Opinion
No. 108,713.
2013-11-8
Geno D. MULLINS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of 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; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of 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 ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Geno D. Mullins appeals the district court's summary dismissal of his K.S.A. 60–1507 motion as successive and untimely. For the reasons stated below, we affirm.
Facts
In 1996, Mullins was convicted of first-degree felony murder, aggravated burglary, and aggravated robbery. He was sentenced to life in prison plus 123 months. The Kansas Supreme Court affirmed Mullins' convictions for first-degree murder and aggravated robbery but reversed his conviction for aggravated burglary. State v. Mullins, No. 77,646, unpublished opinion filed December 11, 1998.
In November 2000, Mullins filed a K.S.A. 60–1507 motion alleging, in part, ineffective assistance of trial counsel. The district court dismissed Mullins' motion without holding an evidentiary hearing. On appeal, this court reversed the decision of the district court and remanded for an evidentiary hearing on Mullins' allegations concerning trial counsel's failure to notice an alibi defense and investigate potential witnesses. See Mullins v. State, No. 87,142, unpublished opinion filed May 10, 2002.
In January 2012, Mullins filed a second K.S.A. 60–1507 motion. In the motion, Mullins alleged: (1) The district court violated his due process rights by failing to instruct the jury on manslaughter and self-defense; (2) there was no evidence of conspiracy or aiding and abetting to support his aggravated robbery conviction; (3) he had been subject to selective prosecution based on race; and (4) ineffective assistance of trial counsel.
The district court summarily denied Mullins' motion as successive and untimely and further found that Mullins had failed to demonstrate exceptional circumstances or manifest injustice to warrant review.
Analysis
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 any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009). Successive
In a K.S.A. 60–1507 proceeding, the sentencing court is not required to “entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c); see Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 274). Because Mullins has filed at least one other K.S.A. 60–1507 motion, the district court found Mullins' current K.S.A. 60–1507 motion to be successive. Unless the movant has shown the existence of exceptional circumstances, the district court can dismiss a second or successive motion on the basis that it is an abuse of remedy. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Exceptional circumstances are unusual events or intervening changes in the law which prevented the movant from reasonably being able to raise all of the claimed errors in the first postconviction proceeding. 291 Kan. at 872.
Mullins argues there are exceptional circumstances here that warrant consideration of his successive motion. He bases his claim on our Supreme Court's decision in State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), alleging it is an intervening change in the law as it applies to his case. Mullins contends he could not have raised this issue before because Berry was not decided until 2011. Mullins concedes that he did not specifically cite Berry in his K.S.A. 60–1507 motion, but it appears he has preserved this issue because he did argue that he was entitled to lesser included instructions for the charge of felony murder. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010) (pro se pleadings are to be liberally construed to give effect to the content of the pleading).
In Berry, our Supreme Court determined that with respect to felony-murder cases, when there is some evidence to justify a conviction on a lesser included offense, a lesser included offense instruction should be given. 292 Kan. at 513–14. Because Mullins was convicted of felony murder and no lesser included instructions were given, he argues that the district court should have fully considered the application of Berry to his case by issuing specific findings of fact and conclusions of law. Accordingly, Mullins requests that this case be remanded to the district court for such findings.
Mullins recognizes that the statute governing lesser included offenses was amended to specify there are no lesser degrees of felony murder, presumably in response to Berry, but maintains that because Berry was still good law at the time he filed his K .S.A. 60–1507 motion, the district court should have considered it. See K.S.A.2012 Supp. 21–5109(b)(1); State v. Phillips, 295 Kan. 929, 934, 287 P.3d 245 (2012). Mullins suggests that our Supreme Court did not address whether Berry would be applied retroactively.
Contrary to Mullins' assertion, the Berry court specifically discussed whether its decision should be applied retroactively. The court ultimately held that as a new rule of criminal procedure, it applied only to those felony-murder cases pending on direct review or not yet final. 292 Kan. at 514. The Supreme Court stated that “[a] conviction is generally not final until: (1) the judgment of conviction is rendered; (2) the availability of an appeal is exhausted; and (3) the time for any rehearing or final review has passed.” 292 Kan. at 514; see also Hollingsworth v. State, No. 106,357, 2012 WL 718971, at *6–7 (Kan.App.2012) (unpublished opinion) ( Berry did not change “watershed” rule; therefore it was not retroactively applicable to collateral attacks), rev, denied 297 Kan. –––– (May 20, 2013).
Mullins' conviction has been rendered, his ability to file a direct appeal has been exhausted, and the time for any rehearing or final review has passed. Thus, Mullins' case is no longer pending and has been final for some time. Because Mullins' case was not pending when Berry was decided, the short-lived decision in Berry was not retroactively applicable to his case. Although not published, our court has reached this same conclusion in several other cases. See Sims v. State, No. 107,664, 2013 WL 1010577, at *2 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. –––– (August 19, 2013); Griffin v. State, No. 108,056, 2013 WL 646494, at *3 (Kan.App.2013) (unpublished opinion), rev. denied 291 Kan. –––– (August 19, 2013).
The district court properly found there were no exceptional circumstances to justify the consideration of Mullins' successive K.S.A. 60–1507 motion. Untimely
Mullins does not dispute that his motion was untimely filed. Instead, he argues that the district court should have extended the 1–year time limitation to prevent a manifest injustice under K.S.A. 60–1507(f)(2) (the 1–year time limitation for bringing an action under K.S.A. 60–1507[f][1] may be extended by the district court only to prevent a manifest injustice). “Manifest injustice” has been interpreted to mean “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g). Manifest injustice sufficient to extend the time limitations of K.S.A. 60–1507(f) is generally fact sensitive in part and must be raised in the motion itself or at least presented to the district court or it will not be considered on appeal. Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007).
In order to meet his burden, Mullins argued to the district court—and argues again on appeal—that it would be manifestly unjust to deny him the opportunity to prove he was deprived of his constitutional right to a fair trial. In other words, Mullins contends that the underlying substantive issue raised in his motion must be addressed in order to determine the preliminary procedural issue of timeliness. But a panel of our court rejected this argument in Vontress v. State, 45 Kan.App.2d 430, 432–33, 249 P.3d 452,rev. granted 292 Kan. 969 (2011).
In Vontress, the movant filed a K.S.A. 60–1507 motion alleging his conviction violated various constitutional rights. The district court held a nonevidentiary hearing and dismissed his motion as untimely. On appeal, Vontress argued that “the underlying substantive issues raised in his motion must be addressed in order to determine the preliminary procedural issue of timeliness.” 45 Kan.App.2d at 432. Under the facts presented in that particular case, however, the Vontress court ultimately concluded that depriving Vontress of the opportunity to prove that his conviction violated various constitutional rights—without more—was insufficient to establish manifest injustice under K.S.A. 60–1507(f)(2). In so concluding, the court relied on Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122,rev. denied 287 Kan. 769 (2008), which found no manifest injustice in similar circumstances when the prisoner had not shown “circumstances that prevented him from asserting his claim before the 1–year time limitation had expired.” Vontress, 45 Kan.App.2d at 432–33.
Judge Leben filed a concurring opinion in Vontress based primarily on the possibility of some ambiguity with regard to the definition of manifest injustice as set forth in the Toney decision, upon which the majority in Vontress relied. Specifically, Judge Leben stated:
“In my view, if Toney stands for the proposition that a prisoner must [identify the circumstances that prevented him or her from asserting his or her motion before the 1–year time limitation] as a precondition to consideration of a K.S.A. 60–1507 motion filed outside the 1–year time limit, that is too narrow a definition for manifest injustice. If a person can show actual innocence, for example, I would not leave him or her in prison even if that person failed for unexplained reasons to meet the 1–year time limit.” Vontress, 45 Kan.App.2d at 433 (Leben, J., concurring).
Although Judge Leben ultimately agreed with the majority's conclusion that Vontress failed to show manifest injustice, he did so based on the fact that Vontress failed to present a reason for his delayed filing and the substantive claim presented on appeal had no merit. 45 Kan.App.2d at 433–34.
After Vontress, the United States Supreme Court in McQuiggin v. Perkins, 569 U.S. ––––, 133 S.Ct. 1924, 1930–31, 185 L.Ed.2d 1019 (2013), resolved a conflict among the federal circuit Courts of Appeals on a different, but analogous, issue that we believe provides meaningful guidance on how to define manifest injustice in a manner that does not unreasonably constrain the scope of its definition.
In McQuiggin, the respondent was convicted of first-degree murder and sentenced to life in prison. His conviction became final in 1997. The federal habeas corpus statute gives a state prisoner 1 year after final judgment to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A) (2006). But if the petition alleges newly discovered evidence, the filing deadline is 1 year from the date upon which the facts supporting the claim could have been discovered through due diligence. 28 U.S.C. § 2244(d)(1)(D). More than 11 years after his conviction became final, the respondent filed his federal habeas petition alleging, in part, ineffective assistance of trial counsel. To overcome the statutory time limitation, the respondent claimed he had newly discovered evidence of actual innocence: three affidavits, the most recent dated July 16, 2002, each pointing to another individual as the murderer. The district court denied habeas relief on grounds that the respondent failed to show a diligent pursuit of his rights entitling him to equitable tolling of the 1–year time limitation period.
After an intermediate appeal, the United States Supreme Court granted certiorari to determine whether reasonable diligence was a precondition that must be satisfied before the federal district court can consider an untimely habeas petition alleging actual innocence. Although the Court ultimately concluded that a habeas petitioner who seeks to present evidence of actual innocence is entitled to have a court consider that claim on the merits without first demonstrating reasonable diligence, the Court went on to hold that the timing of the claim may be considered for purposes of determining whether the evidence of actual innocence is worthy of belief. McQuiggin, 133 S.Ct. at 1935. In coming to this conclusion, the Court underscored the distinction between (1) an equitable tolling of a limitation period based upon a showing of diligence in pursuing rights associated with a habeas claim and (2) an exception to the procedural bar of the statute of limitations based upon a showing of actual innocence. Because actual innocence provides an exception to the statute of limitations rather than a basis for equitable tolling, the Court concluded a petitioner who can make a showing of actual innocence need not demonstrate reasonable diligence in bringing his or her claim. As noted above, however, the Court also concluded that the timing of the claim may be considered in determining the credibility of the evidence as it relates to actual innocence. 133 S.Ct. at 1935.
Although in the context of the federal habeas corpus statute, the holding in McQuiggin supports the example cited by Judge Leben in the concurring opinion he filed in Vontress: The definition of manifest injustice would be unreasonably constrained if a habeas petitioner were required to justify why the 1–year time limitation should be equitably tolled as a precondition to consideration of an untimely K.S.A. 60–1507 motion asserting actual innocence.
But in this case, Mullins does not assert the ability to establish actual innocence as the basis for the relief he seeks. Instead, Mullins' request for habeas relief is grounded in jury instruction error, insufficiency of the evidence, selective prosecution, and ineffective assistance of trial counsel. With the exception of his general assertion that the merits must be considered in order to prevent manifest injustice, Mullins offers no reason or explanation for filing his request for habeas relief over a decade after he was sentenced and over 7 years after the 1–year time limitation for filing it had expired. See Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008) (individuals with claims preexisting 2003 statutory amendment had until June 30, 2004, to file 60–1507 motion). But a general assertion such as this, unless it includes a claim of actual innocence, is insufficient to establish manifest injustice under K.S.A. 60–1507(f)(2). In other words, we find nothing manifestly unjust, obviously unfair, or shocking to the conscience about adhering to and enforcing the 1–year time limitation to procedurally bar the court from considering the merits of the specific claim made by Mullins in this appeal, even if only for the procedural purpose of determining manifest injustice.
Affirmed.