Opinion
No. 108,721.
2013-09-6
Carl D. LEEPER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; Ernest L. Johnson, Judge. John M. Simpson, of Kansas City, Missouri, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Ernest L. Johnson, Judge.
John M. Simpson, of Kansas City, Missouri, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McAnany and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Carl Leeper appeals the district court's summary denial of his second motion under K.S.A. 60–1507 (60–1507 motion). Leeper challenges his 2004 jury conviction of aggravated robbery, for which he is serving a 221–month prison sentence, based primarily on allegations of ineffective assistance of counsel. But Leeper has already received an evidentiary hearing on a prior 60–1507 motion in which he alleged that his trial counsel was ineffective on the same or substantively similar grounds. The prior motion was denied, and this court affirmed. The district court summarily dismissed his current motion strictly on procedural grounds, i.e., because it was both untimely and an impermissible successive attack on his conviction. We agree and affirm the district court.
Factual and Procedural History
Leeper is currently serving a 221–month prison sentence imposed after a jury convicted him of the January 2003 aggravated robbery of Priscilla's, an adult novelty store in Kansas City, Kansas.
This is the third instance in which Leeper's case has come before this court following his conviction. The first two times—in his direct appeal and his appeal from the denial of his first 60–1507 motion following an evidentiary hearing—Leeper's various arguments have centered around two key pieces of evidence:
(1) It was learned for the first time during Leeper's trial that Kim First, the store clerk at Pricilla's, initially identified another man in a photo lineup performed the day after the robbery. It was not until another lineup conducted several months later that First identified Leeper. This was contrary to First's testimony that she was certain she had consistently identified Leeper as the robber.
(2) Leeper's cousin, Pat Brake, Jr., was convicted for the same robbery of Priscilla's prior to Leeper's trial. During his own trial and in a later affidavit filed in connection with these proceedings, Brake insisted Leeper was not involved, even though he had given a statement to police that Leeper was his accomplice. But Brake refused to testify during Leeper's trial, instead asserting his privilege against self-incrimination under the Fifth Amendment to the United States Constitution, despite being found in contempt of court.
See State v. Leeper, No. 93,599, 2006 WL 1520536 (Kan.App.) (unpublished opinion) ( Leeper I ), rev. denied 282 Kan. 794 (2006) (direct appeal); Leeper v. State, No. 101,477, 2010 WL 3488666 (Kan.App.) (unpublished opinion) ( Leeper II ), rev. denied 291 Kan. 911 (2010) (appeal from denial of first 60–1507 motion). Because the facts are adequately set out in those opinions, we will not repeat them here.
This appeal concerns the district court's summary dismissal of Leeper's second 60–1507 motion.
After Leeper lost his appeal from the denial of his first 60–1507 motion, he filed his second 60–1507 motion, which is the subject of this appeal. In that motion, Leeper raised four grounds for habeas relief, all of which were again tied to the two key evidentiary issues summarized above. First, Leeper argued the photo lineup in which First identified Leeper as the robber was highly suggestive. Second, Leeper contended his trial counsel was ineffective for failing to further discover, further investigate, and personally introduce evidence at Leeper's preliminary hearing and trial concerning both the suggestive nature of the photo lineup and First's initial identification of another person as the robber. Third, Leeper argued his trial counsel was ineffective for failing to secure Brake's exculpatory testimony and his explanation that he initially implicated Leeper only under threat and police coercion. Fourth, Leeper maintained that the State had improperly failed to make the videotape of the robbery available to his counsel and alleged it could have been exculpatory—a claim grounded on due process concerns commonly referred to as a Brady violation. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The case is now before this court again on Leeper's appeal from the district court's summary denial of Leeper's second 60–1507 motion. The district court found the motion was procedurally barred because it was both successive and untimely. In support, the district court detailed in a very thorough written judgment how the contentions raised in Leeper's current motion were either the same or substantially similar to arguments Leeper raised in the prior proceedings.
Analysis
Our standard of review is de novo.
When, as here, a district court summarily dismisses a 60–1507 motion without a hearing, this court conducts the same inquiry into the motion, files, and records of the case as the district court did, without any deference. If, indeed, they conclusively show that Leeper is not entitled to any relief on his second 60–1507, then this court will affirm. If not, then this court will reverse and remand. See Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
This court and the district court are free to review the prior decisions entered in Leeper's case.
One of Leeper's key arguments on appeal concerns the district court's authority to consider the records and files involved in Leeper I and Leeper II in deciding whether a hearing was required on the 60–1507 motion at issue here. Before discussing the specifics of his arguments, we pause to consider the governing law.
K.S.A. 60–1507(b) and Supreme Court Rule 183 (2012 Kan. Ct. R. Annot. 274) specifically address the necessity of a hearing on a 60–1507 motion. The statute provides that a court must conduct a hearing and make findings and fact and conclusions of law on the issues raised “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” (Emphasis added.) K.S.A. 60–1507(b). The rule similarly provides that a hearing is required “[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.” (Emphasis added.) Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 275).
According to Leeper, “ the case ” referred to in both the rule and the statute refers only to the 60–1507 motion immediately before the court. Thus, Leeper contends the district court erroneously looked to the underlying files and records of Leeper I and Leeper II to conclude that his motion was successive. Leeper notes the court can ultimately consider the files and records of those other proceedings, but only after appointing counsel and conducting an evidentiary hearing.
We find no merit in Leeper's interpretation of the statute and the rule. A 60–1507 proceeding is a collateral proceeding in the petitioner's case. The term “case” necessarily applies to everything related to the petitioner's conviction, sentence, direct appeal, and related collateral proceedings. And even if Leeper's interpretation were correct, Leeper cited to the records of the previous proceedings in his motion as support for his factual contentions supporting his grounds for relief, effectively inviting the court to look to them. “A party may not invite error and then complain of that error on appeal. [Citation omitted.]” Butler County R. W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003).
Moreover, Leeper raises this challenge to the scope of the record for the first time on appeal. As a general rule, issues not raised before the trial court may not be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). Several caselaw exceptions have been recognized that allow an appellate court to consider a new legal theory on appeal. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied555 U.S. 1178 (2009). However, Leeper does not brief whether an exception applies, and an issue not briefed by the appellant is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
So we turn to the merits of Leeper's challenge to the district court's decision.
Leeper's motion was untimely.
Any action brought under K.S.A. 60–1507 must be brought within 1 year of the conclusion of the direct appeal. K.S.A. 60–1507(f)(1). In this case, the Kansas Supreme Court denied review of Leeper's direct appeal on November 8, 2006. So clearly the filing of the current K.S.A. 60–1507 motion on May 26, 2011, was out of time. Leeper complains this issue was improperly raised sua sponte by the district court. However, Leeper stipulated that his motion was out of time by filing a separate motion with his 60–1507 motion, titled in part: “Motion for Permission to File Second K.S.A. 60–1507 Out of Time.” This motion clearly stated that his direct appeal was concluded in November 2006, so this was not something that the district court raised sua sponte. Rather, Leeper conceded that his current motion was out of time.
The 1–year time limit for filing 60–1507 motions can only be extended upon a showing of manifest injustice. K.S.A. 60–1507(f)(2). Manifest injustice under K.S.A. 60–1507(f)(2) has been interpreted to mean “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ See, e.g., Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). Furthermore, this court has indicated that to show manifest injustice, the movant must demonstrate “circumstances that prevented him from asserting his claim before the 1–year time limitation had expired.” Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122,rev. denied 287 Kan. 769 (2008). Even if we were to find this definition too restrictive, as outlined in Judge Leben's concurring opinion in Vontress v. State, 45 Kan.App.2d 430, 433–34, 249 P.3d 452 (2011), petition for rev. granted 292 Kan. 969 (2011), it is still the movant's burden to establish manifest injustice by a preponderance of the evidence. See Supreme Court Rule 183(g).
On appeal, Leeper does not specifically allege what he believes to be the manifest injustice that would justify our consideration of his untimely filing; he merely argues that the district court was required to allow him an evidentiary hearing to determine if there was manifest injustice. Another panel of this court rejected this same argument— i.e., that an evidentiary hearing is required to allow a movant a chance to demonstrate manifest injustice—in Toney, 39 Kan.App.2d at 947. In support, Toney reasoned that if this were the rule, 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)(1) essentially meaningless.” 39 Kan.App.2d at 947.
As the district court aptly pointed out and as we also conclude after a thorough review of the record in this case, Leeper does not argue anything of substance in this second 60–1507 motion that he did not also argue in his direct appeal and his first 60–1507 motion. There is no new evidence to consider. He has already raised issues regarding Brake's refusal to testify, First's conflicting identifications, suggestive lineups, and the failure to disclose the videotape. Leeper's first 60–1507 motion resulted in a full evidentiary hearing. A panel of this court specifically found Leeper's attorney was not ineffective for allegedly mishandling First's misidentification and failing to secure Brake's testimony. Leeper II, 2010 WL 3488666, at *7. Accordingly, Leeper has failed to show manifest injustice as necessary for us to disregard the fact that the current 60–1507 motion is untimely. No evidentiary hearing is needed to confirm these findings.
Although we can affirm the denial of Leeper's 60–1507 motion on these grounds alone, we will, nonetheless, discuss the merits of the other procedural bar, the successiveness of Leeper's motion.
Leeper's motion was successive.
There is also no dispute that this is Leeper's second, successive 60–1507 motion.
Under K.S.A. 60–1507(c), a court “shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 275) further directs in this regard:
“A sentencing court may not consider a second or successive motion for relief by the same movant 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.”
Notably, “ ‘[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 [a showing of] circumstances justifying the original failure to list a ground.’ “ State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (quoting Walker v. State, 216 Kan. 1, Syl. ¶ 2, 530 P.2d 1235 [1975] ).
Leeper merely cites to the standard he must meet to overcome this procedural bar, i.e., the merits of the grounds for relief in his successive motion must be addressed to serve the “ends of justice,” without any further elaboration. We find Leeper's failure to further develop this argument is akin to a failure to brief it. See Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012) (noting that point raised incidentally in brief and not argued therein is deemed abandoned).
Moreover, as already noted in the discussion of timeliness, Leeper does not argue anything of substance in this second 60–1507 motion that he did not also argue in his prior 60–1507 motion, which was decided on the merits adversely to him. We fail to see, nor does Leeper inform us, how justice would be served by reviewing these same issues again.
The district court was not required to appoint counsel to represent Leeper on his second 60–1507 motion.
This leaves us with one last consideration: Leeper's argument that he should have been provided court-appointed counsel because his second 60–1507 motion “presented questions and issues regarding timeliness, successive motions, and the substance of the four grounds he raised in his motion.” Although there is no constitutional right to counsel in a 60–1507 proceeding, the Kansas Legislature has provided a statutory right if the motion presents “substantial questions of law or triable issues of fact.” K.S.A. 22–4506(b). Because we have found that the court was correct in summarily denying his motion on the procedural bases of untimeliness and successiveness, appointment of counsel was not required by the statute. Leeper has not presented any substantial questions of law or triable issues of fact to justify appointment of counsel.
Accordingly, we affirm the district court.