Sellers v. Bruce ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
SEP 29 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
KENNETH R. SELLERS,
Petitioner - Appellant, No. 97-3188
v. (D. Kansas)
LOUIS E. BRUCE, Warden; (D.C. No. 97-CV-3251)
CHARLES SIMMONDS, Secretary of
Corrections; (NFN) STEDEMAN, Unit
Team, El Dorado Correctional
Facility; (NFN) ROGAN, Unit Team,
El Dorado Correctional Facility;
(NFN) STUDEE, Unit Team, El
Dorado Correctional Facility,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Kenneth R. Sellers, an inmate at the Ellsworth Correctional Facility,
brought this pro se action pursuant to 42 U.S.C. § 1983 claiming that his
constitutional rights were violated by the defendants’ refusal to establish his
parole violator term under the Kansas Guidelines Sentencing Act, specifically
K.S.A. 1993 Supp. 22-3717(f).
K.S.A. 1993 Supp. 22-3717(f) was in effect between July 1, 1993,
and March 24, 1994, and provided that “if an inmate was sentenced
for a felony committed after July 1, 1993, while on parole or
conditional release for a felony committed prior to July 1, 1993, the
old sentences would be converted into a determinate sentence.” The
length of the converted sentence depended on the class of the
preguidelines felony. Effective March 24, 1994, K.S.A. 1993 Supp.
22-3717(f) was amended so that preguidelines sentences would not
be converted.
State v. Bissell, No. 76,333, 1997 WL 429621 (Kan. App. Aug. 1, 1997) (quoting
Payton v. State, 923 P.2d 1059 (Kan. App. 1996)).
The district court construed this action as a petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254, and dismissed the action without
prejudice to permit Mr. Sellers to exhaust his state court remedies. Upon
reviewing the record, and Mr. Sellers’ arguments, we conclude that the district
court was correct for the reasons stated in the district court’s order filed June 19,
1997.
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Mr. Sellers filed his habeas petition in the district court on June 5, 1997.
Accordingly, we review his petition and appeal under 28 U.S.C. §§ 2253 and
2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24,
1996), and treat the posture of this case as a renewed application for a certificate
of appealability. See 28 U.S.C. § 2253(c)(1). Because Mr. Sellers has not made a
substantial showing of the denial of a constitutional right, see § 2253(c)(2), we
DENY a certificate of appealability and DISMISS the appeal. The mandate shall
issue forthwith.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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