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Ewing v. State

United States District Court, D. Kansas

June 8, 2018

KEVIN WAYNE EWING, Petitioner,
v.
STATE OF KANSAS, Respondent.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE.

         This 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. §2241.[1]

         Petitioner 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.

         Background

         The Kansas Court of Appeals adopted the following factual background from briefing prepared by petitioner's counsel:

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. 19, 2017.

         Petitioner 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.

         The 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 ...

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