Opinion
No. 108,941.
2013-06-7
Michael AGEE–BEY, Appellant, v. KANSAS PRISONER REVIEW BOARD, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. Whitney L. Casement, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. Whitney L. Casement, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, SJ.
MEMORANDUM OPINION
PER CURIAM.
The district court dismissed Michael Agee–Bey's petition for a writ of habeas corpus because it was not filed within 30 days from the final decision of the Kansas Parole Board (Board), now the Kansas Prisoner Review Board, revoking Agee–Bey's parole. Agee–Bey contends the doctrine of unique circumstances should save his petition from a jurisdictional death. We do not agree.
Agee–Bey was detained on August 20, 2010, on allegations of assault that occurred on June 20, 2010, and March 5, 2011, while he was a parolee. His parole was revoked on April 6, 2011, citing the March 5 incident. Agee–Bey received and signed a copy of a Final Action Notice detailing the revocation of his parole on April 19, 2011.
On May 16, 2011, Agee–Bey wrote to the Board requesting reconsideration of his parole revocation. He contended there was new information affecting the credibility of the statements made by the victim of the March 5 incident. On June 20, 2011, the Board denied his request and informed Agee–Bey to discuss his concerns with the Prisoner Review Board at his next scheduled hearing.
Agee–Bey again requested reconsideration on July 4, 2011, relying on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), to support his argument that he was entitled to due process before his parole could be violated. Agee–Bey also sent a request for a rehearing dated July 17, 2011, alleging bias in the hearing process, alleging a violation of his due process rights to confront or cross-examine witnesses, and challenging the sufficiency or the credibility of the evidence against him.
The Board responded on August 10, 2011, denying Agee–Bey's request for a rehearing because he elected to waive his right to cross-examine witnesses or present evidence as stated in the Final Violation Hearing Testimony Request/Waiver Form.
On October 12, 2011, Agee–Bey filed his petition for a writ of habeas corpus. Agee–Bey stated that his probation revocation was the result of a preliminary hearing that violated due process because the hearing officers, who had previously served in various capacities as his parole officers, were not impartial. Agee–Bey also argued that he was “misled” into waiving his rights to a final revocation hearing.
The Board moved to dismiss on January 20, 2012, arguing that Agee–Bey's petition was untimely. On February 7, 2012, the district court took the Board's motion—under advisement. Subsequently, on May 9, 2012, the district court dismissed Agee–Bey's petition, concluding that his petition was not filed within 30 days from the date the Board's action was final. In its order of dismissal, the district court explained:
“[Agee–Bey] asserts absolutely no facts that he was misled by the Parole Board in any way other than his assertion that the Parole Board did not advise him of his right to appeal after the denial of his parole. Even under the most generous of standards as applied to [Agee–Bey], the last action of the Parole Board was August 20, 2011, when the Parole Board sent a letter denying [Agee–Bey's] request for reconsideration a second time. Applying the three day rule of K.S.A. 60–206(d) for mailing, [Agee–Bey] had notice no later than August 24, 2011. [Agee–Bey] filed this Action on October 12, 2011. Applying the prison mailbox rule, [Agee–Bey's] petition was filed no earlier than October 10, 2011. Therefore, at a minimum, [Agee–Bey] waited at least forty-eight days to file this action. The forty-eight days does not even consider the [Board's] argument that the petition was filed more than three months late because [Agee–Bey] would only be entitled to have the time tolled during these periods after he had sent his multiple requests and before the Parole Board responded.”
On appeal, Agee–Bey does not dispute the district court's conclusion that his petition was not filed within 30 days from the date the Board's action was final. His contention is that the district court erred in failing to apply the doctrine of unique circumstances. Accordingly, we conclude our standard of review is unlimited. Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 113, 260 P.3d 387 (2011).
Before considering the issue raised by Agee–Bey, we must address the State's legal argument that under City of Park City, the doctrine of unique circumstances may not be asserted to avoid the 30–day jurisdictional requirement of K.S.A. 60–1501(b). However, the Kansas Supreme Court noted that the legislative limitation of a 30–day deadline is only constitutional when it “does not potentially infringe on another constitutional or statutory right.” 293 Kan. at 119. In this K.S.A. 60–1501 proceeding, Agee–Bey has asserted a denial of constitutional rights that, in our opinion, are sufficient allegations to distinguish this appeal from the City of Park City litigation concerning annexation issues. Consequently, we will assume jurisdiction to consider whether the doctrine of unique circumstances applies.
The doctrine of unique circumstances is similar to estoppel: “where an administrative agency misleads a litigant as to the deadline to seek reconsideration, which is a prerequisite to further appeal, the litigant should not be deprived of his or her rights if he or she acts within the erroneously stated period.” McMillan v. McKune, 35 Kan.App.2d 654, 661, 135 P.3d 1258 (2006).
In McMillan, the petitioner repeatedly appealed adverse determinations of the Kansas Department of Corrections, the Kansas Parole Board, and the Warden of the Lansing Correctional Facility, informing McMillan that he was being classified and managed as a sex offender. McMillan was told to “talk to [his] counselor,” and “write the Parole Board” if he was not satisfied with the adverse determinations. 35 Kan.App.2d at 661. McMillan filed another request for review on November 22, 2004, to which the Warden replied on December 2, 2004, stating that “ ‘there is no further appeal to this decision.” ’ 35 Kan.App.2d at 657. On December 22, 2004, McMillan filed a petition under K.S.A. 60–1501. On appeal, a panel of this court found that McMillan's repeated inquiries and requests for review were attempts to seek administrative remedy, thus tolling the deadline for McMillan to file his petition. 35 Kan.App.2d at 659–60. The panel also extended the doctrine of unique circumstances to protect McMillan's actions “within the erroneously stated” procedures described by the Warden in his responses. 35 Kan.App.2d at 661.
Here, even if we were to assume tolling should be applied as a result of the extensive administrative proceedings, Agee–Bey acknowledges that his habeas petition was filed outside the 30–day window. The controlling legal issue is whether under McMillan the doctrine of unique circumstances should be applied because the Board did not inform Agee–Bey as to his right to appeal within 30 days pursuant to K.S.A. 60–1501.
Agee–Bey suggests that in McMillan, the petitioner filed his K.S.A. 60–1501 petition outside the 30–day window, but he is mistaken. See 35 Kan.App.2d at 659 (petition filed was “within the required 30 days”). Thus, McMillan does not stand for the proposition that the doctrine of unique circumstances applies if the Board does not inform an inmate of the 30–day window to file a petition for habeas corpus. McMillan holds that the unique circumstances doctrine provides that “a party ought not be denied an opportunity to appeal because of his or her failure to file a timely appeal when that failure resulted from reliance on action taken by the lower tribunal that generated a reasonable belief that an appeal could be initiated at a later date.” 35 Kan.App.2d 654, Syl. ¶ 5.
Thus we are left without legal authority or legal reasoning persuasively demonstrating why the doctrine of unique circumstances should be extended and applied where Agee–Bey's failure to timely file his petition was not influenced by any action taken by the Board or prison officials. We conclude Agee–Bey violated the 30–day deadline in K.S.A. 60–1501(b), and the doctrine of unique circumstances is not applicable to save his untimely appeal. Accordingly, the district court did not err in dismissing Agee–Bey's petition as untimely.
Affirmed.