                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 February 20, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT


 JAMES DAVIS,

              Petitioner-Appellant,                    No. 07-3206
       v.                                               (D. Kansas)
 SECRETARY OF CORRECTIONS;                        (D.C. No. 07-3055-JAR)
 ATTORNEY GENERAL OF
 KANSAS,

              Respondents-Appellees.


                                      ORDER


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      James Davis, a Kansas state prisoner proceeding pro se, appeals the district

court’s denial of his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §

2254. Mr. Davis was convicted of attempted aggravated robbery, an aggravated

weapons violation, and misdemeanor theft, for which he was originally sentenced

to 32 months’ imprisonment. Pursuant to the state’s motion to correct sentence,

the district court resentenced Mr. Davis to 122 months’ imprisonment – the low

end of the sentencing range under Kansas law. The Kansas Court of Appeals

affirmed Mr. Davis’s direct appeal and denied Mr. Davis’s post-conviction

challenges.
      Mr. Davis filed a § 2254 petition in federal district court, arguing that (1)

the trial court erred in failing to hold a hearing on his motion to correct the illegal

sentence and in failing to correct the sentence; (2) the state court of appeals

erroneously affirmed the illegal sentence; and (3) the state supreme court erred in

denying his petition for review. Mr. Davis has also filed a separate motion for a

certificate of appealability (“COA”), a motion for appointment of counsel, and a

motion to proceed in forma pauperis (“IFP”). For substantially the same reasons

as the district court, we deny his application for a COA, deny his request for an

attorney, deny his motion to proceed ifp, and dismiss the matter.



                                 I. BACKGROUND

      Mr. Davis was convicted by a jury in the District Court of Sedgwick

County, Kansas, of attempted aggravated robbery, an aggravated weapons

violation, and misdemeanor theft. On January 31, 2003, Mr. Davis was sentenced

to 32 months’ imprisonment, but on February 3, 2003, the state filed a motion to

correct an illegal sentence because the presentence investigation report incorrectly

listed the sentencing range as 30-34 months’ imprisonment. The correct range

under K AN . S TAT . A NN . § 21-4704(a) is 122-136 months’ imprisonment. The

district court held a second hearing and ultimately re-sentenced Mr. Davis to 122

months’ imprisonment.

      Mr. Davis appealed to the Kansas Court of Appeals, which affirmed the

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conviction and the sentence, finding that the 32 month sentence was illegal

because it was not the statutorily authorized punishment, and thus the district

court had jurisdiction to correct it. State v. Davis, 87 P.3d 993, 2004 WL 835964,

at *4-*5 (Kan. Ct. App. 2004) (unpublished). The Kansas Supreme Court denied

review. Mr. Davis then filed a pro se motion in the District Court of Sedgwick

County requesting the court correct an illegal sentence. The district court denied

the motion, the Kansas Court of Appeals affirmed the denial, and the Kansas

Supreme Court denied review.

      Mr. Davis then filed the present § 2254 motion in federal district court.

His petition asserts three grounds for relief: (1) the trial court erred in denying

him a hearing on his motion to correct an illegal sentence and in failing to correct

an illegal sentence; (2) the Kansas Court of Appeals erroneously affirmed the

illegal sentence; and (3) the Kansas Supreme Court erred in denying his petition

for review when he was “sentenced in [the] wrong grid block.” Rec. doc. 1, at 9.

The federal district court denied relief, holding that Mr. Davis failed to raise any

claims that this sentence was contrary to or involved an unreasonable application

of federal law, as required by the Antiterrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2254(d).

      Mr. Davis timely appealed. He has also submitted a motion for

appointment of counsel and a motion to proceed ifp.




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                                 II. DISCUSSION

      In order to obtain a COA, Mr. Davis must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing by demonstrating that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal

quotation marks omitted). “[A] claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the case has received

full consideration, that [the] petitioner will not prevail.” Id. at 338. Because Mr.

Davis proceeds pro se, we construe his pleadings liberally. Cannon v. Mullin,

383 F.3d 1152, 1160 (10th Cir. 2004).

      Reasonable jurists could not debate whether the district court was correct in

denying Mr. Davis’s § 2254 petition. A federal court may only grant habeas

relief on any claim adjudicated in state court if that adjudication “resulted in a

decision that was contrary to, or involved an unreasonable application of clearly

established Federal law, as determined by the Supreme Court of the United

States,” or was based on an unreasonable determination of the facts. 28 U.S.C. §

2254(d).

      A Kansas statute provides: “The court may correct an illegal sentence at

any time.” K.S.A. 22-3504(1). The state court held that a sentence that does not

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conform to the statutory provision is “illegal” under Kansas law. Davis, 2004 WL

835964, at *4. Since Mr. Davis’s original 32 month sentence did not fall in the

Kansas statutory guidelines range of 122-136 months, it was illegal, and the

district court correctly affirmed it.

      We note that our sister circuits have held that “the power of a sentencing

court to correct even a statutorily invalid sentence must be subject to some

temporal limit.” Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978). See also

United States v. Lundien, 769 F.2d 981, 987 (4th Cir. 1985) (citing Breest).

Those courts reason that, as time passes and the prospect of release nears, a

prisoner’s hope assumes “a real and psychologically critical importance.” Breest,

579 F.2d at 101 (“After a substantial period of time, therefore, it might be

fundamentally unfair, and thus violative of due process for a court to alter even an

illegal sentence.”). However, unlike in the cases before those circuits, Kansas

filed a motion to correct four days after the district court issued the incorrect

sentence. State Ct. Rec., at 93-94. The district court resentenced him four days

after that (eight days after the original sentence). This brief time does not trigger

the concerns noted by these other courts. While there may be some temporal limit

on the power to correct an illegal sentence, eight days is not it.

      When conducting habeas review, a federal court is limited to determining

whether there was a constitutional violation. Estelle v. McGuire, 502 U.S. 62, 68

(1991). “[I]t is not the province of a federal habeas court to reexamine state-court

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determinations on state-law questions.” Id. at 67-68. Because the Kansas court’s

determination was not contrary to nor an unreasonable application of clearly

established federal law, no reasonable jurist could debate the district court’s

decision to deny relief.



                                III. CONCLUSION

      Accordingly, we DENY Mr. Davis’s application for a COA, DENY his

motion for appointment of counsel, DENY his motion to proceed ifp, and

DISMISS the matter. Appellant’s motion to file a supplemental brief is

GRANTED.



                                              Entered for the Court,




                                              ELISABETH A. SHUMAKER, Clerk




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