Opinion
Case No. 99-3159-DES.
June 8, 2001
REPORT AND RECOMMENDATION
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 asserts he was entitled to be discharged from his sentence within one year of his conditional release. Petitioner claims the failure to consider him for discharge within one year of his release, as required by the administrative regulations in effect at the time of his conviction, denied him due process and constituted an ex post facto violation.
PROCEDURAL HISTORY Petitioner was convicted April 13, 1981. He was initially sentenced as a habitual offender with a ten to forty year sentence. Petitioner challenged this sentence within his first motion for postconviction relief, and the Kansas Court of Appeals remanded for resentencing. On January 14, 1992, petitioner was sentenced to a five to twenty year term. Petitioner was then conditionally released as he had already served more than ten years and nine months on his five to twenty year sentence. Petitioner claims that had the parole board correctly applied K.A.R. 45-11-1(c) (1981 Supp.), he would have been discharged from his 1981 sentence prior to the time he was convicted of a new crime.
The Kansas Court of Appeals rejected this argument by its memorandum opinion filed May 1, 1998. Brown v. State, No. 78,754 (Kan.Ct.App. May 1, 1998). The administrative regulations in effect at the time of petitioner's conviction provided that inmates would be considered for discharge after one year on conditional release if no adverse reports were received during that year. K.A.R. 45-11-1(c) (1981 Supp.). The court concluded that the 1986 amendment to the regulation, which deleted the one-year time limit, was a procedural change and would be applied retrospectively. The court also noted that the 1981 regulations did not guarantee discharge within one year. Rather, discharge was at the discretion of the Kansas Parole Board.
On the date the time for filing a petition for review expired, i.e., June 1, 1998, petitioner's court appointed attorney advised petitioner that, finding no issue warranting review by the Kansas Supreme Court, a petition for review with the Kansas Supreme Court would not be filed.
Noting petitioner's failure to file a timely petition for review with the Kansas Supreme Court, Judge Saffels directed petitioner to show cause why this petition should not be dismissed based upon petitioner's procedural default (Doc. 3).
Petitioner's response to the show cause order (Doc. 4) indicated that while he directed his court appointed attorney to request review by the Kansas Supreme Court, he was not advised the petition would not be filed until June 1, 1998. As a result, petitioner's only option was to file a motion to extend the time to file a petition for review, which was denied.
Procedural Default Analysis
The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default, however, does not bar consideration of a federal claim on habeas review unless the state procedural rule is both independent and adequate. The state procedural rule is independent if the last state court that rendered a judgment in the case clearly and expressly stated that its decision rested upon a state procedural bar. Church v. Sullivan, 942 F.2d 1501, 1506 (10th Cir. 1991) (relying upon Harris v. Reed, 489 U.S. 255 (1989)). The state procedural bar is adequate if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
The Kansas Supreme Court's refusal to entertain petitioner's claims because he did not file a timely petition for review is an independent and adequate state ground. See Ballenger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993).
Cause and Prejudice: As indicated above, petitioner claims his attorney caused the procedural default by failing to timely notify him that a petition for review would not be filed. Because there is no constitutional right to counsel in postconviction proceedings, attorney error resulting in a procedural default of a petitioner's appeal in a state habeas proceeding "cannot constitute cause to excuse the default in federal habeas." Coleman v. Thompson, 501 U.S. 722, 756 (1991); see also Golston v. Att'y Gen. State of Ala., 947 F.2d 908, 909 (11th Cir. 1991).
The Coleman opinion reasoned that a court does not focus on the gravity of the attorney's error in determining if it satisfies the "cause" prong of the cause and prejudice exception, but whether the error violates the petitioner's constitutional right to counsel so as to render the error an external factor to be imputed to the state. Coleman, 501 U.S. at 754.
While true that petitioner's postconviction counsel was appointed by the court, the appointment was not constitutionally required. An indigent defendant should be afforded no greater protection from attorney error than a defendant who is financially able to retain counsel.
Petitioner may also be claiming that the law, as announced by the Kansas Supreme Court in Stansbury v. Hannigan, 265 Kan. 404 (1998), establishes "cause" for his attorney's failure to file a timely petition for review. Stansbury found that an adverse change in the manner in which good time credit was applied to determine a prisoner's parole eligibility date and conditional release date constituted an ex post facto application. The court in Stansbury simply applied existing ex post facto law to the facts of that case. Stansbury did not articulate a previously unrecognized constitutional principle. As such, there was no "change in law" so as to excuse petitioner's procedural default. Cf. Ruff v. Armontrout, 77 F.3d 265 (8th Cir. 1996) (holding novel legal theory constitutes cause to excuse a procedural default only where the theory is "so novel that its legal basis is not reasonably available to counsel") (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)).
Miscarriage of Justice: The miscarriage of justice exception applies only if petitioner makes a threshold showing of actual innocence, that is, by showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Petitioner's simple statement that he maintains his innocence (Doc. 1, insert following page 6) fails to satisfy the "miscarriage of justice" exception.
Finding no support for either the "cause and prejudice" or "miscarriage of justice" exceptions to the state procedural bar, petitioner's claims are not subject to review by this court.
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 file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); 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 and counsel of record.