Opinion
No. 112216.
07-10-2015
Wahid ASH–SHAHID, f/k/a James Nance, Appellant, v. STATE of Kansas, Appellee.
Michael G. Highland, of Bonner Springs, for appellant. Patrick E. Henderson, assistant county attorney, for appellee.
Michael G. Highland, of Bonner Springs, for appellant.
Patrick E. Henderson, assistant county attorney, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Wahid Ash–Shahid appeals the district court's denial of his motion for new trial which the district court construed as a K.S.A. 60–1507 motion. The district court summarily denied the motion, finding it was untimely and successive. We affirm.
Ash–Shahid, formerly known as James Nance, was convicted in 1989 of first-degree murder (felony murder), aggravated robbery, and unlawful possession of a firearm. The Kansas Supreme Court affirmed his convictions on direct appeal. See State v. Nance, No. 64,668, unpublished opinion filed March 1, 1991 (Kan.). The Supreme Court's opinion succinctly summarized the underlying facts:
“On June 17, 1989, Nathaniel Burnett was killed in his home by a gunshot wound to his head just behind his right ear. Burnett's wife, Mattie, was home in the back bedroom with two of her three children and a niece at the time Burnett was shot.
“Mattie testified that, on June 17, she heard a knock on the door, heard Nate ask who it was, heard a rumble, and then heard a shot. A man then came into the room and demanded their valuables and insisted that Mattie get the keys, which were in Burnett's pocket, to the safe located in another bedroom. She obtained the keys from Burnett's pocket, opened the safe, and put the money and other contents of the safe in a pillowcase that the man had taken off a pillow on the bed. The man also insisted that she give him rings and other jewelry, including the ring she was wearing. She testified that the man held a gun on her the whole time.
“Mattie was not able to identify the man who had come into the house from a photo array or a videotape, although she had glimpsed his face during the robbery. She subsequently was able to recognize his voice as that of the man who had ordered her about the house the night Burnett was killed.
“Mattie's two children Teako and Kea, who were present the night Burnett was killed, testified to events that paralleled and corroborated Mattie's testimony. Teako identified the defendant's photograph as the individual who was present in the house that night. Teako testified that the night Burnett was killed, the man that he identified as defendant came into the bedroom for a few seconds and then returned a second time for about ten seconds. Kea's testimony was essentially the same as Teako's. She also identified the defendant as the man who had come into the room the night of the shooting.
“The State's chief witness was Anita Nance. Anita's sister was Alganette Trevillion. Alganette's son is Bobby Smith. On June 16, which was the day before Burnett was killed, Anita Nance, defendant, Alganette, and Alganette's friend drove from the Kansas City area, where they all lived, to Atchison to get Bobby Smith's son. While in Atchison, Alganette told Bobby Smith not to get in the car with Anita and defendant because they were planning to rob someone.
“On the way back to Kansas City on June 16, the group stopped at Burnett's residence. Mattie gave Alganette a tour of the house that Burnett had remodeled for her and her children. Once Alganette returned to the car, she discussed what she had seen with defendant and Anita, including a safe in one of the bedrooms.
“Anita testified that, on the night of June 17, she returned to Atchison with defendant and Gregory Milo in defendant's mother's car, a maroon Chevy. At about 7:30 p.m., they stopped by Burnett's residence, and Gregory Milo walked to the house to ask about purchasing drugs. Next, they drove to Bobby Smith's house in Atchison. Then they stopped at Coyetta Seymore Green's house and asked Coyetta to knock on Burnett's door to be sure that he was not home so that they could ‘rob’ him. Coyetta refused to help.
“After Coyetta refused, the trio drove to Burnett's house. Anita testified that she stayed in the car while defendant and Gregory Milo went into the house. She heard a gunshot. They returned to the car with a .22 rifle and a pillowcase. Anita drove the car. She noticed that defendant wiped a gun and threw it out the window. When she asked what had happened, no one said anything. They went to the home of defendant's sister, Dora Kingyon, and spread everything out on the bed. They had stolen $6,000 in cash, which was divided equally between defendant and Gregory Milo. They also had several women's rings and men's watches. Anita testified that they offered her rings but she did not want them.
“On June 18, an Atchison resident found a gun in the middle of Old Highway 73 just south of the Burnett residence. Another person found two cartridge cases—one empty and one loaded. Later, a KBI firearms examiner established that the bullet found in Burnett's brain had the same class of characteristics as those fired from the weapon, a Smith & Wesson .38 revolver, found on Old Highway 73, but he could not definitely say that the bullet had been fired from that gun. The examiner also testified that the empty cartridge case was definitely a shell casing fired from the .38 revolver that was found lying in the middle of Old Highway 73.
“As rebuttal to defendant's alibi defense, the State presented testimony from a KBI agent who interviewed defendant during his confinement in Emporia on other charges. He testified that, during the interview, defendant admitted that he had been in Atchison on June 16 at Bobby Smith's house between 6:00 and 7:00 p.m. and on June 17 at Smith's house between 7:00 and 8:00 p.m., and that he was back in Kansas City by 9:00 p.m. that night.” Nance, slip op. at 2–5.
In the years following his direct appeal, Ash–Shahid has filed five K.S.A. 60–1507 motions. The district court denied each motion, this court affirmed the district court's denial, and our Supreme Court denied review. See Nance v. State (Nance I), No. 68,098, unpublished opinion filed April 30, 1993 (Kan.App.), rev. denied 253 Kan. 860 (1993); Nance v. State (Nance II), No. 89,741, 2003 WL 22053390 (Kan.App.) (unpublished opinion), rev. denied 276 Kan. 969 (2003); Ash–Shahid v. State (Ash–Shahid I), No. 93,799, 2005 WL 3030340 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 981 (2006); Ash–Shahid v. State (Ash–Shahid II), No. 97,552, 2007 WL 2915613 (Kan.App.2007) (unpublished opinion), rev. denied 286 Kan. 1176 (2008); Ash–Shahid v. State (Ash–Shahid III), No. 103,346, 2011 WL 1376993 (Kan.App.) (unpublished opinion), rev. denied 293 Kan. 1105 (2011).
On September 20, 2013, Ash–Shahid filed another round of motions collaterally attacking his convictions, including a motion for new trial and a memorandum in support; a motion to challenge/suppress affidavit for probable cause/arrest warrant; a motion for appointment of counsel; a motion for discovery; and a motion to vacate conviction due to void judgment. The district court construed Ash–Shahid's motion for new trial and related documents as a request for relief pursuant to K.S.A. 60–1507. In response, the State filed a motion for summary dismissal and argued that the district court either had already addressed the substantive issues raised in Ash–Shahid's motion or that the 1–year time limitation imposed by K.S.A. 60–1507(f) barred consideration of any new arguments.
On October 21, 2013, the district court issued an order denying Ash–Shahid's motion for relief on all issues. Ash–Shahid filed a motion to reconsider. On December 4, 2013, the district court denied the motion to reconsider. Ash–Shahid timely appealed the district court's judgment.
On appeal, Ash–Shahid argues that “the district court erred in summarily denying [his] K.S.A. 60–1507 motion.” The State responds that the district court properly denied Ash–Shahid's sixth request for post-conviction relief as untimely and successive. When the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Edgar v. State, 294 Kan. 828, 836–37, 283 P.3d 152 (2012).
Ash–Shahid does not argue that the district court erred in construing his pleadings as a K.S.A. 60–1507 motion. Rather than summarizing Ash–Shahid's arguments on appeal, we will set forth the substantive portion of his brief in its entirety:
“The district court summarily dismissed appellant's K.S.A. 60–1507 motion as successive and as untimely. Admittedly, many of the issues raised by appellant were raised in previous K.S.A. 60–1507 motions. However, the Kansas Supreme Court has permitted successive motions under K.S.A. 60–1507 when the movant demonstrates ‘exceptional circumstances.’ See Rule 183(c)(3) (2013 Kan. Ct. R. Annot. 278). Exceptional circumstances under K.S.A. 60–1507 and Supreme Court Rule 183(c)(3) ‘have been defined as “unusual events or intervening changes in the law’ “ by our Kansas Supreme Court. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). Additionally, exceptional circumstances may occur when: ‘[T]here was ineffective assistance of trial counsel in failing to object regarding an issue; there was ineffective assistance of direct appeal counsel in failing to raise an issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at the time of the trial and direct appeal.’ Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009). (emphasis added.)
“In the present action appellant is alleging newly discovered evidence, in the form of DNA testing and analysis, that wasn't available at the time of his trial. Appellant further alleges that the identities of all persons who had handled the alleged murder weapon prior to its being surrendered to law enforcement was withheld from appellant at the time of his original trial, thus breaking its chain of custody, injecting prosecutorial misconduct into the mix, and denying appellant his basic right to a fair trial. This newly discovered evidence allows for a second or successive K.S.A. 60–1507 motion, and appellant should have received appointed counsel and an evidentiary hearing.”
Ash–Shahid's brief admits that many issues raised in district court were raised in his previous K.S.A. 60–1507 motions. Ash–Shahid asserts there are exceptional circumstances in the form of newly discovered DNA evidence and information withheld by law enforcement concerning the number of people who handled the murder weapon. But he does not explain how the newly discovered evidence constitutes exceptional circumstances allowing for a successive K.S.A. 60–1507 motion. See Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 285). We note that Ash–Shahid was convicted of felony murder so the State was never required to prove that he handled the murder weapon in the underlying criminal case. Finally, even if Ash–Shahid set forth adequate reasons to file a successive K.S.A. 60–1507 motion, he has failed to set forth any grounds in district court or on appeal as to why the court should consider his untimely motion. See K.S.A. 60–1507(f).
An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan 610, 633, 303 P.3d 680 (2013). A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
The district court summarily denied Ash–Shahid's sixth K.S.A. 60–1507 motion as being untimely and successive. Ash–Shahid has failed to set forth any grounds on appeal to establish that the district court erred in denying his request for relief. After reviewing the record and the briefs, we find that the district court committed no reversible error and that the appeal is without merit.
Affirmed under Supreme Court Rule 7.042(b)(2) (2014 Kan. Ct. R. Annot. 67).