Brown v. Young ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,217
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KEVIN L. BROWN,
Appellant,
v.
DARIN YOUNG, Warden,
and
STATE OF KANSAS,
Appellees.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed October 1,
2021. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: The district court summarily dismissed Kevin L. Brown's second
K.S.A. 60-1507 motion as untimely. On appeal, he claims the district court erred in
finding he failed to meet his burden to show manifest injustice to extend the time to file a
K.S.A. 60-1507 motion. Brown's arguments are not persuasive. We affirm.
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FACTS
Brown was convicted by a jury of felony murder in the first degree, aggravated
burglary, and aggravated assault in 2011.
Brown was sentenced in December 2011 to life imprisonment for his off-grid
felony-murder conviction with a consecutive sentence of 12 months' imprisonment for
the aggravated assault conviction. The district court also imposed a sentence of 120
months' imprisonment for his aggravated burglary conviction concurrent to his sentence
for felony murder. In 2013, before Brown's direct appeal became final, he was transferred
to a penitentiary in South Dakota through an interstate compact agreement. Our Supreme
Court affirmed Brown's convictions and sentences on appeal. State v. Brown, 299 Kan.
1021, 1038, 327 P.3d 1002 (2014). The mandate was issued on July 28, 2014.
In July 2016, Brown filed his first pro se K.S.A. 60-1507 motion asserting
ineffective assistance of appellate counsel, followed by a "Motion for Extension to
submit Motion for Ineffective Assistance of Counsel and to Appoint Counsel." Brown
contended he was having "complex issues with the South Dakota prison legal aid."
Brown asserted the legal aid office assistant was unable to help him, did not know Kansas
law, and recommended he consult a Kansas attorney. Brown specifically stated he had
"not been able to file in a timely fashion due to the chaos of being shuffled from
administrative segregation in El Dorado, [Kansas] without [his] property to an entirely
different state penitentiary system in South Dakota with no access to the courts."
The district court determined oral argument was not necessary or helpful and it
lacked jurisdiction to rule on Brown's motion. Another panel of this court dismissed
Brown's appeal for lack of jurisdiction because he did not file his notice of appeal within
30 days. State v Brown, No. 118,800, 2019 WL 405741, at *3 (Kan. App. 2019)
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(unpublished opinion). Our Supreme Court denied Brown's petition for review, and the
mandate was issued on October 24, 2019.
On May 8, 2020, Brown filed a second K.S.A. 60-1507 motion for postconviction
relief, which is the subject of this appeal. Brown's current motion repeats his allegations
of ineffective assistance of appellate counsel for failure to argue the district court erred in
refusing to include a request for a jury instruction on lesser included offenses under State
v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011). Brown also asserted the district court
erred in allowing a codefendant's statements to be read to the jury without an opportunity
to confront the author of the statements. Brown requested the district court hold an
evidentiary hearing, allow him to amend his motion after the district court appointed
counsel, and requested the district court order his release, finding his convictions invalid
and unconstitutional. Brown also sent a letter with his motion explaining he was still in a
South Dakota prison and the law library lacked access to Kansas legal materials.
The State responded, arguing Brown's motion was untimely. The district court
issued an order summarily denying Brown's second K.S.A. 60-1507 motion as untimely,
finding Brown failed to meet his burden to establish manifest injustice to relieve him of
the one-year time limit.
BROWN'S K.S.A. 60-1507 MOTION IS UNTIMELY
Brown admits his current pro se K.S.A. 60-1507 motion is untimely. Brown then
explains he has been residing in a South Dakota prison as part of an interstate compact
arrangement and "was unaware of the strict limitations of Kansas law, specifically K.S.A.
60-1507 rules." Yet, he filed his first K.S.A. 60-1507 motion in 2016 making the same
claims he makes with this motion. As previously mentioned, another panel of this court
affirmed the district court's dismissal of Brown's 2016 K.S.A. 60-1507 motion because he
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failed to timely file his notice of appeal. Now, almost four years later, he has filed his
second untimely K.S.A. 60-1507 motion.
A district court must dismiss a motion as untimely filed if, after inspection of the
motion, files, and records of the case, the court determines the time limitation has been
exceeded and dismissing the motion would not equate to manifest injustice. K.S.A. 2020
Supp. 60-1507(f)(3).
To determine whether the one-year time limitation may be extended, we need only
consider why Brown failed to timely file his motion. Brown asserts his untimeliness is
attributable to a lack of access to Kansas law, lack of access to a law library, and lack of
access to any "rules, dictionaries, law books, [or] legal reference books." The district
court was to construe Brown's pro se pleadings liberally. See State v. Ditges, 306 Kan.
454, 457, 394 P.3d 859 (2017).
The law is clear under K.S.A. 2020 Supp. 60-1507(f)(2) that the one-year time
limitation may only be extended to prevent manifest injustice. A movant who files a
motion under K.S.A. 60-1507 outside the one-year time limitation in K.S.A. 60-1507(f)
and fails to affirmatively assert manifest injustice is procedurally barred from
maintaining the action. State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013). To
find manifest injustice, courts are "limited to determining why the prisoner failed to file
the motion within the one-year time limitation or whether the prisoner makes a colorable
claim of actual innocence." K.S.A. 2020 Supp. 60-1507(f)(2)(A). Brown also admits on
appeal he did not make an actual innocence claim before the district court and, therefore,
waives such argument. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) ("'An
issue not briefed by an appellant is deemed waived or abandoned.'").
Our court has consistently determined limited access to a law library is insufficient
to establish manifest injustice and excuse a movant's failure to abide by the one-year
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filing deadline provided under K.S.A. 60-1507(f). See Milton v. State, No. 119,821, 2019
WL 2553529, at *4 (Kan. App. 2019) (unpublished opinion); Conley v. State, No.
111,777, 2015 WL 7434746, at *4 (Kan. App. 2015) (unpublished opinion); Roediger v.
State, No. 107,746, 2013 WL 1688890, at *3 (Kan. App. 2013) (unpublished opinion);
Williams v. State, No. 101,359, 2010 WL 174011, at *3 (Kan. App. 2010) (unpublished
opinion).
Brown claims he was unable to timely file this motion because he was unaware of
the strict limitations of Kansas law and was severely restricted access to proper resources
are not persuasive. The record reflects Brown filed a motion for a new trial, a motion to
set aside his verdict and vacate his sentence, and a prior K.S.A. 60-1507 motion all
before he filed his current K.S.A. 60-1507 motion. Based on the motions Brown filed
with the district court, it is apparent he was able to access Kansas courts. Brown
continued to make the same arguments in each motion and did not advance any new
arguments. The district court denied each motion.
The district court found Brown's first K.S.A. 60-1507 motion to be untimely. With
respect to the second 60-1507 motion, the district court specifically explained:
"The Movant states in his motion that he made multiple requests of [appellate
counsel] to include the omitted arguments in the appellate briefing. The Movant
references to arguments he had with [appellate counsel] about including these issues in
the appellate briefing. Thus, the Movant was aware that these arguments had been left out
of the appellate briefing early on—certainly he would have been aware that the
arguments had not been included by the time the Kansas Supreme Court issued its
opinion. The Movant does not attempt to explain why the instant motion could not have
been filed within the [one-year] time limit."
A thorough review of the motion, files, and case records conclusively shows
Brown's argument alleging severely restricted access to a law library and Kansas legal
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resources does not amount to manifest injustice. Brown failed to affirmatively assert
manifest injustice to extend the one-year time limitation and is procedurally barred from
making such claim. Accordingly, the district court did not err in summarily denying
Brown's K.S.A. 60-1507 motion as untimely.
Affirmed.
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