Jenkins v. Roberts et al

Filing 8

MEMORANDUM AND ORDER ENTERED: Respondent's motion 6 to dismiss for lack of jurisdiction is granted. This petition for writ of habeas corpus is dismissed and all relief is denied without prejudice. A certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 03/03/14. (Mailed to pro se party Kerry D. Jenkins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KERRY D. JENKINS,
Petitioner,
v.

CASE NO.

13-3044-SAC

RAY ROBERTS, Secretary
of Corrections, et al.,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2254.

The matter is presently before the court upon

respondent’s Motion to Dismiss for Lack of Jurisdiction.

Having

considered this motion, the court finds that it must be granted.

FACTUAL BACKGROUND AND CLAIM
The following facts were set forth by the Kansas Supreme Court
(KSC) on petitioner’s direct appeal:
On May 1, 2007, Jenkins stole two DVDs, valued at less than
$1,000, from a grocery store. Jenkins was charged in
municipal court with misdemeanor theft. Wichita City
Ordinance 5.42.010 (2005), petit theft, classifies theft
of property valued at under $1,000 as a misdemeanor and
provides for a potential penalty of 1 year in jail and a
fine.
At the time of the crime, K.S.A. 2006 Supp. 21–3701(b)(5)
also classified theft of property valued at less than
$1,000 as a misdemeanor, but another subsection of the
statute provided: “Theft of property of the value of less
than $1,000 is a severity level 9, nonperson felony if
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committed by a person who has been convicted of theft two
or more times.” . . . see K.S.A. 21–3701(b)(5), (6)(same).
Jenkins had two prior theft convictions.
On May 31, 2007, the district attorney's office filed
felony theft charges in district court against Jenkins for
the same theft. But on June 5, 2007—just 5 days after the
felony charges were filed—Jenkins pleaded no contest to
misdemeanor theft in municipal court.
On June 21, 2007, the city prosecutor moved to vacate the
misdemeanor theft conviction.
The City argued the
municipal court lacked jurisdiction to prosecute the
misdemeanor theft charge because Jenkins' crime should
have been classified as a felony under K.S.A. 21–
3701(b)(6). The city prosecutor cited State v. Elliott,
281 Kan. 583, Syl. ¶ 1, 133 P.3d 1253 (2006), for the
holding that the municipal court lacks jurisdiction over
felony crimes.
On July 3, 2007, the municipal court
granted the City's motion to vacate.
On July 18, 2007, Jenkins filed a motion to dismiss the
felony theft charge in district court, arguing it was a
second prosecution for the same crime in violation of the
Double Jeopardy Clause of the Fifth and Fourteenth
Amendments to the United States Constitution, § 10 of the
Kansas Constitution Bill of Rights, and K.S.A. 21–3108.
The State argued the statutory and constitutional double
jeopardy provisions were not violated because the
municipal court lacked jurisdiction. The district court
agreed with the State.
The district court held that under K.S.A. 21–3701(b)(6),
Jenkins' third theft conviction must be classified as a
felony. It held the municipal court conviction was a
nullity because the municipal court lacked jurisdiction
over felonies and that double jeopardy protections did not
bar the felony proceedings in district court. The district
court then presided over a bench trial during which Jenkins
was convicted for felony theft.
State v. Jenkins, 295 Kan. 431, 432-33, 284 P.3d 1037 (Kan. 2012).
On July 6, 2007, Mr. Jenkins was sentenced to 9 months in prison.
He filed a timely appeal to the Kansas Court of Appeals (KCA), in

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which he argued that:
the municipal court had jurisdiction over the misdemeanor
theft prosecution, so the second prosecution violated
double jeopardy.
The Court of Appeals held that Elliott was controlling and
the municipal court lacked jurisdiction because the theft
was classified as a felony under K.S.A. 21–3701(b)(6).
State v. Jenkins, No. 100,396, 2009 WL 2144059, at *1–2
(Kan.App.2009)(unpublished opinion). It then held K.S.A.
21–3108(4)(a), the statutory protection against double
jeopardy, does not bar a second prosecution when the court
presiding over the first prosecution lacked jurisdiction.
2009 WL 2144059, at *2.
Id. at 433.

Petitioner’s convictions were affirmed by the KCA.

State v. Jenkins, 211 P.3d 188, 2009 WL 2144059 (Kan.App. 2009).
Jenkins raised the same double jeopardy claim under the United States
Constitution as well as the Kansas Constitution and state statute
in the KSC and argued that double jeopardy attached to the municipal
court proceeding.

The KSC granted his Petition for Review, but

affirmed on September 7, 2012, in a published opinion with three
justices dissenting.
Mr. Jenkins filed this federal habeas corpus petition on March
11, 2013.

He claims that his 2007 conviction of felony theft in

Sedgwick County District Court violated double jeopardy.
issued a show cause order to respondents.

The court

Respondents filed a Motion

to Dismiss for Lack of Jurisdiction (Doc. 6) in which they argue that
Mr. Jenkins’ federal habeas application should be dismissed due to
lack of jurisdiction because he “is not in custody pursuant to the
challenged conviction.”

Petitioner has filed a “Traverse to
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Respondents’ Motion to Dismiss” (Doc. 7).

STANDARDS
“[J]urisdictional questions are of primary consideration.”
Neiberger v. Rudek, 450 Fed.Appx. 719, 721 (10th Cir. 2011).

“Without

jurisdiction the court cannot proceed at all in any cause,” and “the
only function remaining to the court is that of announcing the fact
and dismissing the cause.”

Id. (citing Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 94 (1998)(quoting Ex parte McCardle,
7 Wall. 506, 514 (1868); accord United States v. Tony, 637 F.3d 1153,
1157 (10th Cir. 2011)).

Petitioner bears the burden of establishing

jurisdiction.
The federal habeas statute gives a United States district court
jurisdiction to entertain a petition for a writ of habeas corpus by
“a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution
or

laws

or

treaties

of

2254(a)(emphasis added).

the

United

States.”

1

28

U.S.C.

§

The United States Supreme Court has

“interpreted the statutory language as requiring that the habeas
petitioner be ‘in custody’ under the conviction or sentence under
attack at the time his petition is filed.”
488, 490-91 (1989).

Maleng v. Cook, 490 U.S.

The “in custody” requirement of § 2254 is

1
A writ of habeas corpus acts upon the petitioner’s custodian and its object
is to end unlawful restraint. It has not been limited solely to physical custody,
but is reserved for only the most severe restrains on individual liberty, including
conditional release such as probation or parole.

4

jurisdictional.

McCormick v. Kline, 572 F.3d 841, 847-48 (10th Cir.

2009); Fleming v. Evans, 481 F.3d 1249, 1252 n. 1 (10th Cir.
2007)(citing Oyler v. Allenbrand, 23 F.3d 292, 293-94 (10th Cir.
1994)); Neiberger, 450 Fed.Appx. at 723 (“[F]ederal district courts
lack subject matter jurisdiction to consider a petition under § 2254
unless the petitioner is ‘“in custody” under the conviction or
sentence under attack at the time his petition is filed.’”).

The

Supreme Court reasoned that, “once the sentence imposed for a
conviction has completely expired, the collateral consequences of
that conviction are not themselves sufficient to render an individual
‘in custody’ for the purposes of a habeas attack upon it.”
490 U.S. at 492.

Maleng,

The Supreme Court has thus instructed that “[t]he

first showing a § 2254 petitioner must make is that he is ‘in custody
pursuant to the judgment of a State court.’”

Lackawanna County Dist.

Attorney v. Coss, 532 U.S. 394, 401 (2001)(quoting 28 U.S.C. §
2254(a)); McCormick, 572 F.3d at 847.
The Supreme Court additionally held that a habeas petitioner
is not “in custody” under a conviction whose sentence has fully
expired at the time his petition is filed simply because that
conviction has been used to enhance a current or future sentence.
Maleng, 490 U.S. at 491.

The “first and most compelling interest”

on which the Supreme Court based this holding was “the finality of

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convictions.”

Lackawanna, 532 U.S. at 402. 2

They reasoned that

“[o]nce a judgment of conviction is entered in state court, it is
subject to review in multiple forums.”

Id.

They specifically

mentioned both direct appeal and state postconviction review as well
as § 2254.

They then noted their previous holding that “[t]hese

vehicles for review . . . are not available indefinitely and without
limitation.”

Id. at 403 (citing Daniels v. United States, 532 U.S.

374, 381 (2001)).

Finally, the Court plainly stated that “once a

state conviction is no longer open to direct or collateral attack
in its own right,” because the petitioner either “failed to pursue
those remedies while they were available” or “did so unsuccessfully,”
the petitioner “is without recourse.”

Lackawanna, 532 U.S. at 403.

With regard to the situation where a defendant unsuccessfully pursued
remedies, the Court explained that when a defendant sought review
and did not prevail because he failed to prove a constitutional
violation, his “conviction becomes final and the State that secured
the conviction obtains a strong interest in preserving the integrity
of its judgment.”

Id.

The general rule requiring that a habeas petitioner be “in
custody” is subject to two exceptions.3

However, they both come into

2
The Court’s second concern was “ease of administration of challenges to
expired sentences.” Lackawanna, 532 U.S. at 403.
3
The Supreme Court in Lackawanna is said to have answered in the negative
the question left undecided in Maleng of whether “the [earlier] conviction itself
may be subject to challenge in the attack upon the [later] sentences which it was
used to enhance.” Id. at 494. The Court confirmed the general rule that “‘once
a state conviction is no longer open to direct or collateral attack in its own

6

play only when the petitioner challenges his current unexpired
sentence based upon the claim that a prior expired sentence used as
an enhancement was unconstitutional.

The first exception crafted

by the Supreme Court is for challenging an enhanced sentence on the
basis that the prior conviction used for enhancement was obtained
without appointment of counsel in violation of the Sixth Amendment
as

set

forth

in

Gideon

v.

Wainwright,

372

U.S.

335

(1963).

McCormick, 572 F.3d at 851 (citing Lackawanna, 532 U.S. at 404
(additional citation omitted)).

A plurality of the Court also

recognized a “second exception to the general rule: cases in which
a petitioner has, through no fault of his own, no means of obtaining
‘timely review of a constitutional claim.’”
at 405).

Id. (citing Lackawanna

The Tenth Circuit has “recognized the plurality’s second

exception as good law.”

Id. (citing see Broomes v. Ashcroft, 358

F.3d 1251, 1254 (10th Cir. 2004), abrogated on other grounds by
Padilla v. Kentucky, 559 U.S. 356 (2010)).

Frequently-cited

examples of the second exception include where a state court has
refused without justification to rule on a properly presented
constitutional claim; and where a defendant obtains, after the time
for direct or collateral review has expired, compelling evidence of
actual innocence that could not have been uncovered in a timely
manner.

See Lackawanna, 532 U.S. at 405.

right,’ a habeas petitioner ‘generally may not challenge,’ on the ground that the
expired conviction was unconstitutionally obtained, a later sentence that was
enhanced by that expired conviction.”
McCormick, 572 F.3d at 851 (citing
Lackawanna, 532 U.S. at 403-04).

7

DISCUSSION
In support of their Motion to Dismiss, respondents exhibit
offender records maintained by the Kansas Department of Corrections
(KDOC) showing that petitioner was discharged from custody in
Sedgwick County Case Number 07-CR-1863 4 on January 10, 2008.
conditional release term is mentioned by either party.

No

They also

point out that Mr. Jenkins does not dispute that he has served his
2007 felony theft sentence, stated in his petition that this sentence
was for nine months, and is not challenging the convictions for which
he is currently in custody.

It is thus undisputed that Mr. Jenkins

was no longer in custody on the 2007 conviction that he seeks to
challenge at the time he filed his federal petition.

Accordingly,

unless petitioner falls within an exception to the “in custody”
requirement, his petition must be dismissed.
The court finds that the petition, even when construed with the
deference to which pro se litigants are entitled,

cannot be

characterized as a challenge to the sentence petitioner is currently
serving.

First, Mr. Jenkins makes it clear that he challenges only

his 2007 felony theft conviction.

His double jeopardy argument

addresses the validity of that conviction only.

He does not even

disclose the conviction under which he is currently confined, much
4
Mr. Jenkins alleges in his “Traverse” that he was “discharged from criminal
conviction on August 22, 2011” but provides no facts or records to support this
assertion. The court notes that in his petition, Mr. Jenkins erroneously referred
to his conviction under attack as Case No. 07-CR-1372, which was an earlier
conviction. Whether the correct date is that provided by petitioner or that in
the KDOC records, Mr. Jenkins was not in custody when he filed the instant petition.

8

less allege that his current sentence was enhanced by the challenged
conviction.

In short, nothing in the petition or the traverse can

be read as asserting a challenge to petitioner’s current conviction
as enhanced by the 2007 conviction.

It follows that the two

exceptions that may be available in an enhancement case are not
available to Mr. Jenkins.
Furthermore, even if petitioner did or could make an enhancement
argument, he does not allege facts indicating that he falls within
either of the two exceptions.

He does not allege failure to appoint

counsel in connection with his 2007 conviction.5
any facts to establish the second exception.

Nor does he allege

The second exception

applies where “no channel of review was actually available to a
defendant with respect to a prior conviction, due to no fault of his
own” so that the federal habeas petition “may effectively be the first
and only forum available for review of the prior conviction.”
Daniels, 532 U.S. at 383–84.

A plurality in Lackawanna elaborated:

It is not always the case, however, that a defendant can
be faulted for failing to obtain timely review of a
constitutional claim. For example, a state court may,
without justification, refuse to rule on a constitutional
claim that has been properly presented to it.
Alternatively, after the time for direct or collateral
review has expired, a defendant may obtain compelling
evidence that he is actually innocent of the crime for
which he was convicted, and which he could not have
uncovered in a timely manner.
Lackawanna, 532 U.S. at 405 (citations omitted).
5
Petitioner is also not alleging that he is serving aggregated sentences that
include his 2007 sentence or a parole term in connection with his 2007 sentence.

9

Petitioner’s allegations in his pleadings and the opinions of
the state appellate courts demonstrate that this is not a case where
no channel of review was available.

Here, Mr. Jenkins diligently

pursued his available direct-appeal remedies on his 2007 conviction,
albeit unsuccessfully.
refused

to

consider

There is no claim that the state courts
the

double

jeopardy

issue

as

a

federal

constitutional claim, and the opinions of the state appellate courts
plainly reflect that it was thoroughly considered and debated by the
justices.

Because Mr. Jenkins was no longer “in custody” on his 2007

conviction at the time he filed this federal application, his state
conviction was “conclusively valid” and “no longer open to attack”
in federal court.
Mr. Jenkins asserts what he apparently believes should be a
third exception to the “in custody” requirement.

He argues that

because he only recently concluded exhaustion of state remedies, he
had no opportunity to bring this action while in custody.
the

court

notes

that

petitioner’s

double

thoroughly reviewed by the KCA and the KSC.

jeopardy

Again,

claim

The Tenth Circuit

rejected a similar argument in Broomes:
(Petitioner) artfully attempts to overcome the “in
custody” requirement by carving out a new exemption,
excusing the requirement for those who, like him, were
diligently pursuing state court relief when their
convictions or sentences expired.
However, the “in
custody” jurisdictional requirement is statutorily set
and the question of who is entitled to habeas review is
a policy determination to be made by the legislature rather
than the judiciary.
Moreover, the Supreme Court’s
10

was

judicial interpretation of the applicable statutes has
squarely set out only two exceptions, of which
(petitioner) meets neither.
Id. at 1254.

Likewise, the Tenth Circuit recently considered a case

where the appellant had received a 12-month suspended sentence and
3 years’ probation for battery of a police officer and then timely
and unsuccessfully sought state appellate and state post-conviction
review, which concluded long after she finished her probation.
Rawlins v. Kansas, 714 F.3d 1189, 1190-91 (10th Cir. 2013).

The

Circuit held at the outset: “Given that she was no longer ‘in
custody,’ Rawlins could not bring a § 2254 petition in federal court.”
Id. at 1192 (citing § 2254(a); Maleng, 490 U.S. at 492).

The Supreme

Court has observed that it has “never held” that “a habeas petitioner
may be ‘in custody’ under a conviction when the sentence imposed for
that conviction has fully expired at the time his petition is filed.”
Maleng, 490 U.S. at 490-91.
Petitioner also argues that “this action is a continuation of
his

(state)

appeals,”

his

conviction

clearly

violated

Double

Jeopardy, and he has no other remedy to correct this “manifest
injustice.”

These bald statements based on arguments on the merits

do not show that petitioner meets the “in custody” requirement or
that the Supreme Court’s exceptions apply to this case.
In summary, petitioner does not satisfy the “in custody”
requirement on the conviction he seeks to challenge because the
resulting 9 month sentence had fully expired at the time he filed
11

this federal habeas corpus petition.

As a result this court lacks

jurisdiction to consider petitioner’s double jeopardy claim, and the
only function remaining to this court is to dismiss this action,
without prejudice.

See Mays v. Dinwiddie, 580 F.3d 1136, 1140 (10th

Cir. 2009); Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005);
Neiberger, 450 Fed.Appx. at 723 (citing Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)).
Rule 11 of the Rules Governing Section 2254 Cases in the United
States District Courts, instructs that “[t]he district court must
issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.”

Pursuant to 28 U.S.C. § 2253, the

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 “indicates which specific issue or issues
satisfy [that] showing.”

The court concludes that a certificate of

appealability should not issue in this case.

Nothing suggests that

the court’s ruling resulting in the dismissal of this action is
debatable or incorrect.
IT IS THEREFORE ORDERED that respondent’s Motion to Dismiss for
Lack of Jurisdiction (Doc. 6) is granted, and this petition for writ
of habeas corpus is dismissed and all relief is denied, without
prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is
denied.
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IT IS SO ORDERED.
Dated this 3rd day of March, 2014, at Topeka, Kansas.

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

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