Jefferson v. Heimgartner

1

NOT DESIGNATED FOR PUBLICATION

No. 116,622

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

VINCENT E. JEFFERSON,
Appellant,

v.

JAMES HEIMGARTNER, et al,
Appellees.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed June 9, 2017.
Affirmed.

Donald E. Anderson, II, of Robert A. Anderson Law Office, of Ellinwood, for appellant.

Jon D. Graves, legal counsel, of Hutchinson, for appellees.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: Vincent E. Jefferson appeals the district court's summary dismissal
of his petition for writ of habeas corpus pursuant to K.S.A. 2016 Supp. 60-1501. Finding
the district court correctly found it lacked jurisdiction, we affirm the dismissal.

Factual and procedural background

In his underlying criminal case, Jefferson pled guilty to aggravated burglary and
was sentenced based on a criminal history score of B. In his direct appeal, he challenged
the classification of two of his prior convictions as person crimes in light of State v.
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Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), and Descamps v. United States,
570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). We held that one of Jefferson's
prior crimes had been incorrectly classified as a person felony. State v. Jefferson, No.
110,932, 2015 WL 1782599 (Kan. App.) (unpublished opinion), rev. denied 302 Kan.
1016 (2015) (applying reasoning of State v. Dickey, 50 Kan. App. 2d 468, 474-75, 329
P.3d 1230 [2014], aff'd 301 Kan. 1018, 350 P.3d 1054 [2015]). Because that error
impacted Jefferson's criminal history, we vacated his sentence and remanded to the
district court for resentencing in accord with the correct criminal history. Jefferson, 2015
WL 1782599, at *4.

Our mandate issued November 17, 2015. At that time, Jefferson was in the
custody of the Kansas Department of Corrections (KDOC), serving his original sentence
after having had his probation revoked. On November 25, 2015, in accordance with the
mandate, KDOC released him from custody. That same day, the Sedgwick County
Sheriff arrested him and placed him in jail pending resentencing. On March 23, 2016, he
was resentenced and returned to KDOC custody.

In May 2016, Jefferson brought a petition for habeas corpus pursuant to K.S.A.
2016 Supp. 60-1501, alleging that he was being held illegally because the Double
Jeopardy Clause prohibited the State from returning him to KDOC after he had been
ordered released. He also made a speedy trial argument based on K.S.A. 2016 Supp. 22-
3402. The district court denied Jefferson's petition without a hearing. In its memorandum
decision, the district court stated it likely did not have subject matter jurisdiction because
Jefferson did not show he had exhausted his administrative remedies. The district court
further concluded that Jefferson's claims regarding speedy trial and double jeopardy had
no basis in law. On appeal, Jefferson concedes the speedy trial issue but presses his
double jeopardy claim.

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Our prior ruling

We first correct Jefferson's misunderstanding of the effect of our prior ruling and
the mandate that issued. On direct appeal, we vacated his sentence but did not reverse his
conviction. The mandate for his release was not a release from liability for the crime; it
was only for release from KDOC custody. He was ordered released from prison because
he was no longer under a prison sentence. But he was not entitled to outright release—he
still stood convicted of a felony and was rightfully placed in the Sedgwick County Adult
Detention Facility awaiting sentencing for his crime. He was then returned to prison to
complete the corrected, presumably lower, sentence. He was not impermissibly
incarcerated twice for the same crime. All of his time incarcerated under the original
sentence, as well as the jail time awaiting sentencing and resentencing, counted toward
serving the corrected sentence entered in 2016.

Our jurisdiction

We next address whether we have jurisdiction over this appeal. The question of
jurisdiction is a question of law over which our scope of review is unlimited. Fuller v.
State, 303 Kan. 478, 492, 363 P.3d 373 (2015). When the district court lacks jurisdiction,
we do not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278
Kan. 465, 468, 101 P.3d 1204 (2004).

To invoke the jurisdiction of the district court, an inmate in custody is required to
exhaust available administrative remedies before bringing a habeas corpus action and to
file proof with the habeas petition that the administrative remedies have been exhausted.
K.S.A. 75-52,138; Boyd v. Werholtz, 41 Kan. App. 2d 15, 17, 203 P.3d 1 (2008). The
district court found that Jefferson failed to prove exhaustion of remedies.

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Jefferson does not cite any evidence in the record to refute the district court's
finding and makes no argument that an exception applies that would excuse his failure to
exhaust administrative remedies. Jefferson merely references his petition, which claims
that he sought administrative relief by corresponding with various prison and KDOC
officials on multiple occasions but received no responses. This unsubstantiated claim fails
to meet the requirements of K.S.A. 75-52,138 necessary to establish jurisdiction in the
district court. Accordingly, the district court was required to dismiss Jefferson's petition
for lack of jurisdiction. Moreover, Jefferson's brief does not raise any challenge to the
district court's ruling on jurisdiction. We thus apply the general rule that an issue not
briefed by the appellant is deemed waived or abandoned. State v. Williams, 303 Kan. 750,
758, 368 P.3d 1065 (2016). Because the district court lacked jurisdiction, we likewise
have no jurisdiction. McCoin, 278 Kan. at 468.

Jefferson's brief

Finally, we acknowledge James Heimgartner's argument that Jefferson's brief fails
to meet the requirements for appellate briefs. Supreme Court Rules 3.01, 3.02, and 6.02
governing appeals to this court require an appellant to designate a record sufficient to
allow meaningful review, to cite the record to support his or her factual allegations, and
to provide pinpoint references to where the issue was raised and ruled on by the district
court. (2017 Kan. S. Ct. R. 19; 2017 Kan. S. Ct. R. 34.) Jefferson has not complied with
these requirements.

Affirmed.