Opinion
No. 110,763.
2015-01-8
Steven BLOOM, Appellant, v. Sam A. CLINE, et aL., Appellees.
Appeal from Labette District Court; Jeffry L. Jack, Judge.Steven K. Bloom, appellant pro se.John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Appeal from Labette District Court; Jeffry L. Jack, Judge.
Steven K. Bloom, appellant pro se. John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Steven Bloom appeals the denial of his K.S.A. 60–1501 habeas corpus petition in which he argued that the Parole Board violated his constitutional rights when it passed on him for parole for 10 years. He also protests the denial of motions that he filed in the district court—motions to sanction opposing counsel, to disqualify the judge, and to apply a regulation to the court's determination of his petition. But the district court correctly dismissed Bloom's petition because it didn't allege continuing constitutional mistreatment. Bloom's motions were likewise correctly denied: (1) even if it is unclear whether opposing counsel violated any rule that provides for sanctions, the district court did not abuse its discretion by declining to impose them; (2) the district judge didn't show any impermissible bias requiring his disqualification; and (3) the regulation Bloom wanted the court to apply didn't impact his parole eligibility. We therefore affirm the district court's judgment.
Factual and Procedural Background
Steven Bloom was convicted in 2000 of the intentional second-degree murder of his former girlfriend, whom he shot in the head with a shotgun in October 1998. State v. Bloom, 273 Kan. 291, 298, 44 P.3d 305 (2002). The court sentenced him to life in prison and told him he would be eligible for parole after 10 years. He appealed, and the Kansas Supreme Court affirmed his conviction in 2002. 273 Kan. at 313.
In September 2008, the Parole Board considered Bloom for parole and decided to pass on releasing him until 2018. In its “Action Notice” denying Bloom parole, the Board highlighted the serious nature and circumstances of his crime, his crime's violent nature, and the community's current inability to meet Bloom's need for stability if he were to be released:
“Inmate has been sentenced for a Class A or B felony or an off-grid felony and the Board makes a special finding that a subsequent parole hearing should be deferred for (10) years because it is not reasonable to expect that parole would be granted at a hearing if held before then for the following reasons: the premeditated and heinous nature of the offense; inmate has not served a sufficient amount of time in relation to the offense committed; the inmate's current needs are unstable and community resources cannot provide sufficient support to meet those needs and to provide for public safety; the inmate's crime resulted in lasting impact on the victim's family; the inmate's inability to function in a less structured environment; the inmate's past history of violent, aggressive, and threatening behaviors.”
Bloom responded to this denial by sending a grievance letter to the Board, arguing it had denied him his Fourteenth Amendment due-process rights and had denied him parole because he had filed other lawsuits against the Board.
Bloom, incarcerated at that time in Leavenworth County, filed a habeas petition in November 2008. The trial court dismissed Bloom's petition as untimely, and Bloom appealed to this court. We affirmed the dismissal of Bloom's petition on new grounds and held that the district court lacked jurisdiction to consider Bloom's petition because the Board hadn't ruled on his grievance letter. We instructed the district court to remand Bloom's case to the Board for a final decision.
After the case was formally remanded to the Board in 2011, it again denied Bloom's request for parole because he hadn't submitted any new evidence to justify reconsidering his parole status. On March 29, 2011, the Board—acting through its counsel, Kimberly Lynch—informed the district court that it believed it had complied with its orders on remand.
Bloom then filed a new habeas petition in Reno County. The Board moved to dismiss his petition on the grounds that his Leavenworth County petition was still pending because the district court had not confirmed that the last parole denial had complied with the remand order. Bloom responded to the Board's motion to dismiss by filing a copy of this court's 2009 decision affirming the district court's dismissal of his Leavenworth County petition. See Bloom v. McKune, No. 102,508, 2009 WL 4931375 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1092 (2010). The district court nonetheless dismissed Bloom's petition and held that his Leavenworth County petition was still pending.
We reversed the district court's dismissal of Bloom's petition, citing to our 2009 decision as proof that Bloom didn't have two habeas petitions pending at the same time. Bloom v. Cline, No. 107,718, 2012 WL 5974031, at *2 (Kan.App.2012). This court remanded Bloom's petition to Reno County for a hearing on its merits. 2012 WL 5974031, at *2–3. Bloom's case was then transferred to the Labette County District Court for consideration on its merits because Bloom had been transferred from Hutchison Correctional Facility in Reno County to El Dorado Correctional Facility Southeast in Labette County.
The Board again moved to dismiss Bloom's petition—this time on the merits. It argued that Bloom had failed to allege that the denial of his parole resulted in “shocking or intolerable conduct” or continuing constitutional mistreatment that would entitle him to relief under K.S.A. 60–1501, the habeas corpus statute under which he was seeking relief. The Board also contended that Bloom hadn't proved that its decision to deny him parole was arbitrary or capricious.
While the Board's motion to dismiss was pending, Bloom filed a motion to sanction Lynch for the motion to dismiss that she had filed in 2011 alleging that his Reno County petition should be dismissed because he had a petition pending in Leavenworth County. He argued that when she had told the court that the Board had procedurally complied with its remand instructions, she knew that his Leavenworth County petition had been completely resolved. Therefore, Bloom argued that when she had moved to dismiss his Reno County petition, she had falsely stated that his Leavenworth County petition was pending and, as a result, had caused him to litigate a frivolous appeal to this court. Bloom also reported Lynch to the disciplinary board, but it declined to take any action against her. Bloom also moved the Labette County District Court to apply a regulation—K.A.R. 44–6–107(a)(2)—to the determination of whether the Board erred by not paroling him.
But in June 2013, the district court dismissed Bloom's petition on the merits, finding that he hadn't alleged shocking or intolerable conduct that would allow him to prevail on his habeas petition. It also denied his motion to sanction Lynch and his motion to apply the regulation to determine whether the Board erred by denying him parole.
Bloom also moved to have Judge Jack, the judge deciding his case, disqualified. There is no evidence on the record that this motion was ever formally ruled on, but Judge Jack remained on the case, effectively denying the motion: While the disqualification motion was pending, Bloom moved for a new trial, and Judge Jack denied that motion.
Bloom's Appeal
Bloom argues on appeal that the district court erred in five ways: (1) by not disqualifying Jack; (2) by dismissing his habeas petition; (3) by denying his motion for sanctions against Lynch; (4) by not applying the regulation he had requested; and (5) by using his disability as a basis for denying him parole. We will look separately at each of Bloom's arguments.
1. The District Court Did Not Err by Failing to Disqualify Judge Jack.
Bloom first argues that the district court erred because it didn't disqualify Judge Jack from presiding over his case. Bloom contends that Jack demonstrated bias in his rulings and communicated with the State without including him, which violates a law prohibiting communications between the court and only one of the parties to a lawsuit. We exercise unlimited review over a court's decision to not disqualify a judge. State v. Sawyer, 297 Kan. 902, Syl. ¶ 3, 305 P.3d 608 (2013). To do so, we examine the affidavit Bloom filed to see if it alleged facts that, if true, demonstrated bias sufficient to warrant Jack's disqualification. See State ex rel. Stovall v. Meneley, 271 Kan. 355, Syl. ¶ 15, 22 P.3d 124 (2001). We examine only whether the affidavit was sufficient, not whether the facts it alleged are true. Sawyer, 297 Kan. at 909.
To warrant a judge's disqualification, the affidavit must contain facts that could support a reasonable belief that the complaining party could not obtain a fair outcome with that judge. Sawyer, 297 Kan. at 908; Mid–Continent Investments of Kansas, Inc. v. Settle, No. 91,571, 2004 WL 2928510, at *4 (Kan.App.2004). Significantly, previous adverse rulings of the judge, no matter how numerous or how erroneous, are ordinarily insufficient to warrant a judge's disqualification. State v. Walker, 283 Kan. 587, 608–09, 153 P.3d 1257 (2007); Settle, 2004 WL 2928510, at *4. As the United States Supreme Court noted, such errors are the basis for an appeal, not the basis for a judge's recusal. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Further, when a party alleges that a judge was biased, the party must usually show that the bias was personal. State v. Foy, 227 Kan. 405, Syl. ¶ 3, 607 P.2d 481 (1980). Personal bias does not include a judge's views on matters that arise during the course of litigation or attitudes common to the general public. 227 Kan. 405, Syl. ¶ 3. Rather, personal bias includes a hostile feeling, a spirit of ill will, antagonism, or animosity toward one of the litigants or his counsel, or, conversely, undue favoritism toward the opposing party or the opposing party's counsel. 227 Kan. at 411; State v. Reed, 282 Kan. 272, Syl. ¶ 3, 144 P.3d 677 (2006).
Bloom argues that Jack was biased because Jack made rulings against Bloom such as refusing to consider the regulation Bloom thinks would have shortened his sentence, not sanctioning Lynch, incorrectly interpreting statutes, not addressing Bloom's claim that the court dismissed his petition in retaliation for his other lawsuits, and using his prison disciplinary record to justify the Board's decision to pass on him for parole. But even if we assume for the sake of argument that Jack erred in all of the ways Bloom alleged—and that his rulings on these matters adversely impacted the outcome of Bloom's case—they are insufficient to require Jack's recusal. None of these allegations show a bias against Bloom personally. See Walker, 283 Kan. at 608–09. These rulings merely demonstrate that Jack viewed the law differently than Bloom. If these rulings were in error, the errors can be fixed on appeal. See Liteky, 510 U.S. at 555.
Bloom also argues that Jack was impermissibly biased against him because he served the State with an order that he didn't serve on Bloom. Bloom claims that this resulted in a prohibited communication between the court and the State because rules prevent the court from communicating with one party outside of the other party's presence. Kansas Supreme Court Rule 601B, Kansas Code of Judicial Conduct, Canon 2, Rule 2.9(A) (2013 Kan. Ct. R. Annot. 739); State v. Herbel, 296 Kan. 1101, 1112, 299 P.3d 292 (2013). But Bloom didn't raise the issue of the prohibited communication in his affidavit in the district court, and this court generally doesn't consider issues raised for the first time on appeal. State v. J.D.H., 48 Kan.App.2d 454, 459, 294 P.3d 343 (2013). Further, Bloom didn't provide us with any evidence that he hadn't received an order that the other party had, which prevents us from determining whether an error occurred. Bloom, as the complaining party, was required to designate a record that affirmatively showed the errors he complained of. State v. Cervantes–Puentes, 297 Kan. 560, Syl. ¶ 3, 303 P.3d 258 (2013). He failed to do so.
Even if we assume for the sake of argument that Jack served the State with an order that he failed to serve on Bloom (which is far from certain), a single communication between a judge and only one party that occurred accidentally does not require the disqualification of the judge. See generally Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 970 P.2d 526 (1998); Daniels v. Chaffee, 230 Kan. 32, 37–38, 630 P.2d 1090 (1981) (discussing the fact that an order inadvertently served on only one party is not invalid simply because of the oversight in service). Such an error would not demonstrate personal bias. We find no error in the effective denial of Bloom's motion to disqualify Judge Jack. 2. The District Court Correctly Dismissed Bloom's K.S.A. 60–1501 Petition Because the Board Acted Within Its Discretion in Denying His Parole.
Bloom also argues that the district court erred on the merits when it denied his K.S.A. 60–1501 habeas corpus petition. Bloom alleged that the Board violated his Fourteenth Amendment due-process rights by passing on him for parole. A habeas corpus petition is the appropriate vehicle for an inmate to use to seek judicial review of the parole board's decisions. Swisher v. Hamilton, 12 Kan.App.2d 183, Syl. ¶ 2, 740 P.2d 95 (1987), rev. denied 242 Kan. 905 (1987). But because inmates are not guaranteed parole, this court's review of a habeas petition challenging the denial of parole is limited; we may only review the Board's decision to ensure it complied with applicable law and to ensure it wasn't arbitrary or capricious. K.S.A. 22–3710; Torrence v. Kansas Parole Board, 21 Kan.App.2d 457, Syl. ¶ 1, 904 P.2d 581 (1995); Cook v. Riggin, No. 109,920, 2014 WL 2403131, at *1 (Kan.App.2014) (unpublished opinion), rev. denied 300 Kan. –––– (Aug. 14, 2014); Martinez v. Kansas Parole Board, No. 107,157, 2012 WL 3823021, at * 1–3 (Kan.App.2012) (unpublished opinion). Bloom argues that the Board misapplied the law and acted arbitrarily and capriciously by making five distinct errors.
First, Bloom argues that the Board erred in denying him parole based on its findings that his crime was premeditated and heinous. Because the jury found him not guilty of premeditated first-degree murder, he argues that the Board couldn't find that his crime was premeditated and heinous. But this simply isn't true. Just because the jury didn't convict him of premeditated murder doesn't mean that the Board can't come to its own conclusion about whether Bloom's crime was planned. Likewise, it wasn't arbitrary or capricious for the Board to conclude that shooting a person at point-blank range and “blow[ing her] head off” with a shotgun was a heinous offense. See State v. Bloom, 273 Kan. at 295–96. The Board is required to consider “the circumstances of the offense.” K.S.A. 22–3717(h)(2).
Second, Bloom argues the Board wrongly concluded that he had not served enough of his sentence to be released on parole because he had served the minimum time required to become parole eligible. But simply because Bloom served the minimum sentence to become parole eligible does not mean that the Board's members felt Bloom had served enough time in relation to the crime of intentional murder. Serving the minimum required sentence is not a guarantee of parole, and the Board could reasonably concluded that the intentional murder of another person warranted a term of longer than 10 years. See Knapp v. Nelson, 30 Kan.App.2d 905, 905–06, 50 P.3d 1063 (2002); Heath v. Kansas Parole Bd., No. 109,813, 2014 WL 113476 at *6 (Kan.App.2014) (unpublished opinion) (“ ‘Eligible for’ parole is not the same as ‘entitled to’ parole.”), rev. denied 299 Kan. –––– (June 17, 2014).
Third, Bloom argues that the Board violated his Fourteenth Amendment procedural-due-process rights by using his prison disciplinary violations in its decision to deny him parole when he couldn't dispute the violations in court. But the Board is required to consider “the conduct, employment, and attitude of the inmate in prison” when making a parole decision. K.S.A. 22–3717(h)(2). Further, under Kansas law, inmates have no protected liberty interest in parole, so the Board doesn't violate their due-process rights by relying on disciplinary records that could not be contested in court. Gilmore v. Kansas Parole Board, 243 Kan. 173, 180, 756 P.2d 410, cert. denied 488 U.S. 930 (1988); Hundley v. McKune, 23 Kan.App.2d 187, 191, 929 P.2d 1382 (1996).
Fourth, Bloom argues that the “Action Notice” the Board issued denying him parole was unconstitutionally vague. He notes that the United States Supreme Court has found the word “heinous” to be vague in a death-penalty statute. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). But the context in Maynard—a statute prohibiting future conduct—is not what is present here. The Board simply used the word “heinous” to describe Bloom's past crime. The vagueness doctrine applies to criminal statutes to make sure that individuals know what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352, 357–58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Because action notices don't prohibit conduct, the vagueness doctrine doesn't apply, and the Board was free to describe Bloom's crime as heinous in this context.
Fifth, Bloom argues that passing on him for parole for 10 years made the sentence for his crime cruel and unusual in violation of the Eighth Amendment. But the denial of parole in states that have not created a liberty interest in parole—such as Kansas—isn't cruel and unusual punishment. Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.1992); Wood v. Utah Ed. of Pardons & Parole, 375 Fed. Appx. 871, 875 (10th Cir.2010) (unpublished opinion). Further, denying an inmate parole doesn't change the inmate's original sentence and therefore isn't an “extension” of a sentence that can convert an otherwise constitutional sentence into an unconstitutional one. Chambers v. Colorado Dept. of Corrections, 205 F.3d 1237, 1242 (10th Cir.), cert. denied 531 U.S. 962 (2000). Thus, Bloom is really complaining about the terms of his underlying sentence: a life sentence with parole eligibility—not parole entitlement—after 10 years. Because Bloom's sentencing occurred in 2000, he is time-barred from attacking the terms of his underlying sentence in this habeas petition. See K.S.A. 60–1507(f)(1)–(2); K.S.A. 60–1501.
The district court correctly held that Bloom had not presented a viable claim for habeas relief against the Board.
3. The District Court Did Not Abuse Its Discretion by Declining to Sanction Lynch.
Bloom's third argument is that the district court erred by denying his motion to sanction Lynch, who he says caused “frivolous litigation” by moving for the dismissal of his initial petition in Reno County on the basis that his Leavenworth petition was still pending when she knew that it wasn't. K.S.A. 60–211 is the statute under which a party may seek sanctions for frivolous litigation. K.S.A. 60–211(b)(3), (c); McShares, Inc. v. Barry, 266 Kan. 479, 493, 970 P.2d 1005 (1998). Under K.S.A. 60–211(b)(3), when an attorney signs a document—such as a motion to dismiss—she certifies that the information in it is true to the best of her knowledge and that the facts she supplied are supported by or are likely to be supported by evidence.
Significantly in this case, even if the opposing party proves that this rule has been violated, it is within the district court's discretion whether to sanction the attorney who erred, and we do not overturn a district court's decision regarding sanctions unless it abused its discretion. Thornburg v. Schweitzer, 44 Kan.App.2d 611, 624–27, 240 P.3d 969 (2010), rev. denied 292 Kan. 969 (2011). A district court abuses its discretion when it makes a decision based on an error or fact of law or when it makes a decision so arbitrary or capricious that no reasonable person would agree with it. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).
It's unclear that Lynch made an untrue statement because even though we “dismissed” Bloom's Reno County petition, we remanded it to the district court with instructions, thereby maintaining some supervisory authority over the matter as if the case were still pending. But even if we assume that she did make an untrue statement, we still must defer to the district court's decision not to sanction her—assuming a reasonable person could agree with it. See Thornburg, 44 Kan.App.2d at 624–27.
In determining whether to impose sanctions on an attorney and the kinds of sanctions to impose, the district court should consider nine factors: (1) whether the improper conduct was willful or negligent; (2) whether it was part of a pattern of activity or an isolated event; (3) whether it infected the entire pleading or only one particular count or defense; (4) whether the person has engaged in similar conduct in other litigation; (5) whether it was intended to injure; (6) what effect it had on the litigation process in time or expense; (7) whether the responsible person is trained in the law; (8) what amount, given the financial resources of the responsible person, would deter that person from repetition in the same case; and (9) what amount would deter similar activity by other litigants. Wood v. Groh, 269 Kan. 420, 431, 7 P.3d 1163 (2000).
On balance, these factors do not appear to favor sanctioning Lynch. First, there is no evidence that Lynch's conduct was willful or negligent. The procedural posture of this case at the time of Lynch's representation was confusing, and Bloom didn't point to anything in Lynch's conduct that suggested she had an ulterior motive for moving to dismiss his case. Second, Bloom didn't point to any pattern of misconduct on Lynch's part—only that she made a single allegation that even the district court agreed with. The third factor, however, favors Bloom because Lynch's motion to dismiss caused Bloom's Reno County petition to be dismissed and caused the appeal to this court. Fourth, Bloom points to no evidence Lynch has made similar mistakes in other litigation. Fifth, Bloom didn't allege any facts that suggest Lynch's alleged misrepresentation was intended to injure him. The sixth factor again favors sanctions because it took considerable time for Bloom to appeal his petition's dismissal. The seventh factor favors Bloom: Lynch is trained in the law. Eighth, there is no proof Lynch purposefully stated that Bloom had two petitions pending when he didn't; monetary sanctions generally are not required to deter unintentional behavior. Ninth, the procedure in this case is so unusual that a similar misunderstanding is unlikely to occur, making sanctioning Lynch as an example for other lawyers unnecessary.
More factors favor not sanctioning Lynch than favor sanctioning her. A reasonable person could agree with the district court that sanctions weren't appropriate in this case. The district court therefore did not abuse its discretion by denying Bloom's motion for sanctions.
4. The District Court Didn't Err by Not Considering K.A.R. 44–6–107(a)(2).
Bloom's fourth argument is that the district court erred by not considering K.A.R. 44–6–107(a)(2), a regulation that says changes in sentencing guidelines that favor an inmate should be applied when determining when an inmate becomes eligible for parole:
“Parole eligibility shall be computed by applying the statute in effect at the time the inmate committed the crime for which imprisoned unless subsequent changes in the statute provide an earlier parole date. If the amendment would yield an earlier parole eligibility date, that amendment shall be applied. Statutes establishing the formula for computation of parole eligibility shall be considered substantive law and not procedural law.”
Current statutes may recommend earlier parole in some cases, but they have no impact on Bloom because both the current statute and his original sentence permit him to become eligible for parole after 10 years. K.S.A.2013 Supp. 22–3717(b)(4); Bloom, 273 Kan. at 298. Indeed, Bloom was considered for parole either before or during the 10th year of his incarceration-on September 17, 2008. The district court did not err by refusing to apply a regulation that didn't impact Bloom's parole eligibility.
5. Bloom's Disability Claim Isn't Properly Before This Court.
Bloom's final argument is that the Board discriminated against him in violation of the Americans with Disabilities Act because of his posttraumatic stress disorder. He argues that in denying him parole, the Board noted that he was “unstable” and that community resources could not provide for his needs. Bloom is correct that if the Board passes on an inmate for parole because of an inmate's disability, it may violate the Americans with Disabilities Act. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Gilkey v. Kansas Parole Board, No. 96,624, 2006 WL 3775292, at *2–3 (Kan.App.2006), rev. denied 283 Kan. 930 (2007).
While Bloom may seek relief from the alleged discrimination by bringing suit under the Americans with Disabilities Act, see Thompson v. Davis, 295 F.3d 890, 898 (9th Cir.2002), cert. denied 538 U.S. 921 (2003), all Bloom alleges in his habeas petition is that the Board didn't comply with the Act, 42 U.S.C. § 12101 et seq. (2012). Failure to comply with a statute is not by itself a constitutional claim that falls within the scope of a habeas petition. K.S.A. 60–1501; Merryfield v. State, 44 Kan.App.2d 817, 819–20, 241 P.3d 573 (2010) (noting that to proceed under a habeas petition, the petitioner must allege shocking or intolerable conduct or continuing mistreatment of a constitutional nature). Accordingly, Bloom's disability-discrimination claim under the Act is not properly before us. The district court therefore didn't err by dismissing it.
We therefore affirm the district court's dismissal of Bloom's petition.