Barnes v. 29th Judicial District Court of Wyandotte County et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to proceed in forma pauperis 4 is granted. The petition is dismissed and all relief is denied. The motion to appoint counsel 5 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 03/20/17. Mailed to pro se party James D. Barnes, Sr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES D. BARNES, SR.,
Petitioner,
v.

CASE NO. 17-3026-SAC

29th JUDICIAL DISTRICT, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis.
Petitioner was convicted in the District Court of Wyandotte
County, Kansas, pursuant to a guilty plea in October 2016.

In the

present action, he seeks immediate release, or, in the alternative,
a reduction of 12 months in his prison term. Petitioner’s claim for
relief appears to be that Sheriff Don Ash failed to ensure his presence
at all hearings.
Petitioner fails to state grounds for relief. It is settled under
both Kansas law and United States Supreme Court case law that the entry
of a guilty plea operates as a waiver of procedural defects except
for objections based upon a lack of jurisdiction or the failure to
charge a crime.
In United States v. Broce, 488 U.S. 563 (1989), the U.S. Supreme
Court stated:
A plea of guilty and the ensuing conviction comprehend all
of the factual and legal elements necessary to sustain a

binding, final judgment of guilt and a lawful sentence.
Accordingly, when the judgment of conviction upon a guilty
plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether
the underlying plea was both counseled and voluntary. If
the answer is in the affirmative then the conviction and
the plea, as a general rule, foreclose the collateral
attack. There are exceptions where on the face of the record
the court has not power to enter the conviction or impose
the sentence.
Broce, 488 U.S. at 569.
The Kansas Supreme Court has adopted the Broce ruling. See State
v. Edwards, 135 P.3d 1251, 1256 (Kan. 2006)(“Broce has been adopted
in Kansas…. [A] guilty plea waives all nonjurisdictional defects
including a claim of double jeopardy.”).
Likewise, the Kansas statutes incorporate this principle. K.S.A.
22-3208(4) provides, in part,
A plea of guilty or a consent to trial upon a complaint,
information or indictment shall constitute a waiver of
defenses and objections based upon the institution of the
prosecution or defects in the complaint, information or
indictment other than it fails to show jurisdiction in the
court or to charge a crime.
Petitioner’s guilty plea waived the claim that jail personnel
failed to secure his presence at every pretrial hearing, and the Court
concludes he is not entitled to habeas corpus relief1.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
proceed in forma pauperis (Doc. #4) is granted.
IT IS FURTHER ORDERED the petition is dismissed and all relief
is denied.

1

Petitioner’s apparent failure to exhaust his claims does not prevent this court
from considering his claims. See 28 U.S.C. § 2254(b)(2)(application for habeas
corpus may be denied on the merits despite the petitioner’s failure to exhaust state
court remedies).

IT IS FURTHER ORDERED the motion to appoint counsel (Doc. #5)
is denied.
IT IS SO ORDERED.
DATED:

This 20th day of March, 2017, at Topeka, Kansas.

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