Barnett v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,910
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
PAUL LAWRENCE BARNETT III,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 27, 2021.
Affirmed.
Bach T. Hang, of The Douglas Firm LLC, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and BURGESS, S.J.
PER CURIAM: Paul Lawrence Barnett III appeals the district court's summary
dismissal of his second motion for habeas corpus relief under K.S.A. 60-1507. The
district court found that Barnett's K.S.A. 60-1507 motion was untimely and that he failed
to establish manifest injustice to justify the untimely filing. In addition, the district court
found that Barnett's K.S.A. 60-1507 motion was successive and that he failed to establish
exceptional circumstances to justify the filing of a second motion. We agree with the
district court. In addition, we conclude that Barnett's primary argument regarding access
to DNA evidence has been fully litigated on numerous occasions rendering his second
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K.S.A. 60-1507 motion successive. We affirm the district court's summary denial of
Barnett's second K.S.A. 60-1507 motion.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2009, a jury convicted Barnett of aggravated robbery,
kidnapping, attempted aggravated robbery, and aggravated burglary. On October 27,
2010, prior to sentencing, Barnett filed a pro se motion, pursuant to K.S.A. 21-2512,
requesting DNA testing of several pieces of trial evidence. The district court denied
Barnett's motion on November 22, 2010, concluding that K.S.A. 21-2512 was
inapplicable to Barnett's crimes of conviction. The next day, the district court sentenced
Barnett to a total of 307 months in prison.
On November 28, 2010, Barnett mailed a pro se notice of appeal from the El
Dorado Correctional Facility, and it was filed in the district court on December 21, 2010.
Notably, Barnett did not challenge the district court's denial of his request for DNA
testing in his direct appeal. On August 30, 2013, a panel of this court affirmed Barnett's
convictions. State v. Barnett, No. 106,133, 2013 WL 4729219, at *5 (Kan. App. 2013)
(unpublished opinion).
About a year later, on September 9, 2014, Barnett filed his first K.S.A. 60-1507
motion, which the district court denied on April 27, 2015. Barnett filed an appeal on
October 13, 2015. However, on February 29, 2016, this court dismissed that appeal for
lack of jurisdiction.
Several years later, on July 5, 2018, Barnett filed a second pro se motion, pursuant
to K.S.A. 21-2512, requesting DNA testing. On November 7, 2018, the district court
summarily denied the motion as successive and untimely. A panel of this court affirmed
the district court, finding that Barnett's request for DNA testing had been fully litigated
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and was, therefore, barred by res judicata. State v. Barnett, No. 121,233, 2021 WL
300700, at *2 (Kan. App. 2021) (unpublished opinion), petition for rev. filed March 15,
2021.
Meanwhile, on May 17, 2019, Barnett filed a second pro se K.S.A. 60-1507
motion, which is the subject of this appeal. He argues that his trial counsel was
ineffective because she failed to raise the issue of DNA testing. On July 12, 2019, the
district court summarily dismissed Barnett's motion.
Specifically, the district court found, in relevant part, as follows:
"6. The instant action was filed May 17, 2019. Mr. Barnett is nearly 5 years out of time
to file a 1507 motion.
"7. The Court can allow . . . Mr. Barnett to file out of time if the Court finds that manifest
injustice would result if Mr. Barnett was prevented from doing so. K.S.A. 60-1507(f)(2)
....
"9. In examining Mr. Barnett's current 1507 Motion, he fails to address the issue of
timeliness, and does not make any arguments with regard to manifest injustice.
....
"11. Movant does make a reference in paragraph 16 of his Motion to State v. Cheeks, 298
Kan. 1, 310 P.3d 346 (2013), a case in which the Kansas Supreme Court allowed DNA
testing in a case of a conviction for second degree murder, despite the fact that K.S.A. 21-
2512 allows for DNA testing only in first degree murder and rape case. But in that same
paragraph, Movant also references State v. LaPointe, 309 Kan. 299, 434 P.3d 850 (2019),
which overruled Cheeks. In his underlying criminal case, Movant was not convicted of
first degree murder or rape, so K.S.A. 21-2512 would not entitle him to any DNA testing.
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"12. Nor does Movant show it is more likely than not that no reasonable juror would have
convicted Movant in light of new evidence. In fact, Movant does not assert that any new
evidence of any kind exists.
"13. Mr. Barnett did not present his arguments in a timely manner. To allow these
arguments to go forward at this time would render the time limitation in K.S.A. 60-1507
meaningless.
"14. The Court finds that there is no manifest injustice in denying Mr. Barnett's May 17,
2019, 1507 Motion, based on its late filing.
"15. In addition to being untimely, the Motion is also successive. The Movant filed a
previous 60-1507 Motion on September 09, 2014 in 14CV2454. The Court denied the
Motion in an Order filed April 27, 2015. Although an appeal was filed (114,928) it was
ultimately dismissed on February 29, 2016.
"16. K.S.A. 60-1507(c) is quite clear that . . . the sentencing court shall not be required to
entertain a second or successive motion for similar relief on behalf of the same prisoner
. . . . Mr. Barnett has not argued any circumstances that warrant the consideration of this
successive motion. . . .
"17. Successive K.S.A. 60-1507 motions may be allowed in 'exceptional circumstances.'
. . . However, an examination of Movant's motion shows no such events or changes that
would allow the consideration of this second 60-1507 motion.
....
"19. The Motion herein is denied as untimely and successive."
Barnett filed a timely pro se notice of appeal.
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ANALYSIS
Although Barnett devotes most of his brief to facts of the case and the merits of his
second K.S.A. 60-1507 motion, the primary issue presented on appeal is whether the
district court erred in summarily dismissing Barnett's motion. We conclude the district
court did not err and affirm.
When a district court summarily dismisses a K.S.A. 60-1507 motion, we conduct a
de novo review to determine whether the motion, files, and records of the case
conclusively establish that the movant has no right to relief. We are to conduct this
review independently and do not defer to the district court's decision. Beauclair v. State,
308 Kan. 284, 293, 419 P.3d 1180 (2018).
A defendant has one year from when a conviction becomes final to file a K.S.A.
60-1507 motion. K.S.A. 2020 Supp. 60-1507(f)(1). Barnett did not file the motion that is
the subject of this appeal until May 17, 2019. As a result, his motion was not timely filed.
A district court may extend the one-year time limitation for bringing an action
under K.S.A. 2020 Supp. 60-1507(f)(1) to prevent a manifest injustice. K.S.A. 2020
Supp. 60-1507(f)(2). However, without a showing of manifest injustice, the district court
must dismiss a motion as untimely filed if, after inspection of the motion, files, and
records of the case, the court determines that the time limitation has been exceeded.
K.S.A. 2020 Supp. 60-1507(f)(3). In other words, a movant who files an untimely motion
under K.S.A. 60-1507 and fails to show manifest injustice is procedurally barred from
maintaining the action. State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013).
On appeal, Barnett neither explains the lengthy delay in filing his second K.S.A.
60-1507 motion nor does he argue actual innocence. Instead, Barnett repeats his
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substantive argument that his trial attorney was ineffective because she failed to request
DNA testing of the trial evidence.
In this regard, the statute is clear regarding the scope of our manifest injustice
review.
"For purposes of finding manifest injustice under this section, the court's inquiry
shall be limited to determining why the prisoner failed to file the motion within the one-
year time limitation or whether the prisoner makes a colorable claim of actual innocence.
As used herein, the term actual 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." (Emphasis added.) K.S.A. 2020 Supp. 60-1507(f)(2)(A).
Absent any explanation regarding Barnett's filing delay or any attempt to put forth
exculpatory evidence to establish his actual innocence, we agree with the district court
that Barnett did not establish manifest injustice to justify the untimely filing of his K.S.A.
60-1507 motion.
We also agree with the district court's conclusion that Barnett's second K.S.A. 60-
1507 motion was "successive." Specifically, we find that Barnett failed to establish
exceptional circumstances to justify the filing of a second motion. In addition, we note
that Barnett asserts claims that were decided, or which could have been decided, on direct
appeal or in the multiple motions he has filed since that time.
Under K.S.A. 2020 Supp. 60-1507(c), district courts need not consider more than
one habeas motion seeking similar relief filed by the same prisoner. Because a movant is
presumed to have listed all of the grounds for relief in his or her initial K.S.A. 60-1507
motion, a prisoner must show "exceptional circumstances" to justify the filing of
successive motions. Trotter, 296 Kan. 898, Syl. ¶ 2; see Littlejohn v. State, 310 Kan. 439,
444-46, 447 P.3d 375 (2019). Exceptional circumstances include "unusual events or
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intervening changes in the law which prevent[ed] a movant from reasonably being able to
raise all of the trial errors in the first postconviction proceeding." State v. Kelly, 291 Kan.
868, Syl. ¶ 2, 248 P.3d 1282 (2011). Barnett does not offer such an explanation, nor does
he point to any changes in the law or unusual circumstances that would justify the filing
of successive K.S.A. 60-1507 motions.
Since his 2009 convictions, Barnett has repeatedly argued for access to DNA
testing of the trial evidence in his posttrial motions pursuant to K.S.A. 21-2512. Under
the law-of-the-case doctrine, issues that have been finally decided in prior appeals in the
same case are generally not to be reconsidered. This is because litigants are not entitled to
have their cases decided on a piecemeal basis. Rather, they must proceed in accordance
with the mandates and legal rulings as established in previous appeals. State v. Parry, 305
Kan. 1189, 1195, 390 P.3d 879 (2017).
As recently as January of this year, another panel of this court concluded that
Barnett's argument regarding access to DNA testing of the trial evidence had been fully
litigated on the merits and was, therefore, barred by res judicata. Barnett, 2021 WL
300700, at *2. Although, in his second K.S.A. 60-1507 motion, Barnett repackages his
request for DNA testing as an ineffective assistance of counsel argument, the underlying
issue is the same: whether Barnett is entitled to DNA testing under K.S.A. 21-2512 based
on his crimes of conviction.
Because Barnett has already had the opportunity to litigate the issue of DNA
testing in two prior motions, we agree with the district court's conclusion that Barnett's
repackaging of the argument in his second K.S.A. 60-1507 motion is successive.
Finally, we are not persuaded by Barnett's argument that the district court failed to
make adequate findings of fact and conclusions of law when explaining its reasons for
summarily dismissing his second K.S.A. 60-1507 motion. Kansas Supreme Court Rule
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183(j) provides that, in deciding K.S.A. 60-1507 motions, "[t]he court must make
findings of fact and conclusions of law on all issues presented." (2021 Kan. S. Ct. R.
240); see State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000). "Whether the district
judge complied with Rule 183(j) involves a question of law reviewable de novo."
Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009). The primary purpose of
Rule 183(j) is to assist appellate courts in conducting meaningful review. See Moncla,
269 Kan. at 65. Accordingly, the relevant inquiry is whether the district court made
sufficient findings and conclusions upon which we can adequately perform our duties as
an appellate court. See Robertson, 288 Kan. at 232-33.
Reviewing the district court's order, we can easily determine that the district court
found Barnett's motion to be untimely because the motion was filed several years after
the statutory deadline, and Barnett did not argue manifest injustice. In addition, we can
determine that the district court found Barnett's second K.S.A. 60-1507 motion to be
successive because he failed to assert exceptional circumstances that would justify the
filing of a second motion. Accordingly, we conclude that the district court's findings were
sufficient to provide us with an opportunity for meaningful review and, therefore,
complied with the requirements of Supreme Court Rule 183(j).
Based on our review of the motion, files, and records of the case, we conclude that
the district court did not err in summarily dismissing Barnett's second K.S.A. 60-1507
motion as untimely and successive and that the district court's order was sufficiently
articulated to provide a meaningful review. We affirm.
Affirmed.
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