Opinion
No. 106,004.
2012-06-15
Leonard C. FOSTER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Leonard Foster filed a habeas corpus motion under K.S.A. 60–1507 alleging that his attorney on appeal provided inadequate representation to him. But to have a viable claim for relief in a habeas corpus action, a defendant must show that there was a reasonable probability of success had the attorney provided appropriate representation. Here, although Foster's attorney may have made some poor arguments, Foster has not pointed to any argument the attorney could have made that would have been more successful. The district court therefore properly denied habeas corpus relief.
Factual Background
Leonard Foster was convicted of aggravated battery, aggravated kidnapping, rape, aggravated sexual battery, aggravated robbery, and aggravated burglary following a jury trial in 1993. He was given a controlling life sentence. The Kansas Supreme Court affirmed his convictions and sentences on direct appeal in 1996. State v. Foster, 259 Kan. 198, 910 P.2d 848 (1996).
In 2006, Foster filed four separate pro se motions to correct illegal sentence; the district court denied all four. Foster then filed a motion for reconsideration, but it too was denied. Foster appealed to the Kansas Supreme Court, where he was represented by attorney Carl Maughan. Through Maughan, Foster argued that K.S.A. 22–3504(1) required the appointment of counsel and a hearing before the dismissal of motions to correct illegal sentences. State v. Foster, No. 98,014, 2009 WL 395125, at *1 (Kan.2009) (unpublished opinion). Maughan also argued that Foster's convictions were multiplicitous and that the court denied Foster a proper allocution. But our Supreme Court affirmed, holding that the district court had properly denied Foster's motions. 2009 WL 395125, at *1. In particular, the court cited State v. Duke, 263 Kan. 193, 196,946P.2d 1375 (1997), to establish that courts “may summarily deny a K.S.A. 22–3504(1) motion without a hearing or appointment of counsel if the petitioner fails to raise substantial questions of law or fact.” 2009 WL 395125, at *1. Foster filed pro se for rehearing, but the court denied that motion.
On July 21, 2010, Foster filed a K.S.A. 60–1507 motion that primarily challenged the effectiveness of his appellate counsel, Maughan, on the latest appeal. Foster alleged that (1) Maughan transferred the appeal to the Kansas Supreme Court against Foster's wishes; (2) Maughan filed an incompetent brief, arguing constitutional issues that were contrary to clear caselaw; (3) Maughan did not send Foster a copy of the Kansas Supreme Court decision, forcing Foster to file a pro se, out-of-time motion for rehearing; and (4) the court improperly denied Foster appellate counsel to assist on his motion for rehearing.
The district court held a preliminary hearing on Foster's motion. At the hearing, Foster's counsel criticized Maughan's strategy on the appeal, citing to State v. Dawson, 43 Kan.App.2d 800, 231 P.3d 582,rev. denied 290 Kan. 1097 (2010), in which Maughan was chastised by the Kansas Court of Appeals for bringing up the same failing argument in 39 different appeals, including Foster's. But the district court denied Foster's motion:
“I understand Mr. Foster's allegations, and they can be articulate allegations, but the harm that he alleges is not a harm. If he has alleged a harm that was [articulable] and relief can be granted then I think [Foster's counsel] has a strong argument for an evidentiary hearing; however, if his request for harm is that he did not get a rehearing before the Court, and he did; even though it was done pro se, there's nothing in the pleadings Filed by Mr. Foster that indicates that him doing the request for the rehearing is any substantively different than having Counsel do so.”
The district court also said that it would adopt the State's written response as part of its decision. The court's written journal entry stated that Foster's motion was untimely as an attack on his criminal conviction and successive as a criminal motion. The journal entry also said that Foster was not entitled to relief to the extent that Foster faulted his counsel's performance on appeal, holding that Foster's claims were conclusory and that the motions, files, and records conclusively showed that Foster was not entitled to relief.
Foster has appealed to this court.
Standard of Review on Appeal
To resolve a K.S.A. 60–1507 motion, the district court may decide 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. At a preliminary hearing, the district court may admit limited evidence and consider counsel's arguments. It must then issue findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot. 259). Bellamy v. State, 285 Kan. 346, 353–54, 172 P.3d 10 (2007). When the district court denies relief under K.S.A. 60–1507 based solely upon counsel's legal argument at a nonevidentiary hearing and a review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits of the motion. Thus, appellate review in that circumstance is de novo, requiring no deference to the district court. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Analysis
1. The District Court Did Not Deny Foster's Motion for Being Untimely or Successive Because the Court Addressed the Merits of his Claims.
Foster argues that his motion should not have been dismissed for being untimely or successive. But the State claims that the record does not clearly indicate that the district court found the motion untimely. Instead, the State argues, the court addressed the merits of Foster's motion at the preliminary hearing and did not comment on the motion's timeliness. The State concedes that any mention of the motion being successive was apparently a typographical error.
To file a K.S.A. 60–1507 motion, a defendant has a 1–year window from the final order of the last appellate court to exercise jurisdiction on direct appeal. K.S.A. 60–1507(f)(1). This 1–year limitation became effective July 1, 2003, so defendants had one year from that date—or before July 1, 2004—to file motions related to preexisting claims. Tolen v. State, 285 Kan. 672, Syl. ¶ 4, 176 P.3d 170 (2008). This deadline may only be extended to prevent “manifest injustice,” which has been interpreted to mean something “obviously unfair” or “shocking to the conscience.” K.S.A. 60–1507(f)(2); Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).
Foster does not dispute that his motion was untimely as to his 1996 conviction. Instead, all four of his claims related to the latest appeal of his motion for reconsideration to our Supreme Court. Foster's motion was filed within 1 year of the date his motion for rehearing was denied. In the hearing, even the State admitted that Foster's motion was a timely attack on his appellate counsel's performance. When the judge denied the motion at the conclusion of the hearing, he made no mention in his oral ruling of timeliness or successiveness. Instead, the judge addressed the merits of Foster's claim.
The written journal entry—prepared by the State—stated that “[a]s a 1507, [Foster's] attack on his underlying criminal conviction is untimely; as a criminal motion, it is successive. Therefore, [Foster] is not entitled to relief.... The Court does not find manifest injustice to allow for the untimely filing.” But the journal entry went on to explain why Foster was not entitled to relief based on his appellate counsel's performance, concluding that “[t]he motions, files and records conclusively show [Foster] is not entitled to the relief requested. Supreme Court Rule 183(f)” Rule 183(f) deals with the merits of the K.S.A. 60–1507 motion; it does not concern timeliness. See 2011 Kan. Ct. R. Annot. 259.
When read in its entirety, the journal entry makes clear that Foster's arguments about his appellate counsel were not denied for timeliness or successiveness; they were denied on the merits. If this is somewhat unclear from the journal entry, the judge's comments at the hearing clarify the court's holding. See Robertson v. State, 288 Kan. 217, 233, 201 P.3d 691 (2009) (holding that remand was not required when the district court's journal entry combined with its oral expressions allowed the appellate court to discuss and act on the movant's arguments). Therefore, Foster's first issue misses the point. Because the court addressed the merits of Foster's motion, there is no need to remand for further review.
2. Foster Was Not Entitled to an Evidentiary Hearing Because He Did Not Provide an Evidentiary Basis for Relief.
Foster next argues that an evidentiary hearing was necessary because the court did not have enough evidence to deny his claims. According to Foster, the court could not determine from the factual record whether appellate counsel was effective. Foster argues that the court never reviewed Maughan's appellate brief to determine whether it was competent. The State counters that no evidentiary hearing was required because Foster failed to raise any substantial issues of fact.
To establish ineffective assistance of appellate counsel, the defendant must show “ ‘(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) [defendant] was prejudiced to the extent that there [was] a reasonable probability [of success], but for counsel's deficient performance.’ [Citations omitted.]” State v. Fulton, 292 Kan. 642, 651, 256 P.3d 838 (2011) (quoting Trotter v. State, 288 Kan. 112, 127–28, 200 P.3d 1236 [2009] ), Accordingly, appellate counsel is not required to raise issues that are weak, meritless, or would result in only harmless error. Holmes v. State, 292 Kan. 271, 280, 252 P.3d 573 (2011) (quoting Baker v. State, 243 Kan. 1, Syl. ¶ 5, 755 P.2d 493 [1988] ).
To show that a K.S.A. 60–1507 motion warrants an evidentiary hearing, the movant “must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.” Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007) (citing Sullivan v.. State, 222 Kan. 222, 223, 564 P.2d 455 [1977] ). The evidentiary basis need only “ ‘set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief.’ “ 284 Kan. at 938 (quoting Sullivan, 222 Kan. at 223–24).Supreme Court Rule 183(e) also requires movants to comply with the standard form, which includes stating the specific facts, names and addresses of witnesses, and other evidence that support the claim. 2011 Kan. Ct. R. Annot. 259. Without these specifics, a K.S.A. 60–1507 motion is conclusory and inadequate. Trotter, 288 Kan. at 135.
Thus, to avoid dismissal of his motion as conclusory and inadequate under the rule set out in Swenson, Foster must provide some factual basis that the outcome would have been different. The court's journal entry explained why Foster had not done so:
“[Foster] successfully filed a motion for rehearing; therefore, he cannot fault appellate counsel for a lack thereof. He has not presented this court with any arguments that he believes appellate counsel should have raised in the appeal. Without any indication or suggestion as to how appellate counsel should have briefed the case, [Foster's] conclusory claim cannot be assessed by this court and, therefore, cannot provide him relief. And, notably, [Foster] received a controlling life sentence in this case; as such, appellate counsel properly transferred the case to our Supreme Court. See K.S.A. 22–3601(b)(1).”
Both in his appellate brief and at the preliminary hearing, Foster has leaned heavily on an excerpt from Dawson, 43 Kan.App.2d 800, to show why Maughan was ineffective as appellate counsel. In Dawson, the defendant, also represented by Maughan, made similar arguments about the right to counsel and a hearing under K.S .A. 22–3504. 43 Kan.App.2d at 802. The court rejected this argument, noting that the Kansas Supreme Court has “consistently reaffirmed Duke and held that K.S.A. 22–3504(1) does not automatically require appointment of counsel or a hearing on a motion to correct an illegal sentence.” 43 Kan.App.2d at 803. The Dawson court went on to chastise Maughan:
“At this juncture, we think it necessary to note that Dawson has filed a 19–page appellate brief that fails to cite or acknowledge any of the many decisions filed after Duke rejecting the arguments he makes here. This failure is particularly significant since one of the attorneys representing Dawson in this appeal, Carl Maughan, was counsel of record in at least nine appeals before our Supreme Court in which this argument has been rejected. See State v. Foster, No. 98,014, 2009 WL 395125, unpublished opinion filed February 13, 2009; [Additional citations omitted.]
“Similarly, Maughan has been counsel of record in approximately 30 appeals before panels of this court in which he has unsuccessfully asserted nearly verbatim arguments regarding K.S.A. 22–3504. Further, as in this case, Maughan's briefs in those appeals failed to recognize the overwhelming precedent rejecting his argument. [Citations omitted.]” 43 Kan.App.2d at 803–04.
Foster's case was the most recent example of Maughan's behavior cited by this court. 43 Kan.App.2d at 803–04. Accordingly, Dawson is persuasive authority that Maughan made poor or futile arguments on Foster's appeal.
But Foster has not shown—either in the K.S.A. 60–1507 motion or his appellate brief—an evidentiary basis why but for Maughan's alleged ineffectiveness, the outcome of his appeal would have been different. Even if the Dawson opinion suggests that Maughan's arguments in Foster's appeal were incompetent, Foster has not given any indication what a successful alternative strategy would have been. He has not identified the witnesses or arguments that would support a proper claim for relief, and he therefore has not met the requirement that he show prejudice from his attorney's substandard work. Accordingly, the district court properly denied Foster's motion.
The district court's judgment is therefore affirmed.