Opinion
No. 112,252.
2015-03-27
Danny E. BEAUCLAIR, Appellant, v. James HEIMGARTNER, Appellee.
Appeal from Labette District Court; Jeffry L. Jack, Judge.Maradeth Frederick, of The Frederick Law Office, LLC, of Frontenac, for appellant.Michael J. Smith, of Kansas Department of Corrections, El Dorado Correctional Facility, of El Dorado, for appellee.
Appeal from Labette District Court; Jeffry L. Jack, Judge.
Maradeth Frederick, of The Frederick Law Office, LLC, of Frontenac, for appellant. Michael J. Smith, of Kansas Department of Corrections, El Dorado Correctional Facility, of El Dorado, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Danny E. Beauclair appeals from a judgment of the trial court dismissing his petition for writ of habeas corpus. In May 2009, the Department of Corrections (DOC) withheld good time credit from Beauclair because he refused to participate in an assigned General Educational Development (GED) program. On appeal, Beauclair contends that the trial court erred when it determined that it lacked jurisdiction to consider Beauclair's claim for restoration of good time credit. Finding no merit in this contention, we affirm.
On November 14, 2008, Beauclair refused to enter an assigned GED program. Because Beauclair refused to participate in the GED program, the unit team member (UTM) in charge of awarding good time credits withheld Beauclair's good time credits for the award period running from August 17, 2008, to December 17, 2008, as required by K .A.R. 44–6–115a. The “Determinate Sentence Good Time Award Record” work sheet stated that this was Beauclair's 18th award period since he entered prison. Moreover, it stated that if Beauclair had participated in the GED program, he could have earned a maximum of 21 days good time credit. Beauclair was notified on May 4, 2009, that his good time credits were withheld for the 18th award period because of his refusal to participate in the GED program.
On January 12, 2009, Beauclair decided to participate in the GED program. Beauclair completed the GED program on January 23, 2009. As a result of participating in the GED program, the UTM awarded Beauclair with 21 days of good time credit for the 19th award period which ran from December 17, 2008, to April 17, 2009. Beauclair was notified that he was awarded 21 days of good time credit for the 19th award period on May 4, 2009.
On May 10, 2013, Beauclair filled out an “Inmate Request to Staff Member” form, asking a UTM if he could ever receive good time credit that was previously withheld. The UTM responded, “If your good-time [award] was withheld during a specific good time award period you cannot earn it back.” On May 12, 2013, Beauclair filled out another “Inmate Request to Staff Member” form. In that form, Beauclair asked the UTM if he had any good time credit withheld for refusing to take the GED program. The UTM responded to Beauclair on May 13, 2013, writing back that 21 days of good time credit had been withheld between August 17, 2008, and December 17, 2008, for “refused GED.”
Next, Beauclair filed a grievance report under K.A.R. 44–15–101 et seq. As required by K.A.R. 44–15–101(d)(1)–(3), Beauclair first submitted the grievance report to a UTM, then to the warden, and then to the Secretary of Corrections (Secretary). In his May 16, 2013, grievance report to the UTM, Beauclair alleged that the 21 days of good time credits withheld for the 18th award period should be restored. The UTM denied Beauclair's request as untimely under K .A.R. 44–15–101b, On May 20, 2013, Beauclair submitted the grievance report to the warden, James Heimgartner. On May 23, 2013, Heimgartner determined that the UTM's response was adequate and no further actions were necessary. On May 28, 2013, Beauclair filed his grievance report with the Secretary. The Secretary determined that Beauclair's good time credit was justly withheld because of his refusal to participate in the GED program. The warden's office received the Secretary's decision on June 12, 2013.
On July 8, 2013, Beauclair filed a “Petition for Writ of Habeas Corpus” with the trial court, alleging that failure to “restore” his good time credit for the 18th award period violated his liberty interests. On July 29, 2013, the warden moved to dismiss for failure to state a claim upon which relief can be granted and for untimeliness. The trial court summarily denied Beauclair's petition on September 12, 2013. The trial court ruled that it lacked jurisdiction because Beauclair had “failed to file his grievance within 15 days of the discovery of the withheld [good] time [credits] as required by K.A.R. 44–15–101b.” According to the trial court, Beauclair's 15 days to file his grievance began to run on May 4, 2009, “when he was informed that the good time credits for the 18th evaluation period were withheld for his failure to participate in the G.E.D. program.” The trial court further determined that “[e]ven if the court had jurisdiction, the motion to dismiss would be granted because Petitioner fails to state a claim.”
Following the summary dismissal, Beauclair filed two motions to reconsider. Both motions were denied.
Was Beauclair's Greivance Timely Filed?
“To avoid summary dismissal of a K.S.A. 60–1501 petition, the petitioner's allegations must be of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009) (citing Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060, 119 S.Ct. 629, 142 L.Ed.2d 567 [1998] ). “Summary dismissal is appropriate 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 uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists.” Johnson, 289 Kan. at 648–49. Whether jurisdiction exists is a question of law over which this court has unlimited review. Litzinger v. Bruce, 41 Kan.App.2d 9, 11, 201 P.3d 707 (2008).
Beauclair argues that the trial court erred when it denied his petition for lack of jurisdiction because his grievance was timely filed. Beauclair contends that his grievance was timely filed because he only discovered that his good time credits were “forfeited” for the 18th award period on May 10, 2013. Essentially, Beauclair argues that the time to file the grievance did not begin to run until May 10, 2013, because he “had no way of knowing his good time credit was forfeited until May 10, 2013, and thus had no reason to file a grievance until May 10, 2013.” Nevertheless, Beauclair's argument fails because the plain language of K.A.R. 44–15–101b requires an inmate to file a grievance within 15 days of the event giving rise to the grievance.
Before addressing the time limits under K.A.R. 44–15–101b, however, we must first determine if Beauclair's good time credits were forfeited in May 2013 or were withheld in May 2009 for the 18th award period. Although the term “withholding” is not expressly defined in article 44–6 of the Kansas Administrative Regulations, “when the Secretary uses the term ‘withholding’ in the regulations, the Secretary effectively defines the term as the act of not awarding good time credits pursuant to K.A.R. 44–6–101(d).” Gilmore v. McKune, 22 Kan.App.2d 167, 169, 915 P.2d 779 (1995). Thus, if the DOC withholds good time credit from an inmate, no award of good time credit has occurred. K.A.R. 44–6–101(a)(6) defines “forfeiture of good time credits” as “the removal of the credits and consequent reinstatement of a term of actual imprisonment by the disciplinary board....” Thus, an inmate must first be awarded with good time credits before the inmate is in a position where he or she could later forfeit good time credits.
In this case, it is readily apparent that Beauclair had good time credits withheld, not forfeited. K.A.R. 44–6–115a(e)(1) (3013 Supp.), the regulation the UTM relied on in not granting Beauclair good time credits, requires the withholding of “100% of the good time credits available for program classification review periods ... until the inmate reenters and constructively participates in the assigned program at a time that permits the inmate to complete the program.” Furthermore, the “Determinate Sentence Good Time Award Record” work sheet does not state that the good time credits were forfeited for the 18th award period. The UTM wrote on the work sheet those 21 days of good time credits were withheld because Beauclair had refused to participate in the GED program. The UTM also wrote that zero days were forfeited for the 18th award period. Consequently, it is clear that Beauclair's potential good time credits were withheld for the 18th award period, meaning that Beauclair was never awarded with good time credits which could later be forfeited. This is important because it disproves Beauclair's claim that his time to file the habeas petition began to run on May 13, 2013, the day he discovered that his good time credits were forfeited for the 18th award period.
After establishing that Beauclair's good time credits were withheld, not forfeited, for the 18th award period, it is evident that Beauclair did not timely file his grievance and habeas petition. Under K.S.A. 75–52,138, an inmate must exhaust all administrative remedies “established by rules and regulations promulgated by the secretary of corrections” before filing a civil action. K.A.R. 44–15–101b states in part:
“Grievances shall be filed within 15 days from the date of the discovery of the event giving rise to the grievance, excluding Saturdays, Sundays and holidays. No grievance, regardless of time of discovery, shall be filed later than one year after the event. Any grievance filed later than these deadlines may be returned to the inmate without investigation.”
Accordingly, K.A.R. 44–15–101b required Beauclair to file his grievance within 15 days from the date he discovered that his potential good time credits were withheld for the 18th award period before he could file his habeas petition.
Here, Beauclair knew that his good time credits were withheld on May 4, 2009, for the 18th award period. Beauclair even admitted this in his habeas petition and brief. Yet, Beauclair did not file his grievance until May 16, 2013, 4 years after the date he discovered that the good time credits were withheld for the 18th award period. As a result, Beauclair failed to file his grievance within 15 days of discovering the event giving rise to the grievance. We also note that K.A.R. 44–15–101b bars an inmate from filing a grievance more than 1 year after the event giving rise to the grievance regardless of time of discovery. Thus, regardless of when Beauclair actually discovered that he was not going to earn good time credits for the 18th award period, Beauclair was barred by K.A.R. 44–15–101b from filing a grievance because more than 1 year had elapsed since the DOC had withheld the good time credits for the 18th award period.
Moreover, because Beauclair's grievance was untimely, it follows that Beauclair's habeas petition was also untimely. K.S.A. 60–1501(b) provides that an inmate has 30 days to file a habeas petition following the final administrative action except that “such time is extended during the pendency of the inmate's timely attempts to exhaust such inmate's administrative remedies.” Here, Beauclair's attempt to exhaust administrative remedies was untimely. Thus, the habeas petition Beauclair filed was also untimely.
Based on this evidence, the trial court did not err when it summarily dismissed Beauclair's habeas petition for lack of jurisdiction because Beauclair's grievance was untimely filed.
Did Beauclair's Petition State a Claim Entitling Him to Relief?
“To gain court review of a prison disciplinary sanction, the inmate's claim under K.S.A. 60–1501 must assert the deprivation of some constitutionally protected interest.” Hardway v. Lamed Correctional Facility, 44 Kan.App.2d 504, 505, 238 P.3d 328 (2010). If an inmate fails to do this, “the petition may be summarily dismissed.” Hardway, 44 Kan.App.2d at 505. Review of a trial court's summary dismissal of a K.S.A. 60–1501 petition is de novo. Johnson, 289 Kan. at 649.
In denying Beauclair's petition, the trial court held that even if court had jurisdiction, Beauclair failed to state a claim entitling him to relief because he misinterprets K.A.R. 44–6–115a(e) (2013 Supp.). Beauclair, however, argues that he is entitled to relief because not restoring his good time credits for the 18th award period would violate his due process rights and the Ex Post Facto Clause. This court does not have jurisdiction to review the merits of a prisoner's constitutional claims when the prisoner failed to timely file his habeas petition. Corter v. Cline, 42 Kan.App.2d 721, 724, 217 P.3d 991 (2009). Because Beauclair did not timely file his grievance or his habeas petition, this court does not have jurisdiction to consider the merits of this argument. Nevertheless, even if this court would determine that it has jurisdiction, Beauclair's arguments regarding due process and the Ex Post Facto Clause would fail.
Due Process Violation
Beauclair contends that the DOC is penalizing him in violation of his due process rights by not restoring his good time credit for the 18th award period. To support his argument, Beauclair cites Grossman v. Bruce, 447 F.3d 801, 804 (10th Cir.2006) (citing Hogue v. Bruce, 279 Kan. 848, 851, 113 P.3d 234 [2005] ), which held that inmates have a liberty interest in good time credits for the purpose of a due process claim. Beauclair also cites Hardway, 44 Kan.App.2d at 505, which held that there is a protected liberty interest in good time credits that were earned and then later removed. While Beauclair admits this court has found that there is no protected liberty interest for good time credits that have not yet been earned or rewarded, Beauclair asserts that he earned good time but later had that good time removed from him. Beauclair's argument, however, is premised on his incorrect belief that his good time credits were forfeited for the 18th award period.
As discussed earlier, when a UTM withholds good time credit from an inmate, the inmate never actually earns the good time credit withheld. Gilmore, 22 Kan.App.2d at 169. An inmate forfeits good time credit only if that inmate was first awarded with the good time credit and later had the credit removed. K.A.R. 44–6–101(a)(6). Again, Beauclair's good time credits were clearly withheld for the 18th award period as evidenced by K.A.R. 44–6–115a(e)(1) (2013 Supp.), which requires the withholding of 100% of the good time credits when an inmate refuses to participate in assigned program. Moreover, the “Determinate Sentence Good Time Award Record” work sheet stated that Beauclair's good time credits were withheld. Because there is no protected liberty interest in withheld good time credits and Beauclair's good time credits were withheld, the trial court correctly concluded that even if it had jurisdiction, Beauclair's petition failed to state a claim for which relief can be granted because Beauclair was not deprived of a constitutionally protected interest.
Ex Post Facto Violation
Next, Beauclair argues that the amended K.A.R. 44–6–115a(i) (2013 Supp.) violates the Ex Post Facto Clause. This argument fails for two reasons.
First, the plain language of K.A.R. 44–6–115a(i) (2013 Supp.) does not violate the Ex Post Facto Clause. The ex post facto provision in the United States Constitution provides that “No Bill of Attainder or ex post facto Law shall be passed.” United States Constitution, art. I, § 9, cl. 3. A law is ex post facto if it calls for retroactive application which somehow disadvantages the defendant. State v. Todd, 299 Kan. 263, 278, 323 P.3d 829 (2014). K.A.R. 44–6–115a(i) (2013 Supp.) states,
“On and after February 1, 2013, good time credits withheld for any reason may be restored to an inmate in accordance with internal management policies and procedures promulgated by the secretary of corrections. Good time credits withheld for any review period commencing before that date shall not be restored.”
While Beauclair does not cite to a specific portion of the Kansas Administrative Regulations, in his brief, Beauclair maintains that “[t]he law prior to this allowed withheld credits to be restored.” This is incorrect.
Despite Beauclair's contention, there were no procedures in place for restoration of withheld good time credits before the 2013 amendment. The plain language of K.A.R. 44–6–115a(i) (2013 Supp.) provides that it does not affect the procedures concerning withheld good time credits before the February 1, 2013, date of enactment. Thus, K.A.R. 44–6–115a(i) (2013 Supp.) does not violate the Ex Post Facto Clause because it is not retrospective.
Second, even if K.A.R. 44–6–115a(i) (2013 Supp.) violated the ex post facto clause, Beauclair's argument would still fail because he raises this issue for the first time on appeal. Issues not raised before the trial court cannot be: raised on appeal. Wilson v. State, 40 Kan.App.2d 170, 174, 192 P.3d 1121 (2008). Furthermore, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court for review. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P .3d 70 (2014).
Accordingly, Beauclair's argument that K.A.R. 44–6–115a(i) (2013 Supp.) violates the Ex Post Facto Clause fails because the plain language of K.A.R. 44–6–115a(i) (2013 Supp.) states that it does not apply retroactively, and Beauclair raises this issue for the first time on appeal.
Affirmed.