KERRY D. JENKINS, Petitioner,
RAY ROBERTS, Secretary of Corrections, et al., Respondent.
MEMORANDUM AND ORDER
SAM A. CROW U.S. SENIOR DISTRICT JUDGE
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254. The matter is presently before the court upon respondent’s Motion to Dismiss for Lack of Jurisdiction. Having considered this motion, the court finds that it must be granted.
FACTUAL BACKGROUND AND CLAIM
The following facts were set forth by the Kansas Supreme Court
(KSC) on petitioner’s direct appeal:
On May 1, 2007, Jenkins stole two DVDs, valued at less than $1, 000, from a grocery store. Jenkins was charged in municipal court with misdemeanor theft. Wichita City Ordinance 5.42.010 (2005), petit theft, classifies theft of property valued at under $1, 000 as a misdemeanor and provides for a potential penalty of 1 year in jail and a fine.
At the time of the crime, K.S.A. 2006 Supp. 21–3701(b)(5) also classified theft of property valued at less than $1, 000 as a misdemeanor, but another subsection of the statute provided: “Theft of property of the value of less than $1, 000 is a severity level 9, nonperson felony if committed by a person who has been convicted of theft two or more times.” . . . see K.S.A. 21–3701(b)(5), (6)(same). Jenkins had two prior theft convictions.
On May 31, 2007, the district attorney's office filed felony theft charges in district court against Jenkins for the same theft. But on June 5, 2007-just 5 days after the felony charges were filed-Jenkins pleaded no contest to misdemeanor theft in municipal court.
On June 21, 2007, the city prosecutor moved to vacate the misdemeanor theft conviction. The City argued the municipal court lacked jurisdiction to prosecute the misdemeanor theft charge because Jenkins' crime should have been classified as a felony under K.S.A. 21– 3701(b)(6). The city prosecutor cited State v. Elliott, 281 Kan. 583, Syl. ¶ 1, 133 P.3d 1253 (2006), for the holding that the municipal court lacks jurisdiction over felony crimes. On July 3, 2007, the municipal court granted the City's motion to vacate.
On July 18, 2007, Jenkins filed a motion to dismiss the felony theft charge in district court, arguing it was a second prosecution for the same crime in violation of the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and K.S.A. 21–3108. The State argued the statutory and constitutional double jeopardy provisions were not violated because the municipal court lacked jurisdiction. The district court agreed with the State.
The district court held that under K.S.A. 21–3701(b)(6), Jenkins' third theft conviction must be classified as a felony. It held the municipal court conviction was a nullity because the municipal court lacked jurisdiction over felonies and that double jeopardy protections did not bar the felony proceedings in district court. The district court then presided over a bench trial during which Jenkins was convicted for felony theft.
State v. Jenkins, 295 Kan. 431, 432-33, 284 P.3d 1037 (Kan. 2012).
On July 6, 2007, Mr. Jenkins was sentenced to 9 months in prison.
He filed a timely appeal to the Kansas Court of Appeals (KCA), in ...