Pouncil v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,930
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ARTHUR A. POUNCIL JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed August 27, 2021.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., HILL and CLINE, JJ.
PER CURIAM: Arthur A. Pouncil Jr. filed a third motion under K.S.A. 60-1507,
which the district court summarily denied as untimely and successive. Since the court
correctly determined Pouncil did not demonstrate manifest injustice (which would extend
his filing deadline) or exceptional circumstances (which would permit assertion of claims
that have or could have been raised previously), we affirm.
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FACTS
A jury convicted Pouncil of two counts of rape of a child in 1996. This court
affirmed his convictions and sentences. State v. Pouncil, No. 76,876, unpublished opinion
filed August 14, 1998 (Kan. App.). Pouncil filed his first K.S.A. 60-1507 motion in 1999,
raising claims of trial error, ineffective assistance of trial counsel, and ineffective
assistance of appellate counsel. The district court denied his motion, and this court
affirmed the denial. Pouncil v. State, No. 83,565, unpublished opinion filed July 14, 2000
(Kan. App.). Pouncil's appellate counsel then filed an untimely petition for review, which
the Kansas Supreme Court did not consider because it was out of time.
In 2005, Pouncil petitioned for habeas corpus relief in federal court, asserting trial
errors, ineffective assistance of trial counsel, and ineffective assistance of appellate
counsel, among other claims. The district court denied his petition, and the Tenth Circuit
Court of Appeals dismissed his appeal of that denial. Pouncil v. Nelson, No. 04-2259,
2005 WL 375939 (10th Cir. 2005) (unpublished opinion). The following year, Pouncil
filed another K.S.A. 60-1507 motion, raising essentially the same claims he raised in his
federal petition. The district court denied his motion, and this court affirmed the district
court's decision. Pouncil v. State, No. 98,276, 2008 WL 2251221 (Kan. App. 2008)
(unpublished opinion).
In 2016, Pouncil filed the 60-1507 motion which is before us today. In it, he raised
essentially the same claims he raised in his second 1507 motion as well as his federal
petition. The district court summarily denied Pouncil's third 1507 motion as untimely and
successive. Pouncil argues he was entitled to an evidentiary hearing because he satisfied
both statutory exceptions which allow consideration of his motion. We are unpersuaded
by Pouncil's arguments.
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ANALYSIS
An evidentiary hearing on a K.S.A. 60-1507 motion is not required if the motion,
files, and records of the case conclusively show the movant has no right to relief. K.S.A.
2020 Supp. 60-1507(b). The burden is on the movant to allege facts sufficient to warrant
a hearing on the motion. Doolin v. State, 24 Kan. App. 2d 500, 501, 947 P.2d 454 (1997)
(citing State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 [1994]).
When a district court summarily dismisses a K.S.A. 60-1507 motion, like it did
here, we conduct a de novo review to determine whether the motion, files, and records of
the case conclusively establish the movant has no right to relief. Beauclair v. State, 308
Kan. 284, 293, 419 P.3d 1180 (2018).
Pouncil's motion was untimely
Pouncil acknowledges his third 60-1507 motion was filed well beyond the one-
year time limit for such motions. K.S.A. 2020 Supp. 60-1507(f)(1). Under K.S.A. 2020
Supp. 60-1507(f)(2), this deadline can be extended "only to prevent a manifest injustice."
In determining the existence of a manifest injustice, "courts are limited to considering (1)
a movant's reasons for the failure to timely file the motion and (2) a movant's claims of
actual innocence." Hayes v. State, 307 Kan. 9, 14, 404 P.3d 676 (2017); see K.S.A. 2020
Supp. 60-1507(f)(2)(A). "[A]ctual innocence requires the prisoner to show it is more
likely than not that no reasonable juror would have convicted the prisoner in light of new
evidence." K.S.A. 2020 Supp. 60-1507(f)(2)(A). If a movant's motion is untimely and the
movant does not establish manifest injustice, "the district court must dismiss the motion
as untimely filed." K.S.A. 2020 Supp. 60-1507(f)(3).
Pouncil offers no reason for his failure to timely file his third motion. Instead, he
simply argues he demonstrated a manifest injustice because the issues he raised in his
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first 60-1507 motion were barred from any further review due to appellate counsel's
failure to timely file a petition for review. The problem with Pouncil's argument is this
court has already considered and rejected the very same arguments he now raises for a
third time. In Pouncil, 2008 WL 2251221, at *4, which addressed Pouncil's second
K.S.A. 60-1507 motion, "Pouncil alleged that counsel appointed to represent him in the
appeal of his first 60-1507 proceeding was ineffective for failing to file a timely petition
for review of this court's decision in Pouncil v. State, No. 83,565." There, a panel of this
court found that this allegation of ineffective assistance of counsel did not amount to a
manifest injustice when—because the one-year time limit was enacted in 2003—Pouncil
had nearly four years to bring his claim after the petition for review was denied and failed
to do so. Specifically, the court held:
"Because Pouncil was informed of his counsel's failure to file a timely petition
for review in Pouncil v. State, No. 83,565, on or near August 25, 2000, he had nearly 4
years in which to file his second 60-1507 motion to claim ineffective assistance of
appellate counsel in his first 60-1507 proceeding before the limitations period of K.S.A.
60-1507(f)(1) would operate to bar his clam. Pouncil has failed to provide a reasonable
explanation for failing to bring this ineffective assistance of counsel claim before July 1,
2004. Therefore, the claim is barred by operation of K.S.A 60-1507. [Citation omitted.]"
2008 WL 2251221, at *7.
Since a panel of this court has already determined that Pouncil's claim of
ineffective assistance of counsel did not demonstrate a reasonable explanation for the
untimely filing of his motion, that ruling applies equally here. Cain v. Jacox, 302 Kan.
431, 434-35, 354 P.3d 1196 (2015) (doctrine of res judicata will bar successive claim).
Once again, Pouncil has failed to explain why he could not raise his claim of ineffective
assistance of appellate counsel within one year after the final determination of his first
60-1507 motion. We see no error in the district court's reasoning for dismissing Pouncil's
third 1507 motion as untimely.
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Pouncil also alleges he presented a claim of factual, not legal, innocence to the
district court, which would alternatively justify extending the one-year deadline.
However, the only mention Pouncil makes to his actual innocence is that his trial counsel
was ineffective for failing to procure an expert witness regarding his erectile dysfunction,
to counter the State's medical expert witness. Pouncil does not claim this alleged medical
condition constituted "new evidence," nor does he demonstrate it is more likely than not
that no reasonable juror would have convicted him in light of this evidence, as required
under K.S.A. 2020 Supp. 60-1507(f)(2)(A). Last, Pouncil has already made a claim of
ineffective assistance of counsel for failure to provide a defense expert to counter the
State's expert, which this court rejected when considering Pouncil's first 60-1507 motion.
See Pouncil, 2008 WL 2251221. Pouncil has not explained how the argument he now
raises is any different or more persuasive than the argument he raised in his first 1507
motion.
Because Pouncil has not provided either a reasonable explanation for filing his
motion 12 years late or a colorable claim of actual innocence, he has not met the statutory
requirements to extend his filing deadline. The district court properly denied Pouncil's
motion as untimely.
Pouncil's motion was successive
The district court also denied Pouncil's motion under K.S.A. 60-1507(c), which
bars successive motions for similar relief. Under K.S.A. 2020 Supp. 60-1507(c), claims
that could have been or were raised in prior 60-1507 motions or successive motions are
barred and may be denied. "The rationale for the limitations on the availability of
postconviction relief under K.S.A. 60-1507 is the necessity for some degree of finality in
the criminal appeal process in order to prevent endless piecemeal litigation in the state
and federal courts." Toney v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122 (2008).
Therefore, "only under rare conditions will a trial court be required to entertain
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arguments on a matter that could have been raised on direct appeal or in a previous
K.S.A. 60-1507 motion." 39 Kan. App. 2d at 948.
Pouncil claims the district court erred because his appellate counsel's failure to
timely file his petition for review, which barred his issues from any further review, was
an exceptional circumstance which justifies review of his claim. Exceptional
circumstances are "unusual events or intervening changes in the law" that excuse a
movant's failure to raise the issue in the direct criminal proceedings or in a prior 60-1507
motion. State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 (2007). Here, this court has
already reviewed and rejected the very event which Pouncil claims is an exceptional
circumstance, that is, his appellate counsel's failure to timely file a petition for review.
See Pouncil, 2008 WL 2251221. Further, Pouncil already raised issues of trial error and
ineffective assistance of trial counsel in his first 1507 motion. If any of the claims he now
raises were not addressed in his first 1507 motion, he offers no reason why they could not
have been.
Pouncil either has asserted or could have asserted all the claims he now raises, and
he offers no exceptional circumstance which justifies review. The district court properly
denied Pouncil's current K.S.A. 60-1507 motion as successive under K.S.A. 60-1507(c).
The district court did not err when it summarily dismissed Pouncil's August 2016
K.S.A. 60-1507 motion, since the motion, files, and records of the case conclusively
show he has no right to relief. K.S.A. 2020 Supp. 60-1507(b).
Affirmed.
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