Chadwick v. Gilmore et al

Filing 9

ORDER ENTERED: This matter is dismissed and all relief is denied. Signed by Senior District Judge Sam A. Crow on 7/10/2013. (Mailed to pro se party Max C. Chadwick by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MAX C. CHADWICK,
Petitioner,
v.

CASE NO.12-3052-SAC

PHYLLIS GILMORE, et al.,
Respondents.

O R D E R
Petitioner proceeds pro se and in forma pauperis on a petition
seeking a writ of habeas corpus under 28 U.S.C. § 2254.

Petitioner

is held in the Larned State Hospital following his civil commitment
pursuant to the Kansas Sexually Violent Predator Act (KSVPA), K.S.A.
59-29a01

et

seq.

Having

reviewed

the

record

which

includes

respondents’ Answer and petitioner’s Traverse, the court finds
petitioner has not demonstrated any basis for federal habeas corpus
relief.
Background
Petitioner was convicted in Finney County, Kansas of aggravated
sexual battery and indecent liberties with a child.

In 1991, the

Finney County District Court sentenced petitioner to serve a prison
term of seven to twenty years. In March 2001, the Kansas Attorney
General commenced proceedings in the District Court of Finney County
to have petitioner committed for care and treatment as a sexually
violent predator pursuant to the KSVPA.

Following a June 2001 hearing on the State’s petition, the state
district court accepted petitioner’s stipulation and a Larned State
Security Hospital (LSSH) clinical report, found petitioner met the
criteria for a sexually violent predator, and ordered petitioner
committed to the Kansas Department of Social and Rehabilitative
Services for care and treatment.
In April 2010, petitioner sought relief under K.S.A. 60-260 in
the district court from the 2001 commitment order.

The Finney County

District Court denied that motion, a decision upheld by the Kansas
appellate courts.

In re Chadwick, 285 P.3d 387, 2011 WL 3795483

(Kan.App.2011)(unpublished),

rev.

denied

(2012).

Petitioner

initiated the instant action ten days later, alleging the state
State’s initiation of civil commitment proceedings some nine years
before petitioner’s scheduled release from prison did not comply with
the timing provisions for initiating proceedings under the KSVPA.

1

Petitioner also claimed the state district court lacked jurisdiction
to commit petitioner because it did not afford petitioner an actual
trial.
DISCUSSION
A federal district court has jurisdiction to entertain a petition
for a writ of habeas corpus by a person who is “in custody in violation
of the Constitution or laws or treaties of the United States.”
U.S.C. § 2241(c)(3).

28

Generally in this Circuit, a habeas petition

under 28 U.S.C. § 2254 is used to challenge the validity of a state
court conviction or sentence, while a habeas petition under 28 U.S.C.
1

Respondents expressly waive any statute of limitations argument in this
matter, noting it is unclear how the one-year statute of limitations in K.S.A.
28-2244(d) applies to the circumstances of the instant petition.

§ 2241 is used to challenge the execution of a sentence.

See McIntosh

v. U.S. Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir.1997)(a
challenge to the validity of an inmate's conviction and sentence
should be brought under § 2254, while an attack on the execution of
his sentence is properly brought pursuant to § 2241).2

A sexually

violent predator committed pursuant to the KSVPA is a person confined
pursuant to the judgment of a state court, and may challenge the fact
or duration of his civil commitment by filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

See Duncan v. Walker,

533 U.S. 167, 176 (2001).3
Here, the state district court denied petitioner relief on his
2010 motion for relief from the 2001 judgment, first finding it was
not filed within a reasonable time as required for seeing relief under
2

The following analysis by the Eleventh Circuit of these two habeas provisions
is instructive:
“[A] state prisoner seeking post-conviction relief from a federal court
has but one remedy: an application for a writ of habeas corpus. All
applications for writs of habeas corpus are governed by § 2241, which generally
authorizes federal courts to grant the writ-to both federal and state
prisoners. Most state prisoners' applications for writs of habeas corpus are
subject also to the additional restrictions of § 2254. That is, if a state
prisoner is “in custody pursuant to the judgment of a State court”, his
petition is subject to § 2254. If however, a prisoner is in prison pursuant
to something other than a judgment of a state court, e.g., a pre-trial bond
order, then his petition is not subject to § 2254.
Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir.2003), cert denied, 541 U.S. 1032
(2004).
3
In Duncan, the United States Supreme Court stated:
“Nothing in the language of [28 U.S.C. § 2244] provisions requires that
the state court judgment pursuant to which a person is in custody be a criminal
conviction. Nor does 28 U.S.C. § 2254 ... by its terms apply only to those
in custody pursuant to a state criminal conviction. . . . Incarceration
pursuant to a state criminal conviction may be by far the most common and most
familiar basis for satisfaction of the ‘in custody’ requirement in § 2254
cases. But there are other types of state court judgments pursuant to which
a person may be held in custody within the meaning of the federal habeas
statute. For example, federal habeas corpus review may be available to
challenge the legality of a state court order of civil commitment or a state
court order of civil contempt.”
533 U.S. at 176.
See also Merryfield v. Kansas, 2009 WL 3125470, *1
(D.Kan.2009)(unpublished).

K.S.A. 60-260(b).

See In re Chadwick, 2011 WL 3795483 at **1-3

(2012)(detailing the procedural history in Chadwick’s case).

The

state district court further found that petitioner had stipulated to
the admission and content of the LSSH report, and that the court had
independently determined that petitioner was a sexually violent
predator based on the content of that report.

Id.

The Kansas Court of Appeals affirmed, finding the district
court’s decision could be affirmed simply on the basis that petitioner
did not seek relief under K.S.A. 60-260(b) in a timely manner.

Id.

The state appellate court further found petitioner had not designated
an adequate record for review of the district court’s factual
determination that petitioner had been afforded a trial in 2001, and
found the district court’s 2001 journal entry of commitment was not
void for lack of subject matter jurisdiction because any failure to
comply with KSVPA timing provisions in K.S.A. 59-29a03 and 29a04 was
not jurisdictional.

Id.

This matter is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).

Under the AEDPA, when a claim has been

adjudicated on its merits in the state courts, a federal court may
grant habeas corpus relief only if the petitioner shows that the state
court's decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.”

28 U.S.C. § 2254(d)(1)-(2).

Absent clear and convincing evidence to the contrary, a federal
habeas court must presume the factual findings of a state court are

correct.

28 U.S.C. § 2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175

(10th Cir.2004).

A federal court has no authority in habeas corpus

to review a state court's decision concerning the interpretation or
application of state law.

Estelle v. McGuire, 502 U.S. 62, 67–68

(1991)(explaining it is not the province of federal habeas corpus
review to re-examine state-court decisions on state-law questions).
Rather, a federal habeas court may consider only whether the
conviction

or

confinement

being

challenged

Constitution, federal law, or treaties.

violates

the

U.S.

28 U.S.C. § 2241.

Accordingly, to the extent petitioner contends the State’s
initiation

of

the

2001

commitment

proceedings

violated

timing

provisions in KSVPA, this alleged error is based on state law and
clearly

challenges

the

state

courts’

interpretation

of

KSVPA.

Petitioner’s jurisdictional claim based upon the State’s timing of
the civil commitment proceeding against him thus entitles petitioner
to no relief under § 2254.
Likewise, to the extent petitioner contends the state district
court lacked jurisdiction in the 2001 civil commitment proceeding
because the informal hearing held in the Finney County District Court
in 2001 did not afford him a trial in compliance with the KSVPA
guidelines for initiating sexually violent predator proceedings,
petitioner advances no evidence to rebut the state district court’s
factual finding that a trial had been conducted.
CONCLUSION
For the reasons stated herein, the court finds petitioner has
not presented any claim that suggests constitutional error in the
state civil commitment proceedings against him, or in the denial of

petitioner’s motion for relief from that 2001 judgment.

The Kansas

courts adjudicated his claims on the merits, and there is no showing
of any decision that was contrary to clearly established federal law
or of any unreasonable determination of the facts.

Moreover, the

rulings of the Kansas courts rest upon their interpretation and
application of state law, which are matters outside the province of
this court’s review in habeas corpus.

Finding no cognizable ground

for habeas corpus relief, the court denies the petition.
IT IS THEREFORE ORDERED that this matter is dismissed and all
relief is denied.
IT IS SO ORDERED.
DATED:

This 10th day of July 2013 at Topeka, Kansas.

s/ Sam A Crow
SAM A. CROW
U.S. Senior District Judge