an override request for "full relief from management as a sex offender." The
letter stated "[y]our Override request has been denied for full relief."

On August 3, 2017, almost six months after the denial of his override request,
Hughes filed a K.S.A. 2017 Supp. 60-1501 petition in the district court, asking for habeas
corpus relief. Hughes alleged unlawful restraint based on KDOC's management of him as
a sex offender under the Department's Internal Management Policies and Procedures. On
August 11, 2017, KDOC responded with a motion to dismiss Hughes' petition as
untimely.

Just over two weeks later, the district court heard from the parties on KDOC's
motion to dismiss. The district court issued an opinion and order on October 6, 2017,
dismissing Hughes' petition. The court found the petition was untimely, filed more than
30 days after Hughes received notice that his request for an override was denied, which
deprived the district court of jurisdiction.

Hughes timely appeals.

ANALYSIS

Hughes' appeal is based on his allegation that the district court erred in dismissing
his petition. He presents alternative arguments for his claim: (1) The conditions imposed
as part of his management as a sex offender recur daily and are ongoing; and (2) if the
first argument is rejected, the petition still must be considered on the merits to prevent
manifest injustice.

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Standard of review

"To avoid summary dismissal of a K.S.A. 60-1501 petition, the petitioner's
allegations must be of shocking and intolerable conduct or continuing mistreatment of a
constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009).

"Summary dismissal 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." 289 Kan. at 648-49.

In general, we review a district court's decision on a K.S.A. 60-1501 petition to
determine whether the district court's factual findings are supported by substantial
competent evidence and are sufficient to support the court's conclusions of law. The
district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan.
309, 320, 95 P.3d 994 (2004).

Ongoing conditions

A K.S.A. 60-1501 petition must be filed within 30 days from the date the action
complained of became final, but that time can be tolled during the pendency of timely
efforts to exhaust administrative remedies. K.S.A. 2017 Supp. 60-1501(b). Hughes claims
he exhausted his administrative remedies through the classification due process hearing
and his unsuccessful petition for override. There is nothing in the record or attached to
Hughes' petition showing any further administrative procedure that might toll the K.S.A.
2017 Supp. 60-1501(b) 30-day filing requirement. Since nearly six months passed
between notice to Hughes that his override request was denied and the filing of his
petition, it was, on its face, untimely.

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Hughes contends, however, that the 30-day time limitation for filing his petition
does not apply to him "because [he] challenges both the classification [as a sex offender]
and the resulting conditions of his management which are ongoing." Hughes argues that
being managed as a sex offender after being acquitted of rape amounts to a second
prosecution and a second punishment for the same offense. This court has previously
considered the theory Hughes presents.

On strongly similar facts, in Litzinger v. Bruce, 41 Kan. App. 2d 9, Syl. ¶ 5, 201
P.3d 707 (2008), this court rejected the argument that the ongoing conditions of
confinement while classified as a sex offender rendered the 30-day time limitation for
filing a K.S.A. 60-1501 petition inapplicable. Like Hughes, Litzinger was charged with
rape but was not convicted. As with Hughes, KDOC classified Litzinger for management
as a sex offender. Litzinger also sought an override of the classification decision, which
KDOC denied. Unlike Hughes, almost 18 months later Litzinger filed a grievance with
KDOC, contesting his sex offender classification. In less than a month, that grievance
was denied by KDOC at every level through the Secretary. Then, over two months after
the end of the grievance process, Litzinger filed a K.S.A. 60-1501 petition with the
district court. Litzinger's petition, like Hughes', was dismissed as untimely. 41 Kan. App.
2d at 10.

Hughes attempts to distinguish his case from Litzinger, arguing Litzinger initially
challenged only his classification and only referenced possible constitutional claims in
his petition. Hughes argues:

"The only references in Litzinger's petition to possible constitutional claims was his
reference to double jeopardy, denial of equal protection of the law, the reckless disregard
of some unspecified federal civil rights, and cruel and unusual punishment, all of which
appeared to relate to the initial decision to classify and manage Litzinger as a sex
offender."

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Hughes asserts a difference in his case, maintaining he "alleged his double jeopardy
claim, and set forth ongoing conditions which constitute the violation."

We are not persuaded the claimed distinction exists. The court in Litzinger found
the litany of possible constitutional claims raised by Litzinger in his petition—including
double jeopardy, which Hughes argues here—appeared to relate to the initial decision to
classify and manage him as a sex offender. 41 Kan. App. 2d at 13. Hughes may have
better specified the conditions of confinement he claims are punitive, but as in Litzinger
the conditions nonetheless all flow from the administrative decision to classify him as a
sex offender under the Internal Management Policies and Procedures. That decision was
made on September 30, 2016, and Hughes' administrative request for an override was
denied on February 9, 2017. Whether further administrative relief could have been
pursued, Hughes did not do so, and he waited until August 3, 2017, to file his K.S.A.
2017 Supp. 60-1501 petition.

The court in Litzinger concluded: "The gravamen of Litzinger's suit is that he was
wrongfully classified as a sex offender." 41 Kan. App. 2d at 14. We likewise conclude
that the conditions Hughes claims exempt him from the 30-day filing requirement are
simply the consequence of his essential claim—that he was misclassified as a sex
offender. The 30-day period for him to seek relief under K.S.A. 2017 Supp. 60-1501
ended months before he filed his petition, which the district judge correctly dismissed.

Manifest injustice

Hughes next argues that if the 30-day time limit in K.S.A. 2017 Supp. 60-1501(b)
applies to him, the failure to consider his petition would result in manifest injustice. He
relies on K.S.A. 2017 Supp. 60-1507(f)(2), which states: "The time limitation herein may
be extended by the court only to prevent a manifest injustice." Hughes claims error by the
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district court in failing to consider whether his petition should be heard, despite his
untimely filing, to prevent manifest injustice.

The statutes in Article 15 of Chapter 60—K.S.A. 60-1501 et seq.—govern habeas
corpus relief in this state. K.S.A. 2017 Supp. 60-1501 describes the general right to file a
petition for the writ, the time within which it must be filed, and the separate conditions
that apply to those confined in the program for sexually violent predators. K.S.A. 2017
Supp. 60-1507(a) addresses a specific category of claims made by:

"A prisoner in custody under sentence of a court of general jurisdiction claiming
the right to be released upon the ground that the sentence was imposed in violation of the
constitution or laws of the United States, or the constitution or laws of the state of
Kansas, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack."

"The distinction between K.S.A. 60-1501 and K.S.A. 60-1507 has generally been
held to be that a 1507 motion is a procedure by which a prisoner may challenge his or her
conviction or sentence, while a 1501 petition is a procedural means through which a
prisoner may challenge the mode or conditions of his or her confinement, including
administrative actions of the penal institution. A 1507 petition is properly filed in the
sentencing court, while a 1501 petition is properly filed in the county of confinement.
[Citations omitted.]" Safarik v. Bruce, 20 Kan. App. 2d 61, 66-67, 883 P.2d 1211.

Prisoners may seek habeas corpus relief by filing a petition under K.S.A. 2017
Supp. 60-1501 if they are contesting their conditions of confinement, as was the case with
Hughes. If a prisoner in custody wants to attack his or her sentence or conviction, K.S.A.
2017 Supp. 60-1507 lays out a separate procedure. Hughes devotes little attention to
explaining why the manifest injustice subsection, found within the procedures for those
attacking their sentences and convictions, should apply to his petition which clearly
contests the conditions of his confinement. Hughes only offers a reference to Griffin v.
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Bruffett, 53 Kan. App. 2d 589, 389 P.3d 992 (2017). Because Griffin was involuntarily
confined as a sexually violent predator, his petition was subject to a specific provision for
that class of petitioners, K.S.A. 2017 Supp. 60-1501(c). Hughes does not share Griffin's
status and his time to file is controlled by K.S.A. 2017 Supp. 60-1501(b).

Both K.S.A. 2017 Supp. 60-1501(b) and (c) are prefaced: "Except as provided in
K.S.A. 60-1507," pointing to the separate provisions in 60-1507 that control when a
movant files a more specific habeas corpus claim attacking either the prisoner's sentence
or conviction. But Hughes did not file his petition under 60-1507 and he makes no
collateral attack on either his conviction or sentence. The manifest injustice provision of
60-1507(f) does not apply to him. The provisions of the time limitation in 60-1507
demonstrate the inapplicability to Hughes' petition. K.S.A. 2017 Supp. 60-1507(f)(1)(A)
requires that a motion be filed within one year from the final order "of the last appellate
court in this state to exercise jurisdiction on a direct appeal." Additionally, a colorable
claim of actual innocence requires a showing it is "more likely than not that no
reasonable juror would have convicted [him] in light of new evidence." K.S.A. 2017
Supp. 60-1507(f)(2)(A). Hughes seeks to benefit from a provision that clearly was never
intended to apply to a petition making the claims he presents. Manifest injustice is not an
avenue available to cure Hughes' untimely filing.

We find no error in the district court's summary dismissal of Hughes' petition for
untimely filing. The fact Hughes filed his petition more than 30 days after his
administrative remedies ended is not seriously in issue. Hughes was not exempted from
the filing limitation because of ongoing conditions and the manifest injustice exception in
K.S.A. 2017 Supp. 60-1507(f)(2) is inapplicable to his petition.

Affirmed.