United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
petitioner Bryon J. Kirtdoll seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 9). His sole
ground for relief is a challenge to the Hard 50 sentence
imposed on him. For the reasons stated below, the Court
denies the petition.
AND PROCEDURAL HISTORY
was convicted of premeditated first-degree murder and two
counts of aggravated robbery arising from a nightclub
shooting. He was sentenced to life in prison without the
possibility of parole for 50 years (the hard 50) for the
first-degree murder conviction and two 41-month sentences for
the aggravated battery convictions. The sentences were
ordered to run consecutively.
filed a direct appeal and two post-conviction motions under
K.S.A. 60-1507 attacking his sentence. In 2013, he filed
a Motion to Vacate Sentence under K.S.A. 22-3504 to correct
an illegal sentence and a motion under K.S.A. 60-1507 as a
post-conviction collateral attack of sentence. In the motion
to correct an illegal sentence, petitioner argued that
Alleyne v. United States renders judicially enhanced
life sentence unconstitutional and therefore
illegal.The Kansas Supreme Court affirmed the
decision, holding that Alleyne cannot be applied
retroactively to cases that were final when Alleyne
was decided. Therefore, it ruled that Kirtdoll's hard 50
life sentence was to remain intact.
review of habeas petitions is governed by 28 U.S.C.
§2254 and focuses on how the state court resolved the
claims. If the claim was adjudicated on the merits, the court
will grant relief only if the state court decision “(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
States;” or “(2) resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.”Federal courts are to measure state court
decisions against United State Supreme Court's precedents
as of “the time the state court renders its
argues he is entitled to federal habeas relief because his
hard 50 sentence violates his Sixth Amendment right. In
Alleyne, the Supreme Court expanded the reach of the
Sixth Amendment's right to a jury trial by requiring that
any fact which increases a sentence beyond the mandatory
minimum must also be submitted to a jury and proven beyond a
reasonable doubt. The Kansas hard 50 sentencing scheme was
then found to be unconstitutional because it allowed a judge
to determine facts that would enhance the mandatory minimum
sentence. For cases that were already final when
Alleyne was decided, Kansas courts had not
considered whether Alleyne could be retroactively
applied to invalidate a sentence, until the Petitioner's
United States District Court for the District of Kansas has
already considered whether Alleyne could be
retroactively applied, and has determined that it cannot be
applied to cases on collateral review. Nor has the
United States Supreme Court made Alleyne's new
rule retroactive to cases on collateral rule.
Kansas Supreme Court rendered its decision on
petitioner's sentence in 2006, and the United States
Supreme Court rendered its decision in Alleyne in
2013. Because the Alleyne decision is not applied
retroactively, the Petitioner cannot use that precedent to
invalidate his sentence.
Rule 11(a) of the Rules Governing Section 2254 Cases in the
U.S. District Courts, the district court must either issue or
deny a certificate of appealability when it enters a final
order that is adverse to the petitioner. A district court may
issue a certificate of appealability “only if the
applicant has made a substantial showing of the denial of a
constitutional right” and the Court specifically
identifies the issue or issues that merit additional review.
28 U.S.C. § 2253. A petitioner meets this standard by
showing that the issues presented are debatable among
jurists, that a court could resolve the claims differently,
or that the questions warrant additional review. Slack v.
McDaniel, 529 U.S. 473 (2000)(citing Barefoot v.
Estelle, 463 U.S. 880, 893 (1983). The present case does
not meet this standard as the legal principle that governs
the result is settled.
IS THEREFORE ORDERED by the Court ordered the
Petition for Writ of Habeas Corpus is denied.
IS FURTHER ORDERED a Certificate of ...