Smith v. Pryor

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NOT DESIGNATED FOR PUBLICATION

No. 114,973

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANTHONY SMITH,
Appellant,

v.

REX PRYOR,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed September
30, 2016. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Sherri Price, legal counsel, of Lansing Correctional Facility, for appellee.

Before MALONE, C.J., SCHROEDER, J., and WALKER, S.J.

Per Curiam: Anthony Smith appeals the district court's summary dismissal of his
petition for a writ of habeas corpus pursuant to K.S.A. 2015 Supp. 60-1501. We affirm
the district court's judgment.

The record on appeal in this case is sparse. Smith is an inmate at the Lansing
Correctional Facility (Lansing) and he appears to be serving an indeterminate sentence of
10 to 40 years' imprisonment. In July 2013, Smith filed a Kansas Department of
Corrections (KDOC) inmate grievance form complaining that his "sentence begins date"
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was incorrect. On July 15, 2013, Lansing's Warden Rex Pryor responded to Smith's
grievance and explained why the computation of his "sentence begins date" was accurate.

Smith received another memorandum from Pryor dated June 11, 2014. This
memorandum stated that a sentence computation grievance was part of the classification
decision making process and not subject to the grievance procedure under K.A.R. 44-15-
101a(d)(2). The memorandum concluded that no action could be taken on Smith's
complaint through the grievance process.

On September 29, 2014, Smith filed a second KDOC inmate grievance form, this
time complaining that his conditional and maximum release dates were incorrect. Smith's
unit team responded to his second grievance on October 16, 2014, and informed Smith
that the sentence computation unit had confirmed both dates were accurate. Also, Pryor
notified Smith on October 20, 2014, that his second grievance was repetitive because his
sentence computation had been thoroughly addressed in his first grievance.

Meanwhile, on October 16, 2014, Smith filed an appeal of his grievance to the
Secretary of Corrections. Smith labeled the grievance as a "[s]pecial kind of problems"
grievance under K.A.R. 44-15-201(a) and again alleged that his conditional and
maximum release dates were incorrect. On October 20, 2014, the Secretary of
Corrections notified Smith that his grievance could be handled internally because it was
not a "[s]pecial kind of problems" grievance pursuant to K.A.R. 44-15-201.

On March 11, 2015, Pryor notified Smith that his grievance # AA20150302 was
being denied. This third grievance is not included in the record on appeal. Pryor's
memorandum stated that Smith's grievance about his sentence computation had been
addressed in a prior grievance, his current grievance was repetitive, and no further
grievances regarding his sentence computation would be accepted.

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On April 27, 2015, Smith filed yet another KDOC inmate grievance form (his
fourth) complaining that the prison staff had not explained to him the proper process for
filing a sentence computation grievance. On May 7, 2015, Pryor sent a memorandum to
Smith informing him that the June 11, 2014, memorandum stating that the grievance
process could not be used for sentence computation complaints was issued in error.
However, Pryor explained that Smith's grievance concerning his sentence computation
had been accepted and thoroughly explored and no further action was deemed necessary.

On May 11, 2015, Smith filed an appeal of his latest grievance to the Secretary of
Corrections. On May 14, 2015, the Secretary of Corrections denied the appeal and found
that the prison staff's response to the grievance had been appropriate.

On June 17, 2015, Smith filed a petition for a writ of habeas corpus pursuant to
K.S.A. 2015 Supp. 60-1501 in Leavenworth County District Court and it was assigned
case No. 2015CV188. In the petition, Smith alleged that Pryor was unlawfully depriving
him of his liberty based on Pryor's handling of the various grievance forms. The district
court summarily dismissed Smith's petition on June 30, 2015. The district court found
that Smith had filed a prior 60-1501 action (case No. 2014CV414) regarding the
computation of his sentence and this issue had been litigated, ruled on, and was now on
appeal. Because the issue already had been litigated in the prior case, the district court
found that Smith was "not entitled to any further relief than was sought before" and
summarily dismissed the petition. Smith timely appealed.

We note from a review of our court's records that Smith's appeal from case No.
2014CV414 was docketed with this court on February 27, 2016, and assigned appellate
court case No. 115,336. That appeal was dismissed on May 12, 2016, based on Smith's
failure to file a brief. However, on August 22, 2016, the appeal was reinstated by this
court and ordered to be expedited.

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In this present appeal, Smith claims that the district court "erred by summarily
dismissing [Smith's] application for writ of habeas corpus." To state a claim for relief
under 60-1501, a petition must allege "shocking and intolerable conduct or continuing
mistreatment of a constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d
575 (2009). "If, on the face of the petition, it can be established that petitioner is not
entitled to relief, or if, from undisputed facts, or from unconvertible facts, such as those
recited in a court record, it appears, as a matter of law, no cause for granting a writ
exists," then summary dismissal is proper. 289 Kan. at 648-49; see K.S.A. 2015 Supp.
60-1503(a). An appellate court exercises unlimited review of a district court's summary
dismissal of a 60-1501 petition. Johnson, 289 Kan. at 649.

We reject Smith's present appeal for two reasons. First, the appeal is inadequately
briefed. For the sake of completeness, we will set forth the "Arguments and Authorities"
section of Smith's brief in its entirety:

"When a District Court summarily dismisses a habeas petition, this Court's
standard of review is unlimited. Bellamy v. State, 285 Kan. 345, 172 P.3d 10 (2007).
"The District Court summarily dismissed this action on the mistaken assumption
that petitioner was attempting to re-litigate his claim previously raised in Leavenworth
County District Court Case Number 14CV414 (currently on appeal). To be sure, the
earlier case concerned petitioner's claim that the respondent had not correctly computed
his sentence in that he was not assessed enough delinquent time lost on parole. The
gravamen of this case however is the denial of due process to petitioner by respondent's
refusal to consider and process his grievances on his sentence computation. The issues
are factually and legally separate and distinct and the District Court erred in summarily
dismissing this case without an evidentiary hearing."

Smith's two-paragraph brief is inadequate to convince us that the district court
erred by summarily dismissing his petition. If anything, Smith's brief argument leads us
to conclude that the outcome of both appeals turns on whether the KDOC has correctly
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calculated Smith's release date. A point raised incidentally in a brief and not argued
therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan.
636, 645, 294 P.3d 287 (2013). Moreover, failure to support a point with pertinent
authority or show why it is sound despite a lack of supporting authority or in the face of
contrary authority is akin to failing to brief the issue. University of Kan. Hosp. Auth. v.
Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015).

Second, Smith has failed to designate a sufficient record to support his argument.
Smith's argument is very narrow. He does not ask this court to evaluate the merits of his
K.S.A. 2015 Supp. 60-1501 petition. Rather, he only argues that the district court erred
because the petition in this case does not raise the same issues as his petition in case No.
2014CV414. However, Smith's 60-1501 petition in 2014CV414 is not included in the
record on appeal. Thus, it is impossible for our court to determine whether Smith's
petition in this case raises the same issues as his petition in 2014CV414.

The party making a claim on appeal has the burden to designate facts in the record
to support that claim. Bohanon v. Werholtz, 46 Kan. App. 2d 9, 15, 257 P.3d 1239
(2011). Without such a record, the claim of error fails. 46 Kan. App. 2d at 15. Because
we cannot evaluate whether Smith's petition in this case raises the same issues that were
litigated and ruled on in 2014CV414, his claim that the district court erred when it
summarily dismissed his petition fails.

Affirmed.