Opinion
111,450.
12-05-2014
Jeffrey S. COLLIER, Appellant, v. STATE of Kansas, Appellee.
Jeffrey S. Collier, appellant pro se. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Jeffrey S. Collier, appellant pro se.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeffrey S. Collier appeals the summary dismissal of his motion for writ of habeas corpus filed pursuant to K.S.A.2013 Supp. 60–1507. We affirm the dismissal.
Collier was convicted by a jury in 1994 of first-degree premeditated murder, felony murder, and aggravated robbery in the death of Michael Hendrix. He was sentenced to a hard 40 life imprisonment. In his direct appeal, the Kansas Supreme Court held that (1) Collier, by asking a prosecution witness whether the murder victim—who had been found bound and gagged—was “into S & M” opened the door for the prosecutor to show the victim did not have a reputation in gay community for sadomasochistic sex; (2) the prosecution's witness' testimony on direct examination that he was telling the truth because he was dying of acquired immune deficiency syndrome (AIDS) could not be grounds for error on appeal; (3) the prosecutor's statement during closing argument that discussion at trial of the victim's sexual activities was “tragic” did not improperly express the prosecutor's personal opinion or appeal to sympathy; (4) the trial court did not abuse its discretion in refusing to appoint substitute counsel for Collier at his request; (5) whether Collier was denied effective assistance of counsel would not be considered for the first time on appeal; and (6) the record reflecting that the State did not file a notice of its intent to seek a hard 40 sentence until the day after arraignment could not be supplemented, pursuant to a motion to file a statement out of time, with the factual statement reciting the State had presented an original copy with its notice of intent to seek a hard 40 sentence to the court at arraignment with intent to file it with the court and that it was received as filed. The Kansas Supreme Court affirmed the conviction, vacated the sentence, and remanded for resentencing. See State v. Collier, 259 Kan. 346, 913 P.2d 597 (1996) ( Collier I ).
On remand, after hearing the evidence, the trial court found the notice of intent to seek the hard 40 sentence had been properly filed with the court. It then reimposed the hard 40 sentence, as well as the aggravated robbery sentence which had been imposed in Collier I but had not been an issue in that appeal. Collier appealed. Once more, the Kansas Supreme Court reversed the imposition of the hard 40 sentence and remanded for resentencing, specifically directing the trial court to resentence Collier to the lesser allowed sentence other than a hard 40, as the statutes required. See State v. Collier, 263 Kan. 629, 952 P.2d 1326 (1998) (Collier II ).
In 1997, Collier filed a petition pursuant to K.S.A. 60–1501 alleging the prison policy restricting inmates to possession of no more than 25 first-class postage stamps at any given time violated his rights to free speech and association under First Amendment to United States Constitution. The Court of Appeals held that (1) the policy promoted legitimate governmental and penological interests of prison security and order, and (2) the policy did not violate Collier's First Amendment rights. See Collier v. Nelson, 25 Kan.App.2d 582, 966 P.2d 1117, rev. denied 266 Kan. 1107 (1998).
In 2000, Collier filed a K.S.A. 60–1507 motion claiming ineffective assistance of counsel in three areas: His attorney did not use Collier's theories of defense; did not investigate alibi witnesses; and did not subpoena a list of witnesses that Collier had asked him to subpoena. This court rejected each of Collier's allegations. Collier v. Nelson, No. 82,016 Kan.App.2000, unpublished opinion filed June 16, 2000.
Over a decade later, in 2013, Collier filed the K.S.A. 60–1507 motion at issue today. Collier argued manifest injustice occurred when the affidavit of probable cause was not timely filed and the affidavit contained omissions of truth, false, and/or misleading information that if removed would vitiate probable cause. Collier also claimed he received ineffective assistance of counsel because his attorney failed to challenge the affidavit of probable cause and also failed to pursue an alibi defense with Don Paxton, call certain witnesses, object to the hard 40 sentence, inform the court of a conflict of interest, and argue selective prosecution in not charging Ben Watson. Collier also raised issues concerning an alleged violation of his rights under the Fourth Amendment to the United States Constitution due to false statements in the affidavit of probable cause, an untimely amendment to the complaint, abuse of discretion by the trial court in not appointing conflict-free counsel, prosecutorial misconduct in closing argument, and ineffective assistance of appellate counsel for not raising all the issues alleged in his motion.
The district court summarily dismissed Collier's motion. The court found this was Collier's third motion and was untimely without any showing of manifest injustice. The court stated it was repetitive and without any new meritorious claims to consider. After the court denied Collier's motion for reconsideration, Collier filed the present appeal.
The thrust of the arguments in Collier's appellate brief is the State's untimely response to his K.S.A. 60–1507 motion. He argues the district court gave the State 45 days to respond to his 60–1507 motion and since the State failed to respond in a timely manner, then the State admitted all the claims in his 60–1507 motion to be true and correct. He also claims since the court mandated the State to respond, this equated to a finding there was enough proof to allow the case to proceed. He also claims that by not dismissing the State's response, the court proved it showed favoritism towards the State and abused judicial discretion.
Since the State failed to file an answer within the 45 days ordered by the district court, Collier is essentially requesting a default judgment against the State. He wants us to accept all of his arguments and to reverse his convictions or at a minimum remand for an evidentiary hearing. We note at the outset that the ultimate legal issue seems to be controlled by Tipton v. State, 194 Kan. 705, 711,402 P.2d 310 (1965), where our Supreme Court essentially held that default judgment cannot be entered against the State on a K.S.A. 60–1507 motion. Further, as the State points out, “there is no statutory requirement that it file a responsive pleading under K.S.A. 60–1507. Cf. K.S.A. 60–1504 (the person to whom a K.S.A. 60–1501 writ of habeas corpus is directed shall file an answer within 72 hours after the writ is served or at another time as specified in the writ).” Pabst v. State, 287 Kan. 1, 24, 192 P .3d 630 (2008).
Additionally, since a responsive pleading is not required, K.S.A.2013 Supp. 60–208(b)(6) provides “an allegation is considered denied or avoided.” It appears Collier is complaining it was an abuse of discretion by the district court to allow the State to file its response on October 29, 2013, when the State's time to respond ended on October 28, 2013. The district court case docket indicates: “court requests states response to be filed w/in 45 days of this JE.” (Emphasis added.) There was certainly not an ultimatum issued by the district court for the State's response, and we find no abuse of discretion in the court's accepting of the State's response. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. See State v. Lopez, 271 Kan. 119, 136, 22 P.3d 1040 (2001).
Collier argues his claims involving the affidavit of probable cause were newly discovered evidence and proved the existence of a new meritorious claim. Collier argues since the affidavit was newly discovered evidence, then the claims of manifest injustice, ineffective assistance of trial and appellate counsel, and other claims related back to the previously filed motion because of the hidden evidence. Collier maintains the district court should have appointed an attorney to serve as an expert witness to provide evidence that an attorney's first obligation in examining a charge against his or her client is by examining the affidavit of probable cause and any documentary evidence provided with it. Without appointing this expert, Collier argues he was denied the right to a defense.
Regarding all of Collier's claims in his K.S.A. 60–1507 motion not pertaining to the affidavit of probable cause, i.e., prosecutorial misconduct by vouching for witnesses, trial court's refusal to appoint new counsel, amended complaint was not timely filed, and also trial counsel's obligation to investigate alibi witnesses, make reasonable investigation, call certain witnesses, failure to object to the hard 40 sentence, provide conflict-free counsel, and selective prosecution, Collier makes no argument in his appellate brief concerning these issues. However, in his reply brief, Collier indicates that all of the issues he raised in his motion are incorporated into his brief in order to not waste the appellate court's time and to prevent abandonment. Issues not briefed by the appellant are deemed waived and abandoned. State v.. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied 555 U.S. 880 (2008). Additionally, all of these issues were previously raised or should have been raised in Collier's direct appeal and subsequently 60–1507 motions.
Indeed, district courts are not required to entertain a second or successive K.S.A. 60–1507 motion requesting similar relief on behalf of the same defendant. See State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60–1507 [c] ); Supreme Court Rule 183(d) (2013 Kan. Ct. R. Annot. 278). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief; thus, the prohibition against successive motions does not only bar claims raised in prior motions, it also prohibits any claims that could have been raised in a prior motion.” Trotter, 296 Kan. 898, Syl. ¶ 2. Absent a showing of exceptional circumstances justifying the movant's failure to allege a ground for relief in the previous proceeding, a district court can dismiss a successive motion as an abuse of remedy. 296 Kan. at 904 ; State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Collier has not argued any exceptional circumstances that would permit us to consider or reconsider these claims.
Next, we address whether the district court erred in dismissing Collier's arguments involving the affidavit of probable cause; namely the affidavit of probable cause filed beyond the 48–hour–time limit, the trial court's failure to hold a hearing pursuant to Gerstein v. Pugh, 420 U.S. 103, 123–26, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), because of the untimely affidavit of probable cause, ineffective assistance of trial counsel for not challenging the affidavit of probable cause, and Fourth Amendment violations because of false statements in the affidavit of probable cause.
District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b) ; Supreme Court Rule 183(f) and (j) (2013 Kan. Ct. R. Annot. 278). Further, K.S.A. 60–1507(f)(1) provides, in relevant part, that a criminal defendant must bring his or her application for writ of habeas corpus within 1 year of “[t]he 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 time limitation articulated in K.S.A. 60–1507(f)(1) “may be extended by the court only to prevent a manifest injustice.” K.S.A. 60–1507(f)(2). Our Supreme Court has interpreted the phrase “manifest injustice,” in the context of K.S.A. 60–1507(f)(2), to mean “ ‘ “obviously unfair” or “shocking to the conscience.” ‘ [Citations omitted.]” State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2013 Kan Ct. R. Annot. 278).
We first review the appropriate legal standards to be employed in considering whether manifest injustice mandates an extension of time in which to file the K.S.A. 60–1507 motion. In Vontress v. State, 299 Kan. 607, 608, 325 P.3d 1114 (2014), our Supreme Court held that a movant's “failure to provide the reasons for the delay does not automatically exclude the late-filed motion [; r]ather, manifest injustice must be determined based on the totality of the circumstances in each case.” The Supreme Court clarified the standard the courts should use when determining whether manifest injustice requires extending the 1–year–time limitation:
“[C]ourts conducting a manifest injustice inquiry under K.S.A. 60–1507(f)(2) should consider a number of factors as a part of the totality of the circumstances analysis. This nonexhaustive list includes whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the 1–year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.
“All of the factors considered under the totality of the circumstances need not be given equal weight, and no single factor is dispositive. [Citations omitted.]” 299 Kan. at 616–17.
Employing this three-step analysis, it is clear Collier has not shown manifest injustice. First, he does not argue there have been any unusual events or changes in the law since he filed his direct appeal and habeas appeals over a decade ago. Collier's claim of manifest injustice is that after he saw another prisoner's affidavit of probable cause, he repeatedly requested a copy of his affidavit. He claims he did not receive a copy of the affidavit of probable cause until sometime after May 7, 2013. We are not persuaded the issues involving the affidavit of probable cause rise to the level of manifest injustice.
In State v. Hershberger, 27 Kan.App.2d 485, 5 P.3d 1004, rev. denied 269 Kan. 937 (2000), the court considered a defendant's contention that the case against him ought to have been dismissed due to the delay in conducting his probable cause hearing. Hershberger had been convicted of driving while his license was suspended. The Hershberger court concluded he had “failed to prove his detention prejudiced his ability to prepare his defense to the charge. Consequently, dismissal of the case [was] not an appropriate remedy.” 27 Kan.App.2d at 491. The court syllabus included this statement of the guiding principle: “An appropriate remedy for failure to conduct a timely probable cause hearing will depend on the particular facts and circumstances of the case, but dismissal of charges is an extreme remedy only warranted if the prolonged detention substantially impedes a defendant's ability to prepare a defense.” 27 Kan.App.2d 485, Syl. 12; see also State v. Wakefield, 267 Kan. 116, 125, 977 P.2d 941 (1999) (“[A]n unwarranted delay in taking the accused before a magistrate after he or she has been arrested is not in itself a denial of due process unless that delay has in some way prejudiced the right of the accused to a fair trial.”).
Collier relies heavily on Gerstein, 420 U.S. 103, for support of the allegation of the lack of probable cause. However, the Kansas Supreme Court has held that the right to a preliminary hearing is a statutory right rather than a constitutional right. See In re D.E.R., 290 Kan. 306, 312–13, 225 P.3d 1187 (2010). In Gerstein, 420 U.S. at 114, the United States Supreme Court ruled that “ ‘a judicial determination of probable cause’ “ is required for an extended restraint of liberty, but it stopped short of holding that a defendant has a constitutional right to adversarial safeguards such as confrontation, cross-examination, and compulsory process for witnesses. See In re D.E.R., 290 Kan. at 312 (quoting Gerstein, 420 U.S. at 119 ). The Kansas Supreme Court has declined to specifically determine what would satisfy a fair and reliable determination of probable cause, but the purpose of the statutory preliminary hearing is to determine whether a crime has been committed and whether there is probable cause to believe that the defendant committed it. See In re D.E.R., 290 Kan. at 312–14. Since a defendant does not have a constitutional right to a preliminary hearing, a defendant does not have the same constitutional rights to present a defense during a preliminary hearing as a defendant does during a trial. See 290 Kan at 312–13 ; State v. Knighten, 260 Kan. 47, Syl. ¶ 4, 917 P.2d 1324 (1996).
Here, Collier received a preliminary hearing at which the State introduced evidence related to the murder counts against him. Collier's attorney provided effective assistance of counsel in the cross-examination of the State's witnesses at the preliminary hearing, including Watson. The record demonstrates the State produced evidence that the crimes alleged had been committed and there was probable cause to believe that Collier committed them. The district court found probable cause to bind Collier over for trial on each count. The record demonstrates that Collier received a fair and reliable judicial determination of probable cause which encompassed all of the constitutional safeguards to which he was entitled at that stage of the proceedings. See Gerstein, 420 U.S. at 119–20, 123–25 ; In re H.N., 45 Kan.App.2d 1059, 1067, 257 P.3d 821, rev. denied 293 Kan. 1106 (2011).
Considering the last Vontress factor, we do not find Collier has presented a colorable claim of actual innocence. As the court found in Collier's prior K.S.A. 60–1507 motion, “the defense portrayed Watson as a conniving liar, but the jury believed Watson's version of the events rather than Collier's version.” Any argument of Paxton as an alibi witness for Collier was either rejected in Collier's prior 60–1507 or should have been raised at that time.
We have examined all of Collier's arguments. We do not find the district court abused its discretion in finding Collier had failed to establish a manifest injustice to require an evidentiary hearing on his K.S.A. 60–1507 motion.
Affirmed.