1

NOT DESIGNATED FOR PUBLICATION

No. 121,681

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMES LEE JAMERSON,

Appellant,

v.

JAMES HEIMGARTNER,

Appellee.

MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed August 7, 

2020. Reversed and remanded.

Shannon S. Crane, of Hutchinson, for appellant.

Jon D. Graves, legal counsel, of Kansas Department of Corrections, for appellee.

Before MALONE, P.J., MCANANY, S.J., and BURGESS, S.J.

PER CURIAM: James Lee Jamerson appeals the district court's dismissal of his 

K.S.A. 60-1501 petition. For the reasons stated in this opinion, we reverse the district 

court's judgment and remand for further proceedings.

FACTS

The record presents a confusing set of facts. Jamerson pled guilty to seconddegree murder, aggravated robbery, and conspiracy to commit aggravated robbery in a 

2001 Shawnee County criminal case. See State v. Jamerson, 54 Kan. App. 2d 312, 313, 
2

399 P.3d 246 (2017). In January 2016, the district court resentenced Jamerson after he 

successfully filed an illegal sentence motion challenging his criminal history score. At the 

resentencing, Jamerson agreed to pay the $5,644.85 in restitution that had been imposed

at the original sentencing. 54 Kan. App. 2d at 313. The journal entry also included $193 

in court costs, $200 for the DNA database fee, and $100 for the Board of Indigents'

Defense Services fee.

On May 4, 2016, Jamerson won a property settlement claim against the Kansas 

Department of Corrections (KDOC) for a lost battery charger and recovered $28.75. 

Rather than put the money in his inmate account, KDOC sent the money to Butler and 

Associates, a collection agency for the Shawnee County District Court, to be applied 

towards the $5,644.85 Jamerson owed in restitution. Jamerson did not receive notice of 

this transfer until five days after KDOC took the money from his account. The notice 

contained a copy of the check and stated KDOC sent the money to Butler and Associates 

"[i]n accordance with [Internal Management Policy and Procedure] 01-118."

On August 10, 2016, Jamerson, an inmate at the El Dorado Correctional Facility,

filed a petition for writ of habeas corpus under K.S.A. 60-1501 in Butler County District 

Court challenging the KDOC's action of sending his $28.75 to Butler and Associates. The 

petition named James Heimgartner, prison warden, and David C. Ferris, prison business 

manager, as respondents. The respondents will be collectively referred to in this opinion 

as the KDOC. Jamerson's petition alleged that (1) Internal Management Policy and 

Procedure (IMPP) 01-118 is unconstitutional because it allows the taking of property 

without providing due process and (2) if he was given due process, he would have 

explained that his restitution was not due until he was on parole. Jamerson claimed that 

KDOC sent the money to Butler and Associates after the collection agency had sent 

Ferris a notice stating Jamerson was in default on his restitution.
3

On December 6, 2016, the Butler County District Court transferred the case to 

Cowley County when Jamerson moved to Winfield Correctional Facility. Then on May 8, 

2017, after Jamerson moved to Hutchinson Correctional Facility, the Cowley County 

District Court transferred the case to Reno County. The Reno County District Court 

originally scheduled an evidentiary hearing for June 21, 2017, but the district court 

continued the hearing several times.

Meanwhile, on June 16, 2017, the Court of Appeals issued a decision in another 

case filed by Jamerson in which he challenged the district court's garnishment order

issued to collect his restitution. See Jamerson, 54 Kan. App. 2d at 316. This court agreed 

with Jamerson, finding that because the sentencing court did not explicitly state that 

restitution payments would begin immediately, his restitution was not due until he was 

released and so the garnishment order was unenforceable. 54 Kan. App. 2d at 317.

On January 31, 2018, the district court held a hearing. The exact purpose of the 

hearing was unclear; in fact, the judge began the hearing by stating that "I can't remember 

what we're here for." Jamerson appeared pro se but the KDOC appeared by counsel. No 

evidence was presented at the hearing, but both parties made representations about the 

status of the case and whether any valid claims were pending. The KDOC's counsel

stated that he had learned that the $28.75 at issue was being kept by the Shawnee County 

District Court and applied to court costs instead of restitution and that Jamerson knew 

about that arrangement. Jamerson denied that statement and responded that he was "in 

talks" with Butler and Associates about recovering court costs from his other case, "but 

that's separate from what this is." The KDOC's counsel suggested the entire case was 

moot because Jamerson had settled his claim with Butler and Associates. Jamerson 

denied that any settlement was final and asserted that he still had a valid claim 

challenging the constitutionality of IMPP 01-118. The district court ended the hearing by 

continuing the case until March 14, 2018, stating the issue "may be moot by then."
4

On February 7, 2018, the KDOC moved to dismiss. In the motion to dismiss, the 

KDOC stated as facts that (1) Jamerson was seeking recovery of the $28.75 garnished 

from his account by Butler and Associates; (2) after the funds were transferred the 

Kansas Court of Appeals stated, in a separate case, that Jamerson could not be garnished

while he was incarcerated; (3) Jamerson failed to disclose that the $28.75 was now being 

kept for court costs; (4) Jamerson admitted that he reached a settlement with Butler and 

Associates to reimburse him for the amount he believes he is entitled to; and (5) 

Jamerson's claim is now moot because he has no remaining claim for the $28.75.

On February 15, 2018, the district court issued an order from the January 31, 2018 

hearing, making the following "conclusions of fact": (1) Jamerson was seeking recovery 

of the $28.75 garnished from his account by Butler and Associates; (2) after the funds 

were transferred the Kansas Court of Appeals stated, in a separate case, that Jamerson 

could not be garnished while he was still incarcerated; (3) the district court kept the 

$28.75 for court costs; and (4) Jamerson reached a settlement with Butler and Associates 

to reimburse him for the amount he believes he is entitled to.

Also, on February 15, 2018, Jamerson responded to the KDOC's motion to 

dismiss. The response stated: "Butler and Associate[s] is not returning the [$]28.75. . . . 

They are however returning the [$]405.92 it cost me to bring my winning issue before the 

court of appeals. . . . The [$]28.75 is a completely different issue."

On April 11, 2018, the district court entered an order of continuance stating that

"this case [is] under advisement to decide the constitutionality of IMPP 01-118." The 

order continued the case "for control purposes" to May 9, 2018.

On June 21, 2019, the district court filed an "Opinion and Journal Entry"

dismissing Jamerson's petition for habeas corpus. The journal entry incorporated the 

district court's factual findings from its order filed on February 15, 2018. The district 
5

court found that Jamerson had settled his claim with Butler and Associates but noted that

it was not privy to the basis of that claim. The district court also assumed that Jamerson 

had received notice of the garnishment order seeking to recover restitution and that he

"would have had an opportunity to file a reply in which he could assert his claim that he 

could not be garnished while still incarcerated on the sentence that included the Order of 

Restitution." Based on these facts, the district court found that Jamerson's claim for the

money was moot because he is entitled to only "one [s]atisfaction." The district court also 

found that Jamerson did not state a constitutional violation because the KDOC could not

provide another forum for Jamerson to challenge the district court's garnishment order 

and because Jamerson had received due process rights under the garnishment action. The 

district court concluded that the case must be dismissed because Jamerson's petition 

"failed to state a cause of action." Jamerson timely appealed the district court's judgment.

ANALYSIS

On appeal, Jamerson claims the district court erred in dismissing his habeas corpus 

petition without reaching the merits of his claims. Conversely, the KDOC argues that the 

district court did not err in dismissing Jamerson's petition because it failed to state a claim 

for which relief may be granted.

To begin with, the KDOC summarily argues, for the first time on appeal, that 

Jamerson did not prove he exhausted his administrative remedies before filing his K.S.A. 

60-1501 petition. The KDOC asserts no specific facts to support this argument. But the 

record shows that Jamerson attached to his petition a copy of his informal grievance, his 

complaint with the unit team's response, the warden's response, and his appeal to the 

Secretary of Corrections and the corresponding response. Thus, it is unclear how 

Jamerson failed to exhaust his administrative remedies as the KDOC summarily alleges.

A point raised incidentally in a brief and not argued therein is deemed abandoned. Russell 

v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017).
6

The KDOC also argues for the first time on appeal that Jamerson did not timely 

file his petition. An inmate must file a petition for writ of habeas corpus "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." K.S.A. 2019 

Supp. 60-1501(b). The KDOC asserts that it can raise this issue now because the time 

limit is jurisdictional, citing Peters v. Kansas Parole Bd., Sec'y of Corr., 22 Kan. App. 2d 

175, 915 P.2d 784 (1996) (finding motion filed outside the 30-day time limit was 

properly barred by the district court). But Peters does not state that the time limit is 

jurisdictional. And recent caselaw treats the time limit as a statute of limitations instead 

of a jurisdictional bar. See Knittel v. Kansas Prisoner Review Bd., No. 111,552, 2014 WL 

6777450, at *3 (Kan. App. 2014) (unpublished opinion). Because the time limit is treated 

as a statute of limitations, not a jurisdictional bar, if a party fails to assert the defense 

before the district court, then it waives the defense on appeal. See Knittel, 2014 WL 

6777450, at *3 (citing Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 

948, 811 P.2d 1237 [1991]). Because the KDOC failed to raise the 30-day time limit 

before the district court, it has waived the defense on appeal.

Turning to Jamerson's challenge to the district court's dismissal of his petition, 

Jamerson argues the district court erred in dismissing his petition because he raised a 

colorable due process violation claim. Jamerson argues KDOC violated his due process 

rights when it sent his property—the $28.75 he won in a property settlement case—to 

Butler and Associates, under IMPP 01-118, without giving him a chance to contest 

whether his restitution was currently due. Jamerson argues that his restitution was not due 

while he was incarcerated, and he would have explained this if he was granted a hearing 

before KDOC took the money from his account. He argues that the district court erred in 

finding that his claim against Butler and Associates had been settled and in assuming that 

he had received notice of the garnishment because "[t]hese facts were not in evidence."
7

An appellate court has unlimited review of a summary dismissal of a K.S.A. 60-

1501 action. Johnson v. State, 289 Kan. 642, 648-49, 215 P.3d 575 (2009). Likewise, the 

issue of whether due process has been afforded in a K.S.A. 60-1501 action is a question 

of law over which an appellate court has unlimited review. See In re Habeas Corpus

Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001).

While not explicitly stated, Jamerson's claim that the district court relied on facts 

not in evidence in dismissing his case raises a preliminary question: Did the district court 

use the proper standard in ruling on the KDOC's motion to dismiss? Generally, when 

examining a motion to dismiss, the district court should examine the petition and "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," then summary 

dismissal is proper. (Emphases added.) Johnson, 289 Kan. at 648-49. In examining the 

petition under this standard, courts must take the facts asserted by the petition as true. 

Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).

Did the district court err in finding that Jamerson had settled his claim?

The KDOC moved to dismiss and alleged that Jamerson had settled his claim with 

Butler and Associates. But this fact was not in Jamerson's petition and the record does not 

establish this claim as an undisputed fact. At the hearing on January 31, 2018, the 

KDOC's counsel made a vague argument that Jamerson had settled his claim but offered 

no evidence to support the argument. Jamerson denied that any settlement was final. The 

district court then filed an order following the hearing with a "conclusion of fact" that

Jamerson had reached a settlement with Butler and Associates. The district court then 

relied on this fact in its journal entry, dismissing Jamerson's petition because he had 

reached a settlement and was entitled to only "one [s]atisfaction."
8

When the district court considers matters outside the well-pleaded allegations of 

the inmate's petition—such as material attached to KDOC's motion to dismiss—K.S.A. 

2019 Supp. 60-212(d) requires the district court to treat the motion to dismiss as a motion 

for summary judgment. Under those circumstances, all parties must receive a reasonable 

opportunity to present all material pertinent to the motion. K.S.A. 2019 Supp. 60-212(d); 

Sperry v. McCune, 305 Kan. 469, 481, 384 P.3d 1003 (2016). Thus, parties should 

comply with Supreme Court Rule 141 (2020 Kan. S. Ct. R. 205), and the court should 

apply the summary judgment standard in ruling on the merits. 305 Kan. at 481-82. Under 

the summary judgment standard, the district court should only render judgment "if the 

pleadings, the discovery and disclosure materials on file, and any affidavits or 

declarations show that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law." K.S.A. 2019 Supp. 60-256(c)(2).

Here, the district court did not examine the face of Jamerson's petition and take the

facts as true, nor did it rely on undisputed or uncontroverted facts in the record when it 

issued its order to dismiss. Instead, it considered the fact of a settlement alleged in the 

KDOC's motion to dismiss and argued by the KDOC's counsel at the January 31, 2018 

hearing, with no evidence to support the argument. Not only was the settlement a fact 

outside Jamerson's petition but it was a controverted fact. The KDOC argues on appeal

that Jamerson admitted this settlement at the January 31, 2018 hearing. But at that 

hearing Jamerson explained that the settlement was for a prior case he won against Butler 

and Associates. Additionally, in his response filed the same day as the district court's 

findings of fact, Jamerson stated the settlement was for a different case and was "a 

completely different issue." Because the district court relied on the settlement, which was

a contested fact from outside Jamerson's petition, the district court erred in not treating 

the motion for dismissal as a motion for summary judgment. See 305 Kan. at 488-89.
9

Did the district court err in finding that Jamerson received notice of the garnishment?

Jamerson also argues that the district court relied on facts not in evidence when it 

assumed Jamerson received notice of a garnishment order. The district court dismissed 

Jamerson's petition for failing to state a claim finding that "[Jamerson] had a right to Due 

Process, namely notice of the service of the Order of Garnishment, in Shawnee County 

case 01 CR 668. The [K]DOC would not have authority to provide another forum for 

[Jamerson] to challenge the Orders of the Shawnee County District Court in case 01 CR 

668." The district court's conclusion rests on its finding of fact that "Butler and 

Associates . . . caused a garnishment to issue and be served on [KDOC]. [K]DOC 

answered and subsequently Butler and Associates caused an Order to be issued to 

[K]DOC to pay in the small amount that [Jamerson] had previously recovered."

Jamerson is correct, the district court again relied on a fact outside his petition in 

ruling to dismiss this action. After thorough review of the record, it is unclear whether the 

money was taken from Jamerson's account under a garnishment order and there is no 

indication that Jamerson received notice of any alleged garnishment order. In fact, 

Jamerson's petition asserted that the money was sent to Butler and Associates based on a

letter from Ferris, attached to the petition, stating the money was sent "[i]n accordance 

with IMPP 01-118," which is the authority Jamerson is challenging in his petition. IMPP 

01-118(V)(D) states: "Pursuant to K.S.A. 46-920, if an offender owes an outstanding 

unpaid amount of court-ordered restitution, the facility business office shall withdraw 

from the offender's trust account as a set-off: [m]oney received by the offender from 

[KDOC] as a settlement of a claim pursuant to this IMPP." It does not explicitly mention 

a garnishment order but states the money would be transferred as a set-off.

Thus, it is not clear from Jamerson's petition that the $28.75 was taken through a 

garnishment order, and there is no indication that he received notice of a garnishment.

Yet the district court relied on this factual finding to conclude that Jamerson could have 
10

contested the garnishment in district court and was not denied due process. As stated 

above, when the district court considers matters outside the well-pleaded allegations of 

the inmate's petition, the district court must treat the motion to dismiss as a motion for 

summary judgment. K.S.A. 2019 Supp. 60-212(d). Here, the district court applied the 

wrong standard in granting the KDOC's motion to dismiss.

In sum, the district court erred by granting the KDOC's motion to dismiss by 

relying on facts outside the pleadings which were, in fact, disputed by Jamerson. In its 

brief on appeal, the KDOC invites us to address the merits of some of Jamerson's claims 

in his petition even though the district court did not do so. For instance, the KDOC 

includes a section of its brief arguing that IMPP 01-118 is not unconstitutional. The 

KDOC also argues that an inmate cannot seek money damages in a habeas corpus action 

and asserts that Jamerson is seeking an improper remedy. But the district court dismissed 

Jamerson's petition on other grounds without addressing the merits of these issues, and 

we find that the district court erred by doing so. We decline the KDOC's invitation to 

address these new issues for the first time on appeal, and instead we remand the case to 

the district court for further proceedings.

Finally, to assist the district court on remand, we question the district court's 

practice of conducting any substantive hearing in this case where Jamerson appears pro 

se and the KDOC appears by counsel, such as the hearing the court held on January 31, 

2018. That hearing may have begun as a status conference, but both parties argued the 

merits of the case, and the district court relied on the arguments to issue "conclusions of 

fact" which it incorporated into its journal entry of dismissal. "Even in circumstances 

where a K.S.A. 60-1507 movant is not statutorily entitled to the appointment of counsel, 

if the court conducts a hearing at which the State will be represented by counsel, due 

process of law requires that the movant be represented by counsel unless the movant 

waives that right to counsel." Stewart v. State, 310 Kan. 39, Syl. ¶ 2, 444 P.3d 955 

(2019); see also K.S.A. 22-4506 (requiring district court to appoint counsel for an 
11

indigent prisoner in a habeas corpus action if the court finds that the petition presents 

substantial questions of law or triable issues of fact). We believe this point of law applies 

equally to a hearing in a K.S.A. 60-1501 action as it does to a hearing under K.S.A. 60-

1507. On remand, if the district court conducts any substantive hearings in which the 

KDOC is represented by counsel, due process requires that Jamerson be represented by 

counsel unless he waives that right to counsel on the record.

Reversed and remanded.