Leek v. Brown
| Docket Number | 123,711 |
| Decision Date | 22 July 2022 |
| Citation | 518 P.3d 1257 |
| Parties | Kenneth D. LEEK, Appellant, v. Andy BROWN, et al., Appellees. |
| Court | Kansas Court of Appeals |
Shannon S. Crane, of Hutchinson, for appellant, and Kenneth D. Leek, appellant pro se.
Jon D. Graves, legal counsel, Kansas Department of Corrections, of Hutchinson, for appellee.
Before Schroeder, P.J., Green and Gardner, JJ.
Following proceedings in two prison disciplinary cases, Kenneth D. Leek filed a K.S.A. 60-1501 petition in the district court. The district court held a hearing on Leek's claims but eventually dismissed Leek's petition. Leek appeals that decision, challenging the process in the disciplinary proceedings and in the district court. Even assuming that the allegations in Leek's petition are true, we find no error in the district court's dismissal.
In 2019, Hutchinson Correctional Facility (HCF) officials charged and later found Leek guilty of violating the following prison regulations in case Nos. 19-07-350E and 19-07-443E:
On July 19, 2019, Officer J. Cain called Leek into the chaplain's office at HCF to talk about religious headgear Leek possessed without proper authorization. Cain told Leek the unauthorized headgear would have to be sent somewhere outside of the prison or destroyed. Another officer, D. Wilson, handed Leek mailing materials. Then, according to Cain, Leek responded with aggressive and threatening statements—Leek told Cain to stop laughing and said Cain would not "be laughing long." Leek also blamed Cain for starting the conflict, saying he "started this [s]hit." Cain, Wilson, and Chaplain Halfmoon witnessed this event.
Cain filed a written report, which became the basis of disciplinary charges against Leek under K.A.R. 44-12-305, for insubordination or disrespect, and K.A.R. 44-12-306, for threatening or intimidating. Leek moved to dismiss the complaint, alleging fraud and retaliation. Leek claimed the charge was fraudulent because although Cain had signed the report, he had not written it—the handwriting showed Wilson had written the report. He then argued that Wilson likely wrote the report in retaliation for a recent grievance Leek filed against him. The hearing officer rejected these claims and denied Leek's motion to dismiss.
The record on appeal does not include a transcript of the disciplinary hearing, but according to the hearing officer's written summary of the hearing, Leek signed a form acknowledging that he had received proper notice of the charges and the hearing and pleaded not guilty to both offenses. Leek also waived his right to question the reporting officer, and he did not submit a witness request.
The hearing officer's summary also shows that Halfmoon appeared at the disciplinary hearing and gave sworn testimony. Halfmoon denied seeing Cain laugh at Leek during the incident but testified that Leek had said:
Leek denied that he had made any "threats," but he did not deny having made the statements Halfmoon attributed to him. Leek would later claim that contrary to the hearing officer's written summary, Halfmoon did not appear at the disciplinary hearing and thus did not provide sworn testimony.
Relying on Halfmoon's testimony and Cain's disciplinary report, the hearing officer found Leek guilty and imposed a $5 fine.
Around a week after the incident in Halfmoon's office, Wilson filed another disciplinary report against Leek for being in two restricted areas of the prison without permission: the prison gym and near Dorm One. According to Wilson's report, Leek went to the prison gym without permission, and Leek was seen "talking thru the screen windows of Dorm One and this is not allowed and is also a restricted area."
HCF officials charged Leek with being in a restricted area under K.A.R. 44-12-503(a) and set the matter for a disciplinary hearing. After receiving proper notice, Leek submitted a request to have two witnesses testify on his behalf: inmate Lewis Anderson and HCF's activities' specialist William Perrone. Leek also moved to dismiss, claiming Perrone had given Leek ongoing permission to go to the gym anytime he was there.
The hearing officer denied Leek's motion to dismiss and partially denied his witness request, finding Anderson did not witness the incident reported.
Leek challenges how the hearing officer treated his witness request for Perrone. A copy of the witness request form shows the hearing officer approved Leek's request for Perrone to appear. But Leek would later claim that his request for Perrone was impliedly denied because Perrone never appeared at the disciplinary hearing. And the signature lines for Perrone and the hearing officer's signature on the summons for Perrone to appear at the hearing were left blank.
The hearing officer's summary of the disciplinary hearing states:
Leek testified that Perrone gave him permission to "go to the gym anytime he was there."
Relying on Perrone's testimony and Wilson's report, the hearing officer found Leek violated K.A.R. 44-12-503(a) and ordered Leek to pay a $3 fine.
Leek appealed both disciplinary decisions to the Secretary of Corrections. The Secretary of Corrections affirmed Leek's three convictions, finding sufficient evidence supported them and the hearing officer substantially complied with the required administrative procedures.
Leek then petitioned for review in the district court. The State responded to Leek's claims and moved to dismiss Leek's petition as untimely.
The district court held a nonevidentiary hearing on Leek's petition. The State appeared through counsel. Leek did not ask for counsel but appeared at the district court and argued pro se.
At the hearing, the State argued that Leek's petition was untimely because it had not been filed within 30 days of the Secretary of Correction's disposition. The State also argued that the district court should dismiss Leek's claims because the record showed relief was not warranted.
Leek again raised claims regarding fraud, retaliation, bias, and due process. Leek argued that Cain did not write the disciplinary report in 19-07-350E and that Wilson's filing of the disciplinary report was retaliatory. Leek also claimed that the hearing officer violated his due process rights, showed bias in favor of the reporting officers, and fraudulently stated that various witnesses had appeared at the disciplinary hearings.
The district court found that Leek "substantially compli[ed]" with the filing requirements and found jurisdiction to consider his petition. The district court allowed Leek to argue, including his claims about the allegedly fraudulent report and retaliation.
In its written order, the district court found the handwriting in Cain's disciplinary report was different than Cain's signature, but that fact was immaterial. The district court found Leek's claims regarding bias, fraud, and retaliation unsupported and unpreserved. The district court also found that Leek had waived his right to develop the facts necessary to consider his retaliation defense. The district court likewise rejected Leek's due process claims, finding some evidence supported Leek's convictions. The district court thus dismissed Leek's K.S.A. 60-1501 petition.
Leek timely appeals.
Leek challenges the district court's summary dismissal of his K.S.A. 60-1501 petition. Leek's appointed appellate counsel submitted an appellate brief on Leek's behalf, arguing the hearing officer violated Leek's due process rights by ignoring his theories of defense. We granted Leek's request to file a supplemental brief pro se. In it, Leek claims the hearing officer violated his due process rights by denying his witness requests, failing to conduct the hearing in a fair and impartial manner, and failing to make an accurate and complete record of the disciplinary proceedings. Leek also asserts that the district court erred by not appointing him counsel when the State appeared through counsel.
K.S.A. 2021 Supp. 60-1503 authorizes the summary dismissal of a habeas corpus petition "[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court." Relief is warranted only when the petition alleges "shocking and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson v. State , 289 Kan. 642, 648, 215 P.3d 575 (2009). "When determining if this standard is met, courts must accept the facts alleged by the inmate as true." Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).
When a district court summarily dismisses a petition without issuing a writ under K.S.A. 2021 Supp. 60-1503(a), appellate courts are in just as good a position as the district court to determine whether relief is warranted. Denney v. Norwood , 315 Kan. 163, 175, 505 P.3d 730 (2022). So, our review is unlimited. See Johnson , 289 Kan. at 649, 215 P.3d 575. We assume the facts alleged are true and if we find those facts support the petitioner's claims under any theory, we must reverse the...
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