Opinion
Case No. 01-3170-DES
November 6, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a prisoner confined at the El Dorado Correctional Facility.
PROCEDURAL HISTORY
On February 27, 1997, petitioner pled guilty to rape and indecent liberties with a child. His sentencing was scheduled for April 2, 1997. On March 27, 1997, the presentence investigation placed petitioner in criminal category "I" because he had no prior felony convictions. Category "I" exposed petitioner to the lowest range of punishment for his offenses. On April 2, 1997, sentencing was continued to June 30, 1997, at the request of petitioner's defense counsel. On June 20, 1997, petitioner was convicted of arson in an unrelated case. At sentencing on June 30, 1997, the trial court allowed the prosecution to amend the presentence investigation report to reflect petitioner's conviction for arson. The arson conviction was to be considered a "prior conviction," exposing petitioner to a lengthier sentence. Petitioner was sentenced to 119 months.
Relying on State v. Roderick, 911 P.2d 159 (Kan. 1996), the Kansas Court of Appeals affirmed petitioner's conviction on February 11, 2000. Petitioner sought review in the Kansas Supreme Court but review was denied on May 2, 2000.
State v. Roderick held that for purposes of sentencing, "prior conviction" included multiple convictions entered on the same date. 911 P.2d 159, 165 (Kan. 1996).
Petitioner commenced this action on May 18, 2001. Respondents filed an answer and return on June 14, 2001, (Doc. 5). No traverse was filed by petitioner.
DISCUSSION
Because Mr. Hathaway's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, petitioner will only be entitled to federal habeas relief if he can establish that state court review of his case "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
In reviewing petitioner's claim, the Kansas Court of Appeals determined that State v. Roderick, 911 P.2d 159 (1996) was dispositive. In State v. Roderick, the Kansas Supreme Court determined that for purposes of sentencing, "prior conviction" included multiple convictions entered on the same date. 911 P.2d 159, 165 (Kan. 1996). The court recognized that disparate sentences could result under this rule, but determined that no interpretation presented to them could "eliminate the potential for disparate sentencing results." Id. Neither Roderick nor the Kansas Court of Appeals' review of petitioner's claim contain a detailed discussion of equal protection.
Petitioner alleges that his sentence violates the equal protection clause of the Fourteenth Amendment because the definition of "prior conviction" in the Kansas Sentencing Guidelines Act ("KSGA") produces disparate sentencing results for similarly situated defendants. For example, another defendant who committed two separate crimes like petitioner could get a lesser sentence merely because of the order in which disposition of the cases was scheduled. Petitioner asserts that this disparity can be cured by requiring both a determination of guilt and the imposition of a sentence before a "prior conviction" will be counted in an offender's criminal history score.
The standard of review applied to an equal protection challenge depends upon the type of classification at issue. Unless the classification at issue implicates fundamental rights or a suspect classification (such as gender or race), the rational basis test is used. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973).
The classification at issue in this case is petitioner's status as a prior offender. Repeat offenders are not a suspect class. Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994). In addition, there is no fundamental right to require both a determination of guilt and the imposition of sentence before a "prior conviction" can be counted in an offender's criminal score. Therefore, petitioner's equal protection claim will be analyzed under the rational basis test.
Under the rational basis test, his classification as a prior offender must be rationally related to a legitimate state purpose. San Antonio Independent School Dist., 411 U.S. at 17. A classification will be upheld under this test if "there is any reasonably conceivable state of facts that could provide a rational basis for the classification." F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). A sentencing classification can survive an equal protection challenge even though the statute does not fully remedy disparate sentencing. Jones v. Bruce, 921 F. Supp. 708, 711 (D.Kan. 1996), citing Horoshak v. State of Minnesota, 469 N.W.2d 474, 475-76 (Minn. 1991).
The statute which petitioner challenges defines prior conviction as "any conviction . . . which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case." K.S.A. § 21-4710(a).
One of the purposes of the Kansas Sentencing Guidelines is to "[discourage] recidivism by increasing the punishment for those failing to learn from past encounters with the criminal justice system." State v. Roderick, 911 P.2d 159, 164 (Kan. 1996). By allowing for an increase in punishment for another conviction even though the sentence has not yet been imposed, the definition of "prior conviction" ensures that repeat offenders are punished accordingly. Although the statute may cause some disparities in the sentences imposed for similarly situated defendants, the question is "not whether the legislation perfectly accomplishes its goals but whether the legislation was prompted by a legitimate goal and whether there is a rational basis for the classification." Jones, 921 F. Supp. at 711 (D.Kan. 1996).
Petitioner has failed to cite a single federal case to support his argument that the Kansas definition of "prior conviction" violates equal protection. As such, petitioner fails to establish that the state court review of petitioner's claim resulted in a decision that was contrary to or an unreasonable application of clearly established federal law. In light of these failures and because there is a rational basis for classifying petitioner's arson conviction as a "prior conviction," the petition should be denied.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed.
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.