Opinion
No. 106,556.
2012-07-6
Larry E. SWAGGERTY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wilson District Court; Daniel D. Creitz, Judge. Bret A. Heim, of Immel, Works & Heim, P.A., of Iola, for appellant. Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wilson District Court; Daniel D. Creitz, Judge.
Bret A. Heim, of Immel, Works & Heim, P.A., of Iola, for appellant. Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Larry E. Swaggerty appeals the district court's summary dismissal of his third K.S.A. 60–1507 motion as successive, untimely, moot, and barred by the doctrine of laches. We agree that Swaggerty's motion was not filed within the 1–year statutory deadline of K.S.A. 60–1507(f), and Swaggerty has not asserted any circumstances to suggest that addressing the merits of his untimely claims is required to prevent a manifest injustice. Thus, we affirm on that basis alone.
Factual and Procedural History
A brief chronology is important to our review.
In 1979, a jury convicted Swaggerty of rape and kidnapping, and he was sentenced to consecutive sentences of 45 years to life on each count. Our Supreme Court ultimately dismissed his direct appeal.
Since then, Swaggerty has filed three separate petitions for habeas relief under K.S.A. 60–1507. His third 60–1507 motion is now before us, but before getting to it, a brief review of how his first two 60–1507 motions were resolved is in order.
In his first pro se 60–1507 motion filed in 1986, Swaggerty raised numerous allegations, but his appointed counsel was unable corroborate all but one claim: that Swaggerty's trial counsel was ineffective for failing to present certain evidence at trial that tended to call into doubt the forensic physical evidence, or lack thereof. In November 1988, the district court conducted an evidentiary hearing on that claim and denied it upon finding Swaggerty could not establish prejudice.
In 1996, Swaggerty attempted to file a late appeal from the denial of his first 60–1507 motion, alleging in support that he had experienced severe mental problems that prevented him from appealing sooner. This court dismissed that appeal as untimely after Swaggerty's appointed appellate counsel failed to respond to a show-cause order related to the late notice of appeal. Additional attempts to reinstate that appeal due to appellate counsel's inadvertence were denied by both this court and the Kansas Supreme Court.
In September 2000, Swaggerty filed his second 60–1507 motion. This time Swaggerty sought habeas relief on two grounds: (1) ineffective assistance of his appellate counsel in failing to respond to this court's show-cause order in his late appeal from the denial of his first 60–1507 motion; and (2) an error in Instruction No. 14 given at his trial that recent caselaw demonstrated had improperly shifted to Swaggerty the burden of proving his lack of intent on the kidnapping charge. The district court denied that motion after a hearing in December 2001, and Swaggerty's appeal from that decision to this court was unsuccessful. See Swaggerty v. State, No. 88,569, unpublished opinion filed May 9, 2003.
On April 11, 2007, Swaggerty filed his third 60–1507 motion now at issue in this appeal. This time, he sought habeas relief on eight separate grounds. The first six grounds were the same or similar to claims raised in his previous 60–1507 motions. In the remaining two claims, Swaggerty alleged that the separate counsel appointed to represent him in each of his previous 60–1507 proceedings was also ineffective. The State responded by moving to dismiss Swaggerty's motion on procedural grounds. Swaggerty's counsel submitted written responses to the State's contentions.
The district court subsequently entered judgment granting the State's motion to dismiss Swaggerty's third 60–1507 petition as successive, untimely, moot, and barred by the doctrine of laches. Swaggerty timely appeals.
Analysis
In this appeal, Swaggerty argues the district court erred in summarily denying his third 60–1507 motion without an evidentiary hearing.
When the district court summarily dismisses a K.S.A. 60–1507 motion, we conduct de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. See Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Importantly, Swaggerty does not dispute the district court's conclusion that all of his claims raised in his third 60–1507 motion were untimely. See K.S.A. 60–1507(f). Rather, in challenging the dismissal of his motion as untimely on appeal, Swaggerty insists that the only way the district court could accurately determine whether to extend the 1–year deadline to prevent manifest injustice was to conduct an evidentiary hearing so Swaggerty could testify about the “unique facts, circumstances and consequences of his case .”
Another panel of this court rejected this same argument that an evidentiary hearing was required to demonstrate manifest injustice in Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122,rev. denied 287 Kan. 769 (2008). In support, Toney reasoned that an appellate court “would have to remand for an evidentiary hearing every time the trial court dismisses a K.S.A. 60–1507 motion as untimely. This cannot be done as it would render the 1–year time limitation under K.S.A. 60–1507(f)(l) essentially meaningless.” 39 Kan.App.2d at 947.Toney further held that the movant failed to allege on appeal any circumstances that prevented him from filing his motion before the expiration of the 1–year time period that would demonstrate manifest injustice. 39 Kan.App.2d at 947.
The circumstances in Toney are present here, so we have no problem affirming the district court's dismissal of Swaggerty's motion as untimely. Except to refer generally to “unique facts, circumstances and consequence of his case” that apparently only he can testify to, Swaggerty offers neither a reason for his delayed filing nor a potentially valid claim to establish manifest injustice. For this reason alone, we affirm the district court's dismissal of Swaggerty's third 60–1507 motion as untimely and do not address the district court's alternative bases for dismissal.
Affirmed.