Walling v. Kansas Prisoner Review Bd.

1
NOT DESIGNATED FOR PUBLICATION

No. 114,340

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRY F. WALLING,
Appellant,

v.

KANSAS PRISONER REVIEW BOARD,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed April 29,
2016. Affirmed.

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

Whitney L. Casement, assistant attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: This appeal addresses one of at least two challenges that Terry F.
Walling has raised to the Kansas Prisoner Review Board's (KPRB) March 12, 2013,
decision that revoked his parole. This court recently affirmed the district court's denial of
one of those challenges (case 13-CV-463) in Walling v. Riggin, No. 112,052, 2015 WL
3875085 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. ___ (September 14,
2015). In this case, Walling seeks review of the district court's summary dismissal of his
petition for quo warranto relief, which he filed almost a year after the KPRB's decision
revoking his parole. Since we find that quo warranto has no application to these
proceedings and that Walling has failed to demonstrate he is entitled to relief under the
2
habeas corpus provisions of K.S.A. 60-1501 et seq., we affirm the district court's
dismissal of his petition.

FACTS

On January 22, 2014, Walling filed the pro se petition for writ of quo warranto
that initiated this case. The subject matter of that petition was the decision of the KPRB
to revoke his parole following a March 12, 2013, hearing. The gist of Walling's complaint
in that and subsequent filings was that the KPRB failed to consider the proportionality of
the time Walling has served on indeterminate sentences for crimes he committed in 1984
to the length of the determinate sentence he would have received had he committed his
crimes after the 1993 enactment of the Kansas Sentencing Guidelines Act (KSGA).
Walling apparently believed the KPRB's failure to consider that factor had something to
do with the almost 10-year discrepancy between the amount of time he had served in
prison and the "257 months" that documents from the Kansas Department of Corrections
(KDOC) indicated Walling must serve on his "det[erminate] sentence" for a 2012 theft
conviction "aggregate[d] with [his] ind[eterminate]" sentences for his 1984 crimes.

The KPRB moved to dismiss the case. In support, the KPRB argued: (1) Walling
lacked standing to bring and failed to state a proper claim for quo warranto relief; (2)
even if he had, extraordinary relief in the nature of quo warranto was improper because
other relief (habeas corpus) was available; and (3) Walling was procedurally barred from
seeking habeas relief under K.S.A. 2015 Supp. 60-1501 because (a) his petition was not
timely filed, and (b) even if timely, the doctrine of res judicata applied to bar the issue
given Walling's prior habeas actions challenging the KPRB's decision and given
Walling's various other habeas actions challenging the same decision.

3
After two venue transfers due to Walling's relocations to different prisons, a judge
with the Leavenworth County District Court conducted a hearing, after which it granted
the KPRB's motion and dismissed the case. Walling then filed this appeal.

ANALYSIS

Walling identifies two issues in his brief. First, he contends his petition was timely
filed. Second, he argues he was entitled to relief on the merits because he was "denied
equal protection of the law by the failure of the [KPRB] to apply proportionality and
release [him] on parole."

We note in passing that there are major problems with submission of the record in
this case. No transcripts of any hearings have been provided. There is no specific citation
to the record by either party which complies with the Kansas Supreme Court rules. It is
not entirely clear whether Walling is actually seeking relief under the habeas corpus or
the quo warranto statutes.

Boiled down to basics, it seems that Walling wants this court to hold he "is
entitled to retroactivity and conversion of his sentence to a determinate sentence." Yet the
KPRB, against whom Walling filed this lawsuit, has no authority over the conversion of
indeterminate sentences to determinate sentences. See Jones v. Kansas Parole Board, No.
108,264, 2012 WL 6734664, at *3 (Kan. App. 2012) (unpublished opinion) (stating "[t]he
Department of Corrections, district attorney, and sentencing court are involved with [the]
conversion process, not the [KPRB]"), rev. denied 297 Kan. 1246 (2013).

Though we are substantially hamstrung by these critical procedural obstacles, it is
still possible for us to evaluate the summary dismissal of Walling's case. When, as here,
an appellate court has the same access to the motion, records, and files as the district
court, it conducts de novo review of the summary dismissal of a petition. See, e.g.,
4
Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009) (de novo review of summary
dismissal of K.S.A. 60-1501 petition); Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10
(2007) (de novo review of summary dismissal of K.S.A. 60-1507 motion). In conducting
such review, this court must accept Walling's factual allegations as true. See Hogue v.
Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).

Before this court can apply these review standards, we must first determine what
law governs Walling's petition. As already detailed above, Walling challenges the
KPRB's failure to retroactively apply the proportionality factor when it decided to revoke
his parole, which he suggests in his brief violated his equal protection rights. Walling
apparently believes that simply because he raises a constitutional issue he can seek quo
warranto relief. In support, Walling points out that our Supreme Court has generally
recognized that the constitutionality of a statute can be questioned in an original action in
quo warranto. State ex rel. Stephan v. Finney, 251 Kan. 559, 567, 836 P.2d 1169 (1992).
Walling fails to recognize, however, that Finney held such constitutional challenges to be
allowed only in "'a proper case.'" 251 Kan. at 567 (quoting State ex rel. Stephan v.
Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 [1984]).

K.S.A. 60-1202 lists the type of cases in which an action in quo warranto may be
brought. Walling's case does not fit any of those categories, and it is certainly not an
"extreme case[ ]" in which the "extraordinary remedy" of quo warranto "is the only
method available to protect the public." State, ex rel., v. United Royalty Co., 188 Kan.
443, 461, 363 P.2d 397 (1961); see Kansas House of Representatives, 236 Kan. at 68-69
(discussing extraordinary nature of quo warranto, which "has been described as 'a
demand made by the state upon some individual or corporation to show by what right
they exercise some franchise or privilege appertaining to the state which, according to the
constitution and laws of the land, they cannot legally exercise except by virtue of grant or
authority from the state.' [Citation omitted.] It is 'administered cautiously and in
accordance with certain well-defined principles.' [Citation omitted.]").
5
Walling had a more adequate remedy under K.S.A. 2015 Supp. 60-1501 if he
believed the KPRB acted illegally with respect to his confinement. Given that fact, we
now proceed to consider the grounds advanced by the KPRB in support of its motion to
dismiss to determine if summary dismissal was proper.

Walling has briefed only one of the four alternative grounds for dismissal
advanced by the KPRB: the timeliness of his petition. Without a timely filing, this court
lacks jurisdiction to consider the merits of a prisoner's constitutional claims. Corter v.
Cline, 42 Kan. App. 2d 721, 724, 217 P.3d 991 (2009); see Peters v. Kansas Parole
Board, 22 Kan. App. 2d 175, 180, 915 P.2d 784 (1996) (holding inmate's habeas petition
not filed within 30-day statute of limitations was properly dismissed as time barred).

When Walling filed his petition, K.S.A. 2015 Supp. 60-1501(b) set forth a 30-day
statute of limitations for filing habeas actions. Walling concedes that he did not file his
petition within 30 days of the KPRB's final decision revoking his parole, though he refers
to the KPRB's decision as a denial rather than a revocation of parole. Walling suggests,
however, that he is "not bound by the 30 day filing limitation" based on the holding in
Tonge v. Simmons, 27 Kan. App. 2d 1048, 1050, 11 P.3d 77, rev. denied 270 Kan. 904
(2000). In that case, several inmates challenged the garnishment of their prison accounts,
arguing the garnishments prevented them from obtaining products necessary to maintain
personal hygiene and health. The Tonge court found that the 30-day time limit did not bar
the prisoners' claims because the garnishments were reoccurring. 27 Kan. App. 2d at
1050. Walling has not briefed how the KPRB's distinct act of revoking his parole presents
a continuing violation. Thus, he has arguably abandoned that issue. See State v. Bowen,
299 Kan. 339, 355, 323 P.3d 853 (2014). Even if he had briefed it, we believe the
argument must fail because his cause of action involves a distinct act rather than
continuing violation. Thus, Tonge is distinguishable and does not save Walling's petition
from being time barred.

6
Walling's failure to timely file his petition deprived the district court of jurisdiction
to consider whether Walling was entitled to habeas relief under K.S.A. 60-1501 et seq.
For this reason alone, we find the district court did not err in summarily dismissing the
case.

But even if Walling had timely filed his petition, he would not be entitled to relief
on the merits of his argument. A key point missed by both parties is that the KPRB was
not required to consider the proportionality factor now found in K.S.A. 2015 Supp. 22-
3717(h)(2) at the hearing on the revocation of Walling's parole. Rather, K.S.A. 2012
Supp. 75-5217(b) and K.A.R. 44-9-502 (2013 Supp.) governed Walling's parole
revocation hearing, which our record indicates was based on his new conviction of felony
fleeing and eluding. K.A.R. 44-9-502(e) (2013 Supp.) mandates, in pertinent part: "If the
violation of the conditions of release . . . results from a conviction for a new felony. . . the
only question considered by the board shall be whether or not the new conviction
warrants revocation." (Emphasis added.)

Whether considered as an action brought under the habeas corpus statute, K.S.A.
2015 Supp. 60-1501, or under the quo warranto provisions of K.S.A. 60-1201 et seq.,
Walling has failed to show he is entitled to any relief. We therefore hold that the district
court properly entered a summary dismissal of Walling's petition.

Affirmed.