Johnson v. Schmidt

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 24, 2020
• Docket: 20-3168
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 24, 2020 _________________________________ Christopher M. Wolpert Clerk of Court RONALD E. JOHNSON,

Plaintiff - Appellant,

v. No. 20-3168 (D.C. No. 5:20-CV-03017-SAC) DEREK SCHMIDT, Attorney General for (D. Kan.) the State of Kansas; JENNIFER L. MYERS, Judge, Wyandotte County District Court; R. WAYNE LAMPSON, Chief Judge, Wyandotte County District Court; DEXTER BURDETTE, Chief Judge, Wyandotte County District Court; LAWTON NUSS, Chief Justice, Kansas Supreme Court; LEE JOHNSON, Justice, Kansas Supreme Court; STEPHEN D. HILL, Justice, Kansas Court of Appeals; KIM R. SCHROEDER, Justice, Kansas Court of Appeals; GORDON ATCHESON, Justice, Kansas Court of Appeals; JEROME GORMAN, Assistant District Attorney/District Attorney, Wyandotte County District Attorney’s Office; DANIEL OBERMIER, Assistant District Attorney, Wyandotte County District Attorney’s Office; MARK DUPREE, District Attorney, Wyandotte County District Attorney’s Office; DON ASH, Sheriff, Wyandotte County Sheriff’s Department; ROGER WERHOLTZ, Secretary of Corrections, Kansas Department of Corrections; RAY ROBERTS, Secretary of Corrections, Kansas Department of Corrections; JOHNNIE GODDARD, Secretary of Corrections, Kansas Department of Corrections; JOE NORWOOD, Secretary of Corrections, Kansas Department of Corrections; JEFF ZMUDA, Secretary of Corrections, Kansas Department of Corrections; JEFF COWGER, Chief Legal Counsel, Kansas Department of Corrections; JOHN/JANE DOE (1), Sentence Computation State Employees, Kansas Department of Corrections; S. SCRIBNER, ReEntry Department, Kansas Department of Corrections; JOHN/JANE DOE (2), ReEntry State Employees, Kansas Department of Corrections; JOHN/JANE DOE (3), ReEntry State Employees, Kansas Department of Corrections,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges. _________________________________

Plaintiff-Appellant Ronald E. Johnson, who is in the custody of the Kansas

Department of Corrections, brings this pro se civil rights appeal under 42

U.S.C.§ 1983. Johnson appeals the district court’s dismissal of his complaint for

failure to state a claim, arguing that Kansas state courts’ denial of his habeas corpus

petition ignored a statutory provision that he believes mandates the adjustment of his

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 “hard 50” sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm

the district court’s dismissal of the complaint for failure to state a claim.

I

In 2003, Johnson was sentenced to life in prison without the possibility of

parole for 50 years (known as a “hard 50” sentence) pursuant to what was then

K.S.A. 21-4635 (now K.S.A. 21-6620). After several habeas corpus petitions in

Kansas state courts that were denied and affirmed on appeal, Johnson filed this

§ 1983 claim on January 15, 2020, seeking monetary damages and a modification of

his sentence. The complaint named the following defendants: eight state court judges,

the state attorney general, the district attorney, two assistant district attorneys, the

Wyandotte County Sheriff, nine KDOC employees, and legal counsel for KDOC.

The crux of Johnson’s claim before the district court was that the Kansas state

courts erred in denying his habeas corpus petition because the courts incorrectly ruled

that the Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99, 103

(2013)—which held “that any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury”—did not apply retroactively to

Johnson’s sentence, which became final before Alleyne. He also invoked K.S.A.

21-6628(c) (formerly K.S.A. 21-4639(c)), a “fail-safe” provision in Kansas

sentencing law that mandates courts to re-sentence defendants in the event the statute

authorizing the defendant’s mandatory sentence is held unconstitutional.

In a May 5, 2020 order, the district court directed Johnson to show cause why

his complaint should not be dismissed because Johnson sought monetary relief from

3 defendants who were immune from suit and because Johnson sought release from

incarceration, despite the district court previously advising him that such relief must

be sought in a habeas action. Johnson filed a response and a proposed amended

complaint.

The district court ultimately dismissed Johnson’s complaint for failure to state

a claim after determining that his response to the show cause order and proposed

amended complaint failed to cure the deficiencies set forth in the court’s prior order.

Specifically, the district court held that Johnson’s challenge to his sentence was not a

cognizable § 1983 claim and the defendants were all entitled to either qualified or

absolute immunity. The district court additionally concluded that, at any rate, it did

not have jurisdiction to hear Johnson’s challenge to the Kansas state court rulings.

This timely appeal followed.

II

On appeal, Johnson presses the same theory he raised before the district court.

He again points to K.S.A. 21-6628(c), which says

In the event the mandatory term of imprisonment or any provision of chapter 341 of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sentence to require no mandatory term of imprisonment and shall sentence the defendant as otherwise provided by law.

4 Johnson maintains that this provision mandates the modification of his sentence,

since the procedures for the “hard 50” sentence in effect at the time he was sentenced

in 2003 allowed a judge, rather than a jury, to find aggravating facts that increased

the mandatory minimum sentence. Johnson correctly notes that the Kansas Supreme

Court, following the Supreme Court’s decision in Alleyne, held that this sentencing

procedure violated the Sixth Amendment. State v. Soto, 322 P.3d 334 (Kan. 2014).

But Johnson further contends that the Kansas Supreme Court’s decision in Kirtdoll v.

State, 393 P.3d 1053, 1057 (Kan. 2017), which held that “Alleyne cannot be applied

retroactively to cases that were final when Alleyne was decided,” is superseded by the

legislative command of K.S.A. 21-6628(c). Before addressing that argument, we

identify several reasons why Johnson fails to state a claim.

As a threshold matter, the district court correctly held that it lacked

jurisdiction to consider Johnson’s challenge to the Kansas state court decisions.

Under the Rooker-Feldman doctrine, “only the Supreme Court has jurisdiction to

hear appeals from final state court judgments. Federal district courts do not have

jurisdiction to review state court judgments or claims inextricably intertwined with

them.” Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006) (citation omitted).

Next, to the extent Johnson challenges the validity of his sentence, such an

action is not cognizable as a § 1983 claim. “[A] § 1983 action is a proper remedy for

a state prisoner who is making a constitutional challenge to the conditions of his

prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez, 411

U.S. 475, 499 (1973) (emphasis added). And to the extent Johnson seeks money

5 damages based on an invalid sentence, his claim is barred unless he first shows that

“[his] conviction or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of habeas

corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). Johnson has not made that

required preliminary showing here. Accordingly, “[his] claim for damages . . . is not

cognizable under § 1983.” Id.

At any rate, Johnson cannot overcome the immunity defenses applicable to

each named defendant. On appeal, Johnson mainly focuses on the judicial defendants,

arguing they improperly ignored K.S.A. 21-6628(c). But “a state judge is absolutely

immune from § 1983 liability except when the judge acts ‘in the clear absence of all

jurisdiction.’” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (quoting Stump

v. Sparkman, 435 U.S. 349, 356–57 (1978)). The district court correctly concluded

that Johnson alleges no facts suggesting that the defendant judges acted outside of

their judicial capacity.

Even if Johnson could overcome those hurdles, his invocation of K.S.A.

21-6628(c) is unavailing. The Kansas Supreme Court has recently foreclosed the

application of K.S.A. 21-6628(c) in the manner Johnson urges. While this appeal was

pending, the Kansas Supreme Court held that K.S.A. 21-6628(c) “[b]y its clear and

unequivocal language . . . applies only when the term of imprisonment or the statute

authorizing the term of imprisonment are found to be unconstitutional.” State v.

Coleman, 472 P.3d 85, 92 (Kan. 2020). Neither of those situations are presented here.

6 Alleyne and Soto held only that the “procedural framework by which the enhanced

sentence was determined” was unconstitutional. Id. Those cases did not cast any

doubt on the substantive sentence Johnson received. Indeed, “hard 50 sentences have

never been determined to be categorically unconstitutional.” Id. Accordingly, the

“fail-safe” provision of K.S.A. 21-6628(c) requiring sentence modification is not

triggered here. See id.

III

For those reasons, we AFFIRM the district court’s dismissal of Johnson’s

complaint for failure to state a claim.

Entered for the Court

Mary Beck Briscoe Circuit Judge