Opinion
No. 108,067.
2013-05-17
Jose ROJAS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Daeke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Daeke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jose Rojas appeals the district court's summary denial of his K.S .A. 60–1507 motion. His motion was filed in 2012, more than 23 years after the Kansas Supreme Court affirmed his convictions and nearly 8 years after the filing deadline under the 2003 Amendments to K.S.A. 60–1507. Finding no error in the judgment of the district court, we affirm.
Procedural Background
In 1987, Rojas pled guilty to one count of aggravated kidnapping and two counts of second-degree murder. He was sentenced to consecutive indeterminate sentences of life on the aggravated kidnapping conviction and 15 years to life on each murder conviction.
The Kansas Supreme Court affirmed his convictions in State v. Rojas, No. 61,498, 1988 WL 58697 (Kan.App.1988) (unpublished opinion), finding that the district court had not erred in denying his presentencing motion to withdraw his plea, nor in running his sentences consecutively. In Rojas v. State, No. 79,053, (Kan.App.1999) (unpublished opinion), rev. denied 267 Kan. 889 (1999), a panel of this court affirmed the denial of a previous K.S.A. 60–1507 motion.
In 2004, Rojas filed a pro se motion to correct an alleged illegal sentence, which motion was dismissed by the district court. In State v. Rojas, 280 Kan. 931, 127 P.3d 247 (2006), the Supreme Court set forth the procedural background and facts and affirmed the holding that Rojas did not receive an illegal sentence.
In February 2012, Rojas filed a pro se K.S.A. 60–1507 motion, the subject of his current appeal. In this motion Rojas makes three claims: (1) ineffective assistance of counsel because counsel failed to provide adversarial testing of the prosecutor's case; (2) the district court used the wrong standard to deny the motion to withdraw his plea, violating due process of law; and (3) he received multiple punishments for a single criminal episode, in violation of double jeopardy and the felony-murder doctrine. The district court summarily dismissed the motion, finding it was out of time and that Rojas presented no evidence of manifest injustice to warrant consideration on the merits.
Rojas filed a motion to reconsider, stating his belief that the time limitation of K.S.A. 60–1507(f)(l) should have been tolled while a decision from the 10th Circuit on his habeas petition was pending. (Rojas states his petition was dismissed and he received the decision about December 22, 2011, after which he filed the motion at issue here.) In the alternative, Rojas alleged manifest injustice because his claims could not have been discovered earlier and, if proven, they would establish constitutional errors. The district court denied the motion to reconsider.
Rojas now appeals from the summary dismissal of his motion.
Did the District Court Err in Summarily Dismissing Rojas' Motion as Untimely under K.S.A. 60–1507(f)(1)?
The issue presented on appeal is whether the district court erred in summarily dismissing Rojas' motion as untimely under K.S.A. 60–1507(f)(1). On appeal Rojas asserts he alleged facts in his K.S.A. 60–1507 motion that do not appear in the record, and thus an evidentiary hearing was necessary. He specifically notes his claim of ineffective assistance of counsel and maintains, without explanation, that it would be manifest injustice if he appeared at his plea hearing and at the hearing on his motion to withdraw his plea with ineffective counsel who did not advocate on his behalf. The State contends the only issue before this court is the district court's finding that Rojas' motion was filed out of time with no showing of manifest injustice and, because he does not challenge this finding on appeal, the issue has been waived.
The appellate courts review the summary dismissal of a K.S.A. 60–1507 motion using a de novo standard of review. Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010). “This standard requires ‘an appellate court to determine whether the motion, files, and records of the case conclusively show the movant is entitled to no relief.’ Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).” 290 Kan. at 495.
K.S.A. 60–1507(f)(l) states in pertinent part: “Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction .” The 1–year time limit in K.S.A. 60–1507(f)(1) became effective July 1, 2003. This court held in Hayes v. State, 34 Kan.App.2d 157, 161–62, 115 P.3d 162 (2005), that if a movant's conviction became final before the effective date of the statute, he or she could comply with the time limitation by filing a K.S.A. 60–1507 motion by June 30, 2004. Because Rojas' conviction became final before the effective date of the statute, he had until June 30, 2004, to file his motion. But Rojas filed his K.S.A. 60–1507 motion nearly 8 years after this date. The only exception to this limitation is provided in K.S.A. 60–1507(f)(2), which states: “The time limitation herein may be extended by the court only to prevent a manifest injustice.” Manifest injustice has been described as something “ ‘obviously unfair’ “ or “ ‘shocking to the conscience .’ “ State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011) (quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 [2007] ). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274).
Rojas has failed to establish manifest injustice. He fails to address the time limitations of K.S.A. 60–1507 and, instead, spends most of his argument establishing the standard that would entitle a movant to an evidentiary hearing had the K.S.A. 60–1507 motion been timely filed. Even if that was the correct standard to apply in this case, Rojas' assertion that counsel was ineffective for failing to advocate on his behalf is merely conclusory and lacks any evidentiary support.
Further, although Rojas abandoned the arguments he raised in his motion for reconsideration, we note that those arguments would also fail. In his motion for reconsideration, Rojas argued that the time limitation in K.S.A. 60–1507(f)(1) should have been tolled while he was pursuing his case in the federal courts. But the pendency of a federal habeas petition does not toll the time to file a motion under K.S.A. 60–1507. See Clemons v. State, 39 Kan.App.2d 561, 566–67, 182 P.3d 730,rev. denied 286 Kan. 1176 (2008). Rojas' alternative claim, that his allegations could not have been discovered earlier and, if proven, would establish constitutional errors, is presented without evidentiary support and is merely a conclusory contention that cannot establish manifest injustice.
We find Rojas' K.S.A. 60–1507 motion is procedurally barred under the 1–year time limitation and that he failed to establish the existence of manifest injustice. The district court did not err.
Affirmed.