Habeas Corpus in Kansas How Is the Great Writ Used Today
| Publication year | 1995 |
| Pages | 26 |
64 J. Kan. Bar Assn. January, 26 (1995). HABEAS CORPUS IN KANSAS HOW IS THE GREAT WRIT USED TODAY
January, 1995
Copyright (c) 1994 by the Kansas Bar Association; Martha J. Coffman
I. Introduction
A writ of habeas corpus is an order commanding one to bring a party in that person's custody before the court to determine if the restraint or detention is unlawful. [FN1] Traditionally a court considering a habeas corpus petition is concerned with two factors: "[T]he nature of the governmental illegality alleged and the type of restraint to which the petitioner has been subjected." [FN2] Justice Potter Stewart stated that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." [FN3]
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The drafters of the Kansas Constitution recognized the importance of habeas corpus by providing in Section 8 of the Kansas Bill of Rights that "the right to the writ of habeas corpus shall not be suspended, unless the public safety requires it in case of invasion or rebellion." [FN4] K.S.A. 60-1501 generally defines the right to petition for habeas corpus. [FN5] This statute specifically recognizes jurisdiction to protect infants and incapacitated or incompetent persons physically present in the state. [FN6] K.S.A. 60-1501 is expressly subject to K.S.A. 60-1507, which was enacted to provide a specialized remedy for convicted persons to use in attacking the legality of a sentence. [FN7] This article will examine how habeas corpus is used in Kansas today by identifying the types of issues that should be filed as general habeas corpus proceedings under K.S.A. 60-1501.
Under common law, a habeas corpus petition was always filed in the judicial district where the person was restrained. Before the enactment of K.S.A. 60-1507, venue of all habeas corpus petitions was in the district court of the county where the petitioner was being confined. This placed a burden on district courts where a penal institution was located. Problems caused by large numbers of habeas filings in United States district courts where federal prisons were located resulted in the enactment of 28 U.S.C. § 2255 in 1948. Section 2255 requires a federal inmate challenging the legality of a federal sentence to file a motion in the sentencing court, rather than the place of incarceration. Following the language of 28 U.S.C. § 2255, the 1963 Kansas Legislature enacted K.S.A. 60-1507, which requires collateral attacks challenging the legality of a state sentence to be filed in the sentencing court. [FN8]
Many habeas proceedings are filed pro se and are sometimes difficult to comprehend. Pro se pleadings must be given liberal construction. [FN9] When a pro se pleading is filed, the judge to whom it is assigned should carefully review the document to consider what is being challenged and the relief being sought. [FN10] How a court characterizes a pleading will determine the standard of review applied to the issues raised, the burden of proof assigned to the respective parties, and how a later filing by the same person will be treated.
II. Scope of Petition for Writ of Habeas Corpus under K.S.A. 60-1501
The phrase "detained, confined or restrained" in K.S.A. 60-1501 should be liberally construed. For example, a person free on bond prior to trial is considered restrained for purposes of habeas corpus and can use K.S.A. 60-1501 to challenge further confinement and retrial. [FN11]
People confined, but not convicted and sentenced, must challenge restraint under K.S.A. 60-1501. Someone held on criminal charges who is found not competent to stand trial is "in custody" but not "under a sentence" as required by K.S.A. 60-1507. [FN12] Therefore, to challenge confinement, this person must file a habeas corpus proceeding under K.S.A. 60-1501. Similarly, a person restrained under a finding of not guilty by reason of insanity must use a petition for writ of habeas corpus under K.S.A. 60-1501 to attack confinement. [FN13]
Generally a habeas corpus proceeding cannot be used as a substitute for a direct appeal, [FN14] but some issues do not need to be delayed until appeal. A person challenging proceedings under a diversion agreement can use habeas corpus under K.S.A. 60-1501 to try to stop further prosecution. [FN15] Similarly, a person whose claim of double jeopardy is denied prior to trial can use a writ of habeas corpus to try to stop the trial. [FN16] Habeas corpus is allowed for such a claim because it involves undisputed facts or facts that can be determined from a transcript or other written evidence. [FN17] Therefore, further factfinding by the district court is unnecessary.
Habeas corpus is also available to a defendant in a criminal action "where the information, the indictment or the proceedings were otherwise void so that the court acquired no jurisdiction of the person or the cause." [FN18]
A claim involving a right to speedy trial, however, will not be considered in a petition for writ of habeas corpus if direct appeal is available. [FN19] Even if a district court denies a pretrial motion to dismiss on speedy trial grounds, the Court of Appeals will refuse to consider it and will remand it to district court for a hearing. [FN20] If the criminal conviction is appealed and lists a speedy trial issue, the
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appellate court will not allow a writ of habeas corpus as a substitute for the direct appeal. [FN21]
K.S.A. 60-1501 specifically requires that petitioner be restrained "in this state." The Court of Appeals recently examined this requirement in In re Lancaster. [FN22] Lancaster plead guilty to three felonies in Kansas but at the time of sentencing was incarcerated in Missouri. Using K.S.A. 60-1501, Lancaster argued he was not sentenced on the Kansas convictions "without unreasonable delay" as required by K.S.A. 22-3424(3). Although the district court denied the writ finding no unreasonable delay in sentencing, the Court of Appeals concluded Lancaster's physical presence in Kansas was a prerequisite for exercising habeas corpus jurisdiction under 60-1501. If the district court lacked jurisdiction, so did the Court of Appeals. [FN23] In dismissing the appeal, the Court of Appeals suggested Lancaster may be able to challenge the delay in sentencing by a mandamus proceeding. [FN24]
K.S.A. 60-1507 applies only to people in custody "under sentence of a court of general jurisdiction." [FN25] Because a municipal court is not a court of general jurisdiction, challenges to municipal court convictions must use a petition for writ of habeas corpus under K.S.A. 60-1501. [FN26] A municipal court conviction can be appealed to district court, [FN27] but the Kansas Supreme Court declined to find that failure to do so barred a later habeas corpus proceeding. [FN28] The court noted that the rule habeas corpus is not intended for the review of mere errors or irregularities should not be applied "'to destroy constitutional safeguards of life and liberty. The writ is not and never has been a static, narrow, formalistic remedy. Its scope has grown to achieve its purpose -- the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty."' [FN29]
K.S.A. 60-1501 states that it can be used to inquire into the restraint of "infants or allegedly incapacitated or incompetent persons." Based upon this language it is clear a petition for writ of habeas corpus may be used to determine if the restraint of a child is appropriate. Such a case must be brought in the judicial district where the child is located and the alleged illegal detention occurs. [FN30] Habeas...
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