Rawlins v. State, No. 97,260.

• Citation: 182 P.3d 1271
• Decision Date: 16 May 2008
• Docket Number: No. 97,260.
• Parties: Damaris RAWLINS, Appellant, v. STATE of Kansas, Appellee.
• Court: Court of Appeals of Kansas

182 P.3d 1271

Damaris RAWLINS, Appellant, v. STATE of Kansas, Appellee.

No. 97,260.

Court of Appeals of Kansas.

May 16, 2008.

Damaris Rawlins, appellant pro se.

Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before HILL, P.J., GREEN and STANDRIDGE, JJ.

HILL, P.J.

This appeal arises from the dismissal of a K.S.A. 60-1507 motion. Damaris Rawlins appeals the district court's summary denial of her motion. Under Kansas law, a prisoner in custody may seek habeas corpus relief by filing a K.S.A. 60-1507 motion. Our courts have held that someone on probation is "in custody" for purposes of filing such a motion. Rawlins was on probation when she filed her motion, but her probation ended before the district court could rule. The district court then ruled it no longer had jurisdiction and dismissed her motion. Because Rawlins filed her motion when she was on probation, and possible adverse collateral consequences flowing from her conviction keep the action from becoming moot, we hold the district court had jurisdiction over the motion and reverse its ruling. After examining Rawlins' claims against her trial counsel, we remand the case to the district court with directions to entertain evidence on two of her five claims.

The case history illustrates Rawlins' problems.

We glean these facts from her direct appeal. Rawlins was arrested and taken to the Johnson County jail in January 2000. During the booking process, Rawlins refused to answer the officers' questions, and when she refused to move the officers carried her into a safety cell. As the officers set her down and prepared to leave, Rawlins kicked one of them. State v. Rawlins, No. 87,490, 66 P.3d 261, unpublished opinion filed March 21, 2003.

The State charged Rawlins with battery against a law enforcement officer, and she was convicted by a jury. She received a 36-month term of probation for her crime. Rawlins took a direct appeal, challenging the sufficiency of the evidence and alleging that the court erred in failing to instruct the jury on self-defense. This court affirmed the conviction. Rawlins, slip op. at 5-8.

Rawlins filed her K.S.A. 60-1507 motion on June 2, 2004, alleging ineffective assistance of trial counsel. But Rawlins completed her term of probation, and the district court discharged her from state custody on July 12, 2004. About 2 years later, the district court issued a memorandum decision dismissing Rawlins' K.S.A. 60-1507 motion, concluding it lacked jurisdiction because Rawlins was no longer in custody.

After reading the state and federal authorities relied upon by the district court, we reach a different conclusion about jurisdiction.

Obviously, this is a question of law. Our review is unlimited because this question requires an interpretation of K.S.A. 60-1507. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) (statutory construction); Foster v Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006) (jurisdiction).

Our statute, K.S.A. 60-1507(a), gives prisoners a right to collaterally attack their sentences:

"(a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may, pursuant to the time limitations imposed by subsection (f), move the court which imposed the sentence to vacate, set aside or correct the sentence." (Emphasis added.)

Because this law was modeled after a federal habeas corpus statute containing similar language (see 28 U.S.C. § 2255 [2000]), Kansas courts have turned for guidance to federal decisions that interpret similar federal statutes. Johnson v. State, 200 Kan. 708, 710, 438 P.2d 96 (1968) (citing State v. Richardson, 194 Kan. 471, 472, 399 P.2d 799 [1965]).

The district court here correctly noted the meaning of "in custody under sentence of a court" within both 28 U.S.C. § 2255 and K.S.A. 60-1507 has been broadly construed to mean any restraint of liberty imposed by court order following criminal proceedings. For example, a prisoner on parole is "in custody" within the meaning of both statutes. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Baier v. State, 197 Kan. 602, 604-06, 419 P.2d 865 (1966). Likewise, someone on probation is also "in custody." Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir.1992); Miller v. State, 200 Kan. 700, 704, 438 P.2d 87 (1968).

It is clear that Rawlins was on probation at the time she filed her motion on June 2, 2004. She was discharged from probation a little over a month later on July 12, 2004. The question then becomes: Does a district court lose jurisdiction over a K.S.A. 60-1507 motion when the State loses custody over the movant? The Kansas cases do not answer the question, but the federal cases do.

We look first at the Kansas cases.

The district court said it did lose jurisdiction. The court reasoned that a court loses jurisdiction to entertain a habeas corpus motion under K.S.A. 60-1507 when the movant ceases to be subject to "some continuing restriction of liberty from the court entering the sentence," relying on In re Habeas Corpus Application of Horst, 270 Kan. 510, 519, 14 P.3d 1162 (2000), and Johnson v. State, 4 Kan.App.2d 573, 574, 608 P.2d 1044 (1980).

We think these cases are legally distinguishable from the present case and do not control the issue. Both cases focused upon the legal status of the movant at the time the motion was filed.

In Horst, the Kansas Supreme Court initially acknowledged the liberal construction given the "in custody" requirement but looked at Horst's condition when the petition was filed and reasoned:

"When the foregoing authorities are applied to the facts of our case, it is apparent that Horst was, in a manner the City cannot refute, subject to its claimed but possibly improperly exercised jurisdiction at the time it ordered her to appear on the time-to-pay docket on June 1, 1999, and placed her in the Wichita Work Program. This constituted sufficient restraint for a writ of habeas corpus to have been issued at that time if such actions were improper or illegal as she now contends. This, however, is not the factual picture which we face because the City has acknowledged that at the time the petition was filed, and when the hearing was held, it had no right to subject Horst to any collection practices that could `detain, confine or restrain' her in any manner whatsoever." (Emphasis added.) 270 Kan. at 518, 14 P.3d 1162.

In Johnson, the movant was incarcerated in Texas at the time he filed his motion under K.S.A. 60-1507, but his motion attempted to challenge a prior Kansas conviction for which he had completed serving his sentence. This court held: "Our statute does not permit such a challenge since plaintiff is not `in custody' under the Kansas sentence he attempts to challenge." 4 Kan. App.2d at 574, 608 P.2d 1044. Again, the Johnson court looked at his condition when he filed his motion.

We deduce from Horst and Johnson that a movant is "in custody" within the meaning of K.S.A. 60-1507 if he or she is subject to detention, confinement, or restraint on the sentence subject to challenge by the K.S.A. 60-1507 motion when the motion is filed. The question not addressed by Horst or Johnson is whether the custodial requirement must be met at all stages of the K.S.A. 60-1507 proceedings or merely at the time the motion is filed. No Kansas cases directly address this question.

In the federal system, the question is answered.

While interpreting 28 U.S.C. § 2254(a), the federal statute permitting federal habeas corpus review of state sentences, the United States Supreme Court has held:

"The substantial issue, however, which is posed by Parker v. Ellis, [362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960)] is ... whether the statute defining the habeas corpus jurisdiction of the federal judiciary in respect of persons in state custody is available here. In Parker v. Ellis, as in the present case, petitioner's application was filed in the Federal District Court when he was in state custody, and in both the petitioner was unconditionally released from state custody before his case could be heard in this Court. For the reasons which we here summarize and which are stated at length in the dissenting opinions in Parker v. Ellis, we conclude that under the statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application." Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

Although Carafas involved application of 28 U.S.C. § 2254(a), not 28 U.S.C. § 2255, the same principle has been applied in cases involving application of 28 U.S.C. § 2255. See United States v. Loschiavo, 531 F.2d 659, 662 (2d Cir.1976).

Moreover, the United States Supreme Court has ruled that the substantive habeas corpus rights available under 28 U.S.C. § 2254 are equally applicable to actions under 28 U.S.C. § 2255. United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952) ("Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum."). We believe, therefore, this reasoning offers guidance in answering our question in this case.

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