Bailey v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,689
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ANDRE D. BAILEY,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed February 12,
2021. Affirmed.
Gerard C. Scott, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: We review Andre D. Bailey's second habeas corpus motion
challenging his convictions for felony murder, two counts of aggravated robbery,
aggravated burglary, and discharge of a firearm into an occupied building—all felonies
arising from a home invasion carried out in search of a marijuana stash. The Sedgwick
County District Court summarily denied the motion as untimely under K.S.A. 60-1507(f),
and Bailey has appealed. Rather than wallow in procedural uncertainties about the
motion, we examine the merits of Bailey's claims and find them wanting. We, therefore,
affirm the district court's ultimate decision denying Bailey relief.
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LITIGATION HISTORY
In 2007, Bailey and three cohorts in crime forced their way into a Wichita home
and held the residents—a man, a woman, and the woman's three young children—at
gunpoint as they searched for what they anticipated would be a large amount of
marijuana. Bailey struck the woman who lived there with his pistol and took her purse.
His colleagues found what has been described as a single "brick" of marijuana. As they
left, Bailey stood on the porch and fired his handgun multiple times through the front
door. The man living there was on the other side of the door and was fatally wounded.
Bailey and his accomplices drove away and later divvied up the money from the woman's
purse and the marijuana.
Bailey was then 17 years old and lived with his mother Terrie Walker. After
Bailey had been identified as a suspect in the crime, between 15 and 20 law enforcement
officers surrounded Walker's house in the late evening. Nobody was home, so they
waited. Walker pulled into the driveway shortly after midnight, and officers immediately
surrounded her. During an evidentiary hearing on Bailey's first 60-1507 motion, Walker
testified the officers refused to allow her into the house and insisted she sign a consent to
search. According to Walker, the officers did not tell her she had a right to decline.
Walker signed the consent, although she testified she could not read the document
because it was dark outside. The resulting search turned up marijuana belonging to
Bailey. Based on that evidence, the State also charged Bailey with possession of
marijuana with the intent to distribute and having no drug tax stamps.
Bailey was referred from juvenile court for prosecution as an adult. In 2008, a jury
convicted Bailey on all of the charges against him. The trial evidence included testimony
from the surviving adult victim of the home invasion and all three of Bailey's
accomplices. The district court later sentenced Bailey to life in prison with parole
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eligibility after 20 years on the felony-murder conviction to be served consecutive to a
controlling prison term of 59 months on the remaining convictions, entailing concurrent
sentences on all of them. Bailey appealed, and the Kansas Supreme Court affirmed the
convictions and sentences. State v. Bailey, 292 Kan. 449, 255 P.3d 19 (2011) (Bailey I).
Bailey filed his first habeas corpus motion under K.S.A. 60-1507 asserting a host
of grounds for relief from the convictions. Some of points were or could have been raised
in Bailey's direct appeal; others asserted Bailey's lawyer provided constitutionally
inadequate representation leading up to and during the jury trial. The district court
appointed a new lawyer for Bailey and held an evidentiary hearing on the motion. The
district court denied Bailey's motion. Bailey appealed that ruling to this court.
We affirmed the district court in all respects except Bailey's claim his trial lawyer
should have filed a pretrial motion to suppress the marijuana because Walker's consent
may have been coerced. Bailey v. State, No. 114,844, 2017 WL 1197240, at *13-14 (Kan.
App. 2017) (unpublished opinion) (Bailey II). In Bailey II, we reversed in part and
remanded to the district court for further proceedings to determine whether the trial
lawyer's failure amounted to constitutionally inadequately representation and, if so, what
prejudice Bailey may have suffered. 2017 WL 1197240, at *14. The Kansas Supreme
Court denied Bailey's petition for review in Bailey II.
Rather than going forward with the hearing on remand, the State moved to dismiss
the marijuana and no drug tax stamp charges against Bailey. The district court granted the
State's motion on January 26, 2018, effectively reversing those convictions and vacating
the resulting sentences. Bailey's other convictions and sentences remained undisturbed.
Bailey signed his second 60-1507 motion on February 5, 2019, and the district
court clerk received it three days later. The district court summarily denied the motion as
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untimely without appointing a lawyer for Bailey or holding a hearing. Bailey has
appealed the denial of his second 60-1507 motion, and that is what we have in front of us.
LEGAL ANALYSIS
When a district court summarily denies a 60-1507 motion based on its content and
the record in the underlying criminal case, we exercise unlimited review on appeal.
Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Under K.S.A. 2020 Supp., 60-
1507(f)(1)(A) and (2)(A), convicted defendants must file their habeas corpus motions no
later than one year after the conclusion of their direct criminal cases unless they can show
"manifest injustice," entailing either a legally substantial reason they did not timely file or
a demonstrable claim of actual innocence based on newly discovered evidence.
As we explain, Bailey builds his second 60-1507 motion on the State's dismissal
of the marijuana and tax stamp charges. Bailey could not have filed his motion before
then, so he may have had a year from the dismissal to do so. But he missed that ostensible
deadline by a week or so. Kansas courts recognize that prisoners' habeas corpus pleadings
are deemed "filed" when given to prison authorities for mailing. Wilson v. State, 40 Kan.
App. 2d 170, Syl. ¶ 2, 192 P.3d 1121 (2008). The earliest Bailey could have presented his
60-1507 motion for mailing was on February 5, 2019, when he signed it. That's more
than a year after the dismissal, and Bailey has offered no explanation for that delay. But,
as we have explained, Bailey could not have filed this motion within one year after the
conclusion of his direct criminal case. And K.S.A. 60-1507(f) does not impose a deadline
for filing a motion tied to a change in the law or some other material development that
itself excuses the one-year limitation. Cf. Beauclair v. State, 308 Kan. 284, 302-05, 419
P.3d 1180 (2018) (court reverses summary dismissal of 60-1507 motion as successive
and untimely based largely on evidence indicative of actual innocence known to movant
more than one year before motion filed).
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In a memorandum Bailey filed with his second 60-1507 motion, he makes what he
characterizes as an argument for his actual innocence that would avert the time limit. The
argument is intertwined with the merits of his motion. As we discuss, the motion fails in
its substantive claims, and those claims never dispute Bailey committed the criminal acts
resulting in his convictions. There is also a sound (and largely unexplored) argument
Bailey's motion is impermissibly successive in addition to being untimely. Rather than
thrashing around with the procedural obstacles to Bailey's motion, we simply take up the
merits.
Bailey's claim for relief depends first on the legal significance of the State's
dismissal of the marijuana charge and second on the interlocking nature of most of his
convictions. As to the first, Bailey contends the State's decision to dismiss the marijuana
charge rather than to continue litigating his original 60-1507 motion on remand amounts
to a concession—really an admission—that the district court would have held that he
would have prevailed on a pretrial motion to suppress the marijuana as evidence in the
criminal case. But Bailey never lays out a developed argument for why that's the
appropriate conclusion to draw from the State's dismissal. Expedience would be a
perfectly reasonable alternative explanation for the State's decision, especially since the
marijuana related convictions made no difference in the overall sentence Bailey had to
serve. In our own version of expedience, we indulge Bailey's assumption without
imputing any actual legal substance to it.
In turn, Bailey contends that if the marijuana were suppressed as evidence, the
charges against him would have fallen like a house of cards. The faulty argument goes
like this:
The felony-murder charge was premised on a homicide occurring during the
commission of a predicate crime—either aggravated robbery or aggravated burglary. The
aggravated robbery entailed the taking of property by a threat of bodily harm, and the
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property was the brick of marijuana. Likewise, the aggravated burglary entailed entering
the house with the intent to commit an aggravated robbery with the marijuana as the
prize. So if the marijuana were suppressed as evidence, the State would have had
insufficient evidence to prove both those predicate crimes and the felony murder.
Bailey's theory is predicated on the marijuana seized from his mother's house
being the same marijuana taken at gunpoint in the home invasion. But why that's true is
not obvious from the argument itself. Again, we simply assume as much to advance our
analysis. The theory still fails for multiple reasons.
⦁ Assuming the district court should have granted a motion to suppress the
marijuana the police seized from Walker's house, the State could not have offered the
marijuana itself as evidence during the jury trial. The State, likewise, could not have
introduced expert testimony from a chemist that the marijuana was, in fact, marijuana. As
a practical matter, that would have left the State without sufficient evidence to prove the
charges for possession of marijuana with intent to distribute and having no drug tax
stamps.
But the State still could have had the surviving adult victim of the home invasion
and Bailey's accomplices testify that a brick of green leafy stuff everyone believed to be
marijuana was taken in the robbery. The aggravated robbery charges simply required
proof that some property was taken—not that the property was marijuana.
⦁ Bailey was charged with two counts of aggravated robbery, either of which
would have supported the felony-murder conviction. One charge identified the victim as
the man who was fatally shot and presumably relied on the brick of marijuana as the
property taken by threat of bodily harm. Even assuming that charge would have been
legally deficient without the actual marijuana as evidence (and, as we have explained, the
assumption is mistaken), there was a second charge of aggravated robbery.
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The second charge identified the surviving woman as the victim, so the property
taken from her presence would have been her purse and its contents. That aggravated
robbery charge stands independently of anything having to do with the marijuana as
either the motive for the home invasion or the property taken during the criminal episode.
So the second charge alone supports the felony-murder conviction.
⦁ The aggravated burglary charge required that Bailey enter the house with the
intent to commit an aggravated robbery. Again, as we have explained, each of the
aggravated robbery charges could be proved without the marijuana as evidence at the
trial. More to the point, however, the aggravated burglary charge merely required proof
that Bailey intended to commit an aggravated robbery inside the house, not that he
actually carried out a robbery. The trial testimony of his companions in crime was
sufficient to prove that intent. So there would have been sufficient evidence of the
aggravated burglary without the marijuana. The aggravated burglary, therefore, would
have provided the predicate crime for the felony-murder charge even if the marijuana had
been excluded as evidence.
⦁ Bailey was charged with and convicted of discharging a firearm into an occupied
dwelling for shooting through the front door. Nothing about that charge depended upon
the marijuana, and it alone supported the felony-murder conviction.
To prevail on a 60-1507 motion, a convicted defendant must show both that his or
her legal representation "fell below an objective standard of reasonableness" guaranteed
by the right to counsel in the Sixth Amendment to the United States Constitution and that
absent the substandard lawyering there is "a reasonable probability" the outcome in the
criminal case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Sola-Morales v. State, 300 Kan. 875, 882,
335 P.3d 1162 (2014); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 4687
(1985) (adopting and stating Strickland test for ineffective assistance). Bailey had to
prove both constitutionally inadequate representation and sufficient prejudice attributable
to that representation to materially question the resulting convictions. A reviewing court
properly may deny a 60-1507 motion that fails on the prejudice component of the
Strickland test without assessing the sufficiency of the representation. Strickland, 466
U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.");
see Edgar v. State, 294 Kan. 828, 843-44, 283 P.3d 152 (2012); Oliver v. State, No.
106,532, 2013 WL 2395273, at *5 (Kan. App. 2013) (unpublished opinion). Bailey's
argument falls apart for that reason.
Without belaboring the point, Bailey's hypothesized suppression of the marijuana
seized from his mother's house would not have materially impaired the State's evidence
on the felony-murder charge, the aggravated robbery charges, the aggravated burglary
charge, or the unlawful discharge of a firearm charge. Bailey has not shown any resulting
legal prejudice calling into question the jury verdicts on them. Accordingly, his second
60-1507 motion fails on the merits of the underlying arguments it presents, wholly apart
from any procedural bars based on untimeliness or successiveness. We may and do affirm
the district court for that reason. See State v. Smith, 309 Kan. 977, 986, 441 P.3d 1041(2019).
In wrapping up our discussion, we return to Bailey's miscast assertion of actual
innocence he premised on the suppression of the marijuana. Actual innocence bears on
whether the defendant factually committed the charged criminal conduct. See White v.
State, 308 Kan 491, 512-13, 421 P.3d 718 (2018); Sims v. State, No. 117,239, 2018 WL
911391, at *2 (Kan. App. 2018) (unpublished opinion). Suppression of evidence as a
remedy for a government agent's violation of the protection against unreasonable
searches and seizures in the Fourth Amendment to the United States Constitution does
not rest on or establish a defendant's innocence. Suppression operates as a protective
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device to deter those Fourth Amendment violations. See Herring v. United States, 555
U.S. 135, 139-40, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009); United States v. Leon, 468
U.S. 897, 908-09, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The device often stymies the
successful prosecution of the guilty and, thus, has no direct correlation to actual
innocence. See State v. Moore, No. 119,521, 2020 WL 2602056, at *12-13 (Kan. App.)
(unpublished opinion) (Atcheson, J. concurring in part and dissenting in part), rev. denied
312 Kan. ___ (September 29, 2020).
Bailey mistakenly argues successful suppression of the marijuana would mark him
as innocent rather than as the subject of an unconstitutional search or seizure. He
misunderstands the legal effect of suppression as a remedial tool for a Fourth
Amendment violation. In some cases, of course, that success will impede or even prevent
a conviction. But that's not the measure of actual innocence, either.
Having reviewed Bailey's arguments, we conclude the district court correctly
denied Bailey any relief on his second 60-1507 motion.
Affirmed.
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