Loggins v. State ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,019
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KEVIN DEON LOGGINS SR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed June 12,
2020. Affirmed.
Mark Sevart, of Derby, for appellant, and Kevin D. Loggins Sr., appellant pro se.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., GREEN, J., and TIMOTHY J. CHAMBERS, District Judge, assigned.
PER CURIAM: Kevin D. Loggins—an inmate at the Hutchinson Correctional
Facility—appeals the district court's summary dismissal of his fifth motion for habeas
corpus relief under K.S.A. 60-1507. Loggins contends that the district court judge should
have recused himself from hearing his motion. Moreover, Loggins contends that the
district court failed to make sufficient findings of fact and conclusions of law. Finally,
Loggins contends that the district court erred in finding that his K.S.A. 60-1507 motion
was untimely and successive. Finding none of Loggins' arguments to be persuasive, we
affirm the district court's summary denial of his K.S.A. 60-1507 motion.
1
FACTS
On February 28, 1996, a jury convicted Loggins of two counts of aggravated
kidnapping and two counts aggravated robbery. In addition, the jury convicted him of
aggravated burglary, aggravated sexual battery, and criminal possession of a firearm.
Less than two months later, on April 5, 1996, the district court convicted Loggins in a
bench trial of aggravated robbery and criminal possession of a firearm.
In his direct appeal, a panel of this court reversed one count of aggravated
kidnapping but affirmed the remaining convictions in both cases. On July 8, 1998, the
Kansas Supreme Court denied Loggins' petition for judicial review and a mandate was
issued. State v. Loggins, No. 77,106, 1998 WL 328425 (Kan. App. 1998) (unpublished
opinion). The reversal of one of the convictions did not alter the length of his
incarceration because the district court had imposed concurrent sentences on the two
aggravated kidnapping convictions. Accordingly, Loggins is currently serving a 463-
month prison sentence.
Since the Kansas Supreme Court issued the mandate in his direct appeal, Loggins
has filed numerous motions challenging his convictions and sentence. Based on a review
of the record, it appears that Loggins has unsuccessfully filed three motions to correct an
illegal sentence. See State v. Loggins, No. 105,950, 2012 WL 2045362 (Kan. App. 2012)
(unpublished opinion); State v. Loggins, No. 103,345, 2011 WL 3795236 (Kan. App.
2011) (unpublished opinion); State v. Loggins, No. 90,171, 2004 WL 1086970 (Kan.
App. 2004) (unpublished opinion). It also appears that Loggins has previously filed four
unsuccessful K.S.A. 60-1507 motions over the years. See Loggins v. State, No. 116,716,
2019 WL 4126472 (Kan. App. 2019) (unpublished opinion); Loggins v. State, No.
114,579, 2016 WL 4413504 (Kan. App. 2016) (unpublished opinion); Loggins v. State,
No. 101,435, 2010 WL 2217105 (Kan. App. 2010) (unpublished opinion); Loggins v.
State, No. 94,723, 2007 WL 2080359 (Kan. App. 2007) (unpublished opinion).
2
On September 25, 2018, Loggins filed a pro se action under 42 U.S.C. §1983 in
the United States District Court for the District of Kansas against 38 defendants. Those
named as defendants in the federal lawsuit included multiple state and federal judges;
court reporters; an assistant district attorney; the Clerk of the Sedgwick County District
Court; the Governor of the State of Kansas; Sedgwick County Commissioners; the
Sedgwick County Counselor; the Sedgwick County Sheriff; the Secretary of Corrections
for the Kansas Department of Corrections; and the Clerk of the Kansas Appellate Courts.
One of the state court judges named as a defendant was Chief Judge James R. Fleetwood
of the Sedgwick County District Court.
In his §1983 action, Loggins also moved to recuse the federal district judge
assigned to hear his case. However, the federal district judge denied the request for
recusal, finding that Loggins failed to establish any grounds to remove the assigned judge
from this case. In addition, after liberally construing the pro se pleadings filed by
Loggins, the federal district court dismissed the §1983 action with prejudice for failure to
state a claim against any of the defendants upon which relief could be granted. See
Loggins v. Pilshaw, No. 18-3254-DDC, 2020 WL 224542 (D. Kan. 2020) (unpublished
opinion).
On November 20, 2018, while the federal lawsuit was pending, Loggins filed the
pro se K.S.A. 60-1507 motion that is the subject of this appeal. In his motion, Loggins
alleged—among other things—that the district judge who had presided over his trial had
not been impartial during proceedings. He further alleged that the district judge and a
court reporter conspired to alter the transcript of his preliminary hearing. Loggins also
alleged that his arraignment had been defective, that there was insufficient evidence to
support several of his convictions, and that the district court had lacked subject matter
jurisdiction over his criminal cases.
3
Loggins raised several of the claims he is now making in his previous motions
challenging his convictions and sentence. We note that Loggins had alleged that his
arraignment was defective in three of his prior K.S.A. 60-1507 motions. Likewise, he had
alleged that the district court had lacked subject matter jurisdiction in his fourth K.S.A.
60-1507 motion. He also had challenged the impartiality of the district court judge who
had presided over his trial—as well as the sufficiency of evidence—in his first K.S.A. 60-
1507 motion. See Loggins, 2019 WL 4126472, at *4; Loggins, 2010 WL 2217105, at *3.
Loggins, 2007 WL 2080359, at *6-8.
Loggins also moved to recuse eight judges of the Sedgwick County District
Court—as well as several judges on this court—from hearing his K.S.A. 60-1507 motion.
Each of the judges had also been named as defendants in Loggins' federal lawsuit. One of
the judges that Loggins sought to disqualify was Judge Fleetwood. About a month after
filing the motion to recuse, Loggins also filed a pro se preliminary injunction seeking to
recuse various judges from hearing his K.S.A. 60-1507 motion. Ultimately, Judge
Fleetwood was assigned to hear the current K.S.A. 60-1507 motion.
On December 26, 2018, Judge Fleetwood denied Loggins' motion for preliminary
injunction and refused to recuse himself from the case. In doing so, Judge Fleetwood
found that "Movant has failed to provide any relevant information other than broad,
unsupported accusations justifying his request for a preliminary injunction." The next
day, Judge Fleetwood summarily dismissed Loggins' K.S.A. 60-1507 motion.
In his order, Judge Fleetwood found:
"The present motion is successive as there have been at least two prior petitions seeking
collateral relief on the defendant's [convictions] in the underlying cases. Further the
present petition is untimely without showing the existence of any manifest injustice
resulting from a dismissal."
4
After Judge Fleetwood denied a motion to reconsider, Loggins timely appealed to
this court. Although an attorney was appointed to represent him on appeal and filed a
brief on his behalf, Loggins moved to file a supplemental pro se brief and this court
granted his motion. In considering the issues presented on appeal, this court has taken
into consideration the briefs filed by counsel as well as the supplemental brief filed by
Loggins.
ANALYSIS
Issues Presented
On appeal, Loggins raises three issues. First, whether Judge Fleetwood erred by
failing to recuse himself from this case. Second, whether the district court made sufficient
finding of fact and conclusions of law in summarily dismissing the K.S.A. 60-1507
motion. Third, whether the district court erred in determining that the K.S.A. 60-1507
motion was barred on the grounds of being untimely and successive.
District Judge's Failure to Recuse
Loggins contends that Judge Fleetwood should have recused himself from
considering his K.S.A. 60-1507 motion. He argues that Judge Fleetwood should have
recused because he was named as one of many defendants in a 42 U.S.C. §1983 action
filed by Loggins in federal court. In response, the State points out that Loggins entire
argument on appeal is that "[g]iven the Federal Civil lawsuit that Mr. Loggins had filed
against the Judge, it was a requirement for a different Judge to hear this K.S.A. 60-1507
petition." The State also points out that Loggins' recusal motion was not specific to Judge
Fleetwood but instead sought to disqualify numerous district court and appellate judges
from hearing his motion.
5
Our review of recusal issues is unlimited. State v. Moyer, 306 Kan. 342, 369-70,
410 P.3d 71 (2017). In Kansas, there are at least three substantive bases of law to justify
the recusal of a judge: (1) the statutory factors set out in K.S.A. 20-311d(c); (2) the
standards of the Kansas Code of Judicial Conduct; and (3) the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. 306 Kan. at 370.
Unfortunately, Loggins does not identify the bases under which he claims Judge
Fleetwood should have recused.
Under K.S.A. 20-311d(a), if a party believes the judge to whom an action is
assigned cannot afford that party a fair trial, the party may file a motion for change of
judge. If the judge refuses to disqualify himself or herself, the party seeking a change of
judge may file an affidavit alleging that due to the "personal bias, prejudice or interest of
the judge such party cannot obtain a fair and impartial trial or fair and impartial
enforcement of post-judgment remedies." K.S.A. 20-311d(c)(5). If the affidavit is found
to be legally sufficient, the case must be assigned to another judge. K.S.A. 20-311d(b).
Here, we find nothing in the record to suggest that Loggins followed this procedure in
attempting to disqualify Judge Fleetwood.
In addition, under the Kansas Code of Judicial Conduct, judges have a duty to
disqualify themselves from cases "in which the judge's impartiality might reasonably be
questioned." Rule 601B, Canon 2, Rule 2.11(A) (2020 Kan. S. Ct. R. 454). Moreover, the
Kansas Supreme Court has applied a two-part test to determine whether a judge has
violated a defendant's due process rights by refusing to recuse in a criminal case. The
defendant must first show the judge had a duty to recuse because his or her impartiality
might reasonably be questioned. However, a defendant must show actual bias or
prejudice to set aside a conviction or sentence. State v. Walker, 283 Kan. 587, 605, 153
P.3d 1257 (2007).
6
In addition, the United States Supreme Court—as well as Kansas appellate
courts—have recognized that there are some instances in which "'experience teaches that
the probability of actual bias . . . is too high to be constitutionally tolerable.'" Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 877, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009)
(quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 [1975]). In
Caperton, the United States Supreme Court listed four categories of cases in which
recusal would be required to satisfy due process: (1) when a judge has a direct, personal,
substantial pecuniary interest in the case; (2) when a judge has an indirect financial
interest in the case's outcome; (3) when a judge issues a contempt citation in one case and
goes on to try the contempt citation; and, (4) in rare instances, when a litigant donates to
a judge's campaign for office. 556 U.S. at 876-87. Here, nothing in the record suggests
that this case falls into any of these categories.
Based on our review of the record in this case, we find that Loggins has not shown
that Judge Fleetwood had a duty to recuse himself from this matter. As noted above, the §
1983 action filed in federal court against Judge Fleetwood and several other judges—as
well as other state and local officials—has been dismissed. Although an appeal has
evidently been filed, we find nothing to suggest that the federal litigation influenced
Judge Fleetwood's ability to fairly and impartially review Loggins' K.S.A. 60-1507
motion. This is particularly true given that judges are immune from liability in legal
actions brought under 28 U.S.C. § 1983 when acting in their judicial capacity. Stump v.
Sparkman, 435 U.S. 349, 362-64, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978).
Loggins has failed to show that Judge Fleetwood has an actual bias against him.
Likewise, he has not shown that Judge Fleetwood was unable to fairly and impartially
consider his motion. Rather, Loggins simply suggests that Judge Fleetwood was required
to recuse himself because he was named as a defendant in the federal lawsuit. Moreover,
Loggins has failed to cite any authority to support his position.
7
It is important to recognize that judges have a duty to hear cases. See United States
v. Wells, 873 F.3d 1241, 1251 (10th Cir. 2017). As a result, judges should not recuse from a
case simply to avoid a difficult task or to appease a party. As the United States Court of
Appeals for the Tenth Circuit has explained, a judge's duty to hear cases is not so fleeting
that it evaporates whenever there is a possibility of bias or partiality. United States v.
Hines, 696 F.2d 722, 729 (10th Cir. 1982).
Certainly, there are times in which it would be appropriate for judges to recuse
from cases in which they are involved in litigation with one of the parties. This is
especially true if a judge feels that he or she may not be able to be fair and impartial in a
particular case. Nevertheless, if judges were to recuse themselves anytime they are named
as a defendant in a lawsuit, it would wreak havoc on our system of justice and would
encourage frivolous litigation, forum shopping, and delay.
We find no evidence that Judge Fleetwood has actual bias—or even a probability
of actual bias—against Loggins. We also do not find that an objectively reasonable
person with knowledge of all relevant facts would question Judge Fleetwood's fairness
and impartiality solely because he was named by Loggins as one of numerous defendants
in the federal lawsuit. Thus, under the circumstances presented, we conclude that Judge
Fleetwood had no duty to recuse himself from hearing Loggins' K.S.A. 60-1507 motion.
Compliance with Supreme Court Rule 183(j)
Next, Loggins contends that the district court did not make adequate findings of
fact and conclusions of law regarding its reasons for summarily dismissing his K.S.A. 60-
1507 motion. In support of this contention, Loggins cites Kansas Supreme Court Rule
183(j) (2020 Kan. S. Ct. R. 225), which provides that in deciding K.S.A. 60-1507
motions, "[t]he court must make findings of fact and conclusions of law on all issues
8
presented." "Whether the district judge complied with Rule 183(j) involves a question of
law reviewable de novo." Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).
The primary purpose of Supreme Court Rule 183(j) is to assist appellate courts in
conducting meaningful review. State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000). So,
the relevant inquiry is whether the district court made sufficient findings and conclusions
upon which we can adequately perform our duties as an appellate court. See Robertson,
288 Kan. at 232-33. Here, we find that Judge Fleetwood set forth a sufficient factual and
legal explanation of his decision in order to allow us to conduct a meaning review.
Specifically, the district court's order stated:
"The present motion is successive as there have been at least two prior petitions seeking
collateral relief on the defendant's [convictions] in the underlying cases. Further the
present petition is untimely without showing the existence of any manifest injustice
resulting from a dismissal." (Emphasis added.)
From a review of the district court's order and the record on appeal, we can glean
the district court's reasons for the summary dismissal. First, the district court found that
Loggins' latest K.S.A. 60-1507 motion is successive because it seeks relief that has
been—or could have been—sought on direct appeal or in the multiple motions that
Loggins has filed since that time. Second, the district court found that Loggins' motion
was untimely in that the mandate in his direct appeal was filed nearly 20 years ago. Third,
the district court found that Loggins had not shown any manifest injustice to justify the
belated filing of his motion. For these reasons, we conclude that the district court's
findings and conclusions—although succinct—were sufficient to provide us with an
opportunity for meaningful review and to comply with the requirements of Supreme
Court Rule 183(j).
9
Summary Dismissal of K.S.A. 60-1507 Motion
Finally, Loggins contends that the district court erred in determining that the
K.S.A. 60-1507 motion was barred on the grounds of being untimely and successive.
When a district court summarily dismisses a K.S.A. 60-1507 motion, we conduct a de
novo review to determine whether the motion, files, and records of the case conclusively
establish that the movant has no right to relief. We are to conduct this review
independently and do not defer to the district court's decision. Beauclair v. State, 308
Kan. 284, 293, 419 P.3d 1180 (2018).
A defendant has one year from when a conviction becomes final to file a K.S.A.
60-1507 motion. K.S.A. 2019 Supp. 60-1507(f)(1). However, Loggins was convicted
prior to the enactment of the 2003 amendment to K.S.A. 60-1507 that imposed the one-
year time limitation. Because the amendment became effective on July 1, 2003, he had a
one year "grace period"—until June 30, 2004—to file a K.S.A. 60-1507 motion. Hayes v.
State, 34 Kan. App. 2d 157, 162, 115 P.3d 162 (2005). Yet Loggins' did not file the
K.S.A. 60-1507 motion that is the subject of this appeal until November 20, 2018. As a
result, it was not timely filed.
A district court may extend the one-year time limitation for bringing an action
under K.S.A. 60-1507(f)(1) to prevent a manifest injustice. K.S.A. 2019 Supp. 60-
1507(f)(2). Without a showing of manifest injustice, district courts must dismiss a motion
as untimely filed if, after inspection of the motion, files, and records of the case, the court
determines that the time limitation has been exceeded. K.S.A. 2019 Supp. 60-1507(f)(3).
In other words, a movant who files an untimely motion under K.S.A. 60-1507 and fails to
show manifest injustice is procedurally barred from maintaining the action. See State v.
Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013).
10
Although Loggins argues that the prior opinions issued by panels of this court
were "erroneous and worked a manifest injustice," we note that final orders and mandates
were issued in each of his prior K.S.A. 60-1507 cases. Under the law-of-the-case
doctrine, issues that have been finally decided in prior appeals in the same case are
generally not to be reconsidered. State v. Parry, 305 Kan. 1189, 1195, 390 P.3d 879(2017). This is because litigants are not entitled to have their cases decided on a
piecemeal basis but must proceed in accordance with the mandates and legal rulings as
established in previous appeals. 305 Kan. at 1195. Here, each of Loggins' previous
appeals arise out of his 1996 criminal convictions. Thus, we conclude that he has failed to
establish manifest injustice to justify the untimely filing of his current K.S.A. 60-1507
motion.
Furthermore, Loggins' K.S.A. 60-1507 motion is "successive" in that he asserts
claims that were decided—or which could have been decided—on direct appeal or in the
multiple motions he has filed since that time. Under K.S.A. 2019 Supp. 60-1507(c),
district courts need not consider more than one habeas motion seeking similar relief.
Because a movant is presumed to have listed all grounds for relief in his or her initial
K.S.A. 60-1507 motion, "exceptional circumstances" must be shown to justify the filing
of successive motions. Littlejohn v. State, 310 Kan. 439, 446, 447 P.3d 375 (2019); see
Trotter, 296 Kan. 898, Syl. ¶ 2. Exceptional circumstances include "unusual events or
intervening changes in the law which prevent[ed] a movant from reasonably being able to
raise all of the trial errors in the first postconviction proceeding." State v. Kelly, 291 Kan.
868, Syl. ¶ 2, 248 P.3d 1282 (2011).
Here, because Loggins has previously filed four K.S.A. 60-1507 motions, he was
required to show exceptional circumstances to prevent summary dismissal of his motion.
See Kelly, 291 Kan. at 872. Again, the only allegation of exceptional circumstances made
by Loggins is that the prior decisions of the district court and panels of this court were
11
erroneous. As discussed above, issues finally decided on appeal are binding on the parties
as well as on the district court in the same case.
The purpose of the exceptional circumstances requirement is to allow movants to
explain why they did not raise an issue during his first postconviction proceeding.
Trotter, 296 Kan. 898, Syl. ¶ 2. Here, Loggins does not offer such an explanation.
Instead, he believes the prior decisions of the district court and panels of this court were
wrong. He does not point to any changes in the law or unusual circumstances that might
validate his filing of successive K.S.A. 60-1507 motions. We conclude, therefore, that the
district court did not err in summarily dismissing Loggins' fifth K.S.A. 60-1507 motion
on the grounds that it was untimely filed and is successive.
Affirmed.
12