Opinion
No. 111091.
2015-03-13
Tyron JAMES, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; Michael Grosko, Judge.Tryon James, appellant pro se.Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Michael Grosko, Judge.
Tryon James, appellant pro se. Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Tyron James appeals the summary denial of his second motion for habeas relief under K.S.A. 60–1507. We affirm.
Factual and Procedural Background
A thorough chronological background is necessary to provide context for the complaints James raises in his pro se brief now before this court.
The underlying criminal case
In April 2003, the district court sentenced James to concurrent hard 50 life sentences upon his convictions by a jury of two counts of first-degree premeditated murder. The underlying facts of those convictions need not be fully recounted for purposes of this appeal. Highly summarized, the jury found that James shot two men, one of who was scheduled to testify the next day for the State in a murder trial against James' cousin. The jury apparently did not believe James' testimony that a fourth, unknown man was responsible for the shootings. Additional details can be found in our Supreme Court's opinion that affirmed James' convictions and sentences on direct appeal. State v. James, 279 Kan. 354, 109 P.3d 1171 (2005) ( James I ).
James' first K.S.A. 60–1507 motion
In August 2006, James' first motion for postconviction relief under K.S.A. 60–1507 was filed in the district court. While not the subject of this appeal, that first K.S.A. 60–1507 motion is necessarily discussed in detail here to provide context for review of the denial of James' second K.S.A. 60–1507 motion that is now at issue.
James generally alleged in his pro se motion that both his trial and appellate counsel were ineffective. He also lodged complaints against Rosie Quinn, the attorney he had retained to pursue relief under K.S.A. 60–1507. The district court addressed those complaints with James in chambers at some point, and James chose to have Quinn continue to represent him.
In September 2007, Quinn filed an amended K.S.A. 60–1507 motion on James' behalf. Considerable delays ensued. This was likely due in part to the fact that in June 2009, Quinn's law office burned down with James' court file inside. Regardless of the reasons for the delay, in October 2009, the district court removed Quinn and appointed Jeffrey Leiker to represent James in the proceedings on his amended K.S.A. 60–1507 motion. Leiker then set out to reconstruct James' destroyed court file. Fortunately, Leiker was able to reconstruct most of the underlying court file, including the trial transcripts. However, he was only able to reconstruct a partial transcript of the preliminary hearing because the district court inadvertently failed to record a portion of that hearing.
In March 2010, the district court conducted an evidentiary hearing on James' amended K.S.A. 60–1507 motion. Notably, at the outset of the hearing, James personally confirmed with the district court that he agreed with Leiker's conclusion that a continuance of the hearing was not necessary to “get anything else for the file” or to secure the appearance of Quinn who had been subpoenaed but failed to appear. After taking judicial notice of the recreated court file, the district court heard testimony from James, his trial counsel, and his direct-appeal counsel. James testified his specific complaints were as follows: (1) He never received a complete preliminary hearing transcript in response to his discovery requests; (2) the jury was not a fair cross section of his community and his peers; (3) trial counsel failed to object when an eyewitness referred to James as the killer; (4) trial counsel did nothing when James informed him that a juror fell asleep for “about 20 minutes”; (5) trial counsel did not object or move for a mistrial when one of the victim's mother exclaimed that James “ ‘killed [her] baby’ “ as she jumped up and ran out of the courtroom while gruesome photographs of the victims were being shown to the jury; (6) the prosecutor committed misconduct, particularly by stating in closing that James testified untruthfully; (7) trial counsel failed to secure testimony from necessary expert and lay witnesses to support James' defense that “the whole incident was to kill [James] to send [Nathaniel Hill, another witness who was scheduled to testify against James' cousin the next day,] a message not to testify”; and (8) Quinn failed to timely file James' K.S.A. 60–1507 motion as he had retained her to do, forcing him to hastily file his pro se motion to avoid it being time-barred.
On July 21, 2010, the district court entered judgment denying James' first K.S.A. 60–1507 motion on its merits. James timely appealed to this court. While that appeal was pending in this court, James tried unsuccessfully on several occasions to file his own brief because he did not feel his K.S.A. 60–1507 appellate counsel had raised “all issues needed to be raised.”
On August 20, 2013, the mandate was issued for this court's unpublished opinion affirming the denial of James' first K.S.A. 60–1507 motion. James v. State, No. 105,984, 2013 WL 517625, at *2 (Kan.App.), rev. denied 291 Kan. 1246 (2013) ( James II ).
James' second K.S.A. 60–1507 motion
On September 26, 2013, James filed his second K.S.A. 60–1507 motion that is the subject of this appeal. In that motion and an extensive memorandum in support, James raised many of the same allegations he raised in his first K.S.A. 60–1507 motion, focusing in particular on alleged trial errors. James also alleged his K.S.A. 60–1507 appellate counsel (Lubow) was ineffective for failing to challenge his direct-appeal counsel's testimony that he reviewed the preliminary hearing transcript, which he obviously could not have done since that transcript was incomplete, and his trial counsel's ineffectiveness for failing to object to various other instances of prosecutorial misconduct. The State urged the district court to summarily reject the allegations as successive and untimely or to find the record conclusively refuted James' claim.
On November 6, 2013, the district court entered its judgment summarily denying James' second K.S.A. 60–1507 motion for three alternative reasons. First, the district court found the motion was successive and, therefore, an abuse of remedy. Second, the district court found the motion was untimely. Third, the district court summarily ruled that the record conclusively refuted James' allegations. James timely appealed from that decision.
Analysis
James states in his pro se brief that he “is seeking relief from this court based on three trial errors: (1) various instances of prosecutorial misconduct, including “misstating the law of premeditation, misstating the facts of the case, and stating that [James] concoct[ed] his story of defense”; (2) the trial court's failure to ask the jury in open court if it agreed with the verdict read as required by K.S.A. 22–3421; and (3) cumulative trial errors. James also repeats his contention that Lubow was ineffective for failing to adequately raise these issues and other alleged trial errors in the appeal from the denial of his first K.S.A. 60–1507 motion despite James' insistence that he do so.
James has divided his pro se brief into six separate issues, some of which are difficult to follow at times or are wholly unsupported by the record. For example, in his first issue, James argues the district court abused its discretion in “ruling on the hard 50 issue not raised in [his] motion” but “was reserved by [James'] direct appeal counsel.” The State responds that James is inappropriately challenging the propriety of his hard 50 sentences for the first time on appeal. On the contrary, James seems to believe the district court improperly entered judgment affecting his sentences. But the judgment now before this court in no way disturbs James' hard 50 sentences. Even if it did, original jurisdiction over that issue would lie with the Kansas Supreme Court. See K.S.A.2014 Supp. 22–3601(b)(4) (granting Kansas Supreme Court exclusive, original jurisdiction over review of sentences imposed upon conviction of off-grid crimes such as first-degree premeditated murder). James also contends in his first issue that the district court incorrectly stated his direct appeal was affirmed in 2001, which could not be right since he was not even charged until 2002. Again, no such finding appears in the district court's judgment now before this court on review.
It seems the most reasoned approach to conducting de novo review of the district court's judgment is to address the three alternative bases underlying the district court's judgment, incorporating James' arguments where pertinent to the issues.
Standard of Review
When the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. If they do not, then remand for an evidentiary hearing is required. See K.S.A. 60–1507(b) (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the district court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”); Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). Should James' K.S.A. 60–1507 Motion be Summarily Dismissed as Successive?
We begin with resolving the parties' dispute over the propriety of the district court's finding that the successive nature of James' K.S.A. 60–1507 motion procedurally barred consideration of its merits.
The law governing successive K.S.A. 60–1507 motions
A district court is not required “to entertain a second or successive 60–1507 motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c); State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). This includes circumstances where “(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.” Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 285). Additionally, a K.S.A. 60–1507 motion ordinarily cannot be used as a substitute for a second appeal involving mere trial errors. Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 286) (“Mere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal.”); see State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (noting “general rule” that defendant must raise all available issues on direct appeal). In short, a district court can dismiss a successive motion as an abuse of remedy if there is no showing of exceptional circumstances. Kelly, 291 Kan. at 872; see also Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977) (citing Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 [1924]; WongDoo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 [1924], in recognizing successive motions for habeas relief under K.S.A. 60–1507 can properly be dismissed as abuse of remedy).
Our courts have held exceptional circumstances justifying consideration of a successive K.S.A. 60–1507 motion include “unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first postconviction proceeding.” Kelly, 291 Kan. 868, Syl. ¶ 2; see also Walker v. State, 216 Kan. 1, Syl. ¶ 2, 530 P.2d 1235 (1975) (recognizing that a movant “in a 60–1507 motion is presumed to have listed all grounds for relief and a subsequent motion need not be considered in the absence of circumstances justifying the original failure to list a ground”). In other words, K.S.A. 60–1507(c) bars claims that were actually raised and claims that could have been raised in a prior motion. State v. Martin, 294 Kan. 638, 640–41, 279 P.3d 704 (2012), cert. denied 134 S.Ct. 114 (2013); Dunlap, 221 Kan. at 269–70.
James alleges the burning of Quinn's law office with his court file inside constituted exceptional circumstances that justify consideration of all allegations raised in his successive K.S.A. 60–1507 motion. In support, James contends the burning of Quinn's office precluded him “from reviewing all the transcripts to familiarize himself with the appropriate issues” before he filed his first K.S.A. 60–1507 motion. The record refutes James' exceptional-circumstances argument on several grounds.
First, and probably foremost, a close review of the timing of pertinent events conclusively refutes any causal connection between the fire in Quinn's office and James' ability (or lack thereof) to raise issues in his first K.S.A. 60–1507 motion. James alleged in his second K.S.A. 60–1507 motion that Quinn's office building burned within the time frame between when he retained her and when the deadline arrived for his first K.S.A. 60–1507 motion, i.e., between March and July 2006. On the contrary, Quinn's office did not burn down until June 2009 which was long after Quinn had filed an amended motion in September 2007. Accordingly, this court holds the burning of Quinn's office could not have reasonably prevented James from raising “appropriate issues” in his first K.S.A. 60–1507 motion.
Second, James' own actions during the proceedings on his first K.S.A. 60–1507 motion were contrary to his suggestion that he could not have raised the issues he raises now. For example, as noted above, at the opening of the evidentiary hearing on his first K.S.A. 60–1507 motion, Leiker explained to the district court the lengths he had gone through to reconstruct the district court file. James then personally declined as unnecessary the opportunity to explore any further additions to the court file, except for the incomplete preliminary hearing transcript which, as noted above, Leiker later learned could never be completed because the missing portion was inadvertently not recorded. It is certainly not difficult to sympathize with a client whose attorney's office burns to the ground with an entire court file inside: Fortunately, however, with microfiche and other modern technologies, court files can be recreated. Where they cannot, our rules provide for other means of establishing the substance of what is missing. See, e.g., Supreme Court Rule 3.04 (2014 Kan. Ct. R. Annot. 24) (discussing what can be done to reconstruct content of missing transcripts and exhibits). As pointed out by the State, Leiker successfully reconstructed all of James' court file that he possibly could before the district court ruled on James' first K.S.A. 60–1507 motion. James had the opportunity to personally explain what issues he thought entitled him to relief during his testimony at the evidentiary hearing on his first motion.
Third, James seems to believe exceptional circumstances exist to require consideration of the merits of his successive K.S.A. 60–1507 motion because he allegedly did not personally get a copy of his trial transcripts until he filed his successive K.S.A. 60–1507 motion. That is not what the law requires. Indeed, an indigent criminal defendant has a right to free transcripts of the proceedings against him if necessary for purposes of appeal “or to pursue another post-conviction remedy.” K.S.A. 22–4509. Our Supreme Court has held that right is satisfied when a copy of the transcript is provided to the indigent defendant's counsel. State v. McCloud, 257 Kan. 1, 17–18, 891 P.2d 324, cert denied 516 U .S. 837 (1995). We can tell from the record on appeal that all available trial transcripts were provided to James' court-appointed counsel for his direct appeal. Likewise, Leiker, who was appointed to represent James on his first K.S.A. 60–1507 motion after Quinn was removed, had all available transcripts.
In sum, James has not adequately alleged, let alone shown how he was denied the opportunity to explain what other “appropriate issues” he might have raised in the proceedings on his first K.S.A. 60–1507 motion because of his court file being burned in Quinn's office in 2009. James expressly declined the opportunity to seek any further information for his file more than 1 year after his court file was lost in the fire. Thus, the record conclusively disputes James' contention that the burning of Quinn's law office precluded him “from reviewing all the transcripts to familiarize himself with the appropriate issues” before his filed his first K.S .A. 60–1507 motion (as amended by Quinn).
James also complains that his first K.S.A. 60–1507 counsel's failure to raise the issues the way James wanted them to be raised constitutes an exceptional circumstance that prevented him from raising all of his trial error issues in the proceedings on his first K.S.A. 60–1507 motion. Consequently, James complains that the issues he raises here have never been considered on their merits.
We disagree and find there have been no unusual events or changes in the law that prevented James from raising these issues of trial error on direct appeal or during his first K.S.A. 60–1507 motion. See Dunlap, 221 Kan. at 269–70. Notably, even if James' first K.S.A. 60–1507 appellate counsel had raised these issues of trial error as James says he requested, they would have been subject to summary dismissal because there was nothing that prevented these issues from being presented on direct appeal, where regular trial errors are to be raised. See Kelly, 291 Kan. at 872. Therefore, all of the issues of trial error that James raises here have either been previously rejected by this court or could have been brought on direct appeal or in James' first K.S.A. 60–1507 motion.
Accordingly, this court holds that the district court did not err in dismissing James' motion as successive.
Should James' K.S.A. 60–1507 Motion be Summarily Dismissed as Untimely?
At issue here is our legislature's establishment of a 1–year deadline for the filing of a motion for relief under K.S.A. 60–1507. Specifically, our legislature directs in K.S.A. 60–1507(f):
“(1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition.
“(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.”
See Votaress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014) (Holding K.S.A. 60–1507(f) is “the legislature's complete expression of the relevant timeliness requirements for 60–1507 motions. So the 1–year time limitation and the exception for manifest injustice found in K.S.A. 60–1507(f) are the only relevant timeliness rules applicable to 60–1507 motions.”).
The motion at issue in this appeal clearly falls outside this statutory 1–year deadline. The Kansas Supreme Court affirmed James' conviction in his direct appeal on April 22, 2005. James I, 279 Kan. 354. James filed this K.S.A. 60–1507 motion on September 26, 2013. An appellate court can extend that deadline only to prevent a manifest injustice. K.S.A. 60–1507(f)(2).
Our courts have interpreted “manifest injustice” as used in K.S .A. 60–1507(f)(2) to mean “ “ ‘obviously unfair’ “ “ or “ “ ‘shocking to the conscience.’ “ “ State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (quoting Kelly, 291 Kan. at 873 [quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007) ] ). In Vontress, 299 Kan. at 608, 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.” Vontress also clarified the standard courts must 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 that extension of the 1–year time limit under K.S.A. 60–1507(f) is not necessary to prevent a manifest injustice. The only circumstances James cites as preventing him from raising the issues he raises in his second K.S.A. 60–1507 motion within the 1–year deadline is the burning of Quinn's law office. That fire occurred 3 years after James filed his first K.S.A. 60–1507 motion, more than 4 years before he filed the second K.S.A. 60–1507 motion at issue here, and more than 3 years after all parts of the district court file that could be reconstructed had been. As for the merits of James' substantive claims, as summarized above, his main complaints here involve alleged trial errors, which he argues his first K.S.A. 60–1507 appellate counsel was ineffective for not raising on appeal from the denial of his first K.S.A. 60–1507 motion. Again, those issues would have been subject to dismissal as successive. Finally, James' claim of actual innocence is not colorable. He persists in his contention that a fourth unknown person was responsible for the killings. As this court pointed out in James II, however, James was never able to identify that fourth person, precluding his counsel from further exploring that defense beyond how it was presented at trial. In his brief on appeal, James points to trial testimony offered by one of the investigators (Peters) about how one of the eyewitnesses (Como) described the appearance of the person he saw leaving the scene of the crime. James clearly believes that because Como's description of the man's clothing varied from his description at trial of what James was wearing, Como saw the fourth person that James testified was responsible for the shooting. His counsel's failure to further explore this fact prejudiced his right to a fair trial. A close review of Peters' and Como's trial testimony does not support James' argument. Regardless of what Como may have told Peters during his investigation, in his trial testimony Como never wavered from his position that the only man he saw leaving the scene of the shootings was James. Any discrepancies between Como's trial testimony and what he told Peters were matters to be weighed by the jury; they do not conclusively establish James' innocence.
In sum, under the totality of the circumstances, it cannot be said that manifest injustice would result if the 1–year statutory deadline for the filing of a K.S.A. 60–1507 motion is not extended to allow consideration of the merits of James' second K.S.A. 60–1507 motion. Accordingly, this court upholds the summary dismissal of James' second K.S.A. 60–1507 motion as untimely.
Do the Motion, Files, and Record Conclusively Refute James' Allegation Concerning the Ineffectiveness of his K.S.A. 60–1507 Appellate Counsel?
Each of the above procedural bars is independently sufficient for this court to affirm the district court's decision summarily denying James' second K.S.A. 60–1507 motion. Even if James' challenge to the ineffectiveness of his K.S.A. 60–1507 appellate counsel were to be considered on its merits, he is not entitled to relief.
Once the statutory right to counsel attaches in a K.S.A. 60–1507 proceeding, a movant is entitled to receive effective assistance of counsel. See Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009). To be entitled to relief on a claim of ineffective assistance of counsel appointed under K.S.A. 60–1507, a movant must establish that appointed counsel's performance was deficient and that the movant was legally prejudiced by appointed counsel's performance, i.e., the K.S.A. 60–1507 motion presented substantial legal issues or triable issues of fact that were not further explored due to appointed counsel's deficient performance. See Robertson, 288 Kan. at 232.
Both K.S.A. 60–1507(b) and Supreme Court Rule 183(f) (2014 Kan. Ct. R. Annot. 287) require an evidentiary hearing on a K.S.A. 60–1507 motion “[u]nless the motion to vacate, set aside, or correct a sentence and the files and records of the case in the sentencing court conclusively show that the movant is entitled to no relief.” So the question is: Do the motion, files, and records of the case conclusively show that James is not entitled to relief on his claim that his K.S.A. 60–1507 appellate counsel was ineffective?
This court holds that the files and records of the case conclusively show that James is not entitled to an evidentiary hearing on his allegations concerning Lubow's ineffectiveness. As support for James' allegation that Lubow was ineffective in representing James in the appeal on his first K.S.A. 60–150 motion, James cites to a letter that he allegedly wrote Lubow concerning the issues James wanted raised in the appeal. That letter was apparently accompanied by a “rush rough draft Brief on the issues” prepared by James, which does not appear in the record on appeal. James broadly complains that Lubow's response letter shows Lubow “did not have [James'] appeal in his best interest.”
Even if this court assumes for argument sake that James' draft of the brief included the issues of trial error that he raises in this appeal, those issues were procedurally barred for reasons already detailed at length above. Lubow's representation could not be deemed ineffective for failing to raise them. Moreover, even if Lubow had raised those issues and this court had reached their merits, James would not have been entitled to relief. He cannot establish the required prejudice. To demonstrate this later point, brief consideration of the merits of the issues is in order.
We begin with James' allegations of prosecutorial misconduct. Appellate review of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, an appellate court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. If the prosecutor's comments were outside this latitude, the appellate court must determine whether the comments constituted plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Applying these standards, this court can conclusively say Lubow was not ineffective for failing to further explore and raise these instances of prosecutorial misconduct.
Even if it was improper for the prosecutor to question James about why he would “concoct” his story of his defense, this court cannot say trial counsel's failure to object to that isolated statement prejudiced the jury against James and denied him a fair trial.
As for the prosecutor's arguments to the jury that the gun found at the scene and connected to the shootings belonged to James', that no one else saw the fourth person, and that James' possible motive was based on the victim's refusal to pay him, the prosecutor was free to draw these reasonable inferences from the evidence. See State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011) (discussing prosecutor's wide latitude in making reasonable inferences based on the evidence). When considered in the context of the entire closing argument and in conjunction with the instructions given at trial, this was not prosecutorial misconduct. See Burnett, 293 Kan. at 851. Lubow could not have been ineffective for failing to raise these arguments in James' appeal from the denial of his first K.S.A. 60–1507 motion.
The prosecutor did not offer a personal opinion on witness credibility. See State v. King, 288 Kan. 333, 353, 204 P.3d 585 (2009) (noting it is not improper for prosecutor to offer “comments during closing argument regarding the witness' motivations [or lack thereof] to be untruthful” as long as comments are based on evidence and reasonable inferences drawn from that evidence as opposed to the prosecutor's personal opinion).
Lastly, the prosecutor did not misstate the law on premeditation by referring to James' act of pulling the trigger twice for each person. The prosecutor was not suggesting James' premeditation could form instantly after the first shot as James contends here. See State v. Hall, 292 Kan. 841, 850–51, 257 P.3d 272 (2011). Rather, after discussing James' planning up to the point of the shooting, the prosecutor was pointing out that James made sure to follow through on that plan by shooting each victim twice in the head.
The only other trial error sufficiently briefed by James that he claims should have been raised in the appeal from the denial of his first K.S.A. 60–1507 motion involves the district court's failure to ask the jury in open court whether it agreed with the verdict read as required by K.S.A. 22–3421. In support of his argument, James cites State v. Gray, 45 Kan.App.2d 522, 249 P.3d 465, rev. denied 292 Kan. 967 (2011), overruled by State v. Cheffen, 297 Kan. 689, 303 P.3d 1261 (2013). In Gray, a panel of this court held that K.S.A. 22–3421 “requires that an inquiry be made to the jury regarding whether the verdict represents the jury's verdict [and] mandates reversal of the verdict when the trial court neglects to make [the required] inquiry to the jury.” 45 Kan.App.2d 522, Syl. ¶ 4. Our Supreme Court overruled this holding in Gray in Cheffen, 297 Kan. 689, Syl. ¶ 4. Following the holding in Cheffen, Lubow cannot be deemed ineffective for not raising this issue because it was not raised in the trial court-at the time the verdict was read or in a posttrial motion. The rights implicated by K.S.A. 22–3421 are not fundamental or constitutional. See Cheffen, 297 Kan. at 697–98; accord State v. Brown, 298 Kan. 1040, 1055, 318 P.3d 1005 (2014).
In sum, contrary to James' argument, the district court did not err in summarily dismissing James' motion without appointing counsel or conducting an evidentiary hearing. James has not shown exceptional circumstances that justify his failure to raise these allegations of trial error in previous proceedings. Nor does it appear under the totality of the circumstances that manifest injustice would result if the 1–year deadline in K.S.A. 60–1507(f)(1)(i) is not extended. Finally, this court finds that an evidentiary hearing was not required because the motion, files, and records conclusively show that James was not entitled to relief.
Affirmed.