Kyner v. Superintendent

• Decision Date: 22 July 2016
• Docket Number: Case No. 1:14-cv-400-TWP-DKL
• Parties: ERIC M. KYNER, Petitioner, v. SUPERINTENDENT, NEW CASTLE CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Southern District of Indiana

ERIC M. KYNER, Petitioner, v. SUPERINTENDENT, NEW CASTLE CORRECTIONAL FACILITY, Respondent.

Case No. 1:14-cv-400-TWP-DKL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

July 22, 2016

ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is Petitioner Eric Kyner's ("Mr. Kyner") Petition for Writ of Habeas Corpus. In 2006, Mr. Kyner pled guilty to rape and criminal confinement in an Indiana state court. On November 1, 2006, he was sentenced to fifteen years' imprisonment with three years suspended to probation for these crimes. Mr. Kyner now seeks a writ of habeas corpus.

For the reasons explained in this Entry, Mr. Kyner's Petition is denied and the action dismissed with prejudice. However, the Court finds that a certificate of appealability should issue as to one of Mr. Kyner's claims.

I. BACKGROUND

District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On post-conviction appeal, the Indiana Court of Appeals summarized the relevant factual and procedural history:

In 2006, Kyner was charged with burglary, a Class A felony; rape, a Class B felony; criminal confinement, a Class D felony; and battery, a Class A misdemeanor. Pursuant to a plea agreement, Kyner agreed to plead guilty to the rape and criminal confinement charges. In exchange, the State agreed to dismiss the burglary and battery charges, and recommend that Kyner be sentenced to twelve years imprisonment executed in the Indiana Department of Correction for the rape conviction, to be served consecutively to three years imprisonment suspended to sex offender probation for the criminal confinement conviction. The plea agreement also specified that Kyner would register as a sex offender. The trial court accepted the agreement and Kyner was sentenced accordingly.

Kyner was paroled on May 10, 2010. On August 2, 2011, the trial court ordered that Kyner be supervised by probation while completing his parole obligation. On August 23, 2011, Kyner was given notice of a probation violation. On September 9, 2011, the trial court held a hearing and discharged Kyner from probation. On December 20, 2011, the parole board found Kyner guilty of a parole violation and revoked his parole.

On January 17, 2012, Kyner filed, pro se, a petition for post-conviction relief, alleging that he was improperly placed on parole and that he was not informed at the time of his sentencing that he would be required to register as a sexually violent predator for the rest of his life. The post-conviction court held a hearing on the petition on July 18, 2012. After giving the Attorney General's office an opportunity to respond to the petition, the court issued findings of fact and conclusions of law denying Kyner's petition on January 8, 2013.

Kyner v. State, 2013 WL 3776972, *1 (Ind. Ct. App. 2013) ("Kyner").

The Indiana Court of Appeals in Kyner affirmed the denial of post-conviction relief. See id. at *3. Mr. Kyner then filed a petition to transfer with the Indiana Supreme Court, and it denied transfer on October 10, 2013. See Kyner v. State, 995 N.E.2d 620 (Ind. 2013).

Mr. Kyner was released from state prison on or about January 3, 2015 with the condition of sex-offender parole which included of GPS monitoring. According to Mr. Kyner, he was unfortunately returned to the New Castle Correctional Facility for a parole violation as of July 1, 2015 for a technical violation "concerning the GPS monitoring, added to the petitioner's sentence, when he was once again improperly placed on sex-offender parole, and also labeled a 'SVP', January 2^nd, 2015." (Filing No. 40 at 1). Mr. Kyner alleges the continued parole is improper "due to the fact the case is discharged." (Filing No. 35 at 4).

II. APPLICABLE LAW

A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a) (1996). Mr. Kyner filed his 28 U.S.C. § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). His petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

"Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, that the state court which convicted him unreasonably applied a federal doctrine declared by the United States Supreme Court." Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Guys v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). Thus, "under AEDPA, federal courts do not independently analyze the petitioner's claims; federal courts are limited to reviewing the relevant state court ruling on the claims." Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). "A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). "The habeas applicant has the burden of proof to show that the application of federal law was unreasonable." Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).

III. DISCUSSION

Mr. Kyner raises several claims in his Petition as well as in a subsequent filing entitled Amended Motion for Preliminary Injunction, which the Court deemed to amend and expand his habeas Petition. (Filing No. 35.) In his habeas petition, Mr. Kyner raises challenges to hisplacement on parole and his designation as a sexually violent predator. In his amended filing, he raises similar claims regarding his most recent placement on parole in January 2015.

The Respondent contends that Mr. Kyner's challenges to his January 2015 placement on parole are unexhausted because he has not raised these claims in state court. The Court disagrees. Mr. Kyner's claims with respect to his most recent placement on parole are essentially the same as those he raised in Kyner, and the parole period challenged in both instances stems from the same 2006 convictions for rape and criminal confinement. Therefore, Mr. Kyner's claims are not new, unexhausted claims, but a continuation of his challenges raised in Kyner that are still affecting him.

Even if the Respondent was correct that Mr. Kyner's claims are unexhausted or procedurally defaulted, because his claims are meritless, it is still prudent for the Court to address them on the merits. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); see also Brown v. Watters, 599 F.3d 602, 610 (7th Cir. 2010); Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004). Accordingly, the Court will address all of Mr. Kyner's challenges to his placement on parole.

Mr. Kyner raises the following claims in his Petition: (1) whether the Kyner court erred in concluding that he was properly designated a sexually violent predator; (2) whether the Kyner court erred in concluding that he was properly placed on parole after he was discharged from probation; and (3) whether his double jeopardy or due process rights were violated when he was placed on parole, since his plea agreement and criminal judgment only provided for probation.

A. Designation as a Sexually Violent Predator

With respect to his first claim, Mr. Kyner argues that his designation as a sexually violent predator under Indiana law is unconstitutional because the law was passed in 2007, yet he plead guilty in 2006 and therefore should not be subject to the requirements of a 2007 law. This appears to be a claim that Mr. Kyner's rights under the Ex Post Facto Clause were violated. The Indiana Court of Appeals addressed this claim on the merits in Kyner, with the following reasoning:

The Indiana Sex Offender Registration Act ("the Act") was amended in 2007 to define a person who has committed one of a number of qualifying offenses, including rape, a sexually violent predator by operation of law if the person was released from incarceration, secure detention, or probation for the offense after June 30, 1994. Ind. Code § 35-38-1-7.5(b). A sexually violent predator is subject to a lifetime registration requirement. Ind. Code § 11-8-8-19(b). Kyner was convicted of rape and was released from incarceration after June 30, 1994, and thus, under the 2007 Amendment, is a sexually violent predator by operation of law. Kyner appears to argue that applying the statute to him constitutes a violation of the constitutional prohibition on ex post facto laws. He claims that his designation as a sexually violent predator is punitive in nature and is improper in light of the fact that at his sentencing in 2006, the Act only required him to register as a sex offender for ten years.

Kyner's arguments were rejected by our supreme court in Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011). In Lemmon, the court determined that the 2007 amendment of the Act applied retroactively to the defendant, who was convicted of one of the qualifying offenses in the statute and was released from incarceration after June 30, 1994. Id. at 809. The court further determined that even though the defendant had been sentenced in 1999 and was required at the time to register as a sex offender for ten years, retroactively applying the 2007 Amendment of the Act to him was not unconstitutional because it was nonpunitive. Id. at 813. In so doing, the court noted that the Act was in place at the time of the defendant's sentencing, id.; cf. Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009) (holding that applying the Act to the defendant, who was charged, convicted,

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