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Keltner v. State

United States District Court, District of Kansas

November 25, 2014

EUGENE KELTNER, Petitioner,
v.
STATE OF KANSAS, Respondent.

MEMORANDUM AND ORDER

Sam A. Crow U.S. Senior District Judge

The court previously screened this pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and entered a Memorandum and Order finding that it appeared to time barred. The court set forth tentative facts and the pertinent statutory provisions[1] and explained its application of those provisions to the facts. Mr. Keltner was given time to file a response to dispute the court’s tentative findings or show his entitlement to either additional statutory tolling or equitable tolling. The standards for equitable were also set forth in the court’s prior order. Petitioner responded by filing a document entitled “Motion for Permission to Docket out of Time” docketed as his “Response” (Doc. 4) and a “Memorandum in Support of 2254 motion” docketed as his “Supplement” (Doc. 5). Having considered all materials in the file together with the relevant legal authorities, the court concludes that this petition was not timely filed and must be denied.

PROCEDURAL HISTORY AND BACKGROUND FACTS

The court previously set forth the procedural history of Mr. Keltner’s case, which he does not dispute. Mr. Keltner pled guilty on June 9, 2005, [2] and was convicted in Wyandotte County District Court of involuntary manslaughter and aggravated robbery. Under K.S.A. 21-4714 “a defendant’s criminal history score (was) not calculated until after the defendant has been convicted.” State v. Garcia, 295 Kan. 53, 65, 283 P.3d 165 (Kan. 2012)(J. Rosen dissenting opinion). Prior to sentencing, Keltner filed a Motion to Withdraw Plea claiming the “sentencing range exceeded the range contemplated by the parties during plea negotiations, and but for these representations, Keltner would not have entered the plea.”[3] State v. Keltner, 154 P.3d 47, 2007 WL 881953 (Kan.App. March 23, 2007)(hereinafter “State v. Keltner”). The trial court denied the motion and on August 4, 2005, sentenced Keltner to 336 months in prison. Mr. Keltner appealed the denial to the Kansas Court of Appeals (KCA). He argued that “he unknowingly entered his plea due to his trial counsel’s incompetence; thus, ‘good cause’ exists to withdraw his plea.” Id. at *2. The KCA reiterated that a trial court determining whether to allow withdrawal of a plea should utilize the “Edgar factors”[4] and evaluate whether:

“(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. [Citation omitted.]”

Id. at *2 (citing State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001)). They also set forth the correct two-prong test for review of a claim of ineffective assistance of counsel:

A two-prong test applies to set aside a guilty plea because of ineffective assistance of counsel. The defendant must prove: (1) counsel’s performance fell below the standard of reasonableness, and (2) a reasonable probability exists that, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial.

Id. (citing State v. Muriithi, 273 Kan. 952, 956–57, 46 P.3d 1145 (2002)); see Strickland v. Washington, 466 U.S. 668 (1984). With respect to petitioner’s ineffective counsel claim, the KCA noted the Kansas Supreme Court (KSC) had held that:

defense counsel has an obligation to advise the defendant regarding the range of permissible penalties; however, defense counsel’s inaccurate prediction regarding the penalty does not constitute ineffective assistance of counsel.

State v. Keltner at *3 (citing State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995)). With respect to the trial court’s denial of Keltner’s motion to withdraw plea, they found “the rationale of State v. Ford, 23 Kan.App.2d, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997) controlling” and reasoned as follows:

In Ford, at the time of the plea, both the prosecutor and defense counsel believed Ford had only one person felony, but Ford’s presentence investigation report subsequently revealed he had two prior person felonies. 23 Kan.App.2d at 250. The defendant argued his plea was not “intelligently” made because he relied upon the State and defense counsel’s representations regarding his criminal history. This court affirmed, noting there is no recourse for a plea “unintelligently” made.[5] 23 Kan.App.2d at 252. The court further noted that under K.S.A. 21–4707(c)(4), prior convictions discovered after a plea has been accepted are properly considered in a defendant’s criminal history at sentencing. . . .
Here, as in . . . Ford, a mutual mistake occurred as to the defendant’s criminal history score. Nevertheless, the petition to enter a guilty plea informed Keltner of the maximum penalties for aggravated robbery and involuntary manslaughter, and the trial court repeated those penalties at the plea hearing. In addition, at the plea hearing, Keltner acknowledged his guilt and recited facts to support a guilty plea on both charges. Keltner also acknowledged that no one promised him he would receive a lighter sentence or probation as an inducement to plead guilty.
Under these circumstances, we hold the district court did not abuse its discretion in denying Keltner’s motion to withdraw his plea.

State v. Keltner at *3. Mr. Keltner’s petition for review was denied by the KSC on September 27, 2007.

On December 20, 2007, Mr. Keltner filed his “first” motion pursuant to K.S.A. 60-1507. See Keltner v. State, 231 P.2d 588, *2, 2010 WL 2348690 (Kan.App. June 4, 2010), rev. denied (Kan. Sept. 21, 2011)(hereinafter “Keltner v. State”). He alleged that his trial counsel was incompetent for the same reasons asserted on direct appeal. Id. However, on ...


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