Opinion
No. 105,905.
2012-07-20
Mark A. HANKERSON, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Michael P. Whalen, 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; Timothy H. Henderson, Judge.
Michael P. Whalen, 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 BRUNS, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Mark Hankerson of aggravated burglary, kidnapping, and three counts of attempted murder in the first degree. The district court dismissed Hankerson's second pro se K.S.A. 60–1507 motion as untimely, successive, and res judicata. On appeal, Hankerson contends that exceptional circumstances—an intervening change in the law regarding application of the civil code relation-back doctrine articulated in K.S.A. 60–215(c)—necessitates consideration of his second K.S.A. 60–1507 motion to prevent a manifest injustice. We disagree and affirm the district court's ruling.
Factual and Procedural Background
On January 8, 2004, a jury convicted Mark Hankerson of three counts of attempted murder in the first degree and one count each of aggravated burglary and kidnapping. The district court sentenced Hankerson to a controlling prison term of 352 months. Finding no reversible error, this court affirmed Hankerson's convictions. State v. Hankerson, 34 Kan.App.2d 629, 630, 637, 122 P.3d 408 (2005), rev. denied 281 Kan. 1380 (2006). Hankerson filed a petition for review with our Supreme Court, which was denied on March 29, 2006.
On March 6, 2007, Hankerson filed a timely pro se K.S.A. 60–1507 motion alleging “numerous trial errors.” The district court appointed counsel, and on September 28, 2007, Hankerson's attorney moved to amend the K.S.A. 60–1507 motion to include two allegations of ineffective assistance of appellate counsel. In particular, the motion asserted that Hankerson's appellate counsel failed to attack the insufficiency of the evidence of convictions and prosecutorial misconduct on direct appeal.
After a nonevidentiary hearing, the district court denied Hankerson's K.S.A. 60–1507 motion. Additionally, the district court denied Hankerson's motion to amend as untimely because it was filed more than 1 year after the final order in his criminal case.
Hankerson directly appealed the district court's denial of his motion to amend. He contended the district court erred by failing to apply K.S.A. 60–215(c), the civil code relation-back doctrine. Relying upon Ludlow v. State, 37 Kan.App.2d 676, 683–84, 157 P.3d 631 (2007), our court held that movants do not have the ability to amend or supplement a K.S.A. 60–1507 motion and, as such, the civil code “ ‘relation-back’ “ doctrine “simply does not apply.” Hankerson v. State, No. 99,739, unpublished opinion filed June 12, 2009, rev. denied November 12, 2009, ( Hankerson II ), slip op. at 2–3.
Our court also found that Hankerson had failed to show that an extension of the 1–year time limitation in K.S.A. 60–1507(f) was necessary to prevent manifest injustice. Hankerson, slip op. at 4–5. Hankerson then filed a petition for review with our Supreme Court, which that court denied on November 12, 2009.
Almost 1 year later, on September 30, 2010, Hankerson filed a second pro se K.S.A. 60–1507 motion requesting consideration of the issues he raised in his previous motion to amend, i.e., whether his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence and failing to raise the issue of prosecutorial misconduct. Hankerson contended that exceptional circumstances—an intervening change in the law regarding the relation-back doctrine—rendered consideration of his second K.S.A. 60–1507 motion appropriate in order to prevent a manifest injustice.
In particular, Hankerson asserted that between the filing of his first K.S.A. 60–1507 motion and the Court of Appeal's decision, our Supreme Court, in Pabst v. State, 287 Kan. 1, 192 P.3d 630 (2008), “left the door open” for application of the relation-back doctrine when the amendment shares “a common core of operative facts” with the original motion. Hankerson argued that his requested amendment relating to appellate counsel, shared the same operative facts as the allegation of ineffective assistance of trial counsel he raised in his original K.S.A. 60–1507 motion. Thus, Hankerson argued that his K.S.A. 60–1507 appellate counsel was ineffective for failing to argue the Pabst decision on appeal—an exceptional circumstance justifying consideration of his second K.S.A. 60–1507 motion.
The State opposed Hankerson's second K.S.A. 60–1507 motion as untimely and successive. The State also asserted that Hankerson was not entitled to relief because the Court of Appeals had already rejected his allegation of manifest injustice/exceptional circumstances. Finally, the State argued that Hankerson had failed to show that his K.S.A. 60–1507 counsel was ineffective because the Court of Appeals “affirmed the decision not to permit [him] to amend his original 1507 because it was untimely; therefore, prior 1507 counsel [could not] be faulted for the procedural bar that [he] encountered.”
On January 21, 2011, the district court held a nonevidentiary hearing on Hankerson's second K.S.A. 60–1507 motion. After hearing arguments, the district court dismissed Hankerson's motion as untimely, successive, and res judicata. As a result, the district court held that an evidentiary hearing on the second K.S.A. 60–1507 motion was not required because “the motions, files and records” conclusively showed that he was not entitled to the relief he requested. The district judge explained his decision:
“The Court will find that in his attempt to amend the prior 1507, he had an opportunity for the appellate courts to do what he is asking this court to do, and the appellate courts have already denied that request. The Court sees no basis to allow it to, under a different guise or mechanism, reanalyze and reconsider that which our appellate courts have already decided.
“... [I]t's not my role to evaluate appellate jurisdiction, or appellate decisions, or to reconsider them.”
Hankerson filed a timely appeal.
Analysis
Hankerson contends the district court erred when it dismissed his second K.S.A. 60–1507 motion as untimely, successive, and res judicata.
District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) and (j) (2011 Kan. Ct. R. Annot. 259). When, as in the present case, the district court denies relief based solely on counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits. Thus, appellate review is de novo. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Resolution of this issue requires this court to interpret K.S.A. 60–1507, K.S.A. 60–215, and Supreme Court Rule 183. The interpretation of statutory language is a question of law over which this court exercises unlimited review. Ludlow, 37 Kan.App. at 682. Additionally, whether the doctrine of res judicata is applicable in a given case is also a question of law subject to unlimited review. State v. Kelly, 291 Kan. 868, 874, 248 P.3d 1282(2011).
We first consider whether Hankerson's K.S.A. 60–1507 motion was untimely. Under K.S.A. 60–1507(f)(1), a criminal defendant must bring any habeas corpus action under this section within 1 year of the date upon which the conviction(s) became final. The time limitation articulated in K.S.A. 60–1507(f)(1) “may be extended by the court only to prevent a manifest injustice.” (Emphasis added.) K.S.A. 60–1507(f)(2). The phrase “manifest injustice” has not been defined in the context of K.S.A. 60–1507(f)(2); however, “ ‘this court has interpreted the phrase in other contexts to mean “obviously unfair” or “shocking to the conscience.’ “ [Citation omitted.]” Vontress v. State, 45 Kan.App.2d 430, 432, 249 P.3d 452,rev. granted 292 Kan. 969 (2011) (pending). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2011 Kan. Ct. R. Annot. 259).
Hankerson's convictions became final on March 29, 2006, the date the Kansas Supreme Court denied his petition for review. Absent special circumstances rendering consideration of Hankerson's motion necessary to avoid a manifest injustice, Hankerson was required to file his second K.S.A. 60–1507 motion no later than March 29, 2007. See K.S.A. 60–1507(f). Because Hankerson did not file his second motion until 3 1/2 years later—on September 30, 2010, it was untimely.
Next, we consider whether Hankerson's second motion was successive. District courts are not required to entertain a second or successive K.S.A. 60–1507 motion requesting similar relief by the same defendant. See K.S.A. 60–1507(c); Supreme Court Rule 183(d) (2011 Kan. Ct. R. Annot. 259). A district court may dismiss such a motion as an abuse of remedy absent a showing of exceptional circumstances. Kelly, 291 Kan. at 872. “ ‘ “Exceptional circumstances are 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 post-conviction proceeding.” ‘ [Citations omitted.]” 291 Kan. at 872.
Hankerson's second K.S.A. 60–1507 motion sought review of the same untimely issues he raised in his first K.S.A. 60–1507 motion and on the same basis he asserted previously—application of the relation-back doctrine under K.S.A. 60–215(c). Therefore, absent a showing of exceptional circumstances, the second K.S.A. 60–1507 motion was successive.
While, in effect, conceding that his second motion was both untimely and successive, Hankerson contends that exceptional circumstances—an intervening change in the law regarding application of the civil code relation-back doctrine—necessitate consideration of his second motion to prevent a manifest injustice. According to Hankerson, after the filing of his first K.S.A. 60–1507 motion and before this court's decision affirming the district court's denial of his motion to amend, a panel of our court, based on Pabst dicta, presumed that the converse of what our Supreme Court held in Pabst must be true—that “ ‘[a]n amendment to a K.S.A. 60–1507 motion that asserts a new ground for relief which is supported by facts that do not differ in time and type from those grounds set forth in the original motion does relate back to the date of the original motion.’ “ (quoting Rice v. State, 43 Kan.App.2d 428, 437, 225 P.3d 1200 [2010] ). Hankerson asserts that his requested amendment shared the same operative facts as the allegation of ineffective assistance of trial counsel he raised in his original K.S.A. 60–1507 motion. Thus, Hankerson contends that under Pabst and Rice, he should have been allowed to pursue his amended claim regarding ineffective assistance of his direct appellate counsel when he filed his first K .S.A. 60–1507 motion and to deny him that opportunity is a manifest injustice.
The district court rejected Hankerson's argument, citing the doctrine of res judicata. Under this doctrine, a final judgment rendered on the merits of an action by a court of competent jurisdiction is conclusive “ ‘not only on all matters which were actually litigated, but also on all matters which could have been litigated by the parties or their privies in that action.’ [Citations omitted.]” Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175,rev. denied 282 Kan. 797 (2006). A prior judgment has res judicata effect “ ‘when four conditions concur: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made.’ [Citations omitted.]” 36 Kan.App.2d at 492.
In his second K.S.A. 60–1507 motion, Hankerson asserted the same claim he presented in his motion to amend his first K.S.A. 60–1507 motion, i.e., ineffective assistance of his appellate counsel on direct appeal. On appeal from the district court's denial of his motion to amend, this court specifically addressed the applicability of the relation-back doctrine and rejected Hankerson's argument that the doctrine rendered his amendment timely. Hankerson II, slip op. at 3. This prior judgment has res judicata effect, as the cause of action and parties involved were identical and Hankerson was the proponent of his position in the previous motion and appeal. See Upchurch, 36 Kan.App.2d at 492–93.
Although the district court did not err when it found this court's decision regarding the applicability of the relation-back doctrine has res judicata effect, Hankerson attacked the ruling in his previous appeal on the basis of ineffective assistance of his K.S.A. 60–1507 appellate counsel for failure to bring the Pabst case to this court's attention. The district court did not address the performance of Hankerson's K.S.A. 60–1507appellate counsel.
On appeal, however, Hankerson does not argue that the district court erred by failing to address the effectiveness of his K.S.A. 60–1507 appellate counsel, and an issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Inexplicably, Hankerson solely alleges that this court erred when it decided his previous appeal because he should have received the benefit of the Kansas Supreme Court's ruling in Pabst:
“It should be noted the decision in Mr. Hankerson's case, wherein the Court of Appeals relied on Ludlow to deny his ability to amend the complaint, was decided after the decision in Pabst, meaning that Mr. Hankerson's case was pending at the time of that decision and that the Court of Appeals could, or should, have applied the Pabst ruling to [his] case.”
As discussed above, the district court did not err with respect to the single issue Hankerson raises on appeal because that decision rendered in his previous appeal has res judicata effect, and our Supreme Court denied Hankerson's petition to review this court's decision in his previous appeal. See Stabel v. Meyer, 45 Kan.App.2d 941, 946, 259 P.3d 737 (2011) (citing In re Marriage of Cray, 254 Kan. 376, 382, 867 P.2d 291 [1994] ). As a result, “the doctrine of res judicata precludes his getting a proverbial second bite at the apple.” See Wheeler v. State, No. 102,302, unpublished opinion filed March 19, 2010, slip op. at 6.
Moreover, assuming Hankerson had properly raised the issue of ineffective assistance of his K.S.A. 60–1507 appellate counsel (an issue without res judicata effect) Hankerson's argument would still fail.
After briefing was completed in this case, our Supreme Court issued Thompson v. State, 293 Kan. 704, 270 P.3d 1089 (2011), which addresses the very issue Hankerson raises on appeal. Similar to Hankerson, Thompson filed a timely K.S.A. 60–1507 motion alleging, among other things, ineffective assistance of trial counsel. He subsequently filed an untimely motion to amend to include additional claims against his trial counsel and new claims alleging ineffective assistance of direct appellate counsel. The district court permitted Thompson to amend his motion to include all of his ineffective assistance of trial counsel allegations; however, it dismissed as untimely his claims regarding the ineffectiveness of his appellate counsel.
On appeal, Thompson argued that the district court erred when it denied his request to amend his K.S.A. 60–1507 motion to include the claim that his appellate counsel was ineffective. Specifically, Thompson contended that his amended claim related back to the time of the filing of his original motion under K.S.A. 60–215(c)(1) because it shared the same set of operative facts as his claim of ineffective assistance of trial counsel.
Our Supreme Court noted that since Pabst, the Court of Appeals “has struggled with how to treat attempted K.S.A. 60–215(a) amendments to motions filed under K.S.A. 60–1507 and whether to allow relation back to make certain claims timely under K.S.A. 60–215(c).” Thompson, 293 Kan. at 713 (citing Rice, 43 Kan.App.2d at 438–39). Accordingly, the Supreme Court clarified its interpretation of the version of K.S.A. 60–215 in effect before its amendment on July 1, 2010—the version of the statute that applies to Hankerson. See Thompson, 293 Kan. at 714. The court explained:
“Two avenues of amendment are available under K.S.A. 60–215(a), one as of right that is inapplicable to K.S.A. 60–1507 motions, and one with leave of court that is applicable to K.S.A. 60–1507 motions, as well as other pleadings. If an amendment to a K.S.A. 60–1507 motion is permitted, the timeliness of amended claims is subject to the Pabst time and type test enunciated in K.S.A. 60–215(c), i.e., relation back is permitted only if the new claims arose ‘out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’ “ Thompson, 293 Kan. at 714.
Following this rubric, the Supreme Court held the district court did not err when it denied Thompson's motion to amend because a claim of ineffective assistance of appellate counsel does not share the same set of operative facts as a claim of ineffective assistance of trial counsel. See Thompson, 293 Kan. at 713. The court explained:
“The timing of an appeal, as opposed to trial representation, and the function assigned to appellate counsel, as opposed to trial counsel, differ. This is true even when the counsel is the same person in both phases of the proceedings. An allegation that trial counsel has rendered ineffective assistance is legally distinct from an allegation that appellate counsel has done likewise.” Thompson, 293 Kan. at 713.
Notably, the Kansas Supreme Court disapproved of any prior Court of Appeals cases which were inconsistent with its holding and analysis. Thompson, 293 Kan. at 714. This would include Rice, 43 Kan.App.2d at 438–39—the case upon which Hankerson relies—because this case permitted a claim of ineffective appellate counsel to relate back to a “timely claim of ineffective trial counsel despite invocation of [the] Pabst time and type test.” See Thompson, 293 Kan. at 713–14.
In order for Hankerson to be successful in his assertion that he was denied the effective assistance of his K.S.A. 60–1507 appellate counsel, he needed to show that his “counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness.” See Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). Hankerson also needed to establish the alleged ineffective representation had a prejudicial effect because “there [was] a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. [Citations omitted.]” 292 Kan. at 274.
In light of the Kansas Supreme Court's ruling in Thompson, the performance of Hankerson's K.S.A. 60–1507 appellate counsel was not deficient because even if his counsel had raised Pabst, Hankerson's appeal would not have been successful. Hankerson's amended claim—ineffective assistance of appellate counsel—did not arise out of the same set of operative facts as his original claim—ineffective assistance of trial counsel. See Thompson, 293 Kan. at 713–14.
We conclude the record contained all of the evidence necessary for the district court to review Hankerson's allegation of ineffective assistance of his K.S.A. 60–1507 appellate counsel, and it was unnecessary for the district court to hold an evidentiary hearing to consider this issue. See K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2011 Kan. Ct. R. Annot. 259). The district court did not err when it dismissed Hankerson's second K.S.A. 60–1507 motion as untimely, successive, and barred by the doctrine of res judicata.
Affirmed.