UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RONALD E. JOHNSON, Plaintiff - Appellant,

v. WYANDOTTE COUNTY DISTRICT COURT, and STA TE OF KANSAS, Defendan t s - Appellees. No. 23-3146 (D.C. No. 5:23- CV-03185-JWL) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BRISCOE , and EID , Circuit Judges.

________________ _________________ Plaintiff Ronald Johnson, a Kansas st ate prisoner currently serving a life sentence for murder, filed this pro se civil action purporting to challenge the constitutionality of his sentence and effect ively seeking a modification of that sentence. The district cour t sua sponte dismissed the acti on as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Johnson now appeals and seeks leave to proceed on appeal in forma pauperis. Exercising juri sdiction pursuant to 28 U.S.C. § 1291, we

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 12, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 12 affirm the judgment of the district cour t and deny Johnson’s request to proceed on appeal in forma pauperis.
I In order to set the stage for addre ssing Johnson’s appeal, we begin by outlining his relevant criminal history. A jury in the District Court for Wyandotte County, Kansas, “convicted Johnson of first-degree premeditat ed murder for a murder committed in 2001.” State v. Johnson , 486 P.3d 544, 545 (Kan. 2021) ( Johnson 2021 ). “The district court judge, without jury findings , imposed a hard 50 life sentence after concluding any mitigating ci rcumstances did not outweigh aggravating circumstances.” Id . “Johnson appealed and ch allenged his sentence as unconstitutional under Apprendi v. New Jersey , 530 U.S. 466 (2000).” Id . The Kansas Supreme Court (KSC) “rejected his Apprendi argument and affirmed Johnson’s convicti on and sentence on direct appeal.” Id . (citing State v. Johnson , 159 P.3d 161 (2007)). “Johnson later filed several motions for” state habeas relief, but “[n]one led to any relief.” Id . (citing cases). In 2014, the KSC held in State v. Soto , 322 P.3d 334 (2014), that “the statutory procedure” in Kansas “for imposing a hard 50 sentence,” set forth in Kan. Stat. Ann. § 21-4635, “violate[d] the Si xth Amendment because it perm it[ted] a judge to find by a preponderance of the eviden ce the existence of one or more aggravating factors necessary to impose an increas ed mandatory minimum senten ce, rather than requiring Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 23 a jury to find the existence of the aggravating factors beyond a reasonable doubt.” 322 P.3d at 349. In 2018, Johnson filed a motion seek ing to have his sentence modified pursuant to Kan. Stat. Ann. § 21-6628(c). 1 The gist of Johnson’s motion was that “[a] judge, not a jury, found aggravating factors that served as the basis for increasing the minimum term of [his] life se ntence[] from 25 years to . . . 50 years.” Johnson 2021 , 486 P.3d at 546. Johnson argued that “his sentence should be vacated because the Sixth Amendment to the Unit ed States Constitution requires a jury determine these aggravating factors.” Id . “The [state] district court denied relief” and Johnson appealed. Id . at 545. While the appeal was pending, the KSC “decided State v. Coleman , 472 P.3d 85 (2020),” holding that § 21-6628(c) “does not create a new ave nue or independent means by which a convicted person can cha llenge his or her underlying sentence.” Johnson 2021 , 486 P.3d at 545. The KSC decided Johnson’s appeal in April 2021. The KSC concluded that “the pivotal question in” J ohnson’s appeal was whether he could “obtain relief from

1 Section 21-6628(c) provides as follows: In the event the mandato ry term of imprisonmen t or any provision of chapter 341 of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be unc onstitutional 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 a nd shall sentence the defendant as otherwise provided by law. Kan. Stat. Ann. § 21-6628(c). Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 34 his sentence given that it was final se veral years before [the] decision in Soto and the United States Supreme Court’s decision in” Alleyne v. United States , 570 U.S. 99 (2013) (holding that any fact that increa ses the minimum sentence must be submitted to a jury and found beyon d a reasonable doubt). Johnson 2021 , 486 P.3d at 547. The KSC in turn noted that its “ Coleman decision explored” and u ltimately rejected “the potential ways a court could have jurisdic tion to hear the claim of someone like Johnson or Coleman who seeks relief from th e hard 40 or 50 minimum term of his or her life sentence.” Id . Based upon its holding in Coleman , the KSC held that § 21-6628(c) “d[id] not requi re resentencing Johnson.” Id . at 548. The KSC also, relatedly, rejected Johnson’s argument “that he had a due process right . . . under the Fifth Amendment to the United States Constitution” to be resentenced under § 21-6628(c). Id . In sum, the KSC concluded: “T here is no procedural mechanism by which a Kansas court may rec onsider [Johnson’s] sentence. Alleyne and Soto do not operate retroactively to afford a re medy. And K.S.A. 2020 Supp. 21-6628(c) does not apply.” Id

. Johnson filed a petition for writ of certi orari with the United States Supreme Court. That was denied on February 22, 2022. Johnson v. Kansas , 142 S. Ct. 1142 (2022).
II On July 27, 2023, Johnson initiated these federal proceedings by filing a pro se complaint in the district c ourt. The caption of the comp laint referenced Johnson’s original Wyandotte County criminal case from 2001. The caption also stated: Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 45 “INVOKING: 28 USC § 2403 INSTRUCTI ON BY UNITED STATES OR A STATE; CONSTITUTIONAL QUESTION.” R OA at 3. The complaint listed Johnson as the “(hostage/DEFENDANT).” Id . The complaint in turn listed as defendants the Wyandotte County District Court and the Stat e of Kansas, and it referred to the State of Kans as as “hostage holder.” Id

. The body of the complaint stated that Johnson, as “a friend of the Federal District Court,” was “ask[ing]” the following “Constitutional Question”: Once the Supreme Court of Kansas he ld is [sic] polic y/provision statute K.S.A. 21-4635 to be a sixth amendm ent due process violation of the united states constitution, bei ng the fact K.S.A. 21-4635 was administered and employeed [sic] by the sua sponte responsibility of Wyandotte County, Kansas district c ourt, as the Kansas hard 50 ACT, consisting of Chapter 341 of the 1994 session laws of Kansas, with K.S.A. 21-4635 being the first stat ute, of the sua sponte courts responsibility, making it K. S.A. 21-4635 et seq. *** Why is no remedial action been take n by the wyandotte county, Kansas district court, or, and various Kansas counties di strict courts who has sentenced prisoners under the un constitutional K.S.A. 21-4635 from 1994 to 2013/2014 triggering the au tomatic sua sponte responsibility of wyandotte county Kansas district c ourt case number 2001-CR-2150, as well as various similar situated prisoners sentenced under this unconstitutional Act K.S.A. 21-4635? Id . at 4–5. In the “CONCLUSION” section of the complaint, Johnson asked the district court “to issue the 9 plus year awaited mandatory modification per contract K.S.A. 21-4639, now K.S. A. 21-6628(c), Awarding a ll the Court sees.” Id . at 6. On August 1, 2023, the district c ourt issued a memorandum and order provisionally granting Johnson leave to proceed in forma pauperis, but “dismiss[ing] th[e] matter as frivolous” pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Id . at 8. In doing Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 56 so, the district court noted that Johnson’s complaint was “merely [his] latest attempt to raise an issue that ha [d] already been addressed by” the district court. Id . at 11. The district court noted, in particular, that Johnson “ha[d] . . . asserted this same claim in a prior action brought pursuant to 42 U.S.C. § 1983.” Id . at 12 (citing Johnson v. Schmidt , No. 20-3017-SAC (D. Kan.)). “In that case,” the district court noted, Johnson “alleged that he was senten ced to a ‘Hard 50’ sentence under K.S.A. § 21-4635 et seq. on November 21, 2003, the [KSC] held § 21-4635 unconstitutional on April 11, 2014, and defendants failed to modify his sentence under the ‘mandatory modification law’—K.S.A. § 21-6628(c).” Id . The district court noted that it advised Johnson in that case “that to the extent he” was seeking to “challenge[] the validity of his sentence in his state crimin al case, his federal claim mu st be presented in habeas corpus.” Id . at 13. And the district court reite rated that “[w]hen the legality of a confinement is challenged so that the reme dy would be release or a speedier release, the case must be filed as a habeas cor pus proceeding rather than under 42 U.S.C. § 1983.” Id . The district court also noted that “even if [Johnson] brought” his “claim in a habeas petition,” it “would be denied ” because the district court had “denied habeas relief for” identi cal claims brought by other Kansas state prisoners. Id . at 14. Lastly, the district court noted that bot h it and the Tenth Circuit had held, in disposing of Johnson ’s prior § 1983 action, that, under the Rooker-Feldman doctrine, “a federal court lacks jurisdiction to re view a final state court judgment.” Id . at 13. The district court concluded that Johnson’s complaint was simply “another attempt to argue” the same claim that had previously “been rejected.” Id . at 15. Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 67 Judgment was entered in the case on Au gust 1, 2023. Johnson filed a timely notice of appeal. Johnson has since filed a motion for leave to pr oceed on appeal in forma pauperis.
III We review the district court’s dismissa l of claims as fri volous under 28 U.S.C. § 1915(e)(2)(B)(i) for a buse of discretion. See Fogle v. Pierson , 435 F.3d 1252, 1259 (10th Cir. 2006). If the frivolousness determination turns on an issue of law, our review is de novo. Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). Section 1915 of Title 28, as its title indicates, addr esses various aspects of “[p]roceedings in forma pauperis.” 28 U.S.C. § 1915. Of relevance here, § 1915(e)(2)(B)(i) provides that “[n]otwith standing any filing fe e, or any portion thereof, that may have been paid, the cour t shall dismiss the case at any time if the court determines that . . . the action or appeal . . . is frivolous or malicious.” Id

. § 1915(e)(2)(B)(i). It is well established that “a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus relief (or appropr iate state relief) instead.” Wilkinson v. Dotson , 544 U.S. 74, 78 (2005) (internal quota tion marks and citations omitted); see Boutwell v. Keating , 399 F.3d 1203, 1209 (10th Cir. 200 5) (“A prisoner may use § 1983 to challenge the conditions of his confinement, but habeas corpus is the only avenue for a challenge to the fact or duration of conf inement, at least when the remedy requested Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 78 would result in the prisoner’s immediate or speedier release from that confinement.”) (citing Preiser v. Rodriguez , 411 U.S. 475, 499 (1973)). Johnson’s complaint, t hough styled as a civil ac tion posing a constitutional question, at bottom seeks relie f in the form of a reducti on of the criminal sentence that Johnson is currently serv ing in the State of Kansas . As the district court correctly noted in this cas e, and previously held in a prior § 1983 case filed by Johnson, the only way that Johnson can seek such relief in federal court is to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We therefore agree with the district court that Johnson’s compla int was subject to di smissal as frivolous pursuant to § 1915(e)(2)(B)(i).
IV The judgment of the district court is AFFIRMED. Johnson’s request to proceed on appeal in fo rma pauperis is DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 23-3146 Document: 010110982866 Date Filed: 01/12/2024 Page: 8