United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Because petitioner appears to challenge the
execution of his sentence, the Court liberally construes this
matter as a petition filed under 28 U.S.C.
proceeds pro se, and the Court grants leave to proceed in
forma pauperis. The Court has screened the petition under
Rule 4 of the Rules Governing Habeas Corpus Cases and enters
the following findings and order.
Kansas Court of Appeals adopted the following factual
background from briefing prepared by petitioner's
On December 2, 1985, Kevin Ewing entered a guilty plea to one
count of burglary, a class D felony. The district court
ordered Mr. Ewing to serve an indeterminate sentence of not
less than two years nor more than ten years. After Kansas
enacted the Kansas Sentencing Guidelines Act (KSGA) on
November 30, 1993, the Kansas Department of Corrections
issued a Sentencing Guidelines Report in Mr. Ewing's
case, finding that because Mr. Ewing had two prior person
felonies and four prior nonperson felonies, that his sentence
in the present case was not eligible to be converted to a
determinate KSGA grid sentence.
After the Kansas Supreme Court issued State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), Mr. Ewing
filed a motion to correct illegal sentence, arguing that
Murdock required that all of his prior offenses be
reclassified as nonperson offenses, making him eligible for
conversion [to] a determinate KSGA grid sentence. The
district court summarily denied the motion, finding that
K.S.A. 1993 21-4724(b)(1) controlled conversion to a KSGA
grid sentence, not Murdock. Mr. Ewing filed a timely
notice of appeal.
State v. Ewing, 369 P.3d 342 (Table), 2016 WL
1734911 (Kan.App. Apr. 29, 2016), rev. denied, Apr.
filed this application for habeas corpus following the
decision of the Kansas Court of Appeals, which rejected his
argument that his prior offenses should be classified as
nonperson offenses and that his sentence should be converted
to a determinate sentence under the KSGA.
federal petition alleges the following grounds for relief:
Ground One: Finality, ineffective assistance, trial errors,
concealment, substantial rights, miscarriage of justice.
Ground Two: Merger (res judicata), multiplicity.
Ground Three: Ex post facto challenge.
Ground Four: Equal protection, cruel and unusual ...