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NOT DESIGNATED FOR PUBLICATION

No. 122,781

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEPHEN A. MACOMBER,

Appellant,

v.

SAM CLINE, WARDEN,

Appellee.

MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed April 2, 2021. 

Reversed and remanded with directions.

Kristen B. Patty, of Wichita, for appellant. 

Joni Cole, legal counsel, El Dorado Correctional Facility, for appellee.

Before BRUNS, P.J., BUSER, J., and WALKER, S.J.

PER CURIAM: Stephen A. Macomber appeals the summary dismissal of his K.S.A. 

60-1501 petition. He asserts that the hearing officer at his prison disciplinary hearing 

violated certain Kansas Department of Corrections (KDOC) regulations by not providing 

him notice before amending his fighting charge to battery. According to Macomber, the 

hearing officer's failure to provide him proper notice of this amendment resulted in him 

unknowingly pleading guilty to battery contrary to his due process rights under the 

Fourteenth Amendment to the United States Constitution. He therefore asks this court to 

either grant his K.S.A. 60-1501 petition or remand to the district court for an evidentiary 

hearing on his underlying argument. Because we believe the record of this case does not 
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conclusively show that Macomber is not entitled to relief under K.S.A. 60-1501, we find 

it was error for the district court to summarily dismiss his petition. Therefore, we reverse 

and remand the case to the district court for an evidentiary hearing on Macomber's K.S.A. 

60-1501 petition. 

FACTS

In December 2017, Macomber was an inmate at Lansing Correctional Facility in 

Leavenworth County. On December 23, 2017, a corrections officer filed a disciplinary 

report alleging that Macomber and another inmate were fighting earlier that day. Based 

on this altercation, the corrections officer charged Macomber with possessing dangerous 

contraband, a class one disciplinary offense in violation of K.A.R. 44-12-901, and with 

fighting, a class one disciplinary offense in violation of K.A.R. 44-12-301. The 

corrections officer alleged that during the fight, Macomber had a "handmade ice pick 

type weapon."

Shortly after receiving his disciplinary report, a different corrections officer, 

whose first name is not in the record, but whose last name was Hunt, held a hearing on 

Macomber's alleged violations. The form documenting Macomber's disciplinary hearing 

indicated that Macomber pled guilty after waiving his right to an evidentiary hearing on 

his charges. The form also indicated that Hunt amended Macomber's original charges. 

Although Macomber remained charged with dangerous contraband, he was no longer 

charged with fighting contrary to K.A.R. 44-12-301. Instead, in the blank labeled "rule 

violations," Hunt listed the numbers "901" and "324." Evidently, while the number 901 

continued to represent Macomber's dangerous contraband charge in violation of K.A.R. 

44-12-901, the number 324 represented Macomber's new battery charge, which was a 

class one disciplinary offense in violation of K.A.R. 44-12-324.
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Thus, from the face of the form, which contained handwritten notations which are 

somewhat hard to read, it appears Macomber pled guilty to battery and dangerous 

contraband. For his dangerous contraband and battery offenses, Hunt imposed a $20 fine 

upon Macomber.

Macomber appealed his apparent battery guilty plea to the Warden of Lansing 

Correctional Facility and ultimately to the Secretary of Corrections. In his pro se appeal, 

Macomber alleged that Hunt amended his fighting charge to battery without providing 

him notice of this amendment. Macomber asserted that at the outset of his disciplinary 

hearing, Hunt showed him his disciplinary report, asked him if the report was about him, 

and then asked him to sign and initial the form requiring him to admit his guilt and waive 

his right to an evidentiary hearing. Macomber alleged that after Hunt asked him to do 

these things, Hunt said nothing else to him before he confirmed that the disciplinary 

report was about him and signed and initialed the form. In his appeal Macomber asserted 

that immediately after signing this form, however, Hunt announced that he had amended 

the fighting charge to battery. Macomber argued that when he signed and initialed the 

form admitting his guilt and waiving his right to an evidentiary hearing, he believed that 

he was pleading guilty to his original dangerous contraband and fighting charges. 

Based on these contentions, Macomber argued that Hunt's conduct constituted a 

substantial error contrary to K.A.R. 44-13-202(a)—a provision that requires "notice [be]

given to the inmate" upon a hearing officer's amendment of the inmate's charges. 

Macomber asserted that, had he known Hunt planned on amending his fighting charge to 

battery, he would not have pled guilty but would have instead challenged his battery 

charge by alleging self-defense. In consequence, Macomber asked that the Secretary 

reverse his battery conviction and remand for a new disciplinary hearing where he could 

defend himself against the amended battery charge.
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The Secretary rejected Macomber's argument, finding that no substantial error 

entitled Macomber to appeal his battery guilty plea. As a result, Macomber moved for 

relief under K.S.A. 60-1501 in Leavenworth County District Court. On April 27, 2018, 

the district court clerk issued a writ of habeas corpus to the Warden, requiring an answer 

within 20 days. After obtaining an extension of time, the Warden filed an answer denying 

the petition. 

Since the Warden's answer to Macomber's petition was not verified, as required by 

law, Macomber filed a motion for default judgment on his petition. After holding a 

hearing, the district court denied Macomber's motion for default judgment. But before 

any further proceedings could occur on the petition in Leavenworth County, the Secretary 

transferred Macomber from Lansing to El Dorado Correctional Facility. Subsequently 

venue for Macomber's petition was changed to Butler County District Court.

In his K.S.A. 60-1501 petition, Macomber repeated the arguments within his 

appeal to the Secretary. He added that his battery conviction was not supported by his 

disciplinary report, which did not explicitly state that he made improper physical contact 

with the other inmate during their fight. Additionally, he asserted that if given the 

opportunity to present evidence on his K.S.A. 60-1501 petition, two inmates as well as a 

corrections officer would testify on his behalf. Sam Cline, the Warden of the prison in 

which Macomber resided at that time, responded that Macomber's "claims [were] not 

credible and . . . should be dismissed." 

Ultimately the district court in Butler County agreed with Warden Cline and 

summarily dismissed Macomber's K.S.A. 60-1501 petition. In doing so, the district court 

made the following findings against Macomber:

"To sign a document without reading is no excuse and not a defense absent 

willful fraud or deliberate misrepresentation. Macomber's claim that he failed to 
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understand what he was signing lacks credibility. He carefully initialed the eight separate 

boxes and the form indicates that seven of the eight statements were read out loud to him.

"When all is said and done, Macomber's objection is really an after-the-fact claim 

that he inadvertently pleaded guilty to what turned out to be a battery charge to which he 

thought he would have a defense. Put another way, he believed self-defense would not be 

available to a fighting charge.

"The differences that Macomber attempts to make between the prison offenses of 

Battery and Fighting are distinctions without a significant difference. Both involve 

violent conduct. Battery is the unlawful touching of another person done in a rude or 

angry manner. Fighting is brawling, exchanging blows or engaging in hitting or punching 

each other. Both are Class One prison offenses and carry identical penalties. Contrary to 

Macomber’s argument, a claim of self-defense could have been made to either. As an 

aside, asserting such a defense, practically speaking, could well have been an exercise in 

futility given the sworn disciplinary report indicating that the reporting officer observed 

Macomber 'fighting [another inmate] with a homemade weapon in his hand.' Macomber 

fails [to] show that he was disadvantaged by pleading guilty to one rather than the other."

Macomber timely appealed the summary dismissal of his K.S.A. 60-1501 petition. 

After he filed his appeal, the district court appointed appellate counsel to represent 

Macomber.

ANALYSIS

On appeal, Macomber continues to make the same argument that he did below. He 

first contends that Hunt had him sign and initial the form admitting his guilt and waiving 

his right to an evidentiary hearing before telling him that he had decided to amend his 

fighting charge to battery. He then argues that Hunt's conduct constituted "substantial 

error" as meant under K.A.R. 44-13-703(d) because under K.A.R. 44-13-202, a hearing 

officer must provide notice of any amendment before making such an amendment. He 

therefore asks this court to either grant his K.S.A. 60-1501 petition or remand to the 

district court for an evidentiary hearing on his K.S.A. 60-1501 petition because Hunt's 
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conduct (1) resulted in a violation of his due process rights and (2) resulted in him not 

knowingly entering his battery guilty plea.

In his brief, Warden Cline has essentially adopted the district court's reasoning for 

summarily dismissing Macomber's K.S.A. 60-1501 petition. He argues that Macomber 

cannot claim error based on his failure to read the form that he signed and initialed and 

that resulted in his battery guilty plea. Alternatively, he argues that even if Hunt violated 

certain KDOC regulations by amending Macomber's fighting charge to battery, any error 

from the amendment was harmless because "the difference in charge [was] a distinction 

without a difference."

After careful review, we believe Cline's arguments are not supported by Kansas 

law or the record on appeal. Consequently, we have concluded that the district court erred 

by summarily dismissing Macomber's K.S.A. 60-1501 petition without first holding an 

evidentiary hearing. And for this reason, we must reverse and remand this case to the 

district court for an evidentiary hearing on Macomber's K.S.A. 60-1501 petition. 

Macomber has sought relief under K.S.A. 60-1501. In relevant part, K.S.A. 2020 

Supp. 60-1501(a) provides: "[A]ny person in this state who is detained, confined or 

restrained of liberty on any pretense whatsoever . . . 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." 

To be entitled to relief under K.S.A. 2020 Supp. 60-1501, a petitioner must allege 

"shocking and intolerable conduct or continuing mistreatment of a constitutional stature." 

Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). When considering whether the 

petitioner has alleged shocking and intolerable conduct or continuing mistreatment of a 

constitutional stature, the district court must accept the petitioner's "allegations as true in 

order to determine if the facts alleged and their reasonable inferences state a claim for 
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relief." Merryfield v. Kansas Dept. of SRS, 44 Kan. App. 2d 324, 332, 236 P.3d 528 

(2010). Accordingly, the district court may summarily dismiss a K.S.A. 60-1501 petition 

only "if, on the face of the petition, it can be established that petitioner is not entitled to 

relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in 

a court record, it appears, as a matter of law, no cause for granting a writ exists." 

Johnson, 289 Kan. at 648. 

When reviewing the district court's summary dismissal of a K.S.A. 60-1501 

petition, we exercise de novo review. Johnson, 289 Kan. at 649. As for interpreting 

KDOC administrative regulations, our Supreme Court has explained that "courts 

generally defer to an agency's interpretation of its own regulations" unless the agency's 

interpretation "is clearly erroneous or inconsistent with the regulation." Tonge v. 

Werholtz, 279 Kan. 481, 484, 109 P.3d 1140 (2005). Still, our Supreme Court has further 

explained that administrative regulations "have the force and effect of law." 279 Kan. at 

483-84. Consequently, "[w]hen an administrative agency arbitrarily applies a rule that is 

not embodied in the statutes or published as a rule or regulation, a respondent to an 

agency action is deprived of fair notice and due process." Schneider v. Kansas Securities 

Comm'r, 54 Kan. App. 2d 122, 124, 397 P.3d 1227 (2017).

To reiterate, in this case Macomber was initially charged with fighting contrary to 

K.A.R. 44-12-301 before the hearing officer amended his charge to battery contrary to 

K.A.R. 44-12-324. The original charge is defined by K.A.R. 44-12-301(a), which 

provides that "[f]ighting or any other activity that constitutes violence or is likely to lead 

to violence shall be prohibited." On the other hand, K.A.R. 44-12-324 closely parallels 

one Kansas criminal code definition of battery, K.S.A. 2020 Supp. 21-5413(b), and states 

that "[b]attery is the unlawful or unauthorized, intentional touching or application of 

force to the person of another, when done in a rude, insolent, or angry manner." 
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K.A.R. 44-13-403, K.A.R. 44-13-202, and K.A.R. 44-13-703 are also at issue in 

this case. K.A.R. 44-13-403 outlines the KDOC disciplinary hearing procedures. Under 

K.A.R. 44-13-403(a)(1), "[t]he hearing officer shall initially inform the inmate of the 

charges and take the inmate's plea" before determining the inmate's guilt or innocence. 

Additionally, K.A.R. 44-13-403(b) provides that at the outset of the inmate's disciplinary 

hearing, the hearing officer must do the following:

"Initially, the hearing officer shall read the disciplinary report to the inmate, 

including the date, nature of the offense, the reporting officer's name, and a synopsis of 

the observation. The officer shall ensure that the inmate understands the charges and that 

a copy of the disciplinary report was received by the inmate. The officer shall also 

explain the possible penalties."

In turn, K.A.R. 44-13-202 outlines the KDOC procedure on amending disciplinary 

charges. In relevant part, K.A.R. 44-13-202 states:

"(a) If, in the judgment of the disciplinary administrator, hearing officer, or 

warden during administrative review, the charge is incorrect or a language change would 

change the substance of the charge or adversely affect the defense, the charge shall be 

amended and notice given to the inmate. After this notice is given, the inmate shall have 

the same period of time between notice and hearing to prepare a defense as would have 

been permitted when the charge was originally made.

. . . .

"(c) After the hearing officer has begun to hear evidence in the case, the hearing 

officer may permit amendment at any time before a factual finding of guilt or innocence 

has been made if no additional or different offense is charged and if substantial rights of 

the defendant are not prejudiced.

"(d) The hearing officer shall ask the inmate which option the inmate chooses:

(1) Continue the case for hearing on a different date to prepare a defense to the 

additional or different offense resulting from amendment of the original charge or 

charges; or
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(2) waive any time period allowed to prepare to defend against any additional or 

different offense resulting from amendment of the original charge or charges and hold the 

hearing on the charges at the time of amendment of the disciplinary charge."

Finally, K.A.R. 44-13-703 addresses when an inmate can appeal his or her 

disciplinary conviction following a guilty plea. Although there are very limited 

circumstances in which an inmate can appeal his or her disciplinary conviction resulting 

from a guilty plea, K.A.R. 44-13-703(d)(2) specifically states that one such circumstance 

is when the "inmate alleges and shows" that his or her guilty plea resulted from "[f]raud 

or substantial error."

Here, it is readily apparent to us that the district court erred by summarily 

dismissing Macomber's K.S.A. 60-1501 petition. The district court made clear that its

primary problem with Macomber's argument was that "sign[ing] a document without 

reading [it was] no excuse and not a defense absent willful fraud or deliberate 

misrepresentation." It supplemented this finding by making a credibility determination 

against Macomber because he had signed and initialed the provisions on the form 

indicating that Hunt had read the form out loud to him. The district court then 

alternatively found that Macomber's argument was meritless because there was no 

significant difference between Macomber's original fighting charge and the amended 

battery charge.

In making the preceding findings, the district court overlooked many things. First, 

it failed to consider that Macomber has consistently made the same argument, i.e., that 

Hunt amended his fighting charge to battery without providing him notice of this 

amendment until after he had already pled guilty and waived his right to an evidentiary 

hearing. Second, the court did not take account of the fact that Macomber has also 

consistently argued that Hunt's conduct constituted substantial error under K.A.R. 44-13-

703(d)(2) entitling him to reversal of his battery conviction. Third, it dismissed out of 
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hand Macomber's contention that, although he signed and initialed a form indicating that 

Hunt had read the rights he was waiving by entering his guilty plea to him, the plea form 

did not state that Hunt read Macomber's charges, let alone his amended charges, to 

Macomber before he made the waivers. Fourth, and perhaps most importantly, the district 

court did not consider the plain language of K.A.R. 44-13-403 and K.A.R. 44-13-202. 

Again, K.A.R. 44-13-403(a)(1) required Hunt to inform Macomber of his charges before 

taking Macomber's plea. On the other hand, K.A.R. 44-13-403(b) required Hunt to "read 

the disciplinary report" to Macomber and to ensure that Macomber understood his 

charges. On top of this, K.A.R. 44-13-202 explicitly required Hunt to provide Macomber 

notice of any amendments to his charges and prohibited the hearing officer from making 

any amendments to his charges after "a factual finding of guilt or innocence." 

In a nutshell, the provisions of K.A.R. 44-13-403 establish that Hunt should have 

read Macomber's charges to him at the outset of his disciplinary hearing. It is very clear 

that KDOC rules under K.A.R. 44-13-202 establish that Macomber was entitled to notice 

before Hunt made any amendments to his charges. Accordingly, even if Macomber failed 

to read the form in which he pleaded guilty and waived his right to an evidentiary hearing 

before signing and initialing it, Hunt had an affirmative duty to ensure that Macomber 

understood the charges against him, had proper notice of any amendments to his charges, 

and was required to offer him a continuance if he wished to contest the amended charge.

Clearly, if Hunt failed to do these things, then Macomber has a valid argument that 

Hunt's conduct resulted in a violation of his due process rights, because Hunt's conduct 

resulted in him not knowingly entering Macomber's battery guilty plea. Thus, the district 

court's emphasis on the fact that Macomber seemingly failed to read the form in which he 

pled guilty and waived his evidentiary hearing rights is misplaced. See, e.g., State v. 

Terning, 57 Kan. App. 2d 791, 795, 460 P.3d 382 (2020) (explaining what steps district 

court must take in criminal case to ensure defendant's guilty or no-contest plea was 

knowingly made in accordance with that defendant's due process rights). 
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Additionally, the district court's ruling was founded on an impermissible 

credibility determination against Macomber. Evidently, the district court believed 

Macomber was lying about the timing of Hunt's amendment because he checked boxes 

on the disputed form indicating that Hunt had read the form aloud to him. Again, we 

reiterate that when the district court considers an inmate's K.S.A. 60-1501 petition, the 

district court must accept the petitioner's allegations as true. Merryfield, 44 Kan. App. 

2d at 332. Therefore, when Macomber alleged that he signed and initialed the form in 

which he pleaded guilty and waived his right to an evidentiary hearing before Hunt told 

him that he had amended his fighting charge to battery, the district court had to 

preliminarily accept Macomber's allegation as true absent some evidence conclusively 

showing he was entitled to no relief. 

We have found nothing in the petition, files, and record of Macomber's case which 

disproves his contention that he signed and initialed the form in which he pled guilty and 

waived his right to an evidentiary hearing before Hunt notified him of his amended 

battery charge. In fact, Hunt's notes on the disputed form raise more questions than 

answers. Nothing on the form clearly states that Macomber's fighting charge had been 

amended to battery. Instead, on the first page of the form—the page where Macomber 

signed and initialed boxes indicating he was pleading guilty and waiving his right to an 

evidentiary hearing—Hunt simply put the number "324" in the blank labeled "rule 

violations," without listing the title of the charge. As we discussed above in outlining the 

facts of this case, it seems that Hunt listed the number 324 in this space because K.A.R. 

44-12-324 is the regulation defining battery as a disciplinary offense. Without further 

explanation, however, listing the number 324 in the space labeled "rule violations" 

undoubtedly meant very little to Macomber. We conclude that it certainly did not 

constitute adequate notice of the amendment under K.A.R. 44-13-302, which required 

Hunt to give Macomber the option of more time to prepare his defense upon amending 

his fighting charge to battery. See K.A.R. 44-13-202(d)(1)-(2). 
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Likewise, the district court's finding that there was no significant difference 

between Macomber's original fighting charge and amended battery charge is similarly 

problematic. It seems the district court made this finding because Macomber argued that 

had he known about the battery amendment before entering his guilty plea, he would not 

have entered his guilty plea but instead argued self-defense. Apparently, the district court 

wanted to emphasize that even if Hunt violated certain KDOC regulations, Macomber 

could have argued self-defense to counter either his original fighting charge or his 

amended battery charge. It noted that both Macomber's original fighting charge and 

amended battery charge constituted class one disciplinary offenses carrying the same 

penalty. The court then concluded that "'Macomber [had failed to] show that he was 

disadvantaged by pleading guilty to one rather than the other.'" Based on these comments, 

it seems that the district court found that Macomber's willingness to plead guilty to 

fighting established that he was not prejudiced by any inadvertent guilty plea to the 

amended battery charge as the two charges were sufficiently similar. 

Although the district court correctly noted that both fighting and battery constitute 

class one disciplinary offenses that carry the same penalty, its findings were otherwise 

incorrect. As we have noted, K.A.R. 44-12-301(a) simply states that "[f]ighting or any 

other activity that constitutes violence or is likely to lead to violence shall be prohibited." 

Thus, fighting is a broad offense that encompasses any behavior that constitutes violence 

or any behavior that may likely cause violence. Conversely, K.A.R. 44-12-324 states that 

"[b]attery is the unlawful or unauthorized, intentional touching or application of force to 

the person of another, when done in a rude, insolent, or angry manner." Thus, battery is 

an offense that specifically requires an inmate to make both an intentional and improper 

touching of another person. In other words, battery is an offense that encompasses a 

much narrower type of conduct than KDOC's definition of fighting does.

As a result, under the plain language of K.A.R. 44-12-301(a) and K.A.R. 44-12-

324, an inmate may be guilty of fighting but at the same time be not guilty of battery 
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because the inmate's fight never resulted in an intentional and improper touching of 

another person. For instance, in this case, Macomber could agree that he engaged in an 

activity that constituted violence but at the same time validly assert that any battery he 

committed during the fight was necessary to protect himself from the other inmate's 

imminent use of unlawful force. Thus, Macomber's contention that he would have argued 

self-defense instead of entering a guilty plea had he known that Hunt amended his 

fighting charge to battery is not necessarily meritless. As a result, it is readily apparent 

that the district court erred by finding that even if Hunt failed to provide Macomber with 

proper notice of the battery amendment under KDOC regulations, Macomber suffered no 

prejudice from this error because Macomber's original fighting charge and amended 

battery charge were sufficiently similar. 

The district court summarily dismissed Macomber's K.S.A. 60-1501 petition for 

two reasons: (1) because Macomber's contention that Hunt amended his fighting charge 

to battery after he had already entered his guilty plea was not credible and (2) because 

even if Hunt made a belated amendment contrary to KDOC regulations, Macomber's 

original charge of fighting and amended charge of battery were sufficiently similar that 

he suffered no prejudice by this belated amendment. Nevertheless, we believe the district 

court's decision violates the plain language of K.A.R. 44-13-403, the plain language of 

K.A.R. 44-13-202, and our Kansas caselaw establishing that when deciding whether to 

summarily dismiss an inmate's K.S.A. 60-1501 petition, the district court must accept the 

petitioner's allegations as true. See Merryfield, 44 Kan. App. 2d at 332. Also, the district 

court's finding that Macomber's original charge of fighting and amended charge of 

battery were sufficiently similar that he suffered no prejudice by any belated amendment 

is contrary to the plain language of K.A.R. 44-12-301(a) and K.A.R. 44-12-324. Thus, 

despite the district court's finding otherwise, the record of Macomber's case does not 

definitively establish that Hunt did not violate Macomber's due process rights by asking 

him to enter his guilty plea before notifying him that he had amended his fighting charge 

to battery. 
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But because the record of Macomber's case does not conclusively establish that 

Hunt actually violated Macomber’s due process rights, we reject Macomber's request to 

simply grant his K.S.A. 60-1501 petition. Instead, we concur with Macomber's alterative 

request to reverse and remand this case to the district court for an evidentiary hearing on 

his K.S.A. 60-1501 petition to determine whether Hunt did in fact violate his due process 

rights. 

Reversed and remanded with directions.