Opinion
112,540.
07-24-2015
Calvin L. STRONG, Appellant, v. STATE of Kansas, Appellee.
Calvin L. Strong, pro se appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Calvin L. Strong, pro se appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Calvin L. Strong was convicted of rape and attempted aggravated burglary in two separate cases in 1982. Roughly 30 years after his convictions were affirmed on appeal, he submitted a pro se motion pursuant to K.S.A. 60–1507 claiming ineffective assistance of counsel and speedy trial violations. The district court summarily denied his motion. Strong now appeals pro se, arguing the district court abused its discretion in denying his motion. We disagree and affirm.
Facts
Strong was charged with one count of rape in 1981. Following a mistrial, Strong filed a motion to dismiss based on a violation of his right to a speedy trial. The district court denied Strong's motion, and a second jury trial resulted in his conviction. Strong was sentenced to prison for a term of 15 to 30 years. Strong directly appealed his conviction, but he did not raise the speedy trial issue, arguing instead that the district court erred in denying his motion for a new trial due to jury misconduct. The Kansas Supreme Court affirmed Strong's conviction in State v. Strong, No. 54,746, unpublished opinion filed April 29, 1983. The Supreme Court issued its mandate on May 24, 1983.
In a subsequent case, a jury convicted Strong of attempted aggravated burglary. Strong was sentenced to prison for a term of 3 to 10 years to be served consecutive to his sentence for rape. Strong appealed, arguing the district court erred when it denied his motion to dismiss based on violation of his speedy trial rights. On May 19, 1983, this court denied Strong's claim, finding his right to a speedy trial had not been infringed. State v. Strong, 8 Kan.App.2d 589, 596, 663 P.2d 668, rev. denied 233 Kan. 1093 (1983).
Acting pro se, Strong filed a “Petition for Writ of Habeas Corpus (Pursuant to K.S.A. 60–1507(f)(2) [) ]” on April 3, 2014. Joining together both criminal convictions, he argued that the district court erred in denying his motion to dismiss based on a violation of his speedy trial rights and that his counsel was ineffective.
The district court summarily denied Strong's motion on three grounds: (1) the petition was untimely; (2) the petition failed to allege any facts entitling him to a hearing; and (3) Strong failed to provide any reason why the 1–year time period should be extended to prevent manifest injustice. In addition, the district court held Strong had already raised the speedy trial issue in his direct appeal of his attempted aggravated burglary conviction, concluding that the Court of Appeals' rejection of his claim amounted to res judicata and prevented him from raising the same claim twice.
Strong asked the district court to reconsider, which it refused. Strong timely appeals.
Did the District Court Err in Summarily Denying Strong's Motion Pursuant to K.S.A. 60–1507 ?
A district court has three options when reviewing a K.S.A. 60–1507 motion:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
When the district court summarily denies a K.S.A. 60–1507 motion, as it did here, we conduct a 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, 283 P.3d 152 (2012).
K.S.A. 60–1507(f)(1) provides that a defendant has 1 year from the date his or her conviction becomes final to file a motion under K.S.A. 60–1507. Individuals with claims preexisting the 2003 statutory amendment had until June 30, 2004, to file such a motion. Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). The 1–year time limitation for bringing a motion may be extended by the district court “only to prevent a manifest injustice.” K.S.A. 60–1507(f)(2).
“[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.” Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
Because Strong's convictions occurred before the 2003 statutory amendment, he had until June 30, 2004, to submit his motion. Obviously, his April 2014 motion was untimely. Accordingly, Strong's motion may only be considered if he can show manifest injustice.
With respect to his rape conviction, Strong argues the district court erred when it did not extend the time limit to allow him to challenge his sentence on speedy trial grounds. Specifically, he asserts his counsel was ineffective for not raising the speedy trial issue on his direct appeal to the Kansas Supreme Court. This, Strong asserts, amounts to a showing of manifest injustice because his argument raises a substantial issue of law. The State counters that, under the totality of the circumstances, Strong has failed to establish manifest injustice. We agree with the State.
First, Strong makes no argument as to why an extension of the 1–year time limit will serve to prevent a manifest injustice aside from allowing him to argue the merits of his claim. Strong has been aware of the possible ineffective performance of his attorney for 30 years without acting to correct it. Strong raises no substantial issues of law or fact, and Strong makes no claim of actual innocence.
Second, with respect to his speedy trial claim as it relates to his rape conviction, Strong abandoned this argument when he did not include it in his direct appeal, and he cannot now assert it in a collateral challenge. See State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000) (“[T]he judgment of the reviewing court [on direct appeal] is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.”). Moreover, Strong has not presented a colorable speedy trial claim because the record does not contain the requisite facts to decide the issue. For example, Strong's speedy trial motion filed before the district court and other documents relating to the direct appeal of his rape conviction are not included in the record.
Third, with regard to his speedy trial claim as it relates to his attempted aggravated burglary charge, we agree with the district court that Strong is barred by the doctrine of res judicata. The elements of res judicata are: “(1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits.” Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 660–61, 722 P.2d 569 (1986). In this context, res judicata bars defendants from relitigating in a collateral proceeding those issues that were previously litigated on direct appeal. See Johnson, 269 Kan. at 601–02. Because Strong raised the speedy trial issue on his attempted aggravated burglary appeal and received an adverse ruling on the merits, he is not permitted to relitigate this issue through a collateral attack.
Affirmed.