Opinion
No. 109,280.
2013-07-5
Ernest Lee THOMAS, Jr., Appellant, v. David R. McKUNE, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, for appellant. Fred W. Phelps. Jr., legal counsel, of Kansas Department of Corrections, of Topeka, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Fred W. Phelps. Jr., legal counsel, of Kansas Department of Corrections, of Topeka, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ernest Lee Thomas, Jr., appeals the dismissal of his K.S.A.2012 Supp. 60–1501 petition challenging his classification as a sex offender on the ground that the petition was time barred. Because we agree with the district court that Thomas' petition was not timely filed, we affirm the district court's judgment.
Facts
Thomas is currently serving a life sentence at the Lansing Correctional Facility (LCF) for the crimes of aggravated robbery and first-degree murder. On February 11, 2005, the Kansas Department of Corrections (KDOC) designated him as a sex offender, under Internal Management Policy and Procedure (IMPP) 11–115, based upon “his ‘long documented history of pressuring other inmates for sexual favors' “ and his “lengthy history of predatory behavior” while in KDOC's custody.
Four years later, on March 11, 2009, Thomas submitted a grievance to his unit team manager challenging his sex-offender classification, but the unit team determined that “no further action [was] necessary” because the Sex Offender Override Panel [Override Panel] had approved Thomas' classification pursuant to IMPP 11–115. Dissatisfied, Thomas forwarded his grievance to David McKune, the warden at LCF. However, on March 31, 2009, McKune found the response provided by the unit team to be “appropriate and correct.” Thomas filed an appeal with the Secretary of Corrections. On April 21, 2009, Elizabeth L. Rice, the Secretary of Corrections' designee, mailed Thomas her decision upholding his sex-offender classification. Specifically, Rice found that Thomas offered “no evidence or argument that suggest[ed] that the response rendered by staff at the facility [was] wrong.” Rice noted that Thomas could “submit a request to the override committee to be removed from being managed as a sex offender.”
On May 1, 2009, Thomas filed a pro se petition for writ of habeas corpus under K.S.A. 60–1501, alleging that the LCF violated his rights under the Due Process Clause by wrongfully stigmatizing him as a sex offender. Thomas claimed that he became aware of his sex-offender classification, by happenstance, on or about March 2, 2009, when he received a copy of his “visiting list” and noticed the words “'Sex Offender'” next to his picture and a statement indicating that he was not allowed to be around children. Thomas contended that he had never been convicted of a sex offense or received a disciplinary report for any sexually motivated crime and the LCF had impugned his reputation, honor, and integrity with “actual [m]alice to keep other inmates from associating or dealing with [him].”
The KDOC filed a motion to dismiss Thomas' petition for failure to state a claim upon which relief can be granted, failure to properly exhaust administrative remedies, and untimeliness. The district court initially issued an order denying the motion to dismiss and staying Thomas' case pending “pursuit of relief under IMPP 11–115.” Although the district court agreed that Thomas had failed to exhaust his administrative remedies, it found that there may have been “some confusion as to the necessary process to seek redress,” based on Rice's suggestion that Thomas may submit a request to the Override Panel. Consequently, the district court determined it was appropriate to stay the case so Thomas could pursue the proper administrative remedy.
On February 10, 2011, the Override Panel denied Thomas' request for relief. The Override Panel noted that on January 4, 2005, the Hutchinson Correctional Facility had submitted a request to manage Thomas as a sex offender based on his well-documented history of predatory behavior at their facility. The Override Panel found that Thomas' behavior had continued to be an issue after his transfer to LCF on February 7, 2008.
On August 3, 2012, the district court issued an order for an evidentiary hearing to address the merits of Thomas' petition. The district court noted that the KDOC claimed Thomas' action was untimely because, following his initial classification as a sex offender, Thomas failed to take any action for over 4 years. However, the district court determined it was appropriate to excuse Thomas' delay:
“[Thomas] asserts that he did not discover his status until March of 2009. Although this claim is somewhat incredible to believe, the [KDOC] has provided no evidence, and none exists in the file that shows [Thomas] was aware of or informed of his February 11, 2005 classification. Therefore, this Court accepts [Thomas'] assertion that he discovered that he had been classified as a sex offender on March 2, 2009.”
Subsequently, the KDOC supplemented its motion to dismiss because it had discovered documents indicating that Thomas was “aware of his classification as a sex offender as early as July 12, 2005,” rendering his petition untimely. As proof of this contention, the KDOC attached a Program Classification Review, signed by Thomas on July 12, 2005, which states: “Managed as a Sex Offender due to committee override decision.” Thomas responded by asserting that the time limitation to file his petition did not apply because his sex offender classification presented an ongoing violation of his constitutional rights.
On December 31, 2012, the district court filed an order dismissing Thomas' petition as being time barred. In the order, the district court found that Thomas knew of his sex offender classification “no later than July 12, 2005,” because the Program Classification Review bore his signature. The district court noted that under K.A.R. 44–15–101b, an inmate must file a grievance within 15 days from the date of discovery of the event giving rise to the grievance. The district court found that Thomas' petition was time barred because he waited nearly 4 years from the date of discovery of his sex offender classification to file his grievance. Finally, the district court rejected Thomas' contention that the time limitation to file his petition did not apply because his sex offender classification presented an ongoing violation of his constitutional right. Thomas subsequently filed a notice of appeal.
Analysis
On appeal, Thomas contends the district court erred when it dismissed his petition. When reviewing a district court's decision on a K.S.A. 60–1501 petition, appellate courts determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support its conclusions of law, which are subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). The issue of whether the district court properly dismissed Thomas' petition as untimely is a jurisdictional question over which an appellate court exercises unlimited review. See Litzinger v. Bruce, 41 Kan.App.2d 9, 10–11, 201 P.3d 707 (2008).
As the State points out, Thomas' appeal brief does not address the specific basis for which the district court dismissed his petition. In one sentence in his brief, Thomas asserts that he “timely filed his Petition for Writ of Habeas Corpus.” But the brief focuses on whether Thomas exhausted all of his administrative remedies and whether he was required to request a classification change with the Override Panel. Thomas does not address the primary reason that the district court dismissed his petition, which was because Thomas failed to comply with K.A.R. 44–15–101b requiring him to file his grievance within 15 days from the date of discovery of his sex offender classification. Generally, issues not briefed by the appellant are deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Nevertheless, our review of the record supports the district court's decision to dismiss Thomas' petition as untimely. The district court specifically found that Thomas knew of his classification as a sex offender no later than July 12, 2005, based on the document bearing his signature indicating that he was being managed as a sex offender. Thomas has failed to provide a transcript of the hearing referred to by the district court in its order denying relief; thus, we presume that the district court's factual finding was supported by substantial competent evidence. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (party claiming error has the burden of designating a record that affirmatively shows prejudicial error). Moreover, we note that the July 12, 2005, Program Classification Review referred to by the district court is included in the record on appeal, and the exhibit supports the district court's finding.
Based on the factual finding that Thomas knew of his classification as a sex offender no later than July 12, 2005, his grievance filed on March 11, 2009, clearly was out of time. K.A.R. 44–15–101b provides that “[g]rievances shall be filed within 15 days from the date of 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.”
Inmates are required to file a K.S.A. 60–1501 petition “within 30 days from the date the action was final, but such time is extended during the pendency of the inmate's timely attempts to exhaust such inmate's administrative remedies.” K.S.A. 604501(b). Here, Thomas failed to file his grievance within 15 days of the date of discovering his classification as a sex offender, as required by K.A.R. 44–15–101b. Because Thomas' grievance was untimely, it follows that he failed to exhaust his administrative remedies in a timely manner. As a result, the time limitation for him to file his K.S.A. 60–1501 petition was not extended, and the petition he eventually filed was untimely. See Corter v. Cline, 42 Kan.App.2d 721, 723, 217 P.3d 991 (2009) (petition untimely because inmate failed to file grievance within 15 days of discovery of the event giving rise to the grievance).
Finally, as the district court noted, the time limit for challenging a sex offender classification commences on the date of the classifying act, not when the inmate begins to feel the collateral effects of the classification. See Corter, 42 Kan.App.2d at 723–24;Litzinger, 41 Kan.App.2d at 13–14. Therefore, Thomas' argument that his sex offender classification presented an ongoing violation of his constitutional rights is without merit. Accordingly, the district court did not err in dismissing Thomas' petition as untimely.
Affirmed.