Opinion
No. 108,816.
2013-10-25
Russell ENGLAND, Appellant, v. STATE of Kansas, Appellee.
Appeal from Reno District Court; Trish Rose, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
LEBEN, J.
In 1993, Russell England pled no contest to rape and attempted rape and was given a controlling sentence of 15 years to life. He did not file a direct appeal, but he did bring a habeas corpus motion under K.S.A. 60–1507 in 2001; England claimed that his attorney had provided inadequate assistance. After an evidentiary hearing, the district court found no showing that England's attorney had been ineffective, and our court affirmed that decision in 2005.
In 2012, England filed his second habeas corpus motion alleging ineffective assistance of counsel, which the district court denied summarily, i.e., without an evidentiary hearing. On appeal, England again claims ineffective assistance of his plea counsel, and he raises some new particulars as to which he claims the attorney provided inadequate assistance. But the district court may refuse to consider a prisoner's second or later habeas motion unless there are exceptional circumstances. And the district court also may refuse to consider a habeas motion not filed within time limits set by the legislature unless the prisoner shows that manifest injustice would result from its denial.
We find that the district court properly dismissed England's motion. Two of his claims of poor attorney representation were raised and decided on the merits in his previous habeas corpus motion. The other three claims could have been raised in the 2001 motion. England has failed to show exceptional circumstances to justify his failure to have made his claims in the previous proceeding. And the motion could be dismissed as untimely because England makes no attempt to show manifest injustice that justifies his failure to have raised these claims by the 2004 deadline. We therefore affirm the district court's decision.
Factual and Procedural Background
In 1993, Russell England pled no contest to rape and attempted rape under a plea agreement. England was convicted and sentenced to a controlling term of 15 years to life. In 2001, England filed a habeas corpus motion under K.S.A. 60–1507 alleging that his plea counsel made a misrepresentation and refused to investigate and secure witnesses on his behalf. The motion also alleged that his plea was induced by threats, that evidence was withheld by false representation of complaining witnesses, and that manifest injustice had occurred. The motion was denied after an evidentiary hearing, and this court affirmed the denial of the motion in 2005. England v. State, No. 92,300, 2005 WL 2254466, at *1 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 982 (2005). This court addressed the issues of whether England's counsel was ineffective for failing to secure favorable witnesses and whether counsel coerced him to plead, rejecting both arguments. 2005 WL 2254466, at *2–3. England also filed a motion attacking his sentence as illegal. In 2010, this court affirmed the denial of that motion. State v. England, 45 Kan.App.2d 33, 34–35, 245 P.3d 1076 (2010).
In April 2012, England filed this motion for habeas corpus under K.S.A. 60–1507. The motion listed five issues related to ineffective assistance of counsel. On July 5, 2012, the district court held a preliminary hearing with England's counsel physically present and with England present by telephone. On July 11, 2012, the district court dismissed England's motion as successive. England has appealed to this court.
Analysis
The District Court Didn't Err By Dismissing England's Motion as Successive.
England argues that the district court erred by denying habeas motion without an evidentiary hearing. England says it was wrong to dismiss the motion as successive because he raised different issues than in his earlier habeas motion. The State contends that England's motion was successive because it raised the same or similar issues as his previous postconviction motions.
We begin by reviewing the general rules for habeas corpus actions under K.S.A. 60–1507. A district court has three available options to resolve a K.S.A. 60–1507 motion. First, the district court may conclude that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the district court may conclude from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the district court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011). A district court is required to grant an evidentiary hearing unless the case file conclusively shows that the movant isn't entitled to relief. K.S.A. 60–1507(b); Bellamy v. State, 285 Kan. 346, 357, 172 P.3d 10 (2007). When the district court denies relief under K.S.A. 60–1507 based solely on counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, this court is in as good a position as the district court to consider the merits. So our review in this appeal is unlimited, and we are not required to give any deference to the district court's ruling. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
There are two special rules that we must review as well. First, in a K.S.A. 60–1507 proceeding, the district court isn't required to “entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c); State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013); see also Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 275) (providing that the court shall not entertain second or successive motion on behalf of same prisoner when [1] “the ground for relief was determined adversely to the movant on a prior motion”; [2] “the prior determination was on the merits”; and [3] “justice would not be served by reaching the merits of the subsequent motion”). A movant is presumed to have listed all grounds for relief in a previous K.S.A. 60–1507 motion, and a subsequent motion need not be considered unless there are circumstances justifying the original failure to list a ground. Trotter, 296 Kan. at 904. Under a well-established test, unless the movant has shown the existence of “exceptional circumstances,” the district court can dismiss a second or successive motion on the basis that it is an abuse of remedy. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). To establish exceptional circumstances, the movant must show unusual events or intervening changes in the law that prevented him from reasonably being able to raise all of the claimed errors in the first postconviction proceeding. Wimbley v. State, 292 Kan. 796, Syl. ¶ 1, 275 P.3d 35 (2011).
Second, there is a statute of limitations, which requires that a defendant file a habeas motion under K.S.A. 60–1507 within a limited time period—1 year from when his conviction became final. That 1–year limit was only adopted in 2003, so for convictions like England's that came earlier, a defendant had until June 30, 2004, to file a K.S.A. 60–1507 motion. Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). Another well-established rule comes into play if a defendant files too late: The 1–year time limitation for bringing an action may be extended by the district court only to prevent a “manifest injustice.” K.S.A. 60–1507(f)(2). Manifest injustice has been interpreted to mean conduct that is obviously unfair or shocking to the conscience. Ludlow v. State, 37 Kan.App.2d 676,686, 157 P.3d 631 (2007).
In sum, England must make three showings. First, he must show that he has provided a viable basis for relief. K.S.A. 60–1507(b). Second, because England has filed an earlier K.S.A. 60–1507 motion, he must show exceptional circumstances to prevent the dismissal of his motion as successive and an abuse of remedy. K.S.A. 60–1507(c); Kelly, 291 Kan. at 872–73. Third, because this K.S.A. 60–1507 motion—filed in 2012—came well past the 2004 deadline stemming from his 1993 conviction, England must show manifest injustice under K.S.A. 60–1507(f)(2). The district court dismissed England's motion as successive because he alleged the same ground for relief—ineffective assistance of counsel-in his previous habeas corpus motion filed in 2001.
In this K.S.A. 60–1507 motion, England listed five issues related to ineffective assistance of counsel:
“a) Refused to investigate and secure witness[;]
“b) Failed to request or obtain D.N.A. testing on evidence[;]
“c) [Issue] of [penetration] as [a] necessary element not [discussed] with me[;]
“d) [Issue] of lesser included crime as option we could request at trial was not discussed with me[; and]
“e) [Counsel's] failure to do A & B coerced a plea and lack of information given to me made plea unknowing & involuntary[.]”
On appeal, England concedes that two of the allegations—that counsel failed to interview witnesses and that this resulted in his pleas being coerced—were made in the 2001 motion and failed. England's 2001 motion was denied by the district court, and this court discussed these two allegations and affirmed the denial. England, 2005 WL 2254466, at *1–3.
England asserts that the other three issues didn't appear in the 2001 motion and haven't been considered by a district court. But England doesn't state an exceptional circumstance to explain why these three issues couldn't have been presented in 2001. He appears to argue that we should consider the lack of an initial, direct appeal as an exceptional circumstance. But there is no direct appeal in most convictions arising out of a plea agreement; there is no trial in such cases, and no claims of trial error to be reviewed. Moreover, if the defendant in a plea case later wants to challenge the effectiveness of plea counsel, he or she can do so through a timely habeas motion, just as England did here in 2001. We do not find the lack of a direct appeal to constitute an exceptional circumstance. All three issues are related to his counsel's effectiveness, which was the subject of the 2001 motion and appeal. See England, 2005 WL 2254466, at *3.
Nor has England shown that any manifest injustice would occur by refusing to consider his untimely claims now. There appears to be no reason why England couldn't have alleged that his counsel failed to request DNA testing, failed to discuss penetration as an element of the crime, or failed to discuss a lesser included jury instruction in his K.S.A. 60–1507 motion filed in 2001, which was 8 years after his convictions.
England has failed to show either exceptional circumstances to warrant consideration of issues that could have been raised in his first K.S.A. 60–1507 motion or the manifest injustice required for the court to extend the long-past deadline for filing this motion. As a result, England's K.SA. 60–1507 motion is successive and untimely.
England also complains that he wasn't allowed to be present at the hearing. But a habeas movant under K.S.A. 60–1507 is only required to be physically present at a full evidentiary hearing. See Albright, 292 Kan. at 196. Here, though a transcript isn't in the record, there is nothing to suggest (and England does not claim) that the hearing was a full evidentiary hearing that would have required England's physical presence.
We therefore affirm the district court's judgment.