Peppers v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,394
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ANTWAN T. PEPPERS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed February 5, 2021.
Affirmed.
Jonathan B. Phelps, of Phelps-Chartered, of Topeka, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., HILL and BUSER, JJ.
PER CURIAM: Antwan T. Peppers appeals the dismissal of his second and third
K.S.A. 60-1507 motions. To overcome both the one-year time limit for filing a habeas
corpus motion and the prohibition against successive motions, he claims he has newly
discovered evidence that establishes a colorable claim of his innocence. But the evidence
he puts forth—the recantation of an eyewitness—is not new evidence. Nor does that
evidence make it more likely than not that he would not have been convicted. Thus, we
affirm the district court's dismissal of his two motions.
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Peppers was convicted of one count of first-degree murder and one count of
attempted first-degree murder in Topeka. Peppers received a life sentence in prison for
murder with no chance of parole for 50 years, along with a consecutive 272-month prison
term for attempted first-degree murder. The Kansas Supreme Court affirmed those
convictions in State v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012).
Peppers filed his first K.S.A. 60-1507 motion in 2013, alleging ineffective
assistance of trial counsel and that new evidence entitled him to a new trial. That new
evidence was a 2012 letter to the Shawnee County District Attorney written by Terrell
Hayes-Osby, a victim of the shooting who had testified at trial that Peppers was the
gunman. Hayes-Osby said in his letter that Peppers had not shot him and the State had
coerced his testimony stating otherwise.
The district court ordered an evidentiary hearing on those claims. Hayes-Osby was
scheduled to testify by video from prison. He had been convicted of the second-degree
murder of Peppers' close friend; that murder had led to the shooting outside Terry's Bar &
Grill. But Peppers moved to cancel the testimony and then withdrew his claim of newly
discovered evidence. The district court denied relief on Peppers' ineffective assistance
claim and this court affirmed that decision in Pepper v. State, No. 112,344, 2015 WL
6443486 (Kan. App. 2015) (unpublished opinion).
Peppers then filed his second 60-1507 motion in November 2014, arguing that his
hard 50 life sentence was illegal under the holding in Alleyne v. United States, 570 U.S.
99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The Supreme Court held in that case that
any fact that increases a sentence beyond the statutory minimum must be found by a jury
beyond a reasonable doubt. 570 U.S. at 114-16. After that, in January 2017, Peppers filed
his third 60-1507 motion. This time he claimed he had new evidence and attached the
same letter from Hayes-Osby to the Shawnee County District Attorney that he had
attached to his first 60-1507 motion he filed in 2013.
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The district court summarily denied both motions in 2018. Peppers has now
appealed that decision to our court.
When a district court denies a 60-1507 motion without holding a hearing, our
review is unlimited—meaning that we do not defer to the district court's decision. The
goal of our review is to determine whether the motion, files, and records of the case
conclusively show that the movant is entitled to no relief. Beauclair v. State, 308 Kan.
284, 293, 419 P.3d 1180 (2018).
Peppers concedes on appeal that the district court properly dismissed his second
60-1507 motion. The Kansas Supreme Court has recognized that under Alleyne, the hard
50 sentencing scheme that Peppers was sentenced under is unconstitutional. See State v.
Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014). But that court held in Kirtdoll v. State,
306 Kan. 335, Syl. ¶ 2, 393 P.3d 1053 (2017), that Alleyne does not apply retroactively to
invalidate a sentence that was final before Alleyne was decided. Peppers' sentence
became final when the Kansas Supreme Court issued the mandate in his direct appeal in
May 2012—the year before the United States Supreme Court decided Alleyne. Peppers
has no right to relief under Alleyne, so we affirm the district court's summary denial of his
second 60-1507 motion.
When we turn to Peppers' third 60-1507 motion, we must affirm the district court's
decision because two procedural hurdles bar his relief.
The first is a one-year time limit provided by statute in K.S.A. 2019 Supp. 60-
1507(f)(1). Under that provision, an inmate must make any habeas claims within one year
after the inmate's direct appeal. An extension of that period is allowed only if it is needed
"to prevent manifest injustice." K.S.A. 2019 Supp. 60-1507(f)(2). This motion was filed
years after the one-year time limit had expired.
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The second hurdle Peppers faces is that his motion is "successive"—meaning he
has brought habeas corpus proceedings before. Under the Kansas habeas statute, courts
need not consider more than one habeas petition for similar relief. K.S.A. 2019 Supp. 60-
1507(c). Because a person bringing a habeas motion is presumed to have listed all
grounds for relief, Beauclair, 308 Kan. at 304, a court need not consider a later motion
unless the person shows "exceptional circumstances." Littlejohn v. State, 310 Kan. 439,
446, 447 P.3d 375 (2019).
Peppers does not present a colorable claim of actual innocence.
A colorable claim of actual innocence based on new evidence can establish both
the manifest injustice and exceptional circumstances needed to overcome the procedural
bars of untimeliness and successiveness. See Beauclair, 308 Kan. at 304-05. To establish
a colorable claim of actual innocence and secure review on the merits, the habeas movant
must show that, more likely than not, no reasonable juror would have convicted the
movant given the new evidence. 308 Kan. at 301.
Peppers argues on appeal that Hayes-Osby's recantation letter is newly discovered
evidence that establishes a colorable claim of actual innocence. We disagree for two
reasons.
First, the letter is not new evidence. It is the same letter that Peppers included with
his first 60-1507 motion in 2013. Peppers had a chance to pursue this issue during the
evidentiary hearing on that motion, but he cancelled Hayes-Osby's scheduled testimony.
Peppers said he disagreed with his attorney's decision to cancel that testimony, but he has
not explained the decision or alleged that his counsel was ineffective.
Second, the recantation does not make it more likely than not that no reasonable
juror would have convicted Peppers. We have reviewed the trial proceedings, and we
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acknowledge that Hayes-Osby's testimony identifying Peppers as the shooter was an
important part of the State's case. But the case did not rest only on that testimony. Two
other eyewitnesses testified that Peppers was the shooter. Another witness testified that
Peppers had come by his house on the afternoon of the shooting looking for Hayes-Osby.
A phone that Peppers often used had been used to call Hayes-Osby late on the night of
the shooting, corroborating Hayes-Osby's initial account that Peppers called him to meet
at Terry's Bar & Grill. And a prison informant testified that Peppers had told him about
shooting two guys sitting in a car that had killed his friend. Peppers claimed to have
killed one of them.
The record also discloses some reasons that a juror could doubt the credibility of
Hayes-Osby's recantation. Peppers and Hayes-Osby were members of related gangs;
Peppers was the local chief, Hayes-Osby was a lower level member. The State introduced
letters at trial that Peppers and Hayes-Osby had exchanged while in prison awaiting trial.
In those letters, Peppers warned Hayes-Osby that his testimony would be an
organizational violation punishable by death. They also discussed a plan to change their
testimony so that neither was implicated in the shooting of Peppers' close friend, nor the
shooting outside of Terry's. Hayes-Osby also admitted at trial to making false statements
to police.
Given the State's trial evidence, we cannot hold it more likely than not that
Peppers would not have been convicted based on Hayes-Osby's recantation. Because
Peppers has not made a colorable claim of actual innocence, the district court was correct
to summarily dismiss his 60-1507 motion as untimely and successive.
Affirmed.
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