Conley v. State

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NOT DESIGNATED FOR PUBLICATION

No. 111,777

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANTHONY CONLEY,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed November 20,
2015. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, P.J., ATCHESON, J., and WALKER, S.J.

Per Curiam: In 1998, a jury convicted Anthony Conley of murder. Since then, he
has tried several times to have his conviction, sentence, or both overturned. Most
recently, he filed a third K.S.A. 60-1507 motion and contended that the State violated his
speedy trial rights. The district court dismissed the motion as untimely, successive, and
lacking any meritorious claims. Because we find that Conley's motion was both untimely
and successive and he has failed to present any exceptional circumstances or claims of
manifest injustice sufficient to convince us that his motion should be heard on the merits,
we affirm.
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FACTUAL AND PROCEDURAL HISTORY

In 1998, a jury convicted Conley of the premeditated first-degree murder of
Nicholas Armstrong. State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000) (Conley I). The
district court imposed a hard 40 sentence, and our Kansas Supreme Court upheld his
conviction and sentence. See 270 Kan. at 20-36.

After the Supreme Court ruled, Conley filed his first K.S.A. 60-1507 motion,
which the district court denied after a nonevidentiary hearing. Conley v. State, No.
88,962, 2003 WL 23018226, at *1 (Kan. App. 2003) (unpublished opinion) (Conley II).
This court upheld the denial in 2003. See 2003 WL 23018226, at *1-2. Still convinced of
his wrongful imprisonment, Conley next filed a motion to correct illegal sentence in
2005. The district court summarily dismissed the motion, and on appeal, our Supreme
Court upheld the decision as Conley's challenge to his sentence had been previously
decided in Conley I. State v. Conley, 287 Kan. 696, 701-04, 197 P.3d 837 (2008) (Conley
III).

Undeterred, Conley filed a second K.S.A. 60-1507 motion. Conley v. State, No.
106,372, 2012 WL 3136114 (Kan. App. 2012) (unpublished opinion), rev. denied 297
Kan. 1243 (2013) (Conley IV). The district court denied this motion as untimely and
successive, and this court upheld the denial on the same grounds. See 2012 WL 3136114,
at *1-2.

Most recently, in August 2013, Conley filed his third motion pursuant to K.S.A.
60-1507. There, he contended that the State had failed to comply with the Interstate
Agreement on Detainers (IAD), K.S.A. 22-4401 et seq., and had therefore violated his
speedy trial rights. He also argued that his trial counsel was ineffective for failing to
investigate the IAD issue.

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In terms of why the district court should entertain this motion despite it being his
third, Conley explained that he had at different points been either incarcerated in another
state or on lockdown, which limited his access to Kansas state law materials. He also
claimed that the transcripts and other documents he did have access to "gave the false
impression" that his rights were not violated and that his trial counsel had previously
informed him that the State had complied with IAD. Lastly, he argued that because the
IAD statute fails to expressly lay out the procedure by which a defendant can raise an
IAD claim, he "did not know where to appeal that issue."

Conley also recognized that this motion fell well outside the 1-year filing period
present in K.S.A. 60-1507(f)(1). To justify this delay, Conley relied on the same essential
circumstances: his limited access to legal materials, the misleading nature of his legal
documents, his attorney's assurances concerning IAD, and the lack of explicit procedure
present in the IAD statute. Conley also argued that the State's alleged IAD violation not
only delayed his trial but caused him to be incarcerated in a maximum security prison and
limited his participation in certain programs.

Turning to the merits of his claim, Conley contended that the district court and
State violated the IAD by granting continuances that pushed his trial beyond the statutory
time limit without either Conley or his attorney present. Such a violation, he argued,
required that his case be dismissed with prejudice. He emphasized that he "repeatedly
throughout the proceedings begged [his attorney] to investigate into the IAD violations,"
but his attorney never acted. Conley also argued that the speedy trial violation deprived
him of several constitutional rights. To demonstrate that he was not present at several
continuance hearings, Conley included multiple appearance summaries with his motion.

The State replied to this motion, arguing that it was untimely and successive and
that Conley failed to meet the procedural prerequisites that would allow the district court
to consider the motion on the merits. The district court agreed, finding: "This third
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petition is untimely without any showing of manifest injustice. It is repetitive and without
any new meritorious claims to consider." Conley timely appealed.

ANALYSIS

Conley acknowledges that his motion is untimely and successive, but claims he
demonstrated both manifest injustice and exceptional circumstances to warrant
consideration by the district court. He also contends that even if his motion is otherwise
barred because it is successive and untimely, it should still be allowed on the basis that
the merits of his underlying claim challenge the jurisdiction of the court, a challenge
which can be raised at any time. We will examine his arguments after first setting forth
our standard of review.

Standard of Review

This court conducts de novo review of a summary dismissal of a K.S.A. 60-1507
motion and determines whether the motion, files, and records of the case conclusively
establish that the movant is not entitled to relief. Edgar v. State, 294 Kan. 828, 836, 283
P.3d 152 (2012). The movant bears the burden of showing he or she is entitled to an
evidentiary hearing and must raise contentions that are more than conclusory and either
supported by a sufficient evidentiary basis or by a basis that is evidence from the record.
294 Kan. at 836; see Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010).

Likewise, whether jurisdiction exists is a question of law over which this court's
scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).



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Conley failed to allege sufficient exceptional circumstances for the district court to
consider his successive motion.

A sentencing court is not required to entertain a second or successive motion
under K.S.A. 60-1507 for similar relief from the same movant. State v. Trotter, 296 Kan.
898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60-1507[c]). Instead, the "movant in a
K.S.A. 60-1507 motion is presumed to have listed all grounds for relief, and a subsequent
motion need not be considered in the absence of a showing of circumstances justifying
the original failure to list a ground." 296 Kan. 898, Syl. ¶ 2.

But our Supreme Court has carved out an exception for this rule if the movant is
able to demonstrate exceptional circumstances that justify not including the current
challenge in his or her first K.S.A. 60-1507 motion. See Trotter, 296 Kan. 898, Syl. ¶ 2.
Our Kansas Supreme Court has construed exceptional circumstances to include
"'"'unusual events or intervening changes in the law which prevent a movant from
reasonably being able to raise all of the trial errors in the first post-conviction
proceeding.'"'" State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013). Ineffective
assistance of counsel may also constitute an exceptional circumstance. Rowland v. State,
289 Kan. 1076, 1087, 219 P.3d 1212 (2009).

Conley points out a number of unusual events that he claims prevented him from
raising his error in one of his prior K.S.A. 60-1507 motions. For one, he argues that his
incarceration in federal prison and on lockdown cut off his access to state law materials.
But Conley clearly filed other motions in this case during his time in federal prison and in
lockdown, as he appealed the district court's rulings on them. See Conley III, 287 Kan. at
701; Conley IV, 2012 WL 3136114, at *1; Conley II, 2003 WL 23018226, at *1.
Although not all of the underlying documents from these cases are in the record, he
clearly cites to Kansas law in his motion to correct illegal sentence and a motion
requesting to file a late appeal from that motion. Obviously, then, he had access to legal
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materials in at least 2005 and 2007 but failed to raise the issue at that time. And he offers
no argument that the issues he raised in other motions or the materials available to him to
prepare them differed so significantly from this one as to require a finding of exceptional
circumstances.

Second, Conley insists that certain transcripts and documents misled him into
believing that the State complied with IAD. It is unclear from his motion whether the
documents in question are the appearance summaries he submitted to the district court or
something else. Regardless, Conley also claims that he suspected an IAD violation during
the original proceedings in his criminal case—and therefore, more than a decade before
the instant motion. Even if the documents appeared misleading or his attorney failed to
pursue the issue, Conley's motion makes clear that he already had his suspicions
regarding the IAD issue at the time he filed his direct appeal and his first K.S.A. 60-1507
motion. Conley's decision to put his speedy trial concerns aside for nearly 15 years is not
an unusual event justifying a successive motion.

On appeal, Conley fails to pursue the third argument he asserted in the district
court regarding his confusion over how to raise a speedy trial challenge under IAD.
Issues not briefed are considered waived and abandoned. State v. Boleyn, 297 Kan. 610,
633, 303 P.3d 680 (2013). In sum, Conley fails to allege sufficient exceptional
circumstances for the district court to consider this successive motion, and accordingly
the district court did not err in dismissing it as repetitive or successive.

Conley failed to make a sufficient showing of manifest injustice for the district court to
consider his untimely motion.

K.S.A. 60-1507(f)(1) provides that a defendant has 1 year from when the
conviction becomes final to file a motion under the statute. This time limit can be
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extended by the district court but only to prevent manifest injustice. K.S.A. 60-
1507(f)(2).

Manifest injustice in this context means action that is obviously unfair or shocking
to the conscience. Vontress v. State, 299 Kan. 607, 614, 325 P.3d 1114 (2014). That said,
however, the question of whether manifest injustice exists is determined from the totality
of the circumstances. Relevant factors include (but are not limited to): whether the
movant provides a persuasive explanation for why he or she failed to comply with the
time limitation; whether the merits of the claim raises substantial issues deserving of the
district court's consideration; and whether "the movant sets forth a colorable claim of
actual innocence, i.e., factual, not legal, innocence." 299 Kan. at 616. Additionally,
"failing to plead excuses for the filing delay may result in a greater risk that the movant's
claim will be dismissed as untimely" because the movant bears the burden of proving
manifest injustice. 299 Kan. at 617.

As an initial matter, Conley offers no argument on appeal that the merits of his
claim or his actual innocence rise to the level of manifest injustice. Instead, he focuses
solely on his lack of access to legal material as an excuse for his filing delay. Because he
fails to pursue his other arguments regarding manifest injustice on appeal, we deem them
waived and abandoned. Boleyn, 297 Kan. at 633.

Our court has considered lack of access to legal material as a basis for establishing
the existence of manifest justice. In one case, the movant emphasized his limited legal
knowledge and access to a law library as well as "his numerous transfers during his
incarceration," but our court determined that these conditions did not rise to the level of
manifest injustice. Williams v. State, No. 101,359, 2010 WL 174011, at *1 (Kan. App.)
(unpublished opinion), rev. denied 290 Kan. 1105 (2010). Similarly, a movant in another
case argued that he failed to comply with the 1-year time limit "because he did not get to
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use the law library as much as he would have liked based on his schedule and prison
employment." Roediger v. State, No. 107,746, 2013 WL 1688890, at *1 (Kan. App.)
(unpublished opinion), rev. denied 297 Kan. 1247 (2013). Again, this court found that
reason did not constitute manifest injustice. 2013 WL 1688890, at *2. We agree with the
court's analysis in these two cases and find their facts indistinguishable from the facts
here. Conley's periodic lack of access to the law library does not excuse his long delay in
filing this motion.

Again, as the movant, Conley bears the burden of demonstrating manifest
injustice. See Vontress, 299 Kan. at 617. But the narrowly tailored justification for his
delay he champions on appeal fails to rise to this level. Therefore, the district court did
not err when it denied the motion as untimely.

Conley's underlying claim that the State violated the IAD does not present a
jurisdictional question.

Highly summarized, Conley's underlying claims is based on the provisions of
Articles IV and V of the IAD. Article IV(d) of the IAD provides that the prisoner's trial
must be commenced within 120 days of arrival of the prisoner in the receiving state. This
time can be continued "for good cause shown in open court, the prisoner or his counsel
being present." KS.A. 22-4401. Moreover, Article V(c) provides that if this time limit is
not met, the court "shall enter an order dismissing the [indictment, information, or
complaint] with prejudice, and any detainer based thereon shall cease to be of any force
or effect." K.S.A. 22-4401.

Conley argues that he was not brought to trial within 120 days of arriving in
Kansas. Accordingly the court was required to dismiss the charges against him with
prejudice. He contends that the failure of the court to dismiss the charges implicates the
court's jurisdiction. And, he reminds this court, issues of jurisdiction can be raised at any
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time, including for the first time on appeal. See State v. Sales, 290 Kan. 130, 135, 224
P.3d 546 (2010). The State argues that the record does not establish a violation of the
time limits set out in K.S.A. 22-4401.

Conley's contention that this is a jurisdictional claim that can be raised at any time
fails on the merits. Our Supreme Court has held that the statutory speedy trial violations
arising out of the IAD are not jurisdictional. See State v. Rodriguez, 254 Kan. 768, Syl.
¶ 3, 869 P.2d 631 (1994); see also State v. Carter, 151 Ariz. 532, 533-34, 729 P.2d 336
(Ct. App. 1986), rev. denied December 16, 1986; Finley v. State, 295 Ark. 357, 362, 748
S.W.2d 643 (1988); People v. Moody, 676 P.2d 691, 695 (Colo. 1984); Mohler v. State,
84 Md. App. 431, 437-39, 579 A.2d 1208 (1990). There have been no changes to the
statutory provisions at issue since Rodriguez was decided. This court is duty bound to
follow the Supreme Court precedent absent some indication the court is departing from
its previous position. See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027
(2011), rev. denied 294 Kan. 946 (2012). We are unaware of any indication that our
Supreme Court is departing from this precedent.

Affirmed.