Opinion
No. 108,797.
2013-10-25
James WOOLDRIDGE, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Wilson District Court; Daniel Dale Creitz, Judge. Steven C. Staker, of Immel, Works & Heim, P.A., for appellant. Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wilson District Court; Daniel Dale Creitz, Judge.
Steven C. Staker, of Immel, Works & Heim, P.A., for appellant. Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., BRUNS, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
James Wooldridge, Jr., appeals from the district court's denial of his eighth K.S.A. 60–1507 motion. The district court denied the motion as successive and untimely—after giving Wooldridge an opportunity to address the successiveness and untimeliness of his motion—and prohibited Wooldridge from filing another K.S.A. 60–1507 motion without leave of the court. Wooldridge argues that the district court erred in denying his motion, but because Wooldridge failed to provide exceptional circumstances justifying his successive motion and did not adequately explain how consideration of his untimely motion would prevent a manifest injustice, the district court properly denied the motion. Additionally, although it was within the district court's discretion to place restrictions on Wooldridge's future K.S.A. 60–1507 filings, the district court failed to set forth carefully drawn restrictions. Thus, we affirm in part, vacate in part, and remand with directions for the district court to carefully draw reasonable restrictions to be placed on Wooldridge's future court filings.
Facts
In 1983, Wooldridge was convicted of aggravated burglary, aggravated robbery, attempted rape, aggravated battery, aggravated assault, and criminal destruction of property. The Kansas Supreme Court affirmed Wooldridge's convictions in State v. Wooldridge, 237 Kan. 737, 703 P.2d 1375 (1985).
On September 12, 2008, Wooldridge filed the K.S.A. 60–1507 motion that is the subject of this appeal. However, according to an appeal decided by this court in 2006, before filing his current motion, Wooldridge had already filed seven K.S.A. 60–1507 motions and one federal habeas corpus action. See Wooldridge v. State, No. 92,466, 2006 WL 1318804, at *1 (Kan.App.2006) (unpublished opinion).
Although it does not appear that all seven of Wooldridge's K.S.A. 60–1507 motions made it to the appellate court level, in 1995, this court reversed Wooldridge's aggravated assault conviction and vacated the sentence on that conviction on a K.S.A. 60–1507 motion because the aggravated robbery and the aggravated assault charges were multiplicitous. Wooldridge v. State, No. 73,137, unpublished opinion filed November 17, 1995.
The only other of his K.S.A. 60–1507 motions to reach the appellate level was his seventh K.S.A. 60–1507 motion filed in November 2002, in which Wooldridge alleged five grounds for relief that he claimed had not been addressed in his prior actions. 2006 WL 1318804, at *1. Specifically Wooldridge alleged:
“(1) the complaint/information regarding the charge of attempted rape was fatally defective because it failed to allege an overt act; (2) the trial court failed to give a unanimity instruction regarding the act of violence the jury was to rely upon to convict Wooldridge of aggravated battery and aggravated robbery; (3) his convictions for aggravated robbery and attempted rape are multiplicitous; (4) the trial court failed to provided the lesser included instruction of battery regarding the attempted rape charge; and (5) there was insufficient evidence to support his conviction of aggravated battery since there was no evidence establishing great bodily harm or bodily harm.” 2006 WL 1318804, at *1.
In that appeal, this court determined that Wooldridge's motion constituted an abuse of remedy because he “had ample opportunity to raise these same issues, and, in fact, in some instances [had] raised these issues before.” 2006 WL 1318804, at *2. Wooldridge additionally conceded that there were no exceptional circumstances that prevented him from raising the issues in his previous motions. 2006 WL 1318804, at *2. The court, therefore, affirmed the district court's denial of the motion. 2006 WL 1318804, at *1–2.
In the K.S.A. 60–1507 motion that is the subject of this appeal, Wooldridge argued that (1) the complaint/information on his aggravated robbery charge was fatally defective; (2) “the State created a fatal ‘variance’ “ in the aggravated robbery jury instruction; and (3) there was insufficient evidence of aggravated robbery.
The State filed a motion to dismiss, arguing that Wooldridge's motion was successive and untimely. The State further argued that even if a hearing was required on the motion, Wooldridge presented only legal arguments, so his presence at the hearing was unnecessary.
The district court held a hearing at which it decided to give Wooldridge time to file an amended motion in order to argue whether exceptional circumstances and/or manifest injustice excused the successive and untimely filed motion. Subsequently, Wooldridge filed a statement of exceptional circumstances, in which he argued that diagnoses of mental conditions from his prison records showed exceptional circumstances allowing him to file his K.S.A. 60–1507 motion beyond the 1–year time limit.
The district court then held another hearing on the motion, at which Wooldridge's appointed counsel argued that Wooldridge's psychological condition provided the exceptional circumstances that allowed the court to consider Wooldridge's motion. The State argued that Wooldridge failed to show any exceptional circumstances that excused his filing the motion almost 30 years after his conviction. The State contended that there had to be some finality to a conviction, and the State would be prejudiced if for some reason the motion was granted and Wooldridge had to be retried. The State also argued that Wooldridge's motion was successive, and he failed to provide a sufficient excuse for why he could not have raised the current issues in his first K.S.A. 60–1507 motion. The State additionally requested that the district court enter an order stating that Wooldridge was not allowed to file any more motions without written permission from the court. The district court gave Wooldridge's counsel a final chance to argue, but counsel declined to make any further arguments.
After hearing the parties' arguments, the district court stated it was finding against Wooldridge on the issue of exceptional circumstances. The district court found that Wooldridge could have raised his current issues at the time of trial, and the district court could find no authority showing that the reasons given by Wooldridge constituted exceptional circumstances allowing the district court to consider his K.S.A. 60–1507 motion. The district court found the motion was also barred because it was successive. Finally, the district court ordered that Wooldridge could not file another K.S.A. 60–1507 motion without leave of the court.
Analysis
Denial of K.S.A. 60–1507 Motion
Wooldridge argues the district court erred in denying his K.S.A. 60–1507 motion. When the district court summarily dismisses a movant's K.S.A. 60–1507 motion and denies the movant an evidentiary hearing, this court applies a de novo standard of review. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
The district court denied Wooldridge's motion as both untimely and successive. The sentencing court is not required to entertain a second or subsequent K.S.A. 60–1507 motion on behalf of the same prisoner. K.S.A. 60–1507(c); Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 274). Unless the movant has shown the existence of exceptional circumstances, the district court can dismiss a second or successive motion because it is an abuse of remedy. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). “ ‘A [movant] in a 60–1507 motion is presumed to have listed all grounds for relief and a subsequent motion need not be considered in the absence of [a showing of] circumstances justifying the original failure to list a ground.’ “ State v. Trotter, 296 Kan. 898, 904–05, 295 P.3d 1039 (2013).
To establish exceptional circumstances, the movant must show unusual events or intervening changes in the law which prevented the movant from reasonably being able to raise all of the claimed errors in the first post-conviction proceeding. Kelly, 291 Kan. at 872.
Furthermore, K.S.A. 60–1507(f)(1) requires that a motion be brought within 1 year of the final order of the last appellate court to exercise jurisdiction over a direct appeal or the termination of appellate jurisdiction. The 1–year time period in K.S.A. 60–1507(f)(1) did not become effective until July 1, 2003, but a defendant whose conviction became final before the effective date of the statute could comply with the 1–year time period by filing a K.S .A. 60–1507 motion by June 30, 2004. Hayes v. State, 34 Kan.App.2d 157, 158, 161–62, 115 P.3d 162 (2005). Wooldridge did not file his current K.S.A. 60–1507 motion until September 2008, clearly outside the time limit required by K.S.A. 60–1507(f)(1).
Nevertheless, the 1–year time limit may be extended by the district court to prevent a manifest injustice. K.S.A. 60–1507(f)(2). Although the Kansas Supreme Court has not defined manifest injustice in the context of K.S.A. 60–1507(f)(2), “this court has interpreted the phrase in other contexts to mean ‘obviously unfair’ or ‘shocking to the conscience.’ “ Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). See Kelly, 291 Kan. at 873.
Wooldridge argued before the district court that his mental condition, as evidenced in his prison records, provided exceptional circumstances for his failure to raise the current issues in his previous K.S.A. 60–1507 motions. On appeal, Wooldridge concedes that the district court's decision that this did not provide exceptional circumstances seems like a sound conclusion because there was no testimony before the district court explaining how these various mental health difficulties affected his ability to raise the issues presented in his current motion in a previous motion or in a timely manner.
Wooldridge argues, however, that the district court erred because it failed to consider his motion on the merits. But the whole point of dismissing a motion as successive is that a court dismisses it before it considers the merits because the movant should have raised the issues in a previous motion. See Kelly, 291 Kan. at 872–73. Instead of arguing that his position has merit, Wooldridge needed to argue that there were circumstances justifying his original failure to raise the issue in any of his previous motions. See Trotter, 296 Kan. at 904 (affirming the denial of a K.S.A. 60–1507 motion arguing defective complaint based on movant's failure to allege circumstances that warranted consideration of his successive motion).
Additionally, the record does not contain Wooldridge's other K.S.A. 60–1507 motions, so it is possible that he actually raised his current issues in a previous motion. The party making a claim has the burden to designate facts in the record supporting that claim. Without such a record, the claim of error fails. See Fletcher v. Nelson, 253 Kan. 389, 392, 855 P.2d 940 (1993). Thus, the district court did not err in dismissing Wooldridge's motion as successive.
Our decision that the district court properly denied Wooldridge's motion as successive renders unnecessary our consideration of Wooldridge's alternative argument that the district court should not have dismissed his motion as untimely under K.S.A. 60–1507(f). In any event, we can affirm the district court's decision based on Wooldridge's failure to argue before that court that dismissing his motion based on the 1–year time limitation in K.S.A. 60–1507(f)(1) would create a manifest injustice. See Trotter, 296 Kan. 898, Syl. ¶ 3 (“A defendant who files a motion under K.S.A. 60–1507 outside the 1–year time limitation in K.S.A. 60–1507(f) and fails to assert manifest injustice is procedurally barred from maintaining the action.”).
Furthermore, we reject Wooldridge's argument that his conviction and sentence for aggravated robbery creates manifest injustice because the complaint did not allege the crime in the way it was proven at trial. Wooldridge asks the court to apply Judge Leben's concurring opinion in Vontress v. State, 45 Kan.App.2d 430, 433, 249 P.3d 452 (2011), petition for rev. granted September 23, 2011, in which Judge Leben stated that although he agreed with the majority's conclusion that the movant failed to prove his motion should be heard to prevent manifest injustice, he would not limit manifest injustice, as the majority did, only to situations when the movant has shown that circumstances prevented him or her from filing the motion within the 1–year time limit. Judge Leben stated that if a movant could show actual innocence, for example, he would not leave a movant in prison even if the movant “failed for unexplained reasons to meet the 1–year time limit.” 45 Kan.App.2d at 433.
The Kansas Supreme Court granted review in Vontress but so far has not approved of a definition of manifest injustice that includes an allegation of actual innocence. We recognize, however, that the United States Supreme Court stated in McQuiggin v. Perkins, 569 U.S. ––––, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013), that proof of actual innocence could be a gateway through the procedural bar of the federal habeas statute's time limitation. See 28 U.S.C. § 2244(d)(1). Nevertheless, even if an allegation of actual innocence is also sufficient to overcome the 1–year time limit on filing a K.S.A. 60–1507 motion, Wooldridge does not argue that he is actually innocent of the charges in this case. Instead, he contends that his conviction is “clearly not valid” based on the language used in the complaint.
Because Wooldridge has not alleged actual innocence or any circumstances that prevented him from filing his motion in a timely manner, we find he has not shown that denial of the motion is obviously unfair or shocking to the conscience. See Vontress, 45 Kan.App.2d at 433;Ludlow, 37 Kan.App.2d at 686. We affirm the district court's denial of Wooldridge's K.S.A. 60–1507 motion. Restrictions on Future Filings
Wooldridge also argues that the district court erred in ruling that he cannot file any more K.S.A. 60–1507 motions without leave of the court. Appellate courts review district courts' decisions on docket management for abuse of discretion. See Holt v. State, 290 Kan. 491, 502, 232 P.3d 848 (2010).
In Holt, the Kansas Supreme Court held that “[w]ithin the district court's inherent power to manage litigation is the ability to curb abusive filing practices that place a strain on the judicial system.” 290 Kan. at 500. But the court also found that blanket restrictions on filing were not permissible, so “when imposing filing restrictions, the restrictions shall be reasonable: for example, with enumerated prefiling conditions.” 290 Kan. at 501. Moreover, “before the court-imposed filing restrictions become effective, the party subject to them is entitled to notice and an opportunity to be heard in opposition,” but “the objecting party is not required to be physically present.” 290 Kan. at 501.
Wooldridge argues that the district court did not set forth the conditions or standards he must meet in order to file any future K.S .A. 60–1507 motions and that the court did not give him any notice of its decision or an opportunity to be heard. The State contends that the district court's order was proper because it did not give Wooldridge an outright ban on future filings but told him he must have permission from the court to file further motions. Additionally, the State contends that the district court gave Wooldridge notice, and nothing in the court's order prohibited him from filing objections to the court's restrictions.
A review of the record shows that Wooldridge had ample notice of the restriction and opportunity to object. At the February 15, 2012, hearing, the State requested that the district court enter an order stating that Wooldridge was not allowed to file any more K.S.A. 60–1507 motions without written permission of the court. The district court gave defense counsel an opportunity to argue immediately after the State's request, at which time defense counsel could have objected to imposing the condition. Furthermore, the district court notified Wooldridge at that hearing that it was ordering that he not file any successive K.S.A. 60–1507 motions without leave of the court and that otherwise the court would summarily dismiss the motion. The court ordered the State to file a journal entry, which the State did, and defense counsel approved the journal entry.
In Holt, the Kansas Supreme Court found that the district court exceeded its authority by banning outright Holt's future K.S.A. 60–1507 motions and similar filings. 290 Kan. at 503. Here, the district court merely banned Wooldridge from filing any future K.S.A. 60–1507 motions “without written permission of the Court or good cause shown.” Although we find that it is reasonable for the district court to impose filing restrictions under the circumstance presented, we find that it failed to specify the reasonable restrictions to be imposed. We, therefore, vacate the restrictions on filing future K.S.A. 60–1507 motions that are currently in place and remand that portion of the district court's order so that carefully drawn restrictions may be entered consistent with Holt and State ex rel. Stovall v. Lynn, 26 Kan.App.2d 79, 81, 975 P .2d 813 (1999) (affirming district court's order that included five specifically enumerated prefiling conditions).
Affirmed in part, vacated in part, and remanded with directions.