Opinion
No. 108,355.
2013-01-18
Barry FEARS, Appellant, v. David McKUNE, et al., Appellees.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Benjamin N. Casad, of Leavenworth, for appellant. Matthew J. Donnelly, of Lansing Correctional Facility, for appellees.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Benjamin N. Casad, of Leavenworth, for appellant. Matthew J. Donnelly, of Lansing Correctional Facility, for appellees.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Inmate Barry Fears asks us to set aside the district court's denial of his petition for habeas corpus relief, claiming he was entitled to a hearing and the court was wrong when it ruled he was not entitled to any relief. The district court concluded that Fears had failed to assert the deprivation of a constitutionally protected liberty interest in his petition and dismissed the same. We find no error in the ruling of the court.
A brief case history is useful at this point. Fears is incarcerated at Lansing Correctional Facility. A corrections officer alleged in a disciplinary report that Fears had violated K.A .R. 44–12–203 and K.A.R. 44–12–401(b) by trying to take nine hamburger patties and five pouches of cherry flavored beverage base from the dining hall. The hearing officer found Fears guilty of both violations. The officer assessed a $25 fine that was suspended for 180 days and issued a verbal reprimand. Fears appealed this discipline to the Kansas Secretary of Corrections, whose designee upheld the hearing officer's decision.
After exhausting his administrative remedies, Fears filed a pro se petition for writ of habeas corpus under K.S.A. 60–1501 against David McKune, the Warden of Lansing Correctional Facility, and the City of Lansing. He alleged that (1) the evidence was insufficient to sustain either conviction; (2) the hearing officer violated his due process rights by not allowing him to call two witnesses; (3) the hearing officer was “biased and predisposed” to find him guilty; and (4) the $25 fine imposed for violating K.A.R. 44–12–203 was excessive. We note that there were no allegations of any loss of good-time credits in the petition.
In turn, the district court reviewed Fears' petition and summarily concluded that he was not entitled to any relief. The court decided that Fears had failed to assert the deprivation of any constitutionally protected liberty interest. The district court also found that Fears' excessive fine complaint lacked merit because Fears' fine had been suspended. Accordingly, the district court summarily dismissed Fears' K.S.A. 60–1501 petition. We first note a breach of our appellate rules by Fears.
Fears violated Supreme Court Rule 6.02 (2011 Kan. Ct. R. Annot. 39) because he failed to properly cite to the record. Rule 6.02(d) provides that any material factual statement made without being keyed to the record on appeal by volume and page number “may be presumed to be without support in the record.” Fears' factual summary section found in his brief and the corresponding argument that the district court should have considered his allegations that he lost good-time credit because of the hearing officer's decision have no record citations. These omissions clearly fail to comply with Rule 6.02(d). Thus, this court will presume Fears' factual allegations that he lost “approximately 11 or more days of good time credit” and his “release date was changed from early to late January 2014” because of the hearing officer's actions are without support. See Supreme Court Rule 6.02(d); Southwestern Bell Tel Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 (2009).
Also, the record does not establish that Fears raised the issue of his alleged lost good-time credits before the district court. Generally, issues not argued before the district court cannot be raised for the first time on appeal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). In any event, the record does not indicate that the disciplinary proceeding took away any good-time credits already earned by Fears. See In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 7, 24 P.3d 128 (2001). Instead, Fears appears to be claiming only a prospective loss of good-time credits. In Kansas, however, an inmate has no protected liberty interest in good-time credits not yet earned. See Pierpoint, 271 Kan. 620, Syl. ¶ 8;Davis v. McKune, 30 Kan.App.2d 822, 824, 48 P.3d 1287 (2002). We examine this question de novo.
We apply a de novo review to a district court's summary dismissal of a petitioner's K.S.A. 60–1501 claim. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). In determining whether a K.S.A. 60–1501 petition states a claim for relief, the district court examines the allegations in the petition and the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008).The court must accept as true the allegations in the petition to determine whether the facts alleged and the reasonable inferences that can be drawn from them state a claim for relief. 285 Kan. at 679. The question of whether an individual's constitutional rights have been violated is a question of law over which an appellate court exercises unlimited review. Johnson, 289 Kan. at 649.
The trouble with Fears' appeal is that he fails to show he has been deprived of anything substantial by this disciplinary action. In considering Fears' claim of a due process violation at his disciplinary hearing, we make a two-step analysis: The first inquiry is whether the State has deprived Fears of life, liberty, or property. If there has been a deprivation through State action, we must next determine the extent and nature of the process which is due. This two-step process is set out in Rogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 (2005).
Said another way, contrary to Fears' belief, the alleged lack of due process at a disciplinary hearing in and of itself does not create a reviewable issue by the district court under K.S.A. 60–1501 until the petitioner establishes such a deprivation of something constitutionally significant.
Here, it appears the only sanctions entered against Fears were a verbal reprimand and a suspended $25 fine. A disciplinary fine imposed on an inmate deprives that inmate of property and thus invokes a minimum level of due process, which includes the opportunity to call witnesses. Sauls v. McKune, 45 Kan.App.2d 915, 920, 260 P.3d 95 (2011). But the record indicates the $25 fine was suspended. And Fears has not provided anything indicating that the $25 fine was ever imposed on him. “Punishments never imposed do not implicate a protected liberty interest.” Hardaway v. Larned Correctional Facility, 44 Kan.App.2d 504, 505, 238 P.3d 328 (2010). Accordingly, Fears has not been deprived of any protected property interests that give rise to due process protections.
We affirm the district court's ruling that Fears is not entitled to relief under K.S.A. 60–1501.