United States District Court, D. Kansas
J.D. BELL, Petitioner,
STATE OF KANSAS, et al., Respondents.
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This pro se petition for writ of habeas corpus was filed by a Kansas inmate pursuant to 28 U.S.C. § 2254. The filing fee has been paid. Having examined the materials filed and the procedural history of this case, the court invites respondent to file a Response to this Order or a "Pre-Answer Motion to Dismiss" based upon the untimeliness of the instant application.
Petitioner has filed a Motion for Hearing (Doc. 2). There is no entitlement to a hearing in a federal habeas corpus action. However, the court will set the matter for hearing if it later determines that a hearing is necessary. There has been no such determination at this juncture. Petitioner's motion is denied, without prejudice.
The court takes judicial notice of the opinions of the Kansas Court of Appeals (KCA) that discussed and rejected petitioner's several and repeated challenges to his criminal history score in the state courts: State v. Bell, 107 P.3d 1262, 2005 WL 638089 (Kan.App. Mar. 18, 2005)(hereinafter Bell I ); State v. Bell, 185 P.3d 326, 2008 WL 2424493 (Kan.App. June 13, 2008)(hereinafter Bell II ); State v. Bell, 235 P.3d 1267, 2010 WL 3063168 (Kan.App. July 30, 2010)(hereinafter Bell III) . These three KCA opinions together with the allegations in the petition and attachments indicate the following procedural history.
In 2003, petitioner was charged with first degree murder. He pled guilty and was convicted in the District Court of Wyandotte County, Kansas of one count of second degree murder. At his plea hearing, "the State indicated its expectation that Bell would have a criminal-history score of H, meaning that he had no felony convictions at all." Bell II at *1. Mr. Bell was initially represented by Charles Ball. Mr. Ball testified in subsequent post-conviction proceedings "that he questioned defendant concerning his criminal history several times, " and "on each occasion, defendant indicated he had no prior felonies and only one or two prior misdemeanor convictions. It turned out defendant had 19 prior misdemeanors, including 3 person misdemeanors." Bell I at *1. K.S.A. 21-4711(a) generally provided that "3 misdemeanor convictions are treated as 1 felony conviction; 3 person misdemeanors become 1 person-felony conviction." Bell II at *1. In the presentence investigation report (PSI), "three of Bell's misdemeanors that were municipal assault convictions from Kansas City, Missouri" were grouped together as one person felony conviction. Bell III at *1. The report thus assigned Mr. Bell a criminal history score of "D".
After the PSI was filed and before sentencing Mr. Bell's new attorney Mr. Lubow objected to his criminal history score and filed a motion to withdraw plea. "Bell's initial objection to the criminal history score was a general one, essentially requiring that the State prove the prior convictions." [T]he State presented testimony from the presentence investigator... that he had verified each of the three person misdemeanors." Bell II at *1. After that testimony, Bell's attorney at the hearing "withdrew the objection to Bell's criminal-history score." Id. The court denied Bell's motion to withdraw his guilty plea. On August 29, 2003, petitioner was sentenced to 267 months in prison.
Mr. Bell appealed the denial of his motion to withdraw plea. In March 2005, the Kansas Court of Appeals affirmed the district court's denial. BELL I at * 1. The KCA rejected Bell's claim that "the trial court abused its discretion in refusing to allow a withdrawal of his plea because trial counsel was ineffective in failing to accurately predict his criminal history score." Id. On June 9, 2005, the Kansas Supreme Court (KSC) denied review (Kan. App. Case No. 91767).
Mr. Bell alleges that "in the interim" on November 30, 2004, he filed a pro se motion to correct illegal sentence pursuant to K.S.A. 22-3504, and that "the record does not reflect that the District Court had previously made a ruling on this motion."
The KCA found that "Bell next objected to the criminal history in his motion to correct an illegal sentence on February 9, 2006." Bell II at *1; Bell I at *1. Petitioner likewise alleges that following his appeal in Case No. 91767, his new counsel filed a motion to correct illegal sentence claiming that Bell's criminal history score was incorrect and that the Missouri misdemeanor convictions for assault could not be aggregated to form a felony. The district court denied this motion, and petitioner appealed to the KCA, which in Kan.App. Case No. 97986 again affirmed his sentence. The KCA noted that Mr. Bell had "once again changed the basis for his objection" to his criminal history score and rejected his claim "based on the important rule that new issues may not be raised for the first time on appeal." Bell II at *1. The KSC denied review on November 4, 2008.
Bell alleges that on October 10, 2006, two years prior to conclusion of the foregoing appeal, he filed a pro se "motion for Relief from Judgment or Order from the District Court" and the record does not reflect that this motion was "then addressed" by the courts. Following the conclusion of Case No. 97986, Mr. Bell filed another pro se motion to Correct Illegal Sentence, and alleges that "both motions" were summarily denied in a Memorandum Opinion dated April 21, 2009. He appealed this denial, and the KCA affirmed in App. Case No. 102457. The KSC denied review on October 20, 2010.
On July 22, 2011, petitioner filed a motion to Correct Illegal Sentence. The state district court granted a hearing but denied petitioner's request to appear with his attorney and denied the motion. Petitioner appealed, and on September 21, 2012, in App. Case. No. 106901 the KCA summarily affirmed the district court's decision. In its summary order of affirmance, which petitioner has attached to his petition [(Doc. 1-1) at pg. 9], the KCA stated:
It is clear from the record, the briefs and appellant's response to our show-cause order that this is the third motion to correct an illegal sentence filed in this case by appellant. Any sentencing issues that could have been raised, should have been raised in those two prior motions.
This court takes judicial notice of the appellate court docket for Case No. 106901 showing that a Petition for ...