Opinion
No. 107,718.
2012-11-21
Steven Kent BLOOM, Appellant, v. Sam CLINE and Kansas Parole Board, Appellees.
Appeal from Reno District Court, Joseph L. McCarville III, Judge. Steven Kent Bloom, of Hutchinson, appellant pro se. John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court, Joseph L. McCarville III, Judge.
Steven Kent Bloom, of Hutchinson, appellant pro se. John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven Kent Bloom appeals the district court's dismissal of his K . S.A. 60–1501 petition in which he challenged the Kansas Parole Board's (now known as the Prisoner Review Board) denial of parole.
In 2000, Bloom was convicted of second-degree intentional murder after killing Deanna Porter by shooting her in the head with a shotgun. Bloom was sentenced to life in prison with the possibility of parole after 10 years. Bloom's conviction and sentence were affirmed by our Supreme Court in State v. Bloom, 273 Kan. 291, 44 P.3d 305 (2002).
In September 2008, the Parole Board denied parole and passed Bloom for future consideration until October 2018. Bloom responded with a document entitled “Grievance,” in which he set forth his contention that the denial of his parole should be vacated and he should be granted immediate parole.
In December 2008, before receiving any response from the Board, Bloom filed a K.S.A. 60–1501 petition in Leavenworth County, where he was incarcerated at the time, challenging the Board's action. The respondents moved to dismiss, arguing that the filing of Bloom's petition was beyond the 30–day time limit of K.S.A. 60–1501(b). The district court dismissed Bloom's petition, finding that it had not been filed within 30 days of the Board's final decision.
On appeal, a panel of this court treated Bloom's grievance document as a motion to reconsider, which tolled the 30–day deadline under K.S.A. 60–1501(b). Nevertheless, the panel concluded that the district court was correct in dismissing the petition because Bloom failed to exhaust his administrative remedies and his petition was, therefore, premature. The panel remanded to the district court with directions that the district court remand the matter to the Board for action on Bloom's grievance document. 2009 WL 4931375, at *5.
Bloom filed a petition for review as to the portion of the court's decision affirming the dismissal of his K.S.A. 60–1501 petition. Our Supreme Court denied review, and the mandate was issued in May 2010. See Bloom v. McKune, No. 102,508, 2009 WL 4931375 (Kan.App.2009) (unpublished opinion), rev. denied May 18, 2010. Bloom also filed a petition for writ of certiorari with the United States Supreme Court, which was denied in January 2011.
In March 2011, the Leavenworth County District Court remanded the matter to the Board for final action. Later that month, the Board denied Bloom's motion for reconsideration and informed both Bloom and the Leavenworth County District Court. With that, the district court determined that its proceedings were now closed.
While awaiting final action from the Board, Bloom was transferred from Leavenworth County to the Hutchinson Correctional Facility in Reno County. In April 2011, Bloom filed a new K.S.A. 60–1501 petition in Reno County. He made essentially the same claims against the Board in this Reno County action that he had previously made in the Leavenworth County action.
The respondents moved to dismiss Bloom's petition based on collateral estoppel, arguing that Bloom was attempting to relitigate in Reno County issues raised in the Leavenworth County action and that Bloom's original K.S.A. 60–1501 petition was still pending in Leavenworth County. The district court agreed and dismissed the Reno County action. Blooms' appeal of that ruling is now before us.
Here, the district court's ruling was based on a jurisdictional question: whether the Reno County action could proceed in spite of the Leavenworth County action. This is an issue of law over which our review is unlimited. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006); Litzinger v. Bruce, 41 Kan.App.2d 9, 11, 201 P.3d 707 (2008).
The respondents claim that the Leavenworth County case was open and active when Bloom filed his Reno County action. They cite Cities Service Oil Co. v. State Board of Equalization, 199 Kan. 235, 428 P.2d 456 (1967), for the proposition that the law does not allow two actions of the same nature to be pending for the same demand. When the parties, facts, and relief sought are identical to the parties, facts, and relief sought in another pending action, the duplicitous action is properly dismissed. 199 Kan. at 237; see Schaefer v. Milner, 156 Kan. 768, 137 P.2d 156 (1943).
But Bloom correctly points out that a panel of this court upheld the dismissal of Bloom's K.S.A. 60–1501 petition in Leavenworth County based upon the fact that the action was prematurely filed. The panel remanded to the district court for the sole purpose of ordering the district court to remand the matter to the Board so that the Board could issue a final ruling on Bloom's motion for reconsideration. Bloom v. McKune, 2009 WL 4931375, at *4.
When Bloom desired to challenge the Board's final action after remand, his avenue for relief was a new K.S.A. 60–1501 action. See Brown v. Kansas Parole Board, 262 Kan. 903, 910–11, 943 P.2d 1240 (1997). The correct venue would be in the county where he was incarcerated, which was Reno County at the time of the Board's final action. See K.S.A. 60–1501(a). Because Bloom's Leavenworth County case had been previously dismissed, the Reno County District Court erred in dismissing his K.S.A. 60–1501 petition based upon the incorrect finding that the Leavenworth County case was still pending.
But the respondents argue further that even if the district court's ruling based upon collateral estoppel was incorrect, Bloom's petition nevertheless failed to allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Thus, they argue, the district court ultimately was right in dismissing this action.
The problem with this argument is that the district court did not reach the merits of Bloom's petition. To avoid summary dismissal of a K.S.A. 60–1501 petition, the petitioner must allege facts of “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). K.S.A. 60–1503(a) authorizes the summary dismissal of a habeas corpus petition by “a judge in the district court” if it plainly appears from the face of the petition and any exhibits attached thereto that the petitioner is not entitled to relief. Thus, the review of the merits of Bloom's claims is, in the first instance, for the district court. It would not be appropriate for us to usurp that role. See Markovich v. Green, No. 104,800, 2011 WL 768044, at *3 (Kan.App.2011) (unpublished opinion).
Finally, Bloom argues that Judge Joseph L. McCarville III, was biased or prejudiced against him and that a new judge should have been assigned to rule on his motion to amend judgment. We have no jurisdiction over this issue and, therefore, dismiss this claim.
Bloom filed a notice of appeal from Judge McCarville's order dismissing his K.S.A. 60–1501 motion in August 2011. Bloom then filed a motion and affidavit requesting the removal of Judge McCarville pursuant to K.S.A. 20–311d(b). In October 2011, Patricia Macke Dick, Chief Judge of the Reno County District Court, denied Bloom's request. Bloom has not appealed from that order.
A notice of appeal must reference the judgment which is being appealed. See K.S.A.2011 Supp. 60–2103(b); Walker v. Regehr, 41 Kan.App.2d 352, 354, 202 P.3d 712,rev. denied 289 Kan. 1286 (2009). We have no jurisdiction to consider this issue.
Dismissed in part and reversed in part and remanded.