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Callaway v. Werholtz

United States District Court, Tenth Circuit

May 24, 2013

CHARLES CALLAWAY, Plaintiff,
v.
ROGER WERHOLTZ, Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Defendant Roger Werholtz, the former Secretary of Corrections for the State of Kansas, asks the Court to dismiss Plaintiff Charles Callaway's 42 U.S.C. § 1983 claim alleging violations of due process and wrongful imprisonment. Callaway was convicted of state drug offenses at two separate trials and given an illegal sentence that resulted in Callaway serving almost five and a half years more than he should have. Callaway contends that his constitutional rights were violated when Werholtz failed to recalculate Callaway's sentence. Because Callaway cannot establish a plausible claim that Werholtz misused power provided to him by virtue of state law, and because Werholtz is entitled to quasi-judicial immunity, the Court grants Werholtz's motion to dismiss for failure to state a claim upon which relief can be granted.

I. Factual and Procedural Background

In two separate cases in 1995, Plaintiff Charles Callaway was charged in state court and convicted of selling cocaine while he was less than 1, 000 feet from a school. The first case to go to trial, case number 95-CR-164, charged Callaway with selling cocaine on February 16, 1995, and March 13, 1995. Callaway was convicted on both counts on October 31, 1995. On December 27, 1995, Callaway was sentenced to 64 months in prison after his convictions in case 95-CR-164.

The second case was tried after Callaway was convicted and sentenced in case number 95-CR-164. That case, number 95-CR-359, charged Callaway with selling cocaine on January 28, 1995-a sale that occurred before the two cocaine sales charged in case 95-CR-164. Callaway was convicted in case 95-CR-359 on January 17, 1996. A presentence investigation report prepared for Callaway's sentencing in case 95-CR-359 suggested a sentencing range of "XXX-XXX-XXX" months imprisonment. On February 16, 1996, Callaway was sentenced to 178 months imprisonment in case 95-CR-359.

The disparity between the sentences in cases 95-CR-164 (64 months) and 95-CR-359 (178 months)-which each charged Callaway with violating Kan. Stat. Ann. § 65-4160[1]-was due to the assignment of different severity levels to each crime. Case 95-CR-164 was designated as a drug severity level 2 crime-a less severe crime for the purposes of calculating sentencing. At the time of Callaway's sentencing, a sentencing provision mandated that "[i]f any person who violates this section has two or more prior convictions under this section... then such person shall be guilty of a drug severity level 1 felony."[2] The presentence investigation report counted Callaway's two convictions in case 95-CR-164 as "prior convictions" for purposes of sentencing in case 95-CR-359. Therefore, case 95-CR-359 was designated as a severity level 1 crime, making Callaway a level 1 drug offender subject to a sentence more than twice as long as he would have faced for a level 2 crime.

Callaway objected to the use of his convictions in 95-CR-164 because the underlying criminal acts in that case occurred after the criminal acts underlying his conviction in 95-CR-359-the sales in the former case occurred in February and March 1995 and the sale charged in 95-CR-359 happened in January of the same year. Therefore, Callaway argued, he did not have two or more prior convictions at the time that he violated Kan. Stat. Ann. § 65-4160. The court overruled Callaway's objection and sentenced Callaway as recommended in the presentence investigation report. Callaway's sentences in cases 95-CR-164 and 95-CR-359 were to run consecutively, so Callaway's controlling sentence for both cases was 242 months.

Callaway appealed to the Kansas Court of Appeals, but argued only that the court erred in calculating his "good time" and the duration of his post-release supervision. The court of appeals agreed on both points and remanded case 95-CR-359 for resentencing. The district court resentenced Callaway as instructed by the court of appeals, but did not change the increased severity level of the offense.

In 1997, Callaway filed a habeas motion in the state district court under Kan. Stat. Ann. § 60-1507, requesting that the court vacate his conviction. Callaway argued that his sentence was illegal because the court used his convictions in case 95-CR-164 as "prior convictions" and increased the severity level of his offense in 95-CR-359. The court denied the motion on procedural grounds. Callaway appealed to the Kansas Court of Appeals, but did not address the merits of his motion, only the procedural denial. The court of appeals nonetheless addressed the merits sua sponte and affirmed the district court's use of the 95-CR-164 convictions to enhance Callaway's sentence.

In 1999, Callaway filed a "Motion to Correct Sentence" under Kan. Stat. Ann. § 22-3504, which says that "[t]he court may correct an illegal sentence at any time." Again, Callaway argued that his convictions in case 95-CR-164 on October 31, 1995, were not "prior convictions" at the time Callaway sold cocaine and violated Kan. Stat. Ann. § 65-4160 on January 28, 1995. The court denied the motion without a hearing because the argument was previously ruled on in Callaway's section 60-1507 motion and appeal. Callaway again appealed, but the court of appeals summarily affirmed the district court's denial.

In 2004, Callaway filed a second motion under section 22-3504. The district court again denied the motion without a hearing. Callaway filed a notice of appeal, but the case was never docketed with the court of appeals. Callaway also filed a "Motion to Discharge of Person Not Promptly to Trial" in 2004. The district court denied the motion, the court of appeals affirmed, and the Supreme Court of Kansas declined to review the case.

In 2007, Callaway filed a third motion under section 22-3504, again requesting that the district court correct his illegal sentence. In that motion, Callaway noted that a recent, published decision from the Kansas Court of Appeals, State v. Ruiz-Reyes, [3] held that the plain language of Kan. Stat. Ann. § 65-4161 meant that the severity level of an offense could not be enhanced by a conviction that did not occur until after the commission of the offense. Despite the holding in Ruiz-Reyes -and the fact that the holding was an interpretation of the plain language of section 65-4161-the district court denied Callaway's motion on the grounds that Callaway's sentence was legal at the time it was imposed because Callaway did not demonstrate that the holding in Ruiz-Reyes should be applied retroactively. Callaway filed a motion to reconsider, which was denied. Callaway appealed, but the court of appeals never docketed the case.

On May 18, 2008, Callaway wrote to Defendant Werholtz, stating that he was being held on an illegal sentence and asking that Werholtz recalculate his sentence. A deputy secretary responded in a letter that said that the Department of Corrections did not have the authority to alter Callaway's sentence absent a court order. The letter advised Callaway to consult an attorney.

On January 31, 2008, Callaway filed a motion to correct manifest injustice, which the district court treated as a habeas motion under Kan. Stat. Ann. § 60-1507. For the sixth time, Callaway asked the state district court to correct his illegal sentence in case 95-CR-359. The following day, on February 1, 2008, the Supreme Court of Kansas affirmed the decision in Ruiz-Reyes, calling it an "inescapable conclusion."[4] Nevertheless, on ...


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