Nguyen v. State

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,851
GIANG T. NGUYEN,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1.
Supreme Court Rule 183(e) (2018 Kan. S. Ct. R. 223) provides that a motion
under K.S.A. 60-1507 is sufficient if it is in substantial compliance with the Judicial
Council form. A K.S.A. 60-1507 motion substantially complies with the Judicial Council
form if it provides the reviewing court with the information called for by the form's
questions and it presents that information in such a manner that the reviewing court can
match the answers to their corresponding form questions.
2.
Nothing in Supreme Court Rule 183(e) prohibits a K.S.A. 60-1507 movant from
using an attachment to the Judicial Council form or using incorporation by reference to
an attachment when providing the information called for in the Judicial Council form.
3.
While a pro se K.S.A. 60-1507 movant is required to follow the rules of procedure
governing such motions, we liberally construe the filed document to give effect to its
content, rather than focusing on the labels and forms used to articulate the arguments.
1
4.
A sentencing court is not required to entertain a second or successive K.S.A. 60-
1507 motion for similar relief on behalf of the same prisoner, unless the movant shows
exceptional circumstances justifying the consideration of the motion's merits.
5.
Supreme Court Rule 183(j) requires a district court reviewing a K.S.A. 60-1507
motion to make explicit findings of fact and conclusions of law regarding each of the
movant's specific issues. When a district court summarily denies a K.S.A. 60-1507
motion without appointing counsel for the movant and without having the movant present
in court, the movant's timely filed motion to alter or amend judgment that specifically
requests findings of fact and conclusions of law on all issues raised is sufficient to
compel the district court's compliance with Supreme Court Rule 183(j).
Review of the judgment of the Court of Appeals in an unpublished opinion filed January 15,
2016. Appeal from Finney District Court; PHILIP C. VIEUX, judge. Opinion filed December 21, 2018.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed, and the case is remanded with directions.
Christopher J. Velez, of Law Office of Christopher J. Velez, of Garden City, was on the briefs for
appellant.
Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
JOHNSON, J.: Giang T. Nguyen filed a pro se motion under K.S.A. 60-1507,
claiming multiple errors led to his 2003 convictions for felony murder and numerous
other felonies, including conspiracy to commit aggravated burglary and conspiracy to
2
commit kidnapping. It was his third such motion. The district court dismissed the motion
for being untimely, for being successive, and for being noncompliant with the pleading
requirements of Supreme Court Rule 183(e) (2018 Kan. S. Ct. R. 223).
Upon appeal, a panel of the Court of Appeals held that Nguyen's motion was not
time barred, based upon the manifest injustice exception, because "his conviction for
conspiracy to commit kidnapping is likely multiplicitous." Nguyen v. State, No. 112,851,
2016 WL 197745, at *1-2 (Kan. App. 2016) (unpublished opinion). But the panel held
that the district court did not err in dismissing the motion, because it was successive and
it failed to comply with Supreme Court Rule 183(e). Further, the panel rejected Nguyen's
claim that the district court had failed to make the requisite findings of fact and
conclusions of law to support its decision. This court granted Nguyen's petition for
review. We reverse Nguyen's conviction for conspiracy to commit kidnapping; vacate the
accompanying sentence; and remand the case to the district court for resentencing. With
respect to the remainder of Nguyen's motion, we reverse the district court's order
dismissing the motion and remand the case to the district court with directions.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying Nguyen's convictions are recited in State v. Nguyen, 281
Kan. 702, 133 P.3d 1259 (2006), the direct appeal opinion affirming the convictions.
Briefly stated, Nguyen; his brother, Nam Nguyen (Nam); and another man, Ngan Pham
(Pham), forcibly entered a residence, tied up six family members, and subsequently shot
and killed one family member who attempted to flee. Two days later, Nguyen voluntarily
turned himself in to the authorities and confessed. He was convicted of felony first-
degree murder, aggravated kidnapping, aggravated burglary, conspiracy to commit
kidnapping, conspiracy to commit aggravated burglary, and five counts of kidnapping.
The district court sentenced Nguyen to serve a prison term of 165 months for aggravated
kidnapping consecutive to a hard 20 life sentence.
3
Nguyen directly appealed to this court. The issues raised and our accompanying
holdings were summarized as follows:
"1. Did the district court err in allowing into evidence certain information from the
confession by coconspirator Ngan Pham? Yes, but it was harmless error.
"2. Did the district court err in denying [Nguyen]'s motion to suppress his own
statements to police? No.
"3. Did the district court err in allowing into evidence certain photographs? No.
"4. Did the district court err in determining that [Nguyen]'s convictions of felony murder
and aggravated kidnapping were not multiplicitous? No.
"5. Were [Nguyen]'s rights of confrontation violated when the district court admitted his
own statements into evidence? No.
"Accordingly, we affirm." Nguyen, 281 Kan. at 705.
The opinion in Nguyen's direct appeal was filed May 5, 2006. The next month, on
June 16, 2006, we filed an opinion in the direct appeal of Nguyen's codefendant, Pham.
State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006). Pham had challenged his conviction
for conspiracy to commit kidnapping as being multiplicitous with his conviction for
conspiracy to commit aggravated burglary. Finding that "there was only a single
continuing conspiracy," we reversed Pham's conviction for conspiracy to commit
kidnapping and vacated the sentence on that count. 281 Kan. at 1262.
On January 16, 2007, Nguyen filed his first pro se K.S.A. 60-1507 motion. That
motion is not included in the record on appeal, but an earlier memorandum decision from
the district court noted that the motion raised the following issues:
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"(i) whether Defendant was forced to rely on an interpreter who spoke in a culturally
different dialect, which violated his 5th, 6th and 14th amendments (sic); (ii) whether the
State failed to prove all of the elements of aggravated burglary which constituted the
underlying felony necessary to sustain its conviction of felony murder (sic); (iii) whether
[the district court] violated Defendant's right to a fair trial when it denied him an
opportunity to exercise individualized voir dire; (iv) whether [the district court]
contributed to the trial counsel's performance being ineffective in violation of Defendant's
6th amendment (sic); (v) whether the information/complaint was fatally defective
because it failed to charge all of the elements necessary to charge the crime of aggravated
burglary; (vi) whether the State failed to prove guilt for the crime of aggravated burglary,
as being the underlying felony to sustain a conviction for felony murder; (vii) whether the
performance of trial counsel for Defendant was inadequate and ineffective for failing to
conduct an adequate pretrial investigation, for failing to make proper contemporaneous
objections, for failing to conduct adequate voir dire examinations, for failing to file a
proper motion for judgment of acquittal after the jury returned its verdict, and for failing
to present an adequate closing argument; (viii) whether the State's jury selection process
violated Batson in denying Defendant the right to select jury members from a fair cross
section of the community; and (ix) whether Defendant's appellate counsel was ineffective
in failing to raise viable issues on appeal."
Eleven days later, the district court summarily denied Nguyen's motion "for failure
to set forth any substantial issues of fact or law with regard to [his] criminal case."
Nguyen filed a notice of appeal of the denial of his K.S.A. 60-1507 motion. According to
Nguyen's motion to docket appeal out-of-time contained in the Kansas Appellate Clerk's
Case Tracking System, he was appointed appellate counsel in April 2007, but appointed
counsel failed to take any action for approximately two years. Thereafter, on April 23,
2009, the Court of Appeals denied Nguyen's motion to docket his appeal out-of-time,
thereby foreclosing appellate review of the district court's summary denial of the first
K.S.A. 60-1507 motion.
5
During this period, in 2008, this court filed an unpublished opinion in the direct
appeal of Nguyen's other codefendant, Nam. In that decision, we reversed Nam's
conspiracy to commit kidnapping conviction as multiplicitous, based on the same
rationale employed in Pham's appeal. State v. Nguyen, No. 96,430, 2008 WL 360635, at
*2 (Kan. 2008) (unpublished opinion).
On December 31, 2009, Nguyen filed his second pro se K.S.A. 60-1507 motion.
This motion is also not included in the record on appeal, but the Court of Appeals'
opinion affirming the district court's denial of the motion noted that the motion raised the
following issues:
"(1) he was not informed of his Miranda rights in a Vietnamese dialect he could
understand, rendering his custodial statements to law enforcement inadmissible; (2) the
charging document was defective because it alleged aggravated burglary without
specifying an underlying felony; (3) trial counsel was ineffective in failing to interview
Pham in a manner that would have produced exculpatory evidence, in failing to
adequately research the issue of different Vietnamese dialects, and in failing to present an
adequate argument for judgment of acquittal; (4) he was denied a fair and impartial trial
by a jury of his peers because there were no Vietnamese or Southeast Asian people on the
jury; and (5) Pham retracted his statement to law enforcement regarding Nguyen's
involvement in the matter and this evidence was either not disclosed by the State or
Nguyen's attorney failed to explore this possibility of exculpatory evidence." Nguyen v.
State, No. 104,057, 2011 WL 781525, at *1 (Kan. App. 2011) (unpublished opinion).
Following a review of the official court file, records, and transcripts, the district
court denied Nguyen's second motion in February 2010, without a hearing. On March 4,
2011, a panel of the Court of Appeals affirmed the district court's summary denial of
Nguyen's second K.S.A. 60-1507 motion. Nguyen, 2011 WL 781525, at *2.
In March 2012, Nguyen attempted to file a third K.S.A. 60-1507 motion, which
was identical to the motion now before us. The district court did not file the motion, but
6
rather returned it to Nguyen with a letter from District Judge Michael Quint. The letter
advised Nguyen that he needed "to be aware in [K.S.A. 60-1507] paragraph (c)
'Successive motions. The sentencing court shall not be required to entertain a second or
successive motion for similar relief on behalf of the same prisoner.'" Judge Quint further
informed Nguyen that there was "no manifest injustice in any of the previous rulings
against [him] and the Court refuse[d] to file [his] latest Motion as being a duplication of
[his] previous filing."
On August 28, 2012, Nguyen was successful in getting his third pro se K.S.A 60-
1507 motion filed, which raised the following 14 issues:
"1. Nguyen's codefendants had obtained relief from their convictions of
conspiracy to commit kidnapping due to the charge being multiplicitous and Nguyen was
entitled to the same relief.
"2. Because Nguyen's appeal of his first [60-1507] motion's dismissal was denied
through no fault of his own but due to ineffective assistance of counsel, his first appeal
should be 're-activated.'
"3. The district court erred in failing to provide unanimity instructions to the jury
on the kidnapping and aggravated kidnapping counts.
"4. The district court erred in failing to provide unanimity instructions to the jury
on the aggravated burglary count.
"5. The district court erred in constructively amending the criminal complaint
through the jury instructions.
"6. The district court erred in instructing the jury on the felony-murder count by
omitting mention of an intervening felony.
7
"7. The district court erred when it gave a 'presumption of intent' instruction.
"8. Nguyen was denied due process because, as a citizen of the Socialist Republic
of Vietnam, he was never given the opportunity to contact the Vietnamese consul after
his arrest.
"9. Nguyen had the rights of a citizen by virtue of his 'situation' and the
sentencing court's ignoring of such resulted in cruel and unusual punishment.
"10. Because of this cruel and unusual punishment, Nguyen was not able to [have
access to a translator and therefore was not able to] understand the manifest injustice
imposed upon him until the filing of this motion.
"11. Nguyen was innocent of the crimes of which he was convicted, and the
above-alleged cruel and unusual sentence imposed on him prevented him from
communicating his innocence.
"12. Nguyen was incompetent to stand trial because he did not comprehend
English and the court-provided interpreter did not comprehend Nguyen's dialect of
Vietnamese.
"13. Trial counsel was statutorily and constitutionally ineffective.
"14. Appellate counsel was statutorily ineffective." Nguyen, 2016 WL 197745,
at *1-2.
On September 14, 2012, the district court filed a Memorandum Decision and
Order, summarily dismissing Nguyen's 2012 motion. The district court found that the
motion did not substantially comply with the Judicial Council form as set out in Supreme
Court Rule 183(e); the motion was untimely; and the motion was "decidedly a successive
8
motion without manifest injustice." Nguyen timely appealed to the Court of Appeals,
arguing,
"[T]he district court should have conducted an evidentiary hearing for four reasons:
(1) The motion was not time barred; (2) the motion was not successive; (3) the district
court erred when it held the motion did not conform to . . . Rule 183(e) . . . ; and (4) the
district court did not make the necessary findings of fact and conclusions of law when
summarily denying the motion." 2016 WL 197745, at *1.
The Court of Appeals acknowledged Nguyen's argument that the Kansas Supreme
Court had reversed the conspiracy to commit kidnapping convictions of his two
codefendants as being multiplicitous and had remanded their cases for resentencing. The
panel deemed that circumstance raised a "'substantial issue[] of law or fact deserving of
the district court's consideration.'" 2016 WL 197745, at *3 (quoting Vontress v. State, 299
Kan. 607, 616, 325 P.3d 1114 [2014]). Accordingly, the panel determined that Nguyen
had demonstrated the requisite manifest injustice to prevent his motion from being time-
barred. 2016 WL 197745, at *3.
Notwithstanding the panel's discomfort with its assessment that Nguyen's
multiplicity claim likely had merit, it affirmed the district court's summary dismissal as a
successive motion and as a motion that failed to comply with Supreme Court Rule
183(e). As a successive motion, the panel faulted Nguyen's pleadings for not presenting
an argument setting forth any exceptional circumstances that prevented him from raising
the current issues in his first K.S.A. 60-1507 motion. 2016 WL 197745, at *4-5. With
respect to the 60-1507 motion form set forth in the rules, the panel found that Nguyen
failed to state concisely all of the grounds on which he based his allegation of unlawful
custody under paragraph 10; failed to state concisely the facts that supported his claim of
unlawful detention; and failed to provide the names and addresses of the witnesses or
other evidence on which he would rely under paragraph 11.
9
Finally, with respect to Nguyen's complaint about the district court's findings of
fact and conclusions of law, the panel held that Nguyen had not objected to the
insufficiency of such findings. Therefore, the presumption that a district court finds all
facts necessary to support its judgment operated to defeat Nguyen's appellate challenge to
the findings. In short, the panel affirmed the district court's summary dismissal of
Nguyen's 60-1507 motion.
Nguyen's petition for review to this court challenged the panel's affirmance of the
district court's dismissal on the bases of being successive and being noncompliant with
Supreme Court rules. Further, Nguyen points out that he filed a Motion to Alter or
Amend Judgment with respect to the district court's summary dismissal of his motion and
then appealed the dismissal when that tack failed. He asserts that he did all that he could
to challenge the district court's findings of fact and conclusions of law in a summary
dismissal case to preserve the inadequate findings issue for appellate review. We take the
liberty of beginning with the holding that Nguyen failed to comply with Supreme Court
Rule 183(e).
COMPLIANCE WITH SUPREME COURT RULE 183(e)
To reiterate, the district court found that Nguyen had failed to comply with
Supreme Court Rule 183(e) because he did not properly complete the Judicial Council's
form for 60-1507 motions. The Court of Appeals affirmed that ruling, identifying two
ways in which Nguyen failed to properly complete the 60-1507 motion form:
"First, he failed to satisfy the requirements of paragraph 10, which directs a movant to
'[s]tate concisely all the grounds on which you base your allegation that you are being
held in custody unlawfully.' Nguyen responded: 'SEE ATTACHED 42 PAGES
MEMORANDUM OF LAW, EXHIBIT, AND 10 PAGES OF AFFIDAVIT IN
SUPPORT OF MOTION AND MEMORANDUM.' Nguyen could have simply listed his
10
14 claims in this space and elaborated on them in his memorandum in support; however,
he chose not to. This is not substantial compliance with the rule.
"Second, Nguyen failed to comply with paragraph 11 of the K.S.A. 60-1507
form, which requires a movant to concisely state the facts that support a claim of
unlawful detention and provide the names and addresses of the witnesses or other
evidence on which the movant would rely. Instead of listing evidentiary support arranged
by each alleged claim of unlawful custody, Nguyen listed 22 people, some by name and
some by profession only, and various documents. These were not organized by any basis
for his argument of unlawful detention; rather, they were mentioned sporadically
throughout Nguyen's 52 pages of supporting documents. It is unclear what evidence
would be provided by the sources listed or what sources and evidence supported each
claim of unlawful custody." 2016 WL 197745, at *5.
After the foregoing recitation, the panel's complete analysis consisted of the
following:
"Nguyen is required to follow the rules of procedure, regardless of whether he is
proceeding pro se, and he failed to substantially comply with the form. See Guillory, 285
Kan. at 229. Thus, the district court did not err in finding that Nguyen did not comply
with Supreme Court Rule 183(e) and did not err in using his failure to comply as one of
the grounds to summarily dismiss Nguyen's motion." 2016 WL 197745, at *5.
The panel's rationale will not withstand closer scrutiny.
Standard of Review
When a district court summarily dismisses a K.S.A. 60-1507 motion without
conducting a hearing, an appellate court will review the decision de novo. Bellamy v.
State, 285 Kan. 346, Syl. ¶ 3, 172 P.3d 10 (2007).
11
Analysis
We begin by looking at the plain language of the rule upon which the lower courts
relied to dismiss Nguyen's K.S.A. 60-1507 motion. Supreme Court Rule 183(e) (2018
Kan. S. Ct. R. 225) states, in its entirety, as follows: "Sufficiency of Motion. A motion to
vacate, set aside, or correct a sentence is sufficient if it is in substantial compliance with
the judicial council form. The form must be furnished by the clerk on request." Pointedly,
the rule does not define "substantial compliance."
While this court has not had occasion to define "substantial compliance" as that
term is used in Supreme Court Rule 183(e), we have opined on its meaning in relation to
notice statutes. In that context, "substantial compliance" means "'"'compliance in respect
to the essential matters necessary to assure every reasonable objective of the statute.'"'"
Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 874, 127 P.3d 319 (2006)
(quoting Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 [2000]). Obviously, that
standard is something less than strict compliance. See Myers, 280 Kan. at 874.
Turning next to the July 1, 2012, version of the Judicial Council form, which the
rule identifies as the standard, we discover that it provides the movant with the following
instructions:
"INSTRUCTIONS—READ CAREFULLY
"For this motion to be considered by the district court, you must submit it in writing
(legibly handwritten or typewritten), set forth concise answers to each applicable question,
and sign under penalty of perjury. If necessary, you may finish the answer to a particular
question on the reverse side of the page or on an additional blank page. You must make
clear the question to which a continued answer refers.
12
"Since this motion must be subscribed as true under the penalty of perjury, any
false statement of a material fact in this motion may serve as the basis of prosecution and
conviction for perjury. You, therefore, should exercise care to assure that all answers are
true and correct.
"If you request permission to file this motion without paying the docket fee and
other costs of the proceeding, you must include as an attachment at the back of this form:
"1. a poverty affidavit showing your inability to pay the full costs of the proceedings;
and
"2. a certified inmate account statement setting forth the lesser of the average account
balance or total deposits in your inmate trust fund for the six-month period preceding the
filing of this motion or the current period of incarceration, whichever is shorter.
"The court will determine the initial fee to be assessed for filing the action, but in
no event will the court require an inmate to pay less than $3. The poverty affidavit applies
only to the amount that must be paid to file the case and does not prevent the court from
later assessing the remainder of the docket fee or other fees and costs against the petitioner.
"When the motion is completed, the original and one copy must be mailed to the
Clerk of the District Court from which petitioner was sentenced."
Reading the rule and the form instructions together would suggest that the
reasonable objectives of Supreme Court Rule 183(e) are to provide the reviewing court
with the information called for by the form's questions and to have that information
presented in such a manner that the reviewing court can match the answers to their
corresponding questions. Nothing prohibits the information from being presented in an
attachment, and nothing prohibits an answer from incorporating an attached document by
reference. Indeed, the instructions on the form specifically contemplate that additional
pages may be necessary.
13
The panel acknowledged that we liberally construe pro se pleadings "[to give]
effect to the pleading's content rather than the labels and forms used to articulate the
arguments." State v. Gilbert, 299 Kan. 797, Syl. ¶ 4, 326 P.3d 1060 (2014). But then,
quoting from Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007), the panel
appears to believe that Gilbert's liberal construction rule was trumped by Guillory's
declaration that "a pro se K.S.A. 60-1507 movant is in the same position as all other pro
se civil litigants and is required to be aware of and follow the rules of procedure that
apply to all civil litigants, pro se or represented by counsel." But Guillory is inapposite; it
dealt with whether a pro se 60-1507 movant was bound by the 30-day time limit to file an
appeal. It had nothing to do with construing pro se pleadings. Moreover, the 2007
Guillory decision certainly did not overrule the 2014 reiteration of the liberal construction
rule in Gilbert.
Nevertheless, it is questionable whether the liberal construction rule is required for
question 10. Nguyen made it abundantly clear under that question on the form that he was
providing all his grounds for relief in the attachments to the form, including his
memorandum of law. Then, on Page 1 of the memorandum, Nguyen clearly set forth the
14 grounds for relief that he was claiming. For instance, under Issue I, the memorandum
states quite clearly and concisely that
"Movant's co-defendants obtained relief on appeal from the conviction for conspiracy to
commit kidnapping because the appellate courts decided that it was multiplicitous to the
conspiracy to commit aggravated burglary conviction. [sic] The Movant is entitled to the
same reversal and resentencing for the same reasons his co-defendants received that
relief."
The panel faulted Nguyen for listing the grounds on a separate page, rather than on
the face of the form. Arguably, Nguyen strictly complied with the form's instruction that
allows the use of additional blank pages. But even if one were to find a failure to strictly
comply with the form, Nguyen's submission most certainly substantially complied "'"in
14
respect to the essential matters necessary to assure every reasonable objective"'" of the
form. Myers, 280 Kan. at 874. Likewise, Nguyen's answer to question 11 should not have
thwarted the district court's ability to decide the case, if it had simply read the
attachments. If nothing else could be discerned by the court, the statement of Issue I,
regarding the multiplicity issue, was self-explanatory and pointed the court where it
needed to go to decide that there was not a conclusive showing that Nguyen was not
entitled to relief. See Supreme Court Rule 183(f) (2018 Kan. S. Ct. R. 225) (court must
provide a recorded hearing unless the motion, files, and record "conclusively show that
the movant is entitled to no relief").
In short, this case should not be about thwarting the fundamental purpose of
affording K.S.A. 60-1507 relief by looking for a hypertechnical, strict compliance
pleading requirement. Cf. Anzua-Torres v. State, No. 105,083, 2012 WL 139400, at *6,
(Kan. App. 2012) (unpublished opinion) (Atcheson, J., concurring) ("60-1507 motions
should be about properly determining the substantive issues presented, not throwing
inmates out of court because they try and fail to fill out the paperwork correctly."). The
district court erred in dismissing the motion as noncompliant with Supreme Court Rule
183(e); the Court of Appeals erred in affirming that dismissal.
SUCCESSIVE MOTION UNDER K.S.A. 60-1507
Nguyen contends that the panel misinterpreted his statement—that he was unable
to understand the manifest injustice that he had suffered until he filed this current
motion—as being a ground for relief, rather than an explanation of the exceptional
circumstances which had prevented him from raising the issues in his prior motions.
Further, he argues that the panel erred in its application of Supreme Court Rule 183(d),
because the issues in this motion had not been raised previously and determined
adversely to him. We discern that exceptional circumstances did exist in this case.
15
Standard of Review
An appellate court exercises de novo review of a district court's summary
dismissal of a K.S.A. 60-1507 motion. Bellamy, 285 Kan. at 354.
Analysis
K.S.A. 60-1507 contains subsection (c), entitled "Successive Motions," that
provides as follows: "The sentencing court shall not be required to entertain a second or
successive motion for similar relief on behalf of the same prisoner." A plain language
reading of that provision might well suggest that the district court has unfettered
discretion to decline to consider a second or successive 60-1507 motion, notwithstanding
the reason for the subsequent motion and regardless whether injustice may result from the
refusal to consider the motion's merits. But that provision does not exist in a vacuum.
This court has decades of caselaw holding that K.S.A. 60-1507's prohibition on
successive motions is subject to exceptions. Over forty years ago, this court declared that
"[t]he sentencing court should not entertain a second or successive motion for relief under
K.S.A. 60-1507 on behalf of the same person unless the errors affect constitutional rights
and there are exceptional circumstances which justify entertaining a second or
successive motion." (Emphasis added.) Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788(1977). Earlier this year we again confirmed that a movant could avoid having a second
or successive K.S.A. 60-1507 motion dismissed as an abuse of remedy by establishing
exceptional circumstances. Beauclair v. State, 308 Kan. 284, 304-05, 419 P.3d 1180(2018) (finding a claim of innocence founded upon victim's recantation sufficient to
avoid dismissal as successive motion).
16
Further, this court has adopted rules governing procedure in district courts. One of
those rules, Supreme Court Rule 183, explains and implements the procedure to be
followed under K.S.A. 60-1507. Subsection (d) of Rule 183 is also entitled "Successive
Motions" and reads as follows:
"A sentencing court may not consider a second or successive motion for relief by
the same movant when:
"(1) the ground for relief was determined adversely to the movant on a
prior motion;
"(2) the prior determination was on the merits; and
"(3) justice would not be served by reaching the merits of the subsequent
motion." Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 225).
Pointedly, that rule uses the words "may not." Consequently, a plain reading of the
rule would suggest that a district court is permitted to decline to consider a successive
motion only "when . . . justice would not be served by reaching the merits of the
subsequent motion." Supreme Court Rule 183(d)(3) (2018 Kan. S. Ct. R. 225).
Importantly, the State has not asked this court to jettison its own rules directing the
district court's procedure under K.S.A. 60-1507, nor has the State asked this court to
overrule longstanding precedent recognizing that there are exceptions to the statutory
prohibition on successive 60-1507 motions. Our general rule is that an issue not raised or
briefed is deemed waived and abandoned. See, e.g., Superior Boiler Works, Inc. v.
Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). In conformance with that general rule,
this court declines to reconsider the construction of K.S.A. 60-1507(c), sua sponte. See
Cent. Kansas Med. Ctr. v. Hatesohl, 308 Kan. 992, 1006-07, 425 P.3d 1253 (2018)
17
("Because no party asks us to overturn this precedent, we apply it on the basis of stare
decisis and will not question its validity sua sponte.").
Recently, this court reiterated that "'[e]xceptional circumstances are unusual
events or intervening changes in the law that prevented the defendant [from] raising the
issue in a preceding [K.S.A.] 60-1507 motion.'" Beauclair, 308 Kan. at 304 (quoting
State v. Mitchell, 284 Kan. 374, Syl. ¶ 5, 162 P.3d 18 [2007]). The Court of Appeals
discerned that Nguyen made "no arguments alleging that any exceptional circumstances
prevented him from previously raising any of the 14 grounds for relief he now raises."
Nguyen, 2016 WL 197745, at *4. Furthermore, the panel stated that it was not their "role
to hunt the record for such circumstances; it is Nguyen's duty to assert the existence of
any exceptional circumstances that would justify the filing of a successive motion for
relief. See Vontress, 299 Kan. at 617." 2016 WL 197745, at *4.
As noted above, Nguyen counters that his statement that he was unable to
understand the manifest injustice that he had suffered until he filed this current motion
constituted an explanation of the exceptional circumstances which had prevented him
from raising the issues in his prior motions. Moreover, on the face of the motion form,
under paragraph 16, Nguyen provides the reasons that some of his claimed grounds for
relief were not previously presented, to-wit: "Appellate counsel was ineffective, and
movant was denied due process access to education and/or interpreter to help movant to
file proper pleadings, understand the many charges against movant, or even read the
transcripts." Nguyen's attached memorandum clearly explains that he is Vietnamese and
"has no comprehension of the english [sic], which would be a prerequisite for him to be
able to read his transcripts, file a pro se petition or motion, read the constitution of
Kansas or the United States of America, or read the laws, case laws, or make any written
argument to the courts: an untenable position."
18
He explains that the only way he has been able to file pro se pleadings is when "some
other prisoner took the time to learn his broken speech, then try to communicate movant's
assertions to paper [on movant's behalf]."
With respect to the performance of the appointed appellate attorneys, his counsel
on direct appeal failed to raise the multiplicity issue that was subsequently successful for
his two codefendants. The subsequent rulings on the multiplicity issue in the
codefendants' cases would seem to fall within the ambit of an intervening change in the
law. Yet the attorney the district court appointed in April 2007 to represent Nguyen on
the appeal of his first summarily denied 60-1507 motion did not advocate for his client to
get the same relief that this court had granted to Pham the year before. Indeed, that
attorney did nothing for two years and caused the appeal to be dismissed when the Court
of Appeals denied his motion to docket the appeal out of time. In other words, the first
time that Nguyen could have gotten into court with an attorney who should have known
of the multiplicity law created in Pham, he was prevented from raising that legal
argument by the dilatory conduct of his appellate attorney and the refusal of the Court of
Appeals to docket the appeal out of time. Thereafter, counsel on Nguyen's second 60-
1507 was apparently likewise oblivious to the winning issue on multiplicity. Cf. Trotter
v. State, 288 Kan. 112, Syl. ¶ 9, 200 P.3d 1236 (2009) (K.S.A. 60-1507 movant can
demonstrate exceptional circumstances by persuading a court that there was ineffective
assistance of direct appeal counsel in failing to raise an issue).
Moreover, one might ruminate on the record support for the district court's cursory
declarations that there were no substantial issues of law in Nguyen's case. Within the six
months preceding the district court's summary ruling in January 2007, it had received a
remand of Pham's case because of a substantial issue of law in his case that replicated the
circumstances in Nguyen's case. Then, before Nguyen's second motion was filed, the
district court received a remand of the second codefendant's case for the same
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multiplicity reason. Finally, Nguyen's third motion was initially rejected for filing as
being successive; it is difficult to discern exceptional circumstances without at least
reading the motion.
To put the circumstances in perspective, a native English speaker might imagine
being in a Vietnamese prison with virtually no grasp of the local language, having no
access to a competent interpreter, being assigned dilatory (if not incompetent) counsel,
and knowing that two codefendants had their identical convictions reversed on the same
legal grounds, but the district court that resentenced your codefendants summarily refuses
to consider your wrongful conviction. Those circumstances would seem exceptional to
most persons. Certainly, Dunlap defined exceptional circumstances in part as being "such
that the ends of justice can only be served by reaching the merits of the subsequent
[motion]." 221 Kan. at 270. Toward that end, our rules (recited above) specifically state
that it matters whether justice would be served by reaching the merits of the subsequent
motion. Supreme Court Rule 183(d)(3). Accordingly, we should "not 'justify relentless,
unyielding, and unremitting application of the successive motion rule when [a] sense of
justice require[s] that a colorable and actionable claim be heard on its merits.'" Littlejohn
v. State, No. 115,904, 2017 WL 2833312, at *6 (Kan. App. 2017) (unpublished opinion)
(quoting Saleem v. State, No. 94,945, 2006 WL 3353769, at *13 [Kan. App. 2006]
[unpublished opinion]). After all, inscribed on the wall of the atrium in the Kansas
Judicial Center are the following words: "Within These Walls the Balance of Justice
Weighs Equal."
For the balance of justice to be weighed equally, Nguyen deserves the same relief
as his codefendants. Consequently, we reverse his conviction for conspiracy to commit
kidnapping; vacate the accompanying sentence; and remand the case to the district court
for resentencing.
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DISTRICT COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
With respect to the remainder of Nguyen's motion, Supreme Court Rule 183(j)
(2017 Kan. S. Ct. R. 225) directs that "[t]he court must make findings of fact and
conclusions of law on all issues presented." Nguyen asserts that the district court failed to
make specific and granular findings in its order summarily dismissing his 60-1507
motion. Moreover, he argues that the panel erred in applying the presumption of adequate
findings based upon Nguyen's failure to object to the court's inadequate factual findings
or legal conclusions.
Nguyen makes the valid point that the panel appears to have overlooked that,
because his motion was summarily denied, he had limited access to the court to make an
objection to its findings. Indeed, the panel does not explain how a pro se litigant, who is
not present when the district court makes a summary ruling without a hearing, is
supposed to lodge the type of objection it says was required of Nguyen.
Nevertheless, we discern that Nguyen did all that he could to advise the district
court of his objections. He filed a pro se motion to alter or amend judgment within 10
days after his motion was dismissed. In that motion he asserted that the district court "is
required to make findings of fact and conclusions of law, reaching the merits of all
fourteen of the issues/claims raised in the instant petition." The purpose of requiring an
objection to inadequate findings is to give the district court an opportunity to remedy the
deficiency. Certainly, the district court was given that opportunity through Nguyen's
motion to alter or amend. Its failure to make the requisite findings cannot be laid at the
movant's feet.
Turning, then, to the district court's order dismissing the motion, one notes that it
is conclusory in nature. Rule 183(j) "requires a district court reviewing a K.S.A. 60-1507
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motion to make explicit findings of fact and conclusions of law regarding each of the
movant's specific issues." Haddock v. State, 282 Kan. 475, 506, 146 P.3d 187 (2006).
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). Stewart v. State, 30 Kan. App. 2d 380, 381-82,
42 P.3d 205 (2002).
The district court's findings fit within the noncompliant conclusory category. Upon
remand, the district court is directed to make adequate findings of fact and conclusions of
law on each of Nguyen's claims. In the event any of the issues are not amenable to
summary denial, the court shall proceed in accordance with Supreme Court Rules 183(f),
(h), and (i).
Reversed and remanded to the district court with directions.
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