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    Reginald STEWART, Appellant, v. STATE of Kansas, Appellee.
    No. 115,149
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Krystle M. S. Dalke, of the same firm, was with him on the brief for appellant.
    Boyd K. Isherwood, assistant district attorney, argued the cause, and Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, Wichita, and Derek Schmidt, attorney general, Topeka, were with him on the brief for appellee.
   The opinion of the court was delivered by Johnson, J.:

Reginald Stewart petitions this court for review of the Court of Appeals' decision affirming the district court's summary denial of his K.S.A. 60-1507 motion. Stewart agrees with the Court of Appeals' holding that the district court erred in reviewing and relying upon the State attorney's written response to Stewart's pro se motion without first appointing counsel for Stewart. Stewart's challenge on review is to the panel's determination that the district court's error was harmless because the motion, files, and record-exclusive of the State's written response-conclusively established that Stewart was not entitled to relief. Stewart claims that there were facts missing from the record that required an evidentiary hearing and appointment of counsel. We conclude that summary denial of the 60-1507 motion was appropriate in this case.

The State cross-petitions, arguing that the Court of Appeals erred in holding that "the district court may not invite the State to respond to the [60-1507] motion or review an unsolicited written response from the State until or unless the movant is represented by a lawyer." Stewart v. State , No. 115,149, 2017 WL 2901146, at *5 (Kan. App. 2017) (unpublished opinion) ( Stewart II ). We agree with the State that its filing of a written response, standing alone, did not trigger Stewart's statutory right to counsel. Ultimately, we affirm the district court's summary denial of the motion.

FACTUAL AND PROCEDURAL OVERVIEW

After two trials resulted in a hung jury, a third jury convicted Stewart of aggravated robbery. The 2011 incident giving rise to the conviction involved three men who accosted a pedestrian walking home from work on a dimly lit street. The assailants battered the victim before removing $8, some cigarettes, and a white lighter from his pockets. The victim flagged down a patrol officer who apprehended two fleeing individuals, Gerard Sillemon and Stewart. Sillemon had $8 in his pocket, and the white lighter lay on the ground between the two men. The victim identified Stewart-both at the crime scene and at trial-as being one of the robbers.

At trial, Sillemon testified that he pled guilty because he was the only person involved in robbing the victim. Stewart testified that he was in the vicinity and observed the crime, but that he was not involved in the robbery in any way. He claimed that the victim had misidentified him. Nevertheless, the jury convicted Stewart of aggravated robbery.

On direct appeal, Stewart raised three jury instruction challenges and a cumulative error argument. One of Stewart's jury instruction challenges argued that the eyewitness identification instruction was clearly erroneous for including "degree of certainty" as a factor for the jury to consider. The Court of Appeals held this instruction was erroneous but fell short of clear error. State v. Stewart , No. 107,723, 2013 WL 3455788 (Kan. App.) (unpublished opinion), rev. denied 298 Kan. 1207 (2013) ( Stewart I ).

Subsequently, Stewart timely filed the pro se K.S.A. 60-1507 motion that is now before this court. The motion alleged error by the trial judge, ineffective assistance of trial counsel, wrongful failure to disclose a transcript by the State, discriminatory collusion between the prosecutor and the accuser, and conspiracy to convict Stewart on the basis of race by the Sedgwick County Public Defender's Office.

Almost a year later, the State, acting through counsel, filed a response to Stewart's motion, addressing Stewart's claims and arguing no evidentiary hearing was needed to resolve them. The record is not clear as to whether the district court ordered the State to respond or whether the State responded on its own volition. The district court's motion minutes sheet adopting the "authorities and arguments of the State ... as persuasive" and denying Stewart's motion without a hearing is dated the same day as the State filed its response, albeit the motions sheet was file-stamped a week later.

Stewart appealed the summary denial to the Court of Appeals. He alleged that the district court violated his due process rights by failing to appoint counsel to represent him before it considered the State attorney's written response to the pro se motion. He also asserted that there are facts absent from the record regarding trial counsel's representation that require an evidentiary hearing, rendering the summary denial erroneous.

The Court of Appeals held that the district court materially erred in considering the State's response to Stewart's pro se motion without appointing counsel for Stewart or providing him with an opportunity to argue beyond the face of his original motion. Stewart II , 2017 WL 2901146, at *5. But the panel held that even though Stewart was improperly deprived of the opportunity to be heard through counsel, the error was harmless. The panel considered Stewart's 60-1507 motion without referring to the State's response and opined that the motion had presented no viable claims, thereby rendering harmless the district court's procedural error. 2017 WL 2901146, at *2-4, 6.

Stewart petitioned this court for review, arguing that the district court and Court of Appeals erred by not granting him an evidentiary hearing. The State cross-petitioned, arguing that the Court of Appeals erred in holding that Stewart should have been appointed counsel upon the State filing a written response to the motion.

APPOINTMENT OF COUNSEL FOR 60-1507 MOVANT

In addressing Stewart's procedural challenge to the manner in which the district court handled the 60-1507 motion, the Court of Appeals noted the procedure set forth in K.S.A. 60-1507(b) ; the statutory right to counsel provided by K.S.A. 22-4506(b) ; and our restatement of the statutory mandates in Supreme Court Rule 183 (2017 Kan. S. Ct. R. 222). 2017 WL 2901146, at *5. The panel summarized our caselaw establishing three options for a district court upon receiving a 60-1507 motion as follows:

"The district court can summarily dismiss the motion after reviewing it and the contents of the case file. Bellamy v. State , 285 Kan. 346, 353-54, 172 P. 3d 10 (2007). Otherwise, the district court has two choices. It can conduct a preliminary hearing during which lawyers for the State and for the defendant present legal argument and otherwise address whether the circumstances call for a full evidentiary hearing. A limited amount of evidence may be received at that preliminary hearing. Bellamy , 285 Kan. at 354 [172 P.3d 10]. Or the district court can appoint a lawyer for the movant, bypass the preliminary hearing, and set the motion for a full evidentiary hearing. See 285 Kan. at 353-54 [172 P.3d 10]." 2017 WL 2901146, at *5.

The panel determined that the options do not include the circumstance in which the district court considers the arguments contained in a written response filed by the State, "without affording the movant the equivalent opportunity to be heard through a lawyer." 2017 WL 2901146, at *5. Our task is to determine whether that interpretation of the statutory right to counsel is correct.

Standard of Review

The extent of Stewart's statutory right to counsel during a K.S.A. 60-1507 proceeding is a question of law over which this court has unlimited review. See Mundy v. State , 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State , 288 Kan. 217, 227, 201 P.3d 691 [2009] ); see also Bellamy v. State , 285 Kan. 346, 355, 172 P.3d 10 (2007) (disapproving application of the abuse of discretion standard for reviewing the results of K.S.A. 60-1507 motions without specifically discussing K.S.A. 22-4506 ). But cf. State v. Sharkey , 299 Kan. 87, 95, 322 P.3d 325 (2014) ("The determination of whether the motion presents substantial questions of law justifying the appointment of counsel ' "rests within the sound discretion of the trial court." ' ").

In addition, resolution of this issue requires interpretation of K.S.A. 60-1507, K.S.A. 22-4506, and Supreme Court Rule 183 (2019 Kan. S. Ct. R. 228). "Interpretation of statutes and Supreme Court rules raises questions of law reviewable de novo." Thompson v. State , 293 Kan. 704, 710, 270 P.3d 1089 (2011).

Stewart also argued before the Court of Appeals that the district court's failure to appoint counsel resulted in a due process violation. "The issue of whether due process has been afforded is a question of law over which [this court has] unlimited review." Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).

Analysis

Stewart's due process claim is based upon the notion that a response by the State triggers a pro se 60-1507 movant's right to be appointed counsel. He points to the decisions in State v. Hemphill , 286 Kan. 583, 596, 186 P.3d 777 (2008) ; Alford v. State , 42 Kan. App. 2d 392, 402, 212 P.3d 250 (2009) ; Oliver v. State , No. 113,035, 2016 WL 1391757, at *3 (Kan. App. 2016) (unpublished opinion); and Stevenson v. State , No. 96,082, 2007 WL 438745, at *2 (Kan. App. 2007) (unpublished opinion), as supporting that contention. The State counters that these cases are clearly distinguishable because their due process holdings were based upon the district court holding a hearing at which the State was represented by counsel but the movant was not. Moreover, the State contests Stewart's contention that, when a court considers a written response, it is tantamount to the court conducting an in-court hearing. We agree with the State on these points.

Our analysis of the procedural due process claim looks first to see whether the State has deprived the claimant of life, liberty, or property. If so, the focus is on the extent and nature of the process which was due the claimant. Hogue , 279 Kan. at 850-51, 113 P.3d 234 ; see also State v. Robinson , 281 Kan. 538, 548, 132 P.3d 934 (2006) ("[B]asic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner."). The first step is satisfied because the very nature of a 60-1507 motion involves the movant's liberty interest, to-wit: "A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released." K.S.A. 60-1507(a). The second inquiry-the nature and extent of the process to which a 60-1507 movant is due-involves a more nuanced analysis.

We begin by looking at the source of Stewart's right to an attorney, if any. Although Stewart makes no claim that either the federal or state constitution provides him with the right to be appointed an attorney to pursue a postconviction collateral attack, it is helpful to keep in mind that neither constitution provides that right. The United States Supreme Court, in Pennsylvania v. Finley , 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987), declined to extend an indigent person's Fourteenth Amendment right to counsel on direct appeal to a collateral attack, stating "[o]ur cases establish that the right to appointed counsel extends to the first appeal of right, and no further." See also Davila v. Davis , 582 U.S. ----, 137 S. Ct. 2058, 2062, 198 L. Ed. 2d 603 (2017) ("prisoner does not have a constitutional right to counsel in state postconviction proceedings").

Likewise, this court has held that "[t]here is no constitutional right to effective assistance of counsel in an action pursuant to K.S.A. 60-1507." Robertson , 288 Kan. at 228, 201 P.3d 691 ; see also In re Care & Treatment of Ontiberos , 295 Kan. 10, 21, 287 P.3d 855 (2012) (noting that a prisoner in a K.S.A. 60-1507 proceeding has already been afforded exercise of their Sixth Amendment right to counsel at trial and their direct appeal); Brown v. State , 278 Kan. 481, 483, 101 P.3d 1201 (2004) ("We acknowledge that there is no constitutional right to effective assistance of legal counsel on collateral attacks because they are civil, not criminal, actions."). Nevertheless, "Kansas does under some circumstances 'provide a statutory right to counsel on collateral attack.' " Mundy , 307 Kan. at 295, 408 P.3d 965 (quoting Brown , 278 Kan. at 483, 101 P.3d 1201 ).

K.S.A. 60-1507, the statute in the Code of Civil Procedure that establishes the procedure for prisoners to file a motion seeking postconviction relief, does not mention any right to counsel for the movant. But K.S.A. 22-4506, a statute in the Code of Criminal Procedure, provides for the appointment of counsel for an indigent 60-1507 movant. Specifically, it provides:

"(a) Whenever any person who is in custody under a sentence of imprisonment upon conviction of a felony files a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507 and files with such petition or motion such person's affidavit stating that the petition or motion is filed in good faith and that such person is financially unable to pay the costs of such action and to employ counsel therefor, the court shall make a preliminary examination of the petition or motion and the supporting papers.
"(b) If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided in K.S.A. 22-4504, and amendments thereto, the court shall appoint counsel from the panel for indigents' defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents' defense services, to assist such person and authorize the action to be filed without a deposit of security for costs. If the petition or motion in such case raises questions shown by the trial record, the court shall order that the petitioner or movant be supplied with a transcript of the trial proceedings, or so much thereof as may be necessary to present the issue, without cost to such person." K.S.A. 22-4506.

In short, a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact. Reiterating that concept is Supreme Court Rule 183(i) (2019 Kan. S. Ct. R. 230), which directs: "If a motion to vacate, set aside, or correct a sentence presents a substantial question of law or triable issue of fact, the court must appoint counsel to represent an indigent movant." Moreover, this court has said that "[t]here is no statutory right to counsel at the district court level stage for indigent K.S.A. 60-1507 movants until they meet the threshold showing of substantial legal issues or triable issues of fact." Guillory v. State , 285 Kan. 223, 228, 170 P.3d 403 (2007) ; see also Albright v. State , 292 Kan. 193, 199, 251 P.3d 52 (2011) (" K.S.A. 22-4506 [b] limits the right to appointed counsel to those cases in which the district court finds that the 60-1507 motion 'presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person.' "); State v. Andrews , 228 Kan. 368, 374-75, 614 P.2d 447 (1980) ("It is clear that when an indigent defendant wishes to pursue a writ of habeas corpus or a motion attacking sentence pursuant to K.S.A. 60-1507, the district court is to examine the merits of the motion or petition and then make a decision as to whether the appointment of counsel is necessary."); Robinson v. State , 218 Kan. 1, 5, 542 P.2d 305 (1975) ("It is only when a district court determines a 60-1507 motion presents substantial questions of law or triable issues of fact that it appoints counsel to assist an indigent petitioner.").

Stewart's contention-that the potential for triable issues of fact is sufficient to trigger the statutory right to counsel in a 60-1507 proceeding-most likely emanates from an expansive reading of the following recitation from the oft-cited case of Lujan v. State , 270 Kan. 163, 14 P.3d 424 (2000). Lujan outlined three avenues a district court can take upon receiving a 60-1507 motion, to-wit:

"First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner's motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the petitioner. If the issue or issues are substantial, involving events in which the petitioner participated, the court must proceed with a hearing involving the presence of the petitioner." ( Emphasis added.) 270 Kan. at 170-71, 14 P.3d 424.

The actual question being addressed in Lujan , however, was whether the 60-1507 movant had the right to be present at a full evidentiary hearing under the second avenue described above, i.e., after the district court had determined the motion, files, and record presented a substantial issue. The Lujan court did not need to establish the point in the proceedings at which the statutory right to counsel became effective because Lujan did, in fact, have an attorney representing him at the evidentiary hearing; movant's complaint was that he was not personally present to help his attorney prosecute his motion.

Moreover, the questions of when a movant is entitled to the appointment of counsel and when the movant is entitled to be present at a court hearing on the motion are separate inquiries. For instance, K.S.A. 60-1507(b) separates the right to a hearing from the right to be present at the hearing. It first directs the district court to "grant a prompt hearing" on a 60-1507 motion to "determine the issues and make findings of fact and conclusions of law," except when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." K.S.A. 60-1507(b). But then K.S.A. 60-1507(b) goes on to provide that "[t]he court may entertain and determine such motion without requiring the production of the prisoner at the hearing." Likewise, Supreme Court Rule 183 separates the right to counsel and the right to be present: Rule 183(h) provides that an imprisoned movant "must be produced at the hearing on a motion ... if there are substantial issues of fact regarding events in which the movant participated"; whereas Rule 183(i), as noted above, states that, if a motion "presents a substantial question of law or triable issue of fact, the court must appoint counsel to represent an indigent movant." Supreme Court Rule 183(h), (i) (2019 Kan. S. Ct. R. 230).

Consequently, Lujan 's dicta about the third avenue of approach available to a district court should not be read so expansively as to make the court's discernment of a potential substantial issue the event that triggers the statutory requirement to appoint counsel for an indigent movant. We intimated as much in Mundy when we noted that this court had previously "implicitly recognized the district court [has] the statutory power to exercise discretion and appoint counsel ... where the motion presents a potentially substantial question of law or triable issue of fact. Cf. Supreme Court Rule 183(i) (2017 Kan. S. Ct. R. 222) (court must appoint counsel if 60-1507 motion presents a substantial question of law or triable issue of fact)." 307 Kan. at 295, 408 P.3d 965. In other words, the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and record present a substantial question of law or triable issue of fact.

Nevertheless, Lujan 's reference to the appointment of counsel under its third avenue of approach was not incorrect. Rather, the event in that circumstance that gives rise to the need to appoint counsel for the movant is the district court's determination to "hold a preliminary hearing," at which the State will be represented by an attorney. 270 Kan. at 171, 14 P.3d 424. As noted above, the cases cited by Stewart declaring that due process had required the appointment of counsel for the postconviction movant involved a court hearing at which the State appeared by counsel. For example, in Hemphill we "emphasize[d] ... that even though a court need not automatically hold a hearing or appoint counsel in all postconviction matters, when a hearing is held 'at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel.' " 286 Kan. at 596, 186 P.3d 777 (citing State v. Pierce , 246 Kan. 183, 199, 787 P.2d 1189 [1990] ; State v. Buckland , 245 Kan. 132, 142, 777 P.2d 745 [1989] ). Pointedly, the State does not challenge that precedent.

The next step, then, is to look at what constitutes a hearing at which due process requires an attorney for a 60-1507 movant. At one end of the spectrum, K.S.A. 60-1507(b) requires the district court to notify the county attorney and grant a prompt hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." If the district court has made that determination-that the motion, files, and records do not conclusively show the movant is entitled to no relief-and ordered the statutorily required hearing, it has necessarily determined the presence of substantial questions of law or triable issues of fact. Consequently, that determination invokes the movant's statutory right to counsel, and the district court must appoint counsel for an indigent movant, without regard to whether the State is represented by an attorney at the hearing.

At the other end of the spectrum, when the district court determines on its own that the motion, files, and records of the case conclusively show that movant is entitled to no relief, the motion can be summarily denied, i.e., without hearing and without appointed counsel. In-between-when the district court exercises its discretion to order a preliminary hearing to assist in making the determination of whether the motion, files, and records present substantial questions of law or triable issues of fact-our due process jurisprudence dictates that the district court appoint an attorney to represent an indigent movant if the State appears in court at that preliminary hearing through an attorney.

That leads us to Stewart's contention that the district court's consideration of a written response by an attorney for the State is the functional equivalent of an in-court preliminary hearing. He adopts the Court of Appeals' opinion in this case that declares that a district court's summary denial of a 60-1507 motion can be "based only on the motion and the record in the underlying criminal case," and that the district court may not look at a written response by the State "until or unless the movant is represented by a lawyer." Stewart II , 2017 WL 2901146, at *5. For authority, the panel relied on an unpublished decision by another Court of Appeals panel in Jones v. State , No. 114,601, 2016 WL 7494363, at *3 (Kan. App. 2016) (unpublished opinion), which the Stewart II panel found to have "legally indistinguishable facts." Stewart II , 2017 WL 2901146, at *5.

The State counters that the Stewart II panel created a new test for determining when counsel must be appointed in a 60-1507 proceeding that contravenes statutory provisions, Supreme Court Rules, and established caselaw and that treats the process as if it were intended to be an ex parte proceeding. Contrary to the panel's notion that a State response to a 60-1507 motion triggers a right to counsel for the movant, the State contends that the well-established existing test requires the appointment of counsel only when movant has raised substantial issues or when the court conducts an actual hearing at which the State is represented. The State argues that it is a party in the 60-1507 proceedings and that there is nothing in our statutes or rules precluding it from responding as it would to any other civil motion. Cf. Pabst v. State , 287 Kan. 1, 24, 192 P.3d 630 (2008) ("nothing in [ K.S.A. 60-1507 ] or our rules makes it impermissible for the State to file a responsive pleading"); see Supreme Court Rule 183(a)(2) (2019 Kan. S. Ct. R. 228) (procedure on 60-1507 motion governed by rules of civil procedure to the extent applicable).

Further, the State challenges the Stewart II panel's assessment that the factual distinctions in Jones have no legal significance. In that case, the district court reviewed the motion, files, and records and summarily denied relief on all issues except one. Then the court ordered the State to submit a brief on the one remaining issue, but the court did not permit the movant to brief the issue or respond to the State's brief. Further, the court did not appoint counsel for the movant. The State contends that the briefing order makes Jones factually distinguishable.

Nevertheless, as the State points out, the Stewart II panel ignored the rationale of other Court of Appeals panels that have rejected the argument that, for due process purposes, the district court's review of the State's written response was the same as the court conducting a preliminary hearing at which the State was represented by an attorney. See, e.g., Noyce v. State , No. 114,971, 2017 WL 3112821, at *4-5 (Kan. App.) (unpublished opinion), rev. granted 307 Kan. 987, 399 P.3d 288 (2017); Littlejohn v. State , No. 115,904, 2017 WL 2833312, at *3-4 (Kan. App.) (unpublished opinion), rev. granted 307 Kan. 987, 399 P.3d 284 (2017);

Thuko v. State , No. 115,662, 2017 WL 2709779, at *3 (Kan. App.) (unpublished opinion), rev. granted 307 Kan. 994, 396 P.3d 1259 (2017); Hill v. State , No. 115,723, 2017 WL 2001615, at *3 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1317, 394 P.3d 154 (2017); Dawson v. State , 115,129, 2017 WL 262027, at *1-2 (Kan. App.) (unpublished opinion), rev. granted 307 Kan. 986, 387 P.3d 194 (2017); State v. Roberts , No. 114,726, 2016 WL 6829472, at *4-5 (Kan. App. 2016) (unpublished opinion), rev. granted 307 Kan. 992, 444 P.3d 1030 (2017). For instance, the Thuko panel suggested that a judge reviewing a motion and response does not fit within our common understanding of a "hearing," which Black's Law Dictionary describes as: "A judicial session, [usually] open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying." Thuko , 2017 WL 2709779, at *3 ; Black's Law Dictionary 836 (10th ed. 2014). There is simply no indication here that a judge held a hearing.

In short, the Stewart II panel expanded upon the process that the Hemphill court held was due to a postconviction movant with respect to appointed counsel. We decline to make that expansion; rather, it is when the district court conducts an actual hearing with the State represented that due process dictates a movant's right to counsel.

As we observed in State v. Nunn , 247 Kan. 576, 584, 802 P.2d 547 (1990), "it would simplify matters for all courts and litigants if we were to adopt a bright-line rule that counsel be appointed for all post-trial motions." But, like the Nunn court, we realize that "such a rule would not appear to be feasible or justified." 247 Kan. at 584, 802 P.2d 547. Given that constraint, the unfairness that bothered the Stewart II panel-having a layperson pitted against an attorney on legal issues-is present regardless of whether the State files a response. Ordinarily, an indigent layperson must prepare and file his or her own 60-1507 motion, in which the nonlawyer movant must state why he or she is legally entitled to relief. Thereupon, a law-trained judge reviews the motion and can summarily deny it as being legally infirm and conclusively showing no entitlement to relief. In other words, any unfairness caused by a disparity in legal knowledge begins with the preparation of the motion, not at the point of the State's response.

With respect to the statutory right to counsel, the Stewart II panel creatively interpreted K.S.A. 60-1507(b). It declared that, without appointing an attorney for a movant, a district court "can summarily deny relief based only on the motion and the record in the underlying criminal case," and it "may not entertain argument from the State" contained in a written response. Stewart II , 2017 WL 2901146, at *5. But, of course, the statute does not actually say that. To reiterate, it refers to "the motion and the files and records of the case." K.S.A. 60-1507(b). The panel did not explain why a response to a 60-1507 motion would not then become part of the case files, subject to the district court's review, and we decline to construe K.S.A. 60-1507(b) so narrowly.

In sum, an indigent 60-1507 movant has a statutory right to counsel if the district court finds that the motion presents substantial questions of law or triable issues of fact. That did not occur in this case. Further, as a matter of procedural due process, a movant has the right to counsel when the court holds a hearing at which the State is represented by counsel. There was no hearing in this case; the State's filing of a response to the motion, standing alone, did not constitute a hearing. The Court of Appeals holding to the contrary is overruled.

SUBSTANTIVE CLAIMS FOR RELIEF

Although we disagree with the Court of Appeals' resolution of the right to counsel issue, we agree with the Court of Appeals' resolution of Stewart's substantive claims. The Court of Appeals reviewed each of the substantive claims Stewart raised in his 60-1507 motion and explained why each did not warrant relief. On review, defense counsel focuses on the claim that trial counsel was ineffective for failing to call an eyewitness identification expert to testify and refute the victim's identification of Stewart as one of the robbers. We begin with that claim.

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 any relief." Wimbley v. State , 292 Kan. 796, 804, 275 P.3d 35 (2011).

Analysis

With respect to Stewart's claims that his trial counsel was ineffective, he must establish:

"[T]hat counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution, and that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Trotter v. State , 288 Kan. 112, 132-33, 200 P.3d 1236 (2009).

As the panel noted, at the time of Stewart's trial, "the Kansas Supreme Court had consistently ruled that expert testimony could not be admitted regarding potential weaknesses in eyewitness identification. State v. Gaines , 260 Kan. 752, 763, 926 P.2d 641 (1996) ; State v. Warren , 230 Kan. 385, 395, 635 P.2d 1236 (1981)." Stewart II , 2017 WL 2901146, at *3. It would be more than two years before this court would overrule that precedent and allow expert testimony on eyewitness identification under certain circumstances. State v. Carr, 300 Kan. 1, 222-26, 331 P.3d 544 (2014). Consequently, we agree with the panel's determination that a defense counsel's failure "to advocate for a dramatic reversal of well-settled Kansas law" is not constitutionally deficient performance. Stewart II , 2017 WL 2901146, at *4.

Granted, Laymon v. State , 280 Kan. 430, 439-40, 122 P.3d 326 (2005), recognized that "a lawyer's failure to foresee a change in the law may lead to 60-1507 relief if the failure was not objectively reasonable." But Laymon involved the unique circumstance that the defense counsel who failed to preserve the change-in-law issue practiced out of the same office in which other attorneys were actively advocating for, and ultimately obtained, that particular change in the law. In Barr v. State , 287 Kan. 190, 197, 196 P.3d 357 (2008), we declined to extend Laymon beyond its " 'inside baseball' analysis." This case fits squarely within Laymon 's caveat that the "Sixth Amendment requires competence, not omniscience." Laymon , 280 Kan. at 440, 122 P.3d 326 (discussing Starnes v. State , No. 88,225, 2003 WL 22764417, at *3 [Kan. App. 2003] [unpublished opinion] ). In short, summary denial of this claim was appropriate.

With respect to the other issues addressed by the panel, counsel in the petition for review does not provide argument as to why the panel was wrong on the merits. Instead, counsel simply inquires: "Similarly with the other issues made by Mr. Stewart, would not the opportunity to have counsel available and able to review the petition and the State's response potentially have made a difference in how the arguments and issues were raised and framed before the district court?" While the answer to that question may be yes, the issue is whether the arguments and issues that are actually contained in the motion, files, and records conclusively show that Stewart is entitled to no relief. And on that issue, the panel adequately addressed and correctly decided each claim.

On Stewart's claim that his trial counsel failed to challenge the sufficiency of the evidence, the panel pointed out that trial counsel moved for judgment of acquittal at the close of evidence and renewed the motion in written form after the jury's verdict. In other words, the claim is factually flawed. Counsel did all that he could at the trial level to challenge sufficiency.

With regard to Stewart's claim that trial counsel was deficient in failing to call the arresting officer as a witness at the third trial, the panel noted the absence of any explanation as to how the outcome of the case could have been different if defense counsel had done so. Likewise, we are not provided with that explanation and the claim lacks merit.

On Stewart's remaining three claims, the panel opined that they were "so conclusory and lacking in any factual anchors that we cannot meaningfully review them." Nothing we have received on review refutes the panel's determination that the remaining claims "all fail to set forth intelligible grounds for relief." Stewart II , 2017 WL 2901146, at *4.

Stewart's counsel would have us remand for an evidentiary hearing to permit a fishing expedition in the hopes that the 60-1507 movant might catch a fact that could lead to something favorable. To the contrary, it is incumbent upon the movant to show that a triable issue of fact already exists and is identifiable at the time of the motion. Summary denial was appropriate here.

CONCLUSION

The Court of Appeals' determination to affirm the district court's summary denial of Stewart's 60-1507 motion on the merits of his claims is affirmed.

The panel's determination that the district court materially erred when it considered the State's written response to Stewart's 60-1507 motion without appointing Stewart an attorney is overruled. Because the district court correctly found that the motion did not present substantial questions of law or triable issues of fact, Stewart's statutory right to counsel did not arise. Because the district court did not conduct a hearing at which the State was represented by counsel, Stewart's due process right to counsel was not implicated or impaired.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Edgar I. SHERWOOD, Appellant, v. STATE of Kansas, Appellee.
    No. 115,899
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, was on the brief for appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Stegall, J.:

Edgar I. Sherwood filed a pro se K.S.A. 60-1507 motion about 18 years after he was convicted of rape and aggravated criminal sodomy in Sedgwick County. The State filed a written response to Sherwood's motion, claiming the motion was untimely and Sherwood failed to establish that a manifest injustice excused the delay. The district court agreed and summarily denied the motion. On appeal, Sherwood argues the district court denied him due process when it failed to appoint counsel to represent him after the State filed its response. We affirm because Sherwood's due process rights were not violated and summary denial was appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Sherwood pled no contest to rape and aggravated criminal sodomy of a five-year-old child. The district court sentenced him to 404 months' imprisonment. The Court of Appeals affirmed, and we denied Sherwood's petition for review. State v. Sherwood , No. 79,794, 996 P.2d 848, unpublished opinion filed January 21, 2000 (Kan. App.), rev. denied 269 Kan. 939 (2000).

In January 2015, Sherwood filed a pro se K.S.A. 60-1507 motion and a poverty affidavit, alleging ineffective assistance of trial and appellate counsel and various sentencing errors. He explained that his motion was delayed because he had a learning disability and only recently found a prisoner willing to help him draft the motion. Sherwood later filed two more pro se motions: a motion asking for a copy of the transcripts and plea agreement in his case and a motion requesting the appointment of counsel.

In September 2015, the State filed a written response to Sherwood's K.S.A. 60-1507 motion. The State asked the court to summarily deny the motion because the motion was untimely, Sherwood's claims were conclusory, and he failed to establish a manifest injustice. Three days later, the district court summarily denied the motion with an order stating:

"Petitioner's demands are based on conclusory statements without any sufficient evidentiary references to support such. Further the petition is time barred due to a 10 year delay in filing this action with no argument suggesting or supporting the existence of manifest injustice to overcome the statutory time limit in filing."

Nine days after the order issued, Sherwood filed a pro se reply to the State's response. He acknowledged that his motion was untimely but claimed that a manifest injustice excused the delay. To this end, he argued that his learning disability prevented him from filing the motion on time and he struggled to find legal assistance. That same day, Sherwood also filed a motion to alter or amend the judgment, claiming the district court failed to address all of his arguments and to give him enough time to reply to the State's response. He also reiterated his manifest injustice arguments and requested an evidentiary hearing to resolve his K.S.A. 60-1507 motion. The district court denied these motions as well.

Sherwood raises two due process challenges on appeal. First, he argues the district court violated his due process rights when it failed to appoint counsel to represent him after the State filed a response to his K.S.A. 60-1507 motion. Second, he argues the Judicial Council's pro se K.S.A. 60-1507 form, which he allegedly used to draft his motion, violated his due process rights because it did not adequately inform him about the statutory requirements. See July 1, 2013 Judicial Council K.S.A. 60-1507 form.

Sherwood also argues the district court did not comply with Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 230), because it failed to "make findings of fact and conclusions of law on all issues presented," which precludes meaningful appellate review. Specifically, he claims the court failed to make findings on the Vontress factors to determine whether he established a manifest injustice. See Vontress v. State , 299 Kan. 607, 616, 325 P.3d 1114 (2014). Finally, he claims that his motion established a manifest injustice under Vontress . For these reasons, Sherwood asks us to reverse summary denial and remand for a hearing with appointed counsel.

The Court of Appeals affirmed, holding Sherwood's due process rights were not violated; the district court's findings were sufficient for appellate review; and summary denial was appropriate. Sherwood v. State , No. 115,899, 2017 WL 4321116, at *1, *3 (Kan. App. 2017) (unpublished opinion). We granted Sherwood's petition for review of these holdings, and he makes the same arguments as before.

We note that in the Court of Appeals, Sherwood also argued tangentially that the district court erred in denying his motion to alter or amend the judgment. The panel found this argument was abandoned for lack of briefing. 2017 WL 4321116, at *4. Sherwood did not petition this issue for review, so we decline to address it. See Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 53).

ANALYSIS

Sherwood alleges two procedural due process violations that stem from his pro se status. He first argues the district court denied him due process when it failed to appoint counsel to represent him after the State filed a response to his K.S.A. 60-1507 motion. Then he argues the 2013 version of the Judicial Council's pro se K.S.A. 60-1507 form-which he relied on to draft his motion without the help of counsel-did not adequately inform him about the statutory time limits or the need to establish a manifest injustice to excuse his untimely motion. See K.S.A. 2018 Supp. 60-1507(f)(1)(A) (requiring an action to "be brought within one year of:

... 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"); K.S.A. 2018 Supp. 60-1507(f)(2) ("The time limitation herein may be extended by the court only to prevent a manifest injustice."). He claims these errors, taken together, compounded the due process violation.

Whether due process has been afforded is a question of law subject to unlimited review. Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005). We address each argument in turn and conclude Sherwood's due process rights were not violated for either reason.

Sherwood claims the filing of the State's response to his K.S.A. 60-1507 motion triggered his due process right to appointed counsel. He analogizes the district court's consideration of the State's written response to a hearing where the State was represented by counsel but he was not. In support, he points to decisions like State v. Hemphill , 286 Kan. 583, 596, 186 P.3d 777 (2008), which hold that due process requires a postconviction movant to be represented by counsel at a hearing where the State is represented by counsel unless the movant waives the right to counsel. See, e.g., Stevenson v. State , No. 96,082, 2007 WL 438745, at *2 (Kan. App. 2007) (unpublished opinion). The State does not challenge this precedent but counters that Sherwood's due process rights were not violated because considering a written response is different from holding a hearing. The Court of Appeals held that due process requires the appointment of counsel when a hearing takes place on a postconviction motion, but considering the State's response did not amount to holding a hearing. Sherwood , 2017 WL 4321116, at *3.

Today in Stewart v. State , 309 Kan. ----, Syl. ¶ 2, 444 P.3d 955, 2019 WL 3047724 (No. 115149, this day decided), we considered the same arguments and affirmed that "if the court conducts a hearing at which the State will be represented by counsel, due process of law requires that the [ K.S.A. 60-1507 ] movant be represented by counsel unless the movant waives that right to counsel." But we also clarified that an actual hearing triggers the right. Stewart , 309 Kan. at ----, slip op. at 15, 444 P.3d 955. Consequently, we held: "The State is permitted to file a written response to a K.S.A. 60-1507 motion. The district court's consideration of the State's response, standing alone, does not constitute a hearing for purposes of determining whether due process of law requires the movant to be represented by counsel." Stewart , 309 Kan. ----, Syl. ¶ 3, 444 P.3d 955.

Following Stewart , we hold the filing of the State's response did not trigger Sherwood's right to appointed counsel. Moreover, the district court's consideration of the State's written response to Sherwood's pro se K.S.A. 60-1507 motion did not constitute a hearing. As a result, the district court did not violate due process when it declined to appoint counsel for Sherwood. Put simply, Sherwood's due process right to appointed counsel was not triggered because the court did not hold a hearing where the State was represented by counsel.

Next, Sherwood claims he modeled his motion after the Judicial Council's pro se K.S.A. 60-1507 form, and this form violated his due process rights because it did not adequately inform him about the statutory time limits or the manifest injustice exception. He argues the form encouraged him to file an invalid motion that would, inevitably, be summarily denied. The Court of Appeals rejected this argument, holding Sherwood was on constructive notice of K.S.A. 60-1507's timeliness requirements. Sherwood , 2017 WL 4321116, at *3.

Sherwood does not dispute that his motion was untimely and that, as a result, he needed to establish a manifest injustice to prevent summary dismissal. And we assume for purposes of this appeal that Sherwood relied on the 2013 Judicial Council form to draft his motion, even though he did not write his motion on that form. Indeed, Supreme Court Rule 183(e) encourages "substantial compliance" with the Judicial Council form. Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 230) (stating that a K.S.A. 60-1507 motion "is sufficient if it is in substantial compliance with the judicial council form. The form must be furnished by the clerk on request.").

Sherwood is correct that the 2013 Judicial Council form did not mention the one-year time limitation in K.S.A. 60-1507(f)(1) or the manifest injustice exception for untimely motions. See July 1, 2013 Judicial Council Form. But even so, we hold no due process violation occurred because there is no indication that Sherwood was prejudiced by that form. See State v. Heironimus , 262 Kan. 796, 808-09, 941 P.2d 1356 (1997) (rejecting due process claim based on defective notice because the defendant failed to show prejudice). On the contrary, Sherwood's pro se motion did assert reasons for the delay, though he did not use the legalese "manifest injustice." See, e.g., State v. Kelly , 291 Kan. 563, 565, 244 P.3d 639 (2010) ("Pro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments. A defendant's failure to cite the correct statutory grounds for his or her claim is immaterial."). Sherwood claimed the lengthy delay should be excused because he had a learning disability and had trouble getting the help he needed to file the motion. And on appeal, Sherwood insists that he fully asserted the Vontress factors in his motion. On these facts, we cannot conclude the 2013 Judicial Council form deprived Sherwood of due process. Thus, we affirm the Court of Appeals on this point as right for a different reason. See Hayes v. State , 307 Kan. 9, 16, 404 P.3d 676 (2017).

Following his due process arguments, Sherwood claims a remand is necessary because the district court violated Supreme Court Rule 183(j) by failing to "make findings of fact and conclusions of law" on the Vontress factors to determine whether he established a manifest injustice to excuse his untimely motion. See Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 230). He claims this mistake impedes meaningful appellate review. See State v. Moncla , 269 Kan. 61, 65, 4 P.3d 618 (2000) (stating that the "fundamental problem" with a district court's failure to follow Rule 183 [j] is that it "impedes appellate review"). Whether the district court complied with Rule 183(j) is a question of law we review de novo. Robertson v. State , 288 Kan. 217, 232, 201 P.3d 691 (2009).

Again, the district court's summary denial order stated:

"Petitioner's demands are based on conclusory statements without any sufficient evidentiary references to support such. Further the petition is time barred due to a 10 year delay in filing this action with no argument suggesting or supporting the existence of manifest injustice to overcome the statutory time limit in filing."

Although the district court's order was concise, it adequately conveyed that Sherwood's arguments were conclusory; his motion was untimely; and none of his arguments established a manifest injustice. See Sherwood , 2017 WL 4321116, at *4. The order, though brief, was not boilerplate. See Nguyen v. State , 309 Kan. 96, 112, 431 P.3d 862 (2018) ("Boilerplate journal entries, which only state that 'motions, files, and records of the case did not show manifest injustice; and [movant]'s conclusory allegations did not entitle him to relief,' do not comply with Rule 183(j)."). Furthermore, the order provides sufficient detail for us to review Sherwood's manifest injustice claim. We agree with the Court of Appeals that "[a]lthough the district court's order was brief, for purposes of appellate review it is clear enough to explain the district court's legal basis for summarily denying Sherwood's motion." Sherwood , 2017 WL 4321116, at *4. Thus, we hold the district court's order complied with Rule 183(j) and proceed to Sherwood's manifest injustice claim.

Finally, on the merits of Sherwood's claim, we review the summary denial of his K.S.A. 60-1507 motion de novo because we have the same access to the motion, records, and files as the district court. See Bellamy v. State , 285 Kan. 346, 354, 172 P.3d 10 (2007). Summary denial is appropriate, without appointing counsel, when the motion and the files and records of the case, including any response to the motion by the State, conclusively show that the prisoner is entitled to no relief. See K.S.A. 60-1507(b) ; Stewart , 309 Kan. ----, Syl. ¶ 4, 444 P.3d 955.

Because Sherwood's K.S.A. 60-1507 motion was untimely, he had the burden to prove by a preponderance of the evidence that an extension was necessary to prevent a manifest injustice. See K.S.A. 60-1507(f)(2) ; Supreme Court Rule 183(g) (2019 Kan. S. Ct. R. 228); White v. State , 308 Kan. 491, 496, 421 P.3d 718 (2018). We have defined a manifest injustice as something " 'obviously unfair' " or " 'shocking to the conscience.' " 308 Kan. at 496, 421 P.3d 718 (quoting Vontress , 299 Kan. at 614, 325 P.3d 1114 ).

The Court of Appeals analyzed Sherwood's manifest injustice claim under both Vontress and the 2016 amendment to K.S.A. 60-1507(f)(2), which abrogated Vontress and changed the manifest injustice analysis. See L. 2016, ch. 58, § 2. The panel held that Sherwood did not establish a manifest injustice under either standard. Sherwood , 2017 WL 4321116, at *10.

In Vontress , we directed that "courts 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," including:

"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." 299 Kan. at 616, 325 P.3d 1114.

But in 2016 the Legislature amended K.S.A. 60-1507 to remove the second Vontress factor and thus narrow the manifest injustice inquiry. White , 308 Kan. at 496-97, 421 P.3d 718 ; L. 2016, ch. 58, § 2. Under the amended statute, courts are "limited to considering (1) a movant's reasons for the failure to timely file the motion and (2) a movant's claims of actual innocence." Hayes , 307 Kan. at 14, 404 P.3d 676 ; see K.S.A. 2018 Supp. 60-1507(f)(2)(A).

Recently in White , we held that the Vontress factors govern our manifest injustice inquiry for K.S.A. 60-1507 motions filed before July 1, 2016, and the 2016 amendments to K.S.A. 60-1507 govern for motions filed after that date. White , 308 Kan. at 503, 421 P.3d 718. We decided White after the Court of Appeals issued its decision but while Sherwood's case was still pending. Because Sherwood filed his motion before July 2016, Vontress governs our manifest injustice inquiry.

The first Vontress factor is whether "the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation." 299 Kan. at 616, 325 P.3d 1114. In his motion, Sherwood argued the delay was caused by his learning disability; his inability to obtain legal assistance; and his inability to obtain record documents to support the motion. We agree with the Court of Appeals' reasoning on this factor. As the panel explained:

"With regard to Sherwood's claim of mental instability or learning disability, he does not specify the nature and extent of his condition. He also does not explain how in 2014-more than 10 years after the deadline to file his K.S.A. 60-1507 motion, and almost 15 years after the Kansas Supreme Court denied Sherwood's petition for review on his direct appeal-he was finally able to enlist the assistance of another inmate, yet he was unable to obtain assistance from that inmate or other inmates during the previous 15 years." Sherwood , 2017 WL 4321116, at *7.

While the record suggests that Sherwood tried but failed to obtain record documents about 5 months prior to his K.S.A. 60-1507 motion, this also does not explain the roughly 18-year delay. See 2017 WL 4321116, at *7. Thus, we conclude Sherwood did not provide a persuasive reason for the long delay.

The second Vontress factor is whether "the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration." Vontress , 299 Kan. at 616, 325 P.3d 1114. Sherwood made many arguments in his K.S.A. 60-1507 motion but only raises these on appeal: (1) he did not have enough time to prepare a defense for trial; (2) the district court counted an unspecified conviction against him twice at sentencing; (3) under Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a jury, not a judge, should have decided whether to impose an upward departure at sentencing; and (4) neither the district court nor his trial counsel informed him about the maximum sentence he could receive. He also argues that trial and appellate counsel were ineffective for failing to catch these errors. We agree with the Court of Appeals that the first two claims are conclusory and do not merit further review. See Sherwood , 2017 WL 4321116, at *7-9. Given this, we only analyze the last two arguments and the ineffective assistance of counsel claims intertwined with them.

In his pro se motion, Sherwood argued that according to Apprendi , a jury should have decided whether to impose an upward departure at sentencing. See K.S.A. 21-4716 (authorizing sentencing judge to impose a departure sentence when the judge finds substantial and compelling reasons to do so). He explained that if his appellate defender had "file[d] a federal appeal" for him, as he requested, then he would have qualified for relief under Apprendi and State v. Gould , 271 Kan. 394, 23 P.3d 801 (2001). Liberally construing his motion, it appears that Sherwood meant his appellate defender should have filed a writ of certiorari with the United States Supreme Court for him.

In Apprendi , the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Applying this rule in Gould , we held that "[a]n upward departure sentence imposed on a defendant by a judge under K.S.A. 2000 Supp. 21-4716 [former departure statute] is a violation of the defendant[']s Sixth Amendment rights and Fourteenth Amendment Due Process rights and, thus, is unconstitutional." 271 Kan. 394, Syl. ¶ 3, 23 P.3d 801. But Gould also clarified that this holding "has no retroactive application to cases final as of June 26, 2000, the date Apprendi was decided." 271 Kan. 394, Syl. ¶ 6, 23 P.3d 801. We denied Sherwood's petition for review in his direct appeal, and the mandate issued in March 2000.

Sherwood's current appellate counsel connects the dots to argue that if the appellate defender in Sherwood's direct appeal had filed a writ of certiorari with the United States Supreme Court, then Sherwood's case would have been pending when Apprendi was decided, and as a result, he would have qualified for relief under Gould . This appears to be an ineffective assistance of appellate counsel claim, though Sherwood does not label it as such.

Sherwood's claim depends on the shaky premise that he has a right to counsel for a writ of certiorari to the United States Supreme Court in the first place. On appeal, he provides no constitutional or statutory authority to support this premise, and existing caselaw is not favorable toward his view. The United States Supreme Court has declined to find a federal constitutional right to counsel for filing a writ of certiorari. See Ross v. Moffitt , 417 U.S. 600, 617, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) (holding that states are not constitutionally required to provide counsel for defendants seeking review of their convictions at the Supreme Court). And we have held that "the Kansas Legislature intended that a defendant's right to counsel in the direct appeal of a felony conviction extends to all levels of the state appellate process , including the filing of the petition for review." (Emphasis added.) Kargus v. State , 284 Kan. 908, 916, 169 P.3d 307 (2007). Of course, filing a writ of certiorari to the United States Supreme Court would fall outside the state appellate process. Thus, under existing caselaw, Sherwood's argument that his appellate defender was ineffective for failing to file a writ of certiorari does not raise a substantial issue of law that would amount to a manifest injustice.

Sherwood's motion also stated that he was never informed about the maximum sentence he could receive or the possibility of an upward departure before accepting the plea. The record reveals that the district court informed Sherwood that he could receive a total of 402 months' imprisonment-just two months shy of his actual 404-month sentence-which included an upward departure.

At the plea hearing, defense counsel believed that Sherwood's criminal history score would be D. The judge explained to Sherwood that if he had a criminal history score of D, then she could impose an upward departure and sentence him to a total of 402 months' imprisonment:

"[THE COURT:] Mr. Sherwood, your lawyer apparently thinks that you are going to be a Criminal History D. That means you have one prior person felony. Now, let me just tell you, now the most, the maximum sentence you could receive if you were a Criminal History D would be if ... I departed and doubled both counts and ran them consecutive, you would get 250 months on Count 1 and you would get 152 months on Count 2 for a total of 402 months. That's the most you face if ... I doubled your sentence and I ran them consecutive if you are a Criminal History D."

The judge asked Sherwood if he understood this, and Sherwood said yes. Then the judge asked if Sherwood understood what she meant by a "double departure," and Sherwood said yes. Finally, she asked if Sherwood had any questions about his possible sentence, and he said no. At sentencing, the judge found that Sherwood had a criminal history score of D and sentenced him to a total of 404 months' imprisonment.

We conclude Sherwood was sufficiently informed about the sentence he could receive when he entered his plea, despite the two-month difference. This small discrepancy does not support an ineffective assistance of counsel claim or amount to a manifest injustice.

Lastly, the third Vontress factor is whether "the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence." Vontress , 299 Kan. at 616, 325 P.3d 1114. In short, Sherwood now wants to withdraw his plea and contest the charges. But this is not a colorable claim of innocence, and he presents no argument that challenges the State's detailed proffer of evidence about the rape and aggravated criminal sodomy.

In conclusion, none of the Vontress factors support finding a manifest injustice here-we see no persuasive reason for the delay; no substantial issue of law meriting consideration; and no colorable innocence claim. We thus agree with the lower courts that Sherwood has failed to establish a manifest injustice and summary denial was appropriate.

Affirmed.


text:
    Alcena M. DAWSON, Appellant, v. STATE of Kansas, Appellee.
    No. 115,129
    Supreme Court of Kansas.
    Opinion filed July 12, 2019
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, and Krystle M.S. Dalke, of the same firm, were on the brief for appellant.
    Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Johnson, J.:

Alcena M. Dawson petitions for our review of the Court of Appeals' affirmance of the district court's summary denial of his fourth K.S.A. 60-1507 motion. He claims the district court violated his due process rights when it asked the State for a response to the motion and reviewed that response without appointing counsel for Dawson. Dawson also contends that he is entitled to an evidentiary hearing on his motion based upon exceptions that would permit his untimely and successive filing. Finding no error, we affirm the lower courts.

FACTUAL AND PROCEDURAL OVERVIEW

In 1997, a jury found Dawson guilty of the rape of his then girlfriend's seven-year-old daughter, D.C. The allegations of Dawson's genitalia-to-genitalia touching of D.C. came to light after Dawson moved out of the girlfriend's house. The girlfriend called the police and subsequently took her daughter to the hospital for a sexual assault examination. During a colposcopic examination, one of the two sexual assault nurse examiners (SANE) involved noted some debris inside D.C., and collected it with a swab. The SANE could not say whether the debris contained DNA material. The swab was apparently never submitted to laboratory testing and at some point was destroyed.

On direct appeal, Dawson challenged the SANEs' qualifications, the sufficiency of the evidence, and his criminal history. The Court of Appeals affirmed his conviction and sentence.

State v. Dawson , No. 79,652, 992 P.2d 826, unpublished opinion filed December 23, 1999 (Kan. App.), rev. denied 269 Kan. 935 (2000) ( Dawson I ).

Since his direct appeal, Dawson has filed multiple postconviction motions, several of which are relevant here. In 2001, Dawson filed what appears to be his first K.S.A. 60-1507 motion. This motion is not included in the record of this appeal, but according to the district court's final order dismissing Dawson's current motion, Dawson's 2001 motion raised a Batson challenge and a claim of ineffective assistance of counsel. The district court denied the 2001 motion and Dawson did not appeal.

In 2002, Dawson filed his second K.S.A. 60-1507 motion, which is also not included in the record of this appeal. According to the resulting Court of Appeals opinion, that motion asserted ineffective assistance of counsel and multiple trial errors, including:

"the exclusion of evidence, such as rape kit report, DNA testing, and polygraph tests; the aggregation of Dawson's misdemeanor convictions; the inclusion of two rape victims and jurors with personal knowledge of the case on the jury; the credibility of witnesses' testimony; the trial court's refusal to allow psychiatric exams of the mother of the victim; the exclusion of expert testimony refuting the medical exams performed in this case; and prosecutorial misconduct." Dawson v. State, No. 94,720, 2006 WL 3877559, at *1 (Kan. App. 2006) (unpublished opinion), rev. denied 283 Kan. 930 (2007) ( Dawson II ).

The district court had appointed counsel and held a pretrial hearing before determining that Dawson's second 60-1507 motion was successive, failed to provide an evidentiary basis to review his claims, and failed to identify exceptional circumstances to warrant relief. "The district court granted Dawson an additional 30 days to gather additional information to support his arguments; however, after Dawson filed a motion to reconsider, the district court again determined that Dawson failed to identify exceptional circumstances to warrant a review." 2006 WL 3877559, at *1.

On appeal, Dawson argued the district court erred in dismissing his motion without an evidentiary hearing, that his 60-1507 counsel was ineffective, and that the district court did not enter findings of fact and conclusions of law on all issues presented. The Court of Appeals affirmed, holding that many of Dawson's claims involved trial errors and further that Dawson had not demonstrated exceptional circumstances that prevented him from raising his claims on direct appeal or in his first 60-1507 motion. 2006 WL 3877559, at *3. The Court of Appeals specifically rejected Dawson's contention that he did not raise an issue of ineffective assistance of counsel in his first motion and held "Dawson should not be permitted to piecemeal an issue of ineffective assistance of counsel to circumvent Supreme Court Rule 183(d)." 2006 WL 3877559, at *2. Further, the Court of Appeals rejected Dawson's contention that his 60-1507 counsel for his second motion was ineffective. 2006 WL 3877559, at *2.

In April 2014, Dawson filed a motion for forensic DNA testing under K.S.A. 21-2512. The district court appointed counsel and held a hearing on the motion. The district court denied the motion because the evidence Dawson sought to have tested was destroyed and therefore could not be produced. In the order denying Dawson's present motion, the district court found "the evidence had been destroyed in the regular course of business, with no bad faith, prior to movant's direct appeal." This finding appears to have been adopted from the State's response. Dawson appealed the denial of his motion for DNA testing. But Dawson later filed a motion to withdraw the notice of appeal.

In July 2014, Dawson filed his third 60-1507 motion. This motion is also not in the record, but the district court's order on the current motion found that the third motion raised several claims, including ineffective assistance of trial counsel based on the attorney's failure to, inter alia , prepare a defense, call witnesses, and demand production of lab results and evidence. The district court's order on the current motion also provides that in March 2015, the district court declined to address Dawson's third motion and summarily denied it because Dawson had a pending appeal. Dawson did not appeal this denial.

In February 2015, Dawson filed the subject pleading, his fourth 60-1507 motion. The pro se motion asked for a writ of habeas corpus to correct a manifest injustice created by ineffective assistance of counsel and the State's destruction of material exculpatory evidence. More specifically, Dawson argued his trial counsel, Susan Martin, was ineffective for failing to honor Dawson's request to test existing DNA material in order to prove that he was innocent of the rape allegations; counsel was ineffective for failing to object to a SANE's testimony about a DNA test swab kit, which was not actually tested but led the jury to believe DNA evidence existed showing Dawson's guilt; and the State violated Dawson's due process rights to discovery and confrontation when the State destroyed material DNA evidence in bad faith and in violation of statutory law.

The register of actions reflects that on July 22, 2015, the district court emailed the assistant district attorney, requesting the State's response to the motion. The State responded, arguing that Dawson's motion was time-barred and that Dawson had not established manifest injustice for failing to timely file his motion. Further, the State asserted that Dawson had failed to carry his burden to establish exceptional circumstances for considering a successive motion.

The district court denied Dawson's fourth motion, finding it was untimely, successive, and an abuse of remedy. The district court specifically held that Dawson had failed to present a credible argument or evidence showing that exceptional circumstances excused Dawson's failure to raise his present issues on direct appeal or in his first 60-1507 motion.

Dawson appealed to the Court of Appeals, claiming the district court had violated his due process rights when it failed to appoint counsel to represent him after the State's attorney filed a formal written response to the motion at the district court's request. Dawson also argued that he had shown the district court manifest injustice and exceptional circumstances to overcome the procedural bars to the review of his motion on its merits.

The Court of Appeals held that the district court did not err in summarily dismissing Dawson's motion. The panel rejected Dawson's due process argument, but also held that any error stemming from the State's response was harmless because the motions, files, and records conclusively showed Dawson was not entitled to relief. The panel opined that the question of whether the manifest injustice extension of the time limit should have been applied could not be determined from the record. But the panel held that Dawson's motion was nevertheless barred as successive and an abuse of remedy because Dawson failed to show exceptional circumstances allowing him to raise his claims in his fourth 60-1507 motion. Dawson v. State , No. 115,129, 2017 WL 262027 (Kan. App. 2017) (unpublished opinion) ( Dawson III ).

Dawson timely petitioned this court for review.

ALLEGATIONS OF DUE PROCESS VIOLATIONS

Dawson contends that the district court violated his due process rights when it solicited a written response from the State's attorney, but then failed to appoint counsel to represent Dawson. He also asserts that the failure to appoint him counsel violated the protocol on handling K.S.A. 60-1507 motions established by caselaw. See, e.g., Lujan v. State , 270 Kan. 163, 170-71, 14 P.3d 424 (2000) (outlining three avenues a district court can take upon receiving a 60-1507 motion). In addition, Dawson complains that the State's response was untimely under Supreme Court Rule 133(b) (2019 Kan. S. Ct. R. 204) and that the Kansas Judicial Council forms for filing a K.S.A. 60-1507 are defective.

Standard of Review

The extent of Dawson's statutory right to counsel during a K.S.A. 60-1507 proceeding is a question of law over which this court has unlimited review. See Mundy v. State , 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State , 288 Kan. 217, 227, 201 P.3d 691 [2009] ); see also Thompson v. State , 293 Kan. 704, 710, 270 P.3d 1089 (2011) (interpretation of statutes and Supreme Court rules reviewable de novo). Likewise, Dawson's due process claims present questions of law over which we exercise unlimited review. See Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).

Analysis

In Stewart v. State , 309 Kan. ----, 444 P.3d 955, 2019 WL 3047724 (2019) (No. 115,149, this day decided), we addressed the question of whether the district court's consideration of a written response from an attorney for the State without first appointing counsel for an indigent 60-1507 movant violated the movant's right to due process of law. We held that the district court's review of the State's filed response to a 60-1507 motion, standing alone, did not create an indigent movant's right to counsel. Stewart , 309 Kan. at ----, slip op. at 14-16, 444 P.3d 955. Rather, "as a matter of procedural due process, a movant has the right to counsel when the court holds a hearing at which the State is represented by counsel." Stewart , 309 Kan. at ----, slip op. at 16, 444 P.3d 955. Given that the district court did not conduct a hearing in this case, its refusal to appoint counsel for Dawson did not constitute a due process violation.

Dawson suggests that, here, it was the district court's actively seeking a written response from the State's attorney that triggered its due process obligation to appoint an attorney to represent him. In State v. Redding , 309 Kan. ----, 444 P.3d 989, 2019 WL 3058739 (2019) (No. 115,037, this day decided), the district court sent a copy of a postconviction pro se motion directly to the State's attorney and advised that the court would wait for the State's response before reviewing the motion. Notwithstanding the court's solicitation of a response from the State, we applied the same test for determining the due process right to counsel for a postconviction movant, i.e., due process is implicated when the district court conducts an actual hearing at which the State is represented by an attorney. Redding , 309 Kan. at ----, slip op. at 10, 444 P.3d 989. To be clear, a district court's request for or solicitation of the State's written response to a pro se postconviction motion does not change the due process calculus set forth in Stewart .

Dawson's argument that the district court violated the protocol mandated by the applicable statutes and Supreme Court Rules is likewise unavailing. Stewart reiterated that a 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but that, under some circumstances, a statutory right to counsel exists for such a collateral attack. Stewart , 309 Kan. at ----, slip op. at 8, 444 P.3d 955. Specifically, pursuant to K.S.A. 22-4506(b), "a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact." Stewart , 309 Kan. at ----, slip op. at 9, 444 P.3d 955. But the district court's identification of a potentially substantial issue does not trigger that statutory duty. During the period that the district court is making its determination of whether the motion does, in fact, present a substantial question of law or triable issue of fact, "the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney." Stewart , 309 Kan. at ----, slip op. at 11-12, 444 P.3d 955. It is only when the district court convenes a hearing to assist in that determination, at which the State is represented by counsel, that the appointment of counsel is required as matter of due process unless the movant has waived his or her right to counsel. Redding , 309 Kan. at ----, slip op. at 10, 444 P.3d 955.

In sum, because the district court determined that the motion, files, and records conclusively showed that Dawson was entitled to no relief, i.e., determined that there was no substantial question of law or triable issue of fact, it was not statutorily required to appoint counsel for Dawson. Further, because the district court did not conduct a hearing to determine the existence of a substantial question of law or triable issue of fact, the failure to appoint counsel for Dawson did not violate his due process rights.

Dawson also complains that the State's response to his motion was untimely. The panel had cited to our Rule 133(b), which states:

"An adverse party may file a memorandum in opposition to a motion, stating without extended elaboration the reasons the motion should be denied and citing authorities, if any, the court should consider in ruling on the motion. Except as otherwise provided by statute or these rules, the response must be filed not later than 7 days after service of the motion or as otherwise provided by the court." Supreme Court Rule 133(b) (2019 Kan. S. Ct. R. 205).

Dawson argues that if the panel relied on that rule as the authority for the State to file a response to his 60-1507 motion, it should have enforced the rule's seven-day time limit, as well.

Without discussing Rule 133, we have previously recognized that nothing in 60-1507 or our rules prohibits the State from responding to a 60-1507 motion. Pabst v. State , 287 Kan. 1, 24, 192 P.3d 630 (2008). Our Supreme Court Rule 183(a)(2) (2019 Kan. S. Ct. R. 229), that governs 60-1507 motions, provides: "[T]he procedure on a motion under K.S.A. 60-1507 is governed by the rules of civil procedure, K.S.A. 60-201 et seq. , to the extent the rules are applicable. "(Emphasis added.) But in Vontress v. State , 299 Kan. 607, 612, 325 P.3d 1114 (2014), superseded by statute as stated in Hayes v. State , 307 Kan. 9, 13-14, 404 P.3d 676 (2017), this court recognized that "despite the general rule that K.S.A. 60-1507 motions are governed by the Kansas Rules of Civil Procedure, the plain language of Rule 183 provides that those rules will not always control." Similarly, we have never required the State's response to a 60-1507 motion to be filed within seven days of service of the motion under Rule 133(b).

Finally, Dawson suggests that he should be excused from complying with the procedural rules applicable to K.S.A. 60-1507 motions because the Judicial Council forms for filing a motion and poverty affidavit do not advise the movant of the time limitations or the legal standards for successive motions.

In his petition for review, Dawson's counsel, Michael P. Whalen, acknowledges that this challenge to the Judicial Council forms is being raised for the first time before this court. But counsel flippantly suggests that "before we get all excited to dismiss this argument because it wasn't raised before the district court or the Court of Appeals," we should note two exceptions permitting consideration of a newly raised constitutional issue. The arguments, however, are unpersuasive.

We first acknowledge that Dawson did not utilize the Judicial Council motion form, so one could question his standing to complain about its content. Nevertheless, for purposes of this appeal, we will assume Dawson relied on the form to draft his motion, as Supreme Court Rule 183(e) encourages "substantial compliance" with the Judicial Council motion form. See Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 230) (stating that a K.S.A. 60-1507 motion "is sufficient if it is in substantial compliance with the judicial council form. The form must be furnished by the clerk on request.").

Assuming Dawson did refer to the Judicial Council motion form, Dawson's appellate counsel references the form adopted in July 2012. This form instructs the movant to state concisely the reasons why a ground for relief has not been previously presented to any court. See July 1, 2012 Judicial Council Form. Nevertheless, Dawson is correct that the 2012 Judicial Council form did not explicitly mention the one-year time limitation in K.S.A. 60-1507(f)(1) or the manifest injustice exception for untimely motions. Nor does the form explicitly state that to avoid having a second or successive motion dismissed as an abuse of remedy, the movant must establish exceptional circumstances.

Even so, today in Sherwood v. State , 309 Kan. ----, ----, 444 P.3d 966, 2019 WL 3048343 (No. 115,899, this day decided), slip op. at 6-7, we considered similar arguments and rejected a due process claim based on a 2013 version of the Judicial Council form. The 2012 and 2013 versions of the motion form contain the same language; the 2013 version contains amendments to the poverty affidavit form not at issue here. Compare July 1, 2012 Judicial Council Form with July 1, 2013 Judicial Council Form. As in Sherwood , Dawson has not shown he was prejudiced by the motion form. See also State v. Heironimus , 262 Kan. 796, 808-09, 941 P.2d 1356 (1997) (rejecting due process claim based on defective notice because the defendant failed to show prejudice). The record suggests that Dawson had independent knowledge of the time limitations and the legal standards applicable to such motions. For instance, Dawson's motion states that it should be considered to correct a manifest injustice and cites to K.S.A. 60-1507(f)(2), indicating an actual knowledge of the time limitations. Moreover, this is Dawson's fourth 60-1507 motion and the 2006 Court of Appeals opinion on his second motion specifically stated that the motion was successive and that Dawson had failed to identify exceptional circumstances to warrant review. Dawson II , 2006 WL 3877559, at *1-2. In other words, whatever shortcomings might have been present in the Judicial Council form was trumped by Dawson's actual knowledge of the time limits and legal standards applicable to his 60-1507 motion. On these facts, we cannot conclude that the 2012 Judicial Council form deprived Dawson of due process.

MOVANT'S RIGHT TO AN EVIDENTIARY HEARING

The district court summarily denied Dawson's motion without conducting a hearing on the merits of his claims because it found the motion to be procedurally barred. Specifically, the district court found the motion to be untimely, successive, and an abuse of remedy. The Court of Appeals opined that the record was insufficient for it to determine whether the manifest injustice extension to the K.S.A. 60-1507(f) time limit was applicable in this case. Dawson III , 2017 WL 262027, at *2-3. Consequently, the panel relied on its determination that the motion was an abuse of remedy because Dawson had failed to show exceptional circumstances that would justify waiting to bring his current claims until his fourth successive 60-1507 motion. 2017 WL 262027, at *3.

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 any relief." Wimbley v. State , 292 Kan. 796, 804, 275 P.3d 35 (2011).

Analysis

Dawson argues that the district court erred in finding that he had not established the requisite manifest injustice and exceptional circumstances to permit a merits review of his motion. But the absence of either exception would procedurally bar Dawson's motion. Indeed, the panel relied solely on the successive motion constraint to affirm the district court's summary denial. Accordingly, we will focus our attention on reviewing the exceptional circumstances holding by the Court of Appeals.

"[U]nder K.S.A. 60-1507(c), a court is not required to entertain successive motions on behalf of the same prisoner." State v. Trotter , 296 Kan. 898, 904, 295 P.3d 1039 (2013). Nevertheless, "[t]his court has decades of caselaw holding that K.S.A. 60-1507's prohibition on successive motions is subject to exceptions." Nguyen v. State , 309 Kan. 96, 107, 431 P.3d 862 (2018). But a movant has the burden of establishing exceptional circumstances to avoid an abuse-of-remedy dismissal of a second or successive 60-1507 motion. Beauclair v. State , 308 Kan. 284, 304, 419 P.3d 1180 (2018) ; See also Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014) (movant has burden to prove 60-1507 motion warrants evidentiary hearing).

Dawson bases his claims on allegations that his trial attorney provided ineffective assistance of counsel. Specifically, he contends that his trial attorney was ineffective for failing to effect the preservation and testing of the DNA evidence on the rape kit swab, for failing to conduct a reasonable investigation to discover whether the swab was ever lab tested, and for failing to object to the SANE's trial testimony about collecting debris with a swab when the State did not present evidence that the swab had been lab tested. He asserts that he repeatedly asked his trial attorney to obtain forensic testing of the swab because it would prove his innocence, but that his counsel simply ignored his requests.

Dawson suggests that trial counsel's ineffectiveness excuses the successiveness of his current claims. Granted, we have opined that the ineffective assistance of counsel can qualify as an exceptional circumstance that could justify failing to raise an issue on direct appeal. See, e.g., Rowland v. State , 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). But Dawson must also establish some causal connection between the alleged ineffective assistance of counsel and the delay in asserting the postconviction claims, i.e., the exceptional circumstances must explain or justify the failure to assert a claim in a prior 60-1507 motion. See Toney v. State , 39 Kan. App. 2d 944, 948, 187 P.3d 122 (2008) ("Because Toney has not alleged any unusual events or intervening changes in the law which prevented him from reasonably being able to raise his [ineffective assistance of counsel] claim in his first K.S.A. 60-1507 motion, the trial court properly denied Toney's current K.S.A. 60-1507 motion as successive under K.S.A. 60-1507 [c].").

Since the alleged ineffectiveness of Dawson's trial attorney, he has filed a direct appeal and three prior 60-1507 motions. Consequently, trial counsel's performance was not an intervening event that would explain the omission of the current claims from the first (or second or third) 60-1507 motion. Moreover, each of Dawson's prior 60-1507 motions included claims of ineffective assistance of counsel, some of which complained of the same conduct alleged in the current motion. Accordingly, as the State argues, Dawson's claims were known to him during, or immediately following, his trial, and the claims are related to those that were raised and rejected in his prior 60-1507 motions. Such successive consideration of the same issues is exactly what K.S.A. 60-1507(c) is designed to prevent.

In addition, Dawson makes the specious argument that his delay in raising the current claims of ineffective counsel was the result of his not knowing until October 2014 that the swab had been destroyed. The knowledge of the posttrial destruction of evidence obtained in 2014 was not necessary for Dawson to raise the complaint that his attorney at his 1997 trial repeatedly ignored his requests to have the rape kit swab tested for DNA evidence. Granted, the subsequent destruction of the evidence might impact the prejudicial effect of counsel's conduct, but it did not prevent Dawson from raising the ineffectiveness of trial counsel claim. In short, the Court of Appeals did not err in affirming the district court's finding that Dawson failed to establish exceptional circumstances to permit a merits review of his successive 60-1507 motion.

Affirmed.