State v. Smith

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,949
STATE OF KANSAS,
Appellee,
v.
SHELBERT SMITH,
Appellant.
SYLLABUS BY THE COURT
1.
Although generally untimely appeals are not permitted, an untimely appeal may be
allowed when: (1) the defendant was not informed of his or her right to appeal; (2) the
defendant was not furnished an attorney to pursue the appeal; or (3) the defendant was
furnished an attorney who failed to perfect the appeal.
2.
The mandate rule does not constitute an inflexible jurisdictional barrier to a party's
ability to raise a new issue following a remand.
3.
In general, the mandate rule applies to prevent district court action on remand only
when an issue has already been finally settled by earlier proceedings in a case, including
issuance of the appellate mandate. However, when a remand order is stated in specific
terms following deliberate litigation choices by the parties, the parties are not to raise
new issues for the district court's consideration unless those issues arise from late-
1
breaking facts. Nor are the parties generally free to resurrect issues tangentially
mentioned before the district court previously, yet left untouched by the parties' own
litigation strategy.
4.
On the facts of the case, the two previous appellate mandates specifically limited
the district court to consider only the credibility of the defendant in the context of the
third Ortiz exception.
5.
A district court's credibility determination in an Ortiz hearing is reviewed for
substantial competent evidence. When a district court makes an adverse credibility
determination, that finding will be upheld unless the party challenging it can demonstrate
that the district court arbitrarily disregarded undisputed evidence, or can demonstrate
some extrinsic consideration such as bias, passion, or prejudice.
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed March 12, 2021.
Affirmed.
Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and was on the briefs for
appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
2
WILSON, J.: For the third time, Shelbert L. Smith appeals the decision of the
district court denying his motion for leave to appeal out of time. Smith raises multiple
issues for our consideration. Twice before, this court has considered Smith's case; twice
before, it has reversed the decision of the district court and remanded the matter. See
State v. Smith, 308 Kan. 778, 423 P.3d 530 (2018) (Smith II); State v. Smith, 304 Kan.
916, 377 P.3d 414 (2016) (Smith I). This time, we affirm the district court's ruling.
Smith's argument requires us to consider the exceptions to the general rule
prohibiting untimely appeals, as set forth in State v. Ortiz¸ 230 Kan. 733, 640 P.2d 1255(1982). "Under those exceptions, an untimely appeal may be allowed when: (1) the
defendant was not informed of his or her right to appeal; (2) the defendant was not
furnished an attorney to pursue the appeal; or (3) the defendant was furnished an attorney
who failed to perfect the appeal." Smith I, 304 Kan. at 919. Smith's arguments invoke the
first and third Ortiz exceptions. Issues concerning the scope of previous mandates and the
finality of a journal entry are also raised.
FACTS
Although the Smith I and Smith II opinions have already set forth the factual and
procedural history of the case, we will briefly summarize the pertinent facts once more.
In 1993, Smith pled no contest to first-degree felony murder, aggravated kidnapping,
aggravated robbery, and possession of a firearm by a minor, all arising out of the killing
of Cleo Bell. At sentencing, the district court rejected the arguments of Smith's attorney,
Max Opperman, and imposed a life sentence each for murder and aggravated kidnapping,
a sentence of 10 years to life for aggravated robbery, and a sentence of 30 days in jail for
the firearm convictions—all consecutive. The district court also told Smith that it could
modify the sentence imposed through a procedure then known as a 120-day callback—a
3
statutory mechanism eliminated with the passing of the Kansas Sentencing Guidelines
Act, K.S.A. 1993 Supp. 21-4701 et seq.
Although Opperman filed a timely motion for probation or modification of
sentence, the district court denied it in a "motion minutes sheet" dated March 2, 1994. In
the motion minutes sheet, the district court directed the State to prepare an appropriate
journal entry. Additionally, the district court did not check the box on the motion minutes
sheet signifying "[t]hat this document shall serve as the court's order without further
journal entry/order." None of the parties or their representatives were present at the time
the district court denied the motion for modification, and the then-prosecutor has since
represented that he was unaware of the district court's ruling or its order directing the
State to prepare a journal entry.
Nearly 20 years later, Smith filed a pro se motion for leave to appeal out of time.
Among other things, this motion alleged that Opperman was ineffective because he
"failed to inform the defendant upon his options to appeal" and "failed to perfect and
complete an Appeal when the defendant specified that he wasn't happy with the decision
and told his attorney he wanted to appeal the judgment made." This court remanded the
matter in order for the district court to conduct a hearing to evaluate Smith's eligibility to
appeal out of time under the exceptions enumerated Ortiz, 230 Kan. 733.
At the first Ortiz hearing, Smith testified that he had pled no contest because
Opperman—who had died in 2009—had represented that the judge would show leniency
and consider his age at sentencing. Additionally:
"Smith further testified that immediately after his sentencing hearing, he told Opperman
he wanted to appeal but Opperman said to wait until after the 120-day callback. After the
4
120-day period had passed with no further word from Opperman, Smith began trying to
contact Opperman by phone—sometimes two or three times a day for all of 1994. When
these efforts proved futile, Smith gave up out of frustration." Smith II, 308 Kan. at 780.
No evidence was presented on the adequacy of information provided to Smith
concerning his appellate rights (hereinafter, "first Ortiz exception claim"). Smith I, 304
Kan. at 918. Without making findings of fact, the district court denied Smith's motion,
apparently solely because Smith had waited too long to attempt an appeal. Smith
appealed, arguing "that he should be allowed an untimely appeal because his appointed
trial counsel failed to file the appeal that [he] requested." Smith I, 304 Kan. at 916-17. In
other words, Smith did not present his first Ortiz exception claim in this appeal, but
instead limited his arguments to the third Ortiz exception. Smith I, 304 Kan. at 920.
The Smith I court reversed, taking issue with the district court's failure to make
findings of fact in order to evaluate Smith's credibility and, thus, his attempt to show
entitlement under the third Ortiz exception. Smith I, 304 Kan. at 922. The court then
remanded the matter "once again for the express purpose of determining whether Smith's
testimony is credible, i.e., whether he told his attorney to appeal, whether the attorney did
not file an appeal, and whether Smith would have appealed if his attorney had not failed
to perform." Smith I, 304 Kan. at 922.
A different district court judge held a second Ortiz hearing on December 9, 2016.
Smith II, 308 Kan. at 780. Again, the evidence presented at this hearing focused entirely
on Smith's third Ortiz exception argument, in accordance with the Smith I mandate. Smith
II, 308 Kan. at 780-81. Following the second Ortiz hearing, the district court concluded
that Smith's testimony was not credible, offering 13 observations to support this finding.
Smith II, 308 Kan. at 782-83.
5
Smith again appealed, and the Kansas Supreme Court again reversed the district
court's decision. This time, the court focused on the district court's improper
consideration of Smith's hypothetical musical choices (which had never been discussed
before the court) and the district court's sua sponte order to the Kansas Department of
Corrections ("KDOC") "to produce records of Smith's 'tattoos and brands.'" Smith II, 308
Kan. at 784-88. The court concluded that both actions created the appearance of bias or
prejudice and thus warranted reversal. Smith II, 308 Kan. at 788-89. Ultimately, the
court—referencing the mandate of Smith I—reversed the district court's decision and
remanded the matter to a different judge, whom it cautioned "to consider only evidence in
the record that is relevant to Smith's credibility." Smith II, 308 Kan. at 789.
Following the Smith II remand, a third Ortiz hearing was held before yet another
district court judge. At this hearing, Smith's counsel raised two new arguments not
previously addressed by either prior district court decision or by the Smith I and Smith II
courts. Specifically, Smith's counsel argued that, because the district court filed no
journal entry memorializing its decision with respect to Smith's motion for sentence
modification, the time to file an appeal never began to run. Smith's counsel also argued
that Smith's circumstances satisfied the first Ortiz exception, i.e., that he was not
adequately informed of his appellate rights.
Smith presented testimony from licensed psychologist Dr. Brian Stone. Prior to
the hearing, Dr. Stone tested Smith in order to assess his faculty for "problem solving,
reasoning," "automatic processing of language or how much auditory memory you can
hold," and "different aspects of reading, writing, and math." Based on these tests, Dr.
Stone testified that Smith's overall IQ score was 95, or in the 36th percentile, but that his
score was significantly lower—88, the 21st percentile—in verbal IQ. Dr. Stone diagnosed
Smith with dyslexia and dysgraphia and further testified that, when he entered a plea as a
6
16-year-old, Smith would have had the auditory memory of an average six-year-old child,
which would have made it "difficult" to remember and absorb information in a setting
like a courtroom or a school. However, Dr. Stone elaborated that Smith "had better
attention than I did"—he just had difficulty absorbing large amounts of auditory
information at once. As Dr. Stone put it, "Give it to him just enough at once, he's fine.
The minute he gets bombarded with blah, blah, blah, that's hard for him to internalize it."
According to Dr. Stone, "One-on-one in a small room without additional noise or filling
up his auditory memory," Smith could comprehend information "as long as you're not
moving too fast." He opined that courtroom proceedings would generally pass too
quickly for Smith to fully understand, although "if he could pause you all or rewind, he
could eventually get it."
Dr. Stone also opined that Smith could not have read his plea agreement form at
the time he signed it, based on his "fourth and fifth grade reading level": "I would only
hope they read it to him slowly."
Smith also testified. According to Smith, Opperman only met him once in jail,
after the plea but before sentencing; otherwise, he only saw Opperman on court dates. He
also testified that Opperman gave him the plea form while he was in court, on the same
day he entered his plea. Smith testified that he did not know about his right to appeal
from his plea form, and he denied that Opperman ever went over the document with him.
Smith admitted that he did not ask questions when he did not understand something,
however, because, "I felt like my lawyer knew what he was doing. I didn't feel like I
needed to ask any questions."
According to Smith, he told Opperman that he wanted to appeal shortly after
sentencing; Opperman responded by stating that he would appeal after the 120-day call-
7
back. However, Smith never heard any further followup from Opperman and was unable
to contact Opperman despite repeated attempts by himself, his mother, and his
grandmother to call Opperman throughout 1994. Smith testified that he was trying to
contact Opperman because "I wanted to do an appeal," although he claimed that he did
not understand what an "appeal" meant. He further clarified that he "had an idea what it
meant" and that he "didn't want to spend the rest of my life in prison, so I asked him for
an appeal." Smith testified that he did not know his appellate rights and did not know
how to appeal, as neither Opperman nor the judge ever told him about his right to appeal.
Even at the third Ortiz hearing, Smith claimed that he understood "[n]othing really" about
his right to appeal. When asked how he knew to ask for an appeal, if no one had ever
explained his rights, Smith was equivocal: "Well, after I got three life sentences, that was
my only question that I wanted to do is ask for an appeal." Smith explained his nearly
two-decade delay in filing any attempt to appeal by claiming that he "was accumulating
stuff dealing with appeals so maybe I could find somebody to help me file an appeal."
Smith did not write his 2013 motion to appeal out of time; another inmate assisted him.
In an Order Regarding Mandate filed September 23, 2019, the district court found
Smith's testimony not to be credible. The district court concluded that the newly raised
issues concerning the first Ortiz exception and the journal entry exceeded the "very
specific scope of the remand." However, the district court commented in a footnote that,
if it was incorrect about this conclusion, then the facts relevant to the journal entry issue
were not in dispute, and it attempted to make findings of fact relevant to the first Ortiz
issue. As to Smith's credibility regarding the third Ortiz exception, the district court
highlighted the following facts:
8
• Smith had "waited nearly 20 years after sentencing to file an appeal," a lengthy
delay which the district court viewed as "inconsistent with Mr. Smith's testimony that he
desired an appeal."
• Smith's learning disabilities did not prevent him from writing the sentence "I
want to appeal," and although he did not know the meaning of the word "'appeal' . . . he
fully understood it was the appropriate legal response when someone gets sentenced to
multiple life sentences and doesn't want to spend the rest of his life in prison."
• Although Smith obtained his GED in 1998 or 1999, "he made no attempt, in
writing or otherwise, to contact his lawyer, contact another attorney, contact his mother
or grandmother, contact a friend or anyone on the outside, contact the district court, or
secure the help of a fellow inmate" for another 15 years.
• The Smith I court's finding that Smith "'said he eventually gave up because he
"was in limbo" and did not know what to do, until 19 years later'" contradicted his
assertion that he spent the 19-year interim between his conviction and his appeal
"'accumulating stuff dealing with appeals.'"
• "[U]ndisputed evidence concerning Mr. Smith's grandmother" somewhat
corroborated Smith's testimony that he told Opperman to appeal. But this evidence was
"not definitive" because "the actual message Mr. Smith asked his grandmother to give
Mr. Opperman was not that he wanted to appeal, but only that 'he needed to talk to his
lawyer.'"
• Smith's lengthy delay and Opperman's death removed "the only other witness to
Mr. Smith's alleged statement he wanted to appeal."
9
• The district court found "doubtful" Smith's testimony that "Opperman never went
over the plea document with him before the plea hearing," which contradicted what
Smith told the district court at the plea hearing itself. Nor did the district court believe
either that Opperman speculated that he "did not see Mr. Smith going to prison" or that it
took Smith nearly 20 years to find an individual in prison to draft his motion to appeal his
sentence out of time.
The above facts, combined with the district court's observations of Smith's
testimony in person, led the district court to find Smith's testimony "not credible." The
district court thus denied Smith's motion, and Smith subsequently appealed.
ANALYSIS
Smith raises the following issues for our consideration: whether the district court
erred in concluding that his newly raised claims were outside the scope of the Smith II
mandate, whether he was entitled to relief under the first and third Ortiz exceptions, and
whether the district court's failure to file a journal entry concerning its decision on his
initial motion for sentence modification means that his time to appeal still has not
elapsed. Because we agree with the district court that the Smith II mandate was too
narrow to permit consideration of Smith's new arguments, we decline to address those
issues. Further, we affirm the district court's denial of Smith's motion on the basis of the
third Ortiz exception, as discussed below.
The Smith II mandate did not permit Smith to raise new issues or to resurrect an
argument alluded to in the initial motion but ignored by Smith until now.
10
We first assess whether the district court correctly concluded that the Smith II
mandate was too narrow to permit consideration of Smith's first Ortiz exception claim or
his claim concerning the district court's missing journal entry. A district court's
compliance with an appellate court mandate presents a question of law, which we review
de novo. State v. Soto, 310 Kan. 242, 256, 445 P.3d 1161 (2019).
Initially, we note that Smith has taken somewhat inconsistent positions regarding
whether his first Ortiz exception claim was "newly" raised. In his brief, Smith argued that
he alluded to this issue in the pro se motion authored by another inmate, rather than by
Smith, but—until the third Ortiz hearing—it had never actually been litigated. On the
other hand, in his reply brief, Smith has argued that both the first Ortiz exception claim
and the missing journal entry claim "were not 'old' issues" but were, instead, "issues that
had never been raised before and could be properly raised at the remand hearing."
However, under the current factual and procedural posture of the case, we find the
distinction irrelevant.
Smith primarily relies on two cases to support his proposition that these issues
were not beyond the scope of the Smith II mandate: Soto, 310 Kan. at 255-57, and State
v. DuMars, 37 Kan. App. 2d 600, 603-04, 154 P.3d 1120 (2007). The Soto court
examined "the existence and extent of any limits on the district court's subject matter
jurisdiction after an appellate mandate issues." 310 Kan. at 250. Rejecting the State's
theory that a mandate focused on a single issue—specifically, a resentencing following a
vacated "hard 50" sentence—and therefore deprived the district court of jurisdiction "to
do anything else after remand, period," the Soto court reasoned that the limitations
encompassed by the mandate rule reflected "the hierarchy of Kansas courts" rather than
"broad limits on subject matter jurisdiction once a case was remanded." 310 Kan. at 250-
52. As the court summarized:
11
"The [mandate] rule applies to prevent district court action on remand only when an issue
has already been finally settled by earlier proceedings in a case, including issuance of the
appellate mandate. If a final settlement of an issue has occurred, the district judge is not
free to expand upon or revise that history. The mandate rule does not, however, prevent a
district judge from doing whatever else is necessary to dispose of a case. This means the
district judge must not only do as the mandate directs; he or she must also do what is
needed to settle other outstanding issues that must be decided to complete district court
work on the case. Such issues may have been allocated for decision in the district court in
the first place and then untouched by appellate proceedings. They may include issues
arising from late-breaking facts. [Citations omitted.]" 310 Kan. at 256.
The court went on to reason that Soto's newly raised post-mandate issue involved
"late-breaking facts" that were "unknown to him until the morning his resentencing trial
was set to begin." 310 Kan. at 256. This matter, thus, was not proscribed by the mandate
rule. 310 Kan. at 257.
In DuMars, an earlier panel of the Kansas Court of Appeals had reversed the
defendant's convictions and remanded the case for a new trial. 37 Kan. App. 2d at 601
(citing State v. DuMars, 33 Kan. App. 2d 735, 108 P.3d 448 [2005]). Following remand,
the district court dismissed the defendant's "drug-related" charges based on double
jeopardy concerns—an issue that had not been raised or litigated during the first appeal.
On appeal the second time, the State argued that the district court had exceeded the scope
of the appellate mandate in ruling on the defendant's double jeopardy claim, rather than
proceeding on immediately to retrial. Reasoning that the previous appellate mandate
ordering a new trial on the defendant's drug convictions "did not specifically address the
defendant's double jeopardy claim, and the claim is not inconsistent with this court's
ruling," the court concluded that the district court did not exceed the mandate in
dismissing the charges. 37 Kan. App. 2d at 604.
12
The DuMars panel also relied on the following passage for support:
"'Where the mandate of an appellate court merely reverses a ruling of the district
court and remands the case for further proceedings but does not direct the judgment of
the district court, the district court has discretion to preside over the remaining trial
proceedings, as if the district court had originally made the ruling mandated by the
appellate court. [Citation omitted.] In other words, a district court may address those
issues necessary to the resolution of the case that were left open by the appellate court's
mandate. [Citations omitted.]'" 37 Kan. App. 2d at 604 (quoting Edwards v. State, 31
Kan. App. 2d 778, 781, 73 P.3d 772 [2003]).
Extrapolating from this language, Smith argues that the district court's "'work' . . .
was to decide whether the Defendant could file a notice of appeal." And in the context of
a more general remand, he would be correct. See, e.g., State v. Morton, 283 Kan. 464,
471-73, 153 P.3d 532 (2007). But the Smith II remand order was not a general, open-
ended mandate; instead, it contained specific orders that were too narrow to grant Smith
his desired carte blanche to open and explore new issues. Unlike DuMars or Morton, the
district court here was not commanded to afford Smith a new trial. Instead, both the
Smith I and Smith II opinions remanded the matter to the district court on a narrow basis:
"The last time Smith was before this court, we established that if his testimony
was credible, then he has fulfilled the requirements for the third Ortiz exception and can
appeal out of time. Our remand instructions were clear. Indeed, the district court set them
out verbatim at the beginning of its December 15, 2016, journal entry denying Smith's
motion to file a late appeal:
'This case was remanded "for the express purpose of determining
whether Smith's testimony is credible, i.e., whether he told his attorney to appeal,
13
whether the attorney did not file an appeal, and whether Smith would have
appealed if his attorney had not failed to perform.'
"As a result, the sole issue before us is whether the district court was successful
in that effort. [Citations omitted.]" Smith II, 308 Kan. at 783 (quoting Smith I, 304 Kan. at
922).
The Smith II court went on to reverse and remand the matter "with directions" yet
again in order for a new district court judge to make the necessary credibility
determinations, but this time cautioning the district court "to consider only evidence in
the record that is relevant to Smith's credibility." Smith II, 308 Kan. at 789.
Nor are either of Smith's new issues based on newly discovered or "late-breaking"
facts, as was the case in Soto. 310 Kan. at 256. If, as Smith now claims, Opperman truly
never explained his appellate rights to him, and he was unable to comprehend the plea
form—which explicitly described the rights that would be pertinent to the first Ortiz
exception—such deficiencies arose long before Smith filed his initial pro se motion. The
same is true of the district court's missing journal entry, as nothing in the record indicates
the district court file was not available to Smith or his counsel prior to the third Ortiz
hearing.
The mandate rule does not constitute an inflexible jurisdictional barrier to a party's
ability to raise a new issue following a remand, but where a remand order is stated in
specific terms following deliberate litigation choices by the parties—choices reinforced,
in the present case, over two prior Ortiz hearings and two prior appeals—the parties are
not free to endlessly expand on the issues the district court may consider in the absence of
new (or newly discovered) facts. Here, Smith had two previous Ortiz hearings and two
previous appeals in which to present these issues; his failure to do so led the Smith I and
14
Smith II courts to winnow the pertinent issues for the district court's consideration down
to the singular issue of Smith's credibility vis-à-vis the third Ortiz exception. Under these
facts, we believe the district court correctly refused to consider Smith's first Ortiz
exception and missing journal entry claims.
In light of the district court's credibility finding with respect to Smith's third Ortiz
exception claim, we affirm the denial of Smith's motion to appeal out of time.
Turning to Smith's remaining issue—and the sole matter for which the Smith I and
Smith II courts remanded the case—we must consider whether the district court erred in
concluding that Smith was not entitled to appeal out of time under the third Ortiz
exception. At its core, Smith's claim asserts that the district court's adverse credibility
determination was not supported by substantial competent evidence. In particular, Smith's
arguments claim that the district court's decision was "hyper-technical and constituted an
arbitrary disregard of undisputed evidence from the Defendant, his grandmother, and
from Dr. Stone."
An appellate court applies a bifurcated standard when reviewing a district court's
ruling on an Ortiz exception:
"The facts underlying an Ortiz exception ruling should be examined on appeal under a
substantial competent evidence standard of review. The ultimate legal determination of
whether those facts fit the exception should be reviewed under a de novo standard." State
v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005).
"Substantial competent evidence is 'such legal and relevant evidence as a
reasonable person might accept as being sufficient to support a conclusion.'" State v.
15
Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019) (quoting Smith v. Kansas Dept. of
Revenue, 291 Kan. 510, 514, 242 P.3d 1179 [2010]). In evaluating the sufficiency of the
evidence, an appellate court does not weigh witness credibility. Smith I, 304 Kan. at 922.
As in Smith II, we are again principally asked to review a district court's credibility
determination. "We will not reject such a negative finding on appeal unless the party
challenging it 'proves arbitrary disregard of undisputed evidence, or some extrinsic
consideration such as bias, passion, or prejudice.'" Smith II, 308 Kan. at 783 (quoting
State v. Zachary Smith, 303 Kan. 673, 679, 366 P.3d 226 [2016]).
Unlike the situation before us in Smith II, however, the district court did not
consider materials outside of the record or make inappropriate conclusions in making its
credibility finding, which was the express purpose of its mandate. While the district court
noted that Smith's nearly 20-year delay in attempting to appeal was not an absolute bar, it
did rely on the Smith I court's observation that this delay might be relevant to an
assessment of Smith's credibility. We cannot disagree with this proposition. And contrary
to Smith's arguments, we do not believe the district court gave mere "lip service" to Dr.
Stone's testimony with respect to his academic limitations. Instead, the district court's
decision took those limitations into account, as well as the evidence that Smith could
write the sentence "'I want to appeal'" and that he knew that an "appeal" "was the
appropriate legal response when someone gets sentenced to multiple life sentences and
doesn't want to spend the rest of his life in prison."
The district court also considered Smith's grandmother's testimony, emphasizing
that the "actual message Mr. Smith asked his grandmother to give Mr. Opperman was not
that he wanted to appeal, but only that 'he needed to talk to his lawyer.'" While others
may have reached a different inference, we are not convinced that the district court's
conclusion was unreasonable in this regard.
16
Smith also highlights an ostensible instance of Opperman's inaction as evidence
that Opperman was unresponsive with respect to this case. Specifically, Smith points to a
proposed restitution order for $5,254 sent to Opperman on two occasions in 1994, to
which Opperman apparently did not respond or object. Opperman's failure to respond,
however, does not necessarily provide the kind of evidence of his alleged "indolence"
that Smith now asserts. At the sentencing hearing, the State suggested that the total
amount of restitution could have exceeded $200,000, but that more information would be
required. While $5,254 is certainly a substantial amount of restitution, it is, compared
with the State's initial suggestion, a pittance. Consequently, if Opperman had no reason to
object, it does not necessarily follow that he was unresponsive in other areas of the case,
as Smith asks the court to infer. Again, while the district court could have drawn the
inference Smith seeks, we do not believe the district court acted unreasonably in refusing
to do so.
Smith also attacks the district court's criticism of Smith's apparently inconsistent
testimony with respect to his efforts to pursue an appeal. Smith had previously testified
that, after attempting to contact Opperman multiple times a day for nearly all of 1994, "I
didn't know what to do. I was frustrated, so I finally gave up"—until "recently," when "I
found somebody at the Hutchinson Correctional Facility that would help assist me in
doing this appeal." At the current hearing, as the district court noted, Smith testified that
he never gave up on his appeal and that he spent the intervening 19 years "accumulating
stuff dealing with appeals." Smith suggests that, contrary to the district court's focus on
this apparent inconsistency, "[a] fair reading" of the apparent incongruity is that Smith
was merely expressing frustration with his continued inability to contact Opperman, not
abandoning his appellate rights. But again, that is only one "fair reading" of the facts.
While another judge might have agreed with this "fair reading" in the district court's
position, we do not believe the district court's conclusion to the contrary to be
17
unreasonable. The same is true of Smith's argument that the district court—in
highlighting the incongruity between Smith's most recent testimony that Opperman never
went over the plea with him and his original representation to the contrary at the plea
hearing—simply ignored "the very real possibility . . . that the Defendant did not
remember going over the form with Opperman because of his significant learning
disabilities."
While not all jurists may have reached the same conclusion, we do not believe the
district court's adverse credibility determination lacked the support of substantial
competent evidence, disregarded undisputed evidence, relied on unreasonable inferences,
or otherwise evinced bias, passion, or prejudice. As that credibility determination forms
the core of the evidentiary support for the district court's denial of Smith's claim under the
third Ortiz exception, we affirm that ruling.
CONCLUSION
We affirm the district court's decision denying Smith's motion for leave to appeal
out of time under the third Ortiz exception. We further affirm the district court's
conclusion that Smith's other issues exceed the scope of the Smith II mandate.
18