FILED
United States Court of Appeals
Tenth Circuit
February 20, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JAMES DAVIS,
Petitioner-Appellant, No. 07-3206
v. (D. Kansas)
SECRETARY OF CORRECTIONS; (D.C. No. 07-3055-JAR)
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
James Davis, a Kansas state prisoner proceeding pro se, appeals the district
court’s denial of his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. Mr. Davis was convicted of attempted aggravated robbery, an aggravated
weapons violation, and misdemeanor theft, for which he was originally sentenced
to 32 months’ imprisonment. Pursuant to the state’s motion to correct sentence,
the district court resentenced Mr. Davis to 122 months’ imprisonment – the low
end of the sentencing range under Kansas law. The Kansas Court of Appeals
affirmed Mr. Davis’s direct appeal and denied Mr. Davis’s post-conviction
challenges.
Mr. Davis filed a § 2254 petition in federal district court, arguing that (1)
the trial court erred in failing to hold a hearing on his motion to correct the illegal
sentence and in failing to correct the sentence; (2) the state court of appeals
erroneously affirmed the illegal sentence; and (3) the state supreme court erred in
denying his petition for review. Mr. Davis has also filed a separate motion for a
certificate of appealability (“COA”), a motion for appointment of counsel, and a
motion to proceed in forma pauperis (“IFP”). For substantially the same reasons
as the district court, we deny his application for a COA, deny his request for an
attorney, deny his motion to proceed ifp, and dismiss the matter.
I. BACKGROUND
Mr. Davis was convicted by a jury in the District Court of Sedgwick
County, Kansas, of attempted aggravated robbery, an aggravated weapons
violation, and misdemeanor theft. On January 31, 2003, Mr. Davis was sentenced
to 32 months’ imprisonment, but on February 3, 2003, the state filed a motion to
correct an illegal sentence because the presentence investigation report incorrectly
listed the sentencing range as 30-34 months’ imprisonment. The correct range
under K AN . S TAT . A NN . § 21-4704(a) is 122-136 months’ imprisonment. The
district court held a second hearing and ultimately re-sentenced Mr. Davis to 122
months’ imprisonment.
Mr. Davis appealed to the Kansas Court of Appeals, which affirmed the
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conviction and the sentence, finding that the 32 month sentence was illegal
because it was not the statutorily authorized punishment, and thus the district
court had jurisdiction to correct it. State v. Davis, 87 P.3d 993, 2004 WL 835964,
at *4-*5 (Kan. Ct. App. 2004) (unpublished). The Kansas Supreme Court denied
review. Mr. Davis then filed a pro se motion in the District Court of Sedgwick
County requesting the court correct an illegal sentence. The district court denied
the motion, the Kansas Court of Appeals affirmed the denial, and the Kansas
Supreme Court denied review.
Mr. Davis then filed the present § 2254 motion in federal district court.
His petition asserts three grounds for relief: (1) the trial court erred in denying
him a hearing on his motion to correct an illegal sentence and in failing to correct
an illegal sentence; (2) the Kansas Court of Appeals erroneously affirmed the
illegal sentence; and (3) the Kansas Supreme Court erred in denying his petition
for review when he was “sentenced in [the] wrong grid block.” Rec. doc. 1, at 9.
The federal district court denied relief, holding that Mr. Davis failed to raise any
claims that this sentence was contrary to or involved an unreasonable application
of federal law, as required by the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254(d).
Mr. Davis timely appealed. He has also submitted a motion for
appointment of counsel and a motion to proceed ifp.
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II. DISCUSSION
In order to obtain a COA, Mr. Davis must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this
showing by demonstrating that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotation marks omitted). “[A] claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has received
full consideration, that [the] petitioner will not prevail.” Id. at 338. Because Mr.
Davis proceeds pro se, we construe his pleadings liberally. Cannon v. Mullin,
383 F.3d 1152, 1160 (10th Cir. 2004).
Reasonable jurists could not debate whether the district court was correct in
denying Mr. Davis’s § 2254 petition. A federal court may only grant habeas
relief on any claim adjudicated in state court if that adjudication “resulted in a
decision that was contrary to, or involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court of the United
States,” or was based on an unreasonable determination of the facts. 28 U.S.C. §
2254(d).
A Kansas statute provides: “The court may correct an illegal sentence at
any time.” K.S.A. 22-3504(1). The state court held that a sentence that does not
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conform to the statutory provision is “illegal” under Kansas law. Davis, 2004 WL
835964, at *4. Since Mr. Davis’s original 32 month sentence did not fall in the
Kansas statutory guidelines range of 122-136 months, it was illegal, and the
district court correctly affirmed it.
We note that our sister circuits have held that “the power of a sentencing
court to correct even a statutorily invalid sentence must be subject to some
temporal limit.” Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978). See also
United States v. Lundien, 769 F.2d 981, 987 (4th Cir. 1985) (citing Breest).
Those courts reason that, as time passes and the prospect of release nears, a
prisoner’s hope assumes “a real and psychologically critical importance.” Breest,
579 F.2d at 101 (“After a substantial period of time, therefore, it might be
fundamentally unfair, and thus violative of due process for a court to alter even an
illegal sentence.”). However, unlike in the cases before those circuits, Kansas
filed a motion to correct four days after the district court issued the incorrect
sentence. State Ct. Rec., at 93-94. The district court resentenced him four days
after that (eight days after the original sentence). This brief time does not trigger
the concerns noted by these other courts. While there may be some temporal limit
on the power to correct an illegal sentence, eight days is not it.
When conducting habeas review, a federal court is limited to determining
whether there was a constitutional violation. Estelle v. McGuire, 502 U.S. 62, 68
(1991). “[I]t is not the province of a federal habeas court to reexamine state-court
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determinations on state-law questions.” Id. at 67-68. Because the Kansas court’s
determination was not contrary to nor an unreasonable application of clearly
established federal law, no reasonable jurist could debate the district court’s
decision to deny relief.
III. CONCLUSION
Accordingly, we DENY Mr. Davis’s application for a COA, DENY his
motion for appointment of counsel, DENY his motion to proceed ifp, and
DISMISS the matter. Appellant’s motion to file a supplemental brief is
GRANTED.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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