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60-1501. Jurisdiction and right to writ; time limitations. (a) Subject to the provisions of K.S.A. 60-1507, and amendments thereto, any person in this state who is detained, confined or restrained of liberty on any pretense whatsoever, and any parent, guardian, or next friend for the protection of infants or allegedly incapacitated or incompetent persons, physically present in this state may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place. No docket fee shall be required, as long as the petitioner complies with the provisions of subsection (b) of K.S.A. 60-2001, and amendments thereto.

(b) Except as provided in K.S.A. 60-1507, and amendments thereto, an inmate in the custody of the secretary of corrections shall file a petition for writ pursuant to subsection (a) 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.

(c) Except as provided in K.S.A. 60-1507, and amendments thereto, a patient in the custody of the secretary for aging and disability services pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the patient's timely attempts to exhaust such patient's administrative remedies.

History: L. 1963, ch. 303, 60-1501; L. 1976, ch. 251, § 23; L. 1994, ch. 227, § 3; L. 1996, ch. 148, § 3; L. 2012, ch. 90, § 2; L. 2014, ch. 115, § 231; July 1.

Source or prior law:

G.S. 1868, ch. 80, § 660; L. 1909, ch. 182, § 687; R.S. 1923, 60-2201.

Law Review and Bar Journal References:

"Divorce and Alimony Under the New Code," Dan Hopson, Jr., 12 K.L.R. 27, 38 (1963).

"Some Comments on the New Code of Civil Procedure," Emmet A. Blaes, 12 K.L.R. 75, 78 (1963).

Kansas family law survey, Harvey S. Berenson, 17 K.L.R. 349, 362 (1969).

When court has jurisdiction over children who are governed by a custody decree of a sister state, J. Stephen Nyswonger, 11 W.L.J. 305, 306 (1972).

"Collateral Challenges to Criminal Convictions," Keith G. Meyer and Larry W. Yackle, 21 K.L.R. 259 (1973).

"Criminal Procedure: Sufficiency of Evidence Now Reviewable in Habeas Corpus Proceeding," Mark Andrew Shaiken, 19 W.L.J. 616 (1980).

"Habeas Corpus in Kansas: How is the Great Writ Used Today?" Martha J. Coffman, 64 J.K.B.A. No. 1, 26, 27, 28, 30, 31 (1995).

Survey of Recent Cases, 43 K.L.R. 1004 (1995).

"Habeas Corpus in Kansas: The Great Writ Affords Postconviction Relief at K.S.A. 60-1507," Martha J. Coffman, 67 J.K.B.A. No. 1, 16 (1998).

Attorney General's Opinions:

Liability for costs in certain criminal cases. 85-149.

Criminal appeals from district court; duties of county attorney; supplemental payment. 94-63.

Habeas corpus proceeding challenging conditions of confinement; right of defendant to counsel; compensation of counsel. 97-71.

Under the sexually violent predator act, the court is authorized in a habeus corpus proceeding to tax the county for indigent persons' attorney fees. 2011-3.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-2201 and the 1961 Supp. thereto.

1. Attorney employed to obtain child for clients required to divulge their names in action by natural father for custody. Olney v. Hobble, 193 K. 692, 694, 396 P.2d 367.

2. Action brought for possession of minor children based upon Missouri decree; insufficiency of answer. Murphy v. Murphy, 196 K. 118, 410 P.2d 252.

3. No constitutional right to counsel in federal habeas corpus proceedings. Rider v. Crouse, 357 F.2d 317, 318.

4. Federal habeas corpus denied where ample state remedies for post-conviction relief. Blair v. Crouse, 360 F.2d 28, 29.

5. Review of action by board of probation and parole; habeas corpus appropriate remedy. Johnson v. Stucker, 203 K. 253, 259, 453 P.2d 35.

6. Cited; case concerning decree of another state. Perrenoud v. Perrenoud, 206 K. 559, 576, 480 P.2d 749.

7. Habeas corpus held to be proper remedy for review of the mode or conditions or confinement in penal institutions. Hamrick v. Hazelet, 209 K. 383, 497 P.2d 273.

8. Petition for habeas corpus alleging continuing mistreatment; summary dismissal reversed; appellant required to exhaust administrative remedies. Case v. Crouse, 210 K. 341, 502 P.2d 785.

9. Petition hereunder alleging mistreatment of inmate of penitentiary; administrative procedures not exhausted. Davis v. State, 211 K. 257, 505 P.2d 293.

10. Jurisdiction of habeas corpus proceeding hereunder upheld in child custody dispute. Anderson v. Anderson, 214 K. 387, 391, 520 P.2d 1239.

11. Proceeding in child custody case in nature of in rem; properly in district court of county of restraint. Anderson v. Anderson, 214 K. 387, 391, 520 P.2d 1239.

12. No denial of equal protection where prisoner transferred to protective custody by request. Morris v. Raines, 220 K. 86, 551 P.2d 838.

13. Dismissal of petition affirmed; failure of prisoner to show continuing mistreatment; no abuse or caprice by prison officials. Breier v. Raines, 221 K. 439, 559 P.2d 813.

14. Constitutional issue whether confinement in another state's prison constitutes cruel and unusual punishment is beyond scope of extradition proceeding. Killingsworth v. Howes, 222 K. 209, 563 P.2d 478.

15. Habeas corpus dismissal vacated; hearing must be held; determine if state purpose outweighs individual's religious right. Wright v. Raines, 1 K.A.2d 494, 495, 571 P.2d 26.

16. Credit given prisoner only on time spent for offense charged; mandatory under 21-4614. Brodie v. State, 1 K.A.2d 540, 571 P.2d 53.

17. Classification of prisoners for housing and job assignments; proper administration of prison; not violation of due process. Foster v. Maynard, 222 K. 506, 507, 565 P.2d 285.

18. Dismissal of parole violator warrant did not have res judicata effect on warrant based on subsequent violation. Beard v. Maynard, 223 K. 631, 632, 633, 576 P.2d 611.

19. Section does not infringe on right to family integrity where custody dispute is between parents. Beebe v. Chavez, 226 K. 591, 597, 598, 602 P.2d 1279.

20. Habeas corpus appropriate remedy to enforce prisoner's right to counsel. Case v. Andrews, 226 K. 786, 603 P.2d 623.

21. Petitioner's challenge to administrative segregation held moot where petitioner transferred to another state under Interstate Corrections Compact. Hannon v. Maynard, 3 K.A.2d 522, 524, 597 P.2d 1125.

22. Fitness of parent not an issue in determining whether the parent's consent to adoption is required. In re Adoption of Wilson, 227 K. 803, 806, 610 P.2d 598.

23. Petition for writ of habeas corpus not rendered moot by petitioner's release on bond. Henderson v. Schenk, 6 K.A.2d 562, 631 P.2d 246 (1981).

24. Habeas corpus proper where summons for preliminary hearing issued without probable cause; detention no longer illegal after proper cause shown. Karstetter v. Love, 9 K.A.2d 194, 195, 674 P.2d 1066 (1984).

25. Cited by dissent; dismissal granted where notice and request pursuant to 22-440 et seq. never delivered to detaining court or prosecutor. In re Habeas Corpus Application of Sweat, 9 K.A.2d 268, 280, 677 P.2d 554 (1984).

26. Cited; where fugitive held under 22-2717 is arrested on governor's warrant, irregularities from detention beyond 90 days become moot. In re Habeas Corpus Application of Sanders, 10 K.A.2d 489, 491, 704 P.2d 386 (1985).

27. Cited; restrictions placed on inmate because of segregated confinement and location of confinement not cruel and unusual punishment. Turner v. Maschner, 11 K.A.2d 134, 715 P.2d 425 (1986).

28. Cited; prevention of theft and conflict in prison population (K.A.R. 44-12-20 et seq.) are reasonable goals; regulation thereof is reasonable. Bryant v. Barbara, 11 K.A.2d 165, 167, 170, 717 P.2d 522 (1986).

29. Court of appeals lacks jurisdiction of habeas corpus issue also on direct appeal to supreme court. In re Habeas Corpus Application of Maas, 11 K.A.2d 597, 598, 599, 730 P.2d 368 (1986).

30. Court of appeals has no jurisdiction to issue writ of habeas corpus for violation of state law. Cain v. Petrovsky, 798 F.2d 1194, 1195 (1986).

31. Proceedings not subject to ordinary civil procedure; parole board decisions reviewable; certain allegations necessary to avoid summary dismissal. Swisher v. Hamilton, 12 K.A.2d 183, 184, 185, 740 P.2d 95 (1987).

32. Cited; procedures by which defendant may attack conditions of imprisonment or constitutionality or legality of sentence examined. State ex rel. Stephan v. Clark, 243 K. 561, 562, 568, 759 P.2d 119 (1988).

33. Applicability of 77-201 Fourth to statutory authority governing Kansas parole board's power to grant or deny parole determined. Haney v. Hamilton, 13 K.A.2d 269, 768 P.2d 832 (1989).

34. Article 15 provides procedures for attacking conditions of employment, not sentencing proceedings. State v. Saft, 244 K. 517, 521, 769 P.2d 675 (1989).

35. Where parental rights are severed, natural parent no longer has rights in child to support habeas corpus action. Cosgrove v. Kansas Dept. of S.R.S., 14 K.A.2d 217, 219, 222, 786 P.2d 636 (1990).

36. Petition for writ is appropriate method for challenging pretrial denial of double jeopardy claim. In re Habeas Corpus Petition of Lucas, 246 K. 486, 789 P.2d 1157 (1990).

37. A habeas corpus action is appropriate procedure for reviewing decisions of parole board. Lamb v. Kansas Parole Board, 15 K.A.2d 606, 607, 812 P.2d 761 (1991).

38. Noted in opinion holding current statutes (22-3428 et seq.) regarding continued commitment of insanity acquittee unconstitutional; court engrafts new requirements. In re Application of Noel for Discharge Hearing, 17 K.A.2d 303, 307, 838 P.2d 336 (1992).

39. Parole board's implementation of revised conditional release policies noted as prospective only and not ex post facto punishment. Wishteyah v. Kansas Parole Board, 17 K.A.2d 480, 838 P.2d 371 (1992).

40. Exhaustion of administrative remedies before turning to court through habeas corpus proceeding for review of prisoner mail censorship examined. Fletcher v. Nelson, 253 K. 389, 855 P.2d 940 (1993).

41. Whether petitioner's presence in Kansas is a prerequisite to district court exercise of habeas corpus jurisdiction examined. In re Habeas Corpus Application of Lancaster, 19 K.A.2d 1033, 1035, 879 P.2d 1143 (1994).

42. Whether petitioner defendant may challenge KDOC's failure to transmit sentencing guidelines report in county of confinement examined. Safarik v. Bruce, 20 K.A.2d 61, 66, 883 P.2d 1211 (1994).

43. Whether inmate's mislabeled challenge to KDOC severity classification should be reviewed as habeas petition examined. State v. Mejia, 20 K.A.2d 890, 892, 894 P.2d 202 (1995).

44. Whether state regulations governing administrative segregation create a protected liberty interest examined. Graham v. Nelson, 20 K.A.2d 896, 893 P.2d 294 (1995).

45. Issue concerning inmate's liberty interest in confinement in administrative segregation rendered moot by inmate's release. Shanks v. Nelson, 258 K. 688, 689, 907 P.2d 882 (1995).

46. No due process violation in way drug testing of prison inmate was conducted. Crutchfield v. Hannigan, 21 K.A.2d 693, 694, 906 P.2d 184 (1995).

47. Petitioner's writ of habeas corpus dismissed; 1994 amendments to section not applied retroactively. Peters v. Kansas Parole Board, 22 K.A.2d 175, 178, 915 P.2d 784 (1996).

48. No liberty interest created in prisoner's administrative segregation; no due process violations; remanded for consideration whether segregation was punishment contrary to administrative regulation. Murphy v. Nelson, 260 K. 589, 590, 591, 604, 921 P.2d 1225 (1996).

49. Claim brought hereunder must be based upon deprivation of a constitutional right. Ramirez v. State, 23 K.A.2d 445, 931 P.2d 1265 (1997).

50. Action under 60-1507 seeking conversion under 21-4701 et seq. not appropriate procedure to challenge decisions of parole board or sentencing commission. State v. Bookless, 23 K.A.2d 730, 935 P.2d 231 (1997).

51. Burden on inmate to establish due process violation in prison disciplinary case; discipline will be upheld if "some evidence" exists to sustain. Anderson v. McKune, 23 K.A.2d 803, 804, 808, 937 P.2d 16 (1997).

52. Order granting writ reversed; policy creating inmate's classification status not a rule and regulation subject to 77-415 et seq. Gilmore v. McKune, 23 K.A.2d 1029, 1031, 940 P.2d 78 (1997).

53. Inmate's delivery of petition to prison authorities constituted filing and was timely to toll statute of limitations; jurisdiction established despite petition's deficiencies. Taylor v. McKune, 25 K.A.2d 283, 962 P.2d 566 (1998).

54. Prison regulations limiting outgoing inmate personal correspondence rights held constitutional. Collier v. Nelson, 25 K.A.2d 582, 584, 966 P.2d 1117 (1998).

55. Evidence insufficient to prove prison disciplinary action against inmate was arbitrary or capricious. Adkerson v. Nelson, 25 K.A.2d 655, 656, 967 P.2d 357 (1998).

56. Inmate's habeas petition for sentence conversion was precluded by a failure to exhaust administrative remedies. Hanks v. Simmons, 22 F.Supp.2d 1240, 1241 (1998).

57. Finding of "some evidence" to support prison disciplinary action and no violation of due process rights justifies summary dismissal of petition. Sammons v. Simmons, 267 K. 155, 159, 976 P.2d 505 (1999).

58. Thirty-day appeal period for inmates to appeal disciplinary actions or parole denial held constitutional. Battrick v. State, 267 K. 389, 392, 401, 985 P.2d 707 (1999).

59. Parole board, upon revoking parole, has discretion to establish date for another parole or date to consider eligibility for parole. Foy v. Taylor, 26 K.A.2d 222, 225, 985 P.2d 1172 (1999).

60. Petitioner was under no type of restraint at time of filing petition; case is dismissed as moot. In re Habeas Corpus Application of Horst, 270 K. 510, 14 P.2d 1162 (2000).

61. Untimely motion for new trial treated as application for habeas corpus. State v. Smith, 27 K.A.2d 152, 999 P.2d 280 (2000).

62. Kansas adult authority had no statutory power to shorten term of sentence; parole certificate is an ultra vires act. Templeton v. Kansas Parole Board, 27 K.A.2d 471, 6 P.3d 910 (2000).

63. Good time credits already earned are protected liberty interest; conditional release is not discretionary; it is required by law. Muldrow v. Hannigan, 27 K.A.2d 662, 8 P.3d 12 (2000).

64. Habeas corpus to be filed in county of incarceration rather than with sentencing court. McKinney v. State, 27 K.A.2d 803, 9 P.3d 600 (2000).

65. No protected liberty interest; good time credits not yet earned may be withheld. In re Habeas Corpus Application of Pierpoint, 271 K. 620, 24 P.3d 128 (2001).

66. Inmate may forfeit good time credits earned on new sentence for infraction occurring while on postrelease from prior crime. Muir v. Bruce, 28 K.A.2d 482, 18 P.3d 247 (2001).

67. Refusal of petitioner to verify petition for habeas corpus, after being advised by clerk of requirements, was proper basis for dismissal of petition. Stewart v. Secretary of Corrections, 29 K.A.2d 411, 27 P.3d 932 (2001).

68. In case involving multiple convictions and paroles, held no error in calculation of sentence. Anderson v. Bruce, 274 K. 37, 50 P.3d 1 (2002).

69. Inmate has no protected liberty interest in unearned good time credits. Davis v. McKune, 30 K.A.2d 822, 48 P.3d 1287 (2002).

70. Judgment of district court may be affirmed if right for any reason. Price v. Simmons, 31 K.A.2d 631, 71 P.3d 1164 (2002).

71. Department of corrections can collect restitution from defendant's inmate account with exception of $10 per month. Puckett v. Bruce, 276 K. 59, 73 P.3d 736 (2003).

72. Request for reconsideration of administrative action does not toll 30-day period provided under section. Snoddy v. McKune, 31 K.A.2d 579, 68 P.3d 168 (2003).

73. No entitlement to use 1 / 2 of prison earnings for personal hygiene items while making restitution. Stolte v. Cummings, 31 K.A.2d 639, 70 P.3d 695 (2003).

74. Requirements of 60-1502 apply to petitions filed under 60-1501 but not to motions filed under 60-1507. Avriett v. State, 31 K.A.2d 916, 75 P.3d 766 (2003).

75. Good time credits do not affect maximum sentence but allow inmate to earn early release from jail. Gibson v. Cummings, 31 K.A.2d 957, 78 P.3d 1174 (2003).

76. Prison may not ban periodicals for inmates. Rice v. State, 31 K.A.2d 964, 76 P.3d 1048 (2003).

77. No cruel and unusual punishment in providing inmate in administrative segregation a cold sack lunch. Amos v. Simmons, 32 K.A.2d 366, 82 P.3d 859 (2004).

78. As petitioner's claims were without merit, issue of court's partiality is moot. Laubach v. Roberts, 32 K.A.2d 863, 90 P.3d 961 (2004).

79. Error to summarily dismiss petition which did not correctly state who held petitioner in custody when it is clear petitioner is in Lansing Correctional Facility. Griffin v. Gilchrist, 33 K.A.2d 233, 100 P.3d 99 (2004).

80. Failure of hearing officer in prison discipline case to follow procedural regulations does not raise violation of constitutional nature. Starr v. Bruce, 35 K.A.2d 11, 129 P.3d 583 (2005).

81. Inmate's K.S.A. 60-1501 petition timely under doctrine of unique circumstances. McMillan v. McKune, 35 K.A.2d 654, 661, 135 P.3d 1258 (2006).

82. Remanded for hearing under stigma plus standard to determine if inmate has liberty interest requiring due process. Schuyler v. Roberts, 36 K.A.2d 388, 395, 139 P.3d 781 (2006).

83. Prison disciplinary proceeding, burden of persuasion not met regarding institutional concerns in denying inmate to call witnesses. Washington V. Roberts, 37 K.A.2d 237, 245, 152 P.3d 660 (2007).

84. Petition must allege shocking and intolerable conduct of constitutional stature to avoid summary dismissal. Williams v. DesLauriers, 38 K.A.2d 629, 630, 636, 637, 639, 172 P.3d 42 (2007).

85. District court reversed decision of prison officials in inmate disciplinary proceeding; court of appeals reverses district court. Miller v. McKune, 38 K.A.2d 810, 811, 816, 174 P.3d 891 (2008).

86. The "stigma plus" test applies to determine if petitioner has liberty interest that requires due process protection. Schuyler v. Roberts, 285 K. 677, 175 P.3d 259 (2008).

87. Cited; movant's failure to pay docket fee or include cover sheet not barrier to otherwise timely filing of motion. Wilson v. State, 40 K.A.2d 170, 175, 192 P.3d 1121 (2008).

88. No constitutional violation found in habeas corpus challenge by persons in sexual predator treatment program. Johnson v. State, 289 K. 642, 215 P.3d 575 (2009).

89. Prisoner failed to exhaust administrative remedies and timely file petition in district court. Litzinger v. Bruce, 41 K.A.2d 9, 201 P.3d 707 (2009).

90. Prisoner failed to exhaust his administrative remedies. Boyd v. Werholtz, 41 K.A.2d 15, 203 P.3d 1 (2009).

91. No ineffective assistance of counsel found; defendant failed to show he suffered legal prejudice by counsel's conduct. Alford v. State, 42 K.A.2d 392, 212 P.3d 250 (2009).

92. Disciplinary sanction for inmate's administrative conviction for taking a soda without permission did not implicate a liberty interest protected by due process. Hardaway v. Larned Correctional Facility, 44 K.A.2d 504, 238 P.3d 328 (2010).

93. An inmate challenging an action of the secretary of corrections must file a habeas petition within 30 days of the Secretary's action and there is no jurisdiction requirement that the inmate serve the petition on the secretary within 90 days. Sauls v. McKune, 44 K.A.2d 460, 238 P.3d 747 (2010).

94. Habeas corpus petition declaring Kansas Sexual Predator Treatment Program confinement wrongful failed to meet shocking conduct standard needed to avoid dismissal. Merryfield v. State, 44 K.A.2d 817, 241 P.3d 573 (2010).

95. Inmate's mandamus action against secretary of corrections improper because plain and adequate remedy at law existed under habeas corpus statute. Bohanon v. Werholtz, 46 K.A.2d 9, 257 P.3d 1239 (2011).

96. Service requirement in K.S.A. 60-203 has no application to an inmate's filing of a habeas petition. Sauls v. McKune, 45 K.A.2d 915, 260 P.3d 95 (2011).

97. A civilly committed sexually violent predator must exhaust administrative remedies before seeking a writ of habeas corpus. Stanley v. Sullivan, 49 K.A.2d 732, 314 P.3d 883 (2013).

98. In order to establish a claim for a violation of due process in a habeas corpus proceeding, an inmate must establish a deprivation of a recognized liberty or property interest; a small monetary fine constitutes a property interest sufficient to implicate procedural due process. Stano v. Pryor, 52 K.A.2d 679, 682, 372 P.3d 427 (2016).

99. Upon receipt of the annual written notice of the right to petition for release, a person confined as a sexually violent predator is put on notice that a recommitment order is imminent for purposes of beginning the 30-day petition period, even if the court fails to enter a recommitment order. Griffin v. Bruffett, 53 K.A.2d 589, 601, 389 P.3d 992 (2017).

100. An inmate's filing of a grievance did not toll the time to file a K.S.A. 60-1501 petition because the grievance procedure is not an available administrative remedy to challenge censorship of a publication under applicable rules and regulations. Peterson v. Schnurr, 57 K.A.2d 56, 447 P.3d 380 (2019).

101. An inmate's timely attempt to exhaust administrative remedies remains pending, and does not become final for the purposes of calculating the 30-day deadline for filing a K.S.A. 60-1501 petition with the district court, until the inmate receives actual notice of the final administrative decision. Jamerson v. Schnurr, 57 K.A.2d 491, 497, 453 P.3d 1196 (2019).

102. A petitioner must participate in a sexual predator treatment program in order to have standing to bring a legal challenge regarding whether the program violated the petitioner's individual rights. Burch v. Howard, 57 K.A.2d 860, 870, 461 P.3d 840 (2020).

103. When a K.S.A. 60-1501 petition is filed in the wrong county, the district court should transfer the case to the proper venue. Johnson v. Zmuda, 59 K.A.2d 360, 481 P.3d 180 (2021).


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