Pabst v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 118,374

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TOD A. PABST,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Thomas District Court; GLENN D. SCHIFFNER, judge. Opinion filed October 19,
2018. Affirmed.

Roger L. Falk, of Law Office of Roger L. Falk P.A., of Wichita, for appellant.

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and BURGESS, S.J.

PER CURIAM: Tod A. Pabst appeals from the district court's summary dismissal of
his motion to amend a previously adjudicated K.S.A. 60-1507 motion. On appeal, Pabst
argues he timely filed his motion to amend because his arguments should relate back to
the filing of his original K.S.A. 60-1507 motion filed in 2003. However, we find that
Pabst has no right to amend his prior K.S.A. 60-1507 motion at this late date.
Specifically, we conclude that the relation back doctrine is not applicable under the
circumstances presented in this case. Moreover, we do not find that justice requires that
the district court grant Pabst leave to amend his prior K.S.A. 60-1507 motion. Thus, we
affirm.
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FACTS

In affirming the denial of Pabst's prior K.S.A. 60-1507 motion, the Kansas
Supreme Court summarized the underlying facts:

"In 1997, Pabst was first convicted of premeditated first-degree murder in the
shooting death of his fiancée, Phoebe Harkins. However, that conviction was overturned
by this court because the prosecutor's remarks in closing argument denied Pabst a fair
trial. See State v. Pabst, 268 Kan. 501, 511, 996 P.2d 321 (2000).

"Upon the retrial in 2000, the victim's parents hired a private attorney, Pedro
Irigonegaray, to act as associate counsel to assist the prosecutor, pursuant to K.S.A. 19-
717. Irigonegaray actively participated in the murder trial. At the time, he was also
employed to assist with civil litigation which would be impacted by the outcome of the
criminal trial. The jury again convicted Pabst of premeditated first-degree murder, and
that conviction was affirmed by this court in State v. Pabst, 273 Kan. 658, 44 P.3d 1230,
cert. denied 537 U.S. 959 (2002).

"Approximately a year and a half later, on October 15, 2003, Pabst filed a K.S.A.
60-1507 motion through a retained attorney which alleged 11 grounds for relief.
However, for his last ground, Pabst's attorney stated that, because of the applicable
statute of limitation, he had filed the motion prior to a full investigation and review and
informed the court that Pabst intended to file supplemental pleadings, with leave of court,
after an examination of the record. Inexplicably, there was no activity on the motion until
September 2, 2004, when Pabst's attorney withdrew as counsel.

"Pabst requested appointed counsel on November 19, 2004, but apparently never
returned the requisite paperwork. He then hired current counsel, Richard Ney, who
entered an appearance on March 1, 2005, and several months later filed a pleading
entitled, 'Amended Petition Pursuant to K.S.A. 60-1507.' The pleading set forth 16
grounds for relief, 10 of which differed from the original motion. Pabst had not sought or
obtained leave of court to file a supplemental pleading.

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"The State, after obtaining a continuance, filed an answer which, inter alia,
sought to dismiss those claims which were not raised in the original 60-1507 motion
because the new claims were barred by the new limitation period in K.S.A. 60-1507(f). In
a reply and a separate motion to strike, Pabst argued that, under K.S.A. 60-215, he had
the right to amend his motion as a matter of course at any time prior to the State filing a
responsive pleading; that the claims made in both pleadings were of the same type,
permitting the later claim to relate back; and that the State had failed to specifically plead
a statute of limitations defense as required by the Rules of Civil Procedure.

"At an evidentiary hearing on March 15, 2006, the parties first presented
arguments on the statute of limitations issue. The district court ruled that Kansas law does
not require the State to answer or otherwise plead to a convict's 60-1507 motion in order
to refute the motion or the evidence offered in support of the motion; that it is presumed
that when a movant sets out grounds for relief under K.S.A. 60-1507, he or she has listed
all of the grounds upon which he or she is relying; and that a movant cannot avail himself
or herself of the relation-back standard by raising an ineffective assistance of counsel
claim in the original petition and then amending the petition to assert another ineffective
assistance claim based on a distinct type of attorney malfeasance. The district court
dismissed the allegations found in (d), (e), (f), (g), (h), (i), (j), (l), (m), and (p) of the
amended 'petition.' The district court proceeded on the originally filed 60-1507 motion,
permitting Pabst to raise the grounds that had been abandoned by the amended 'petition.'

"Pabst and Irigonegaray testified as Pabst's witnesses. Irigonegaray related that
he was retained by the victim's sister and parents to be an associate to the attorney
general's office under K.S.A. 19-717 to assist with the prosecution of the murder trial.
Irigonegaray admitted that he represented the victim's sister and her husband in a
termination of parental rights and adoption case involving Pabst's child. At the time of the
criminal retrial, Pabst had filed a motion to set aside the termination, and Irigonegaray
was involved in the case. Irigonegaray's office was also involved in other civil cases
involving the victim's family which were at least prompted by the murder, albeit the
record is not altogether clear on the details of those cases or the extent of Irigonegaray's
involvement.

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"Although Irigonegaray admitted involvement in the civil cases, he denied that
he ever used information from the civil cases to gain an advantage in the criminal trial.
However, he did admit that the murder conviction had some impact on the attempt to set
aside his client's adoption of Pabst's child. Further, Irigonegaray did use the fact that
Pabst had filed two civil cases involving property to argue for a hard 40 sentence based
on murder for financial gain, although the sentencing court rejected the argument and
refused to impose the enhanced minimum sentence.

"Assistant Attorney General Stephen Maxwell testified on the State's behalf,
acknowledging that he was the lead attorney on the case and had assigned the handling of
several parts of the trial to Irigonegaray. Specifically, he assigned Irigonegaray the
opening statement, 7 out of 25 State witnesses, 1 or 2 of the defense witnesses, and a
portion of the closing argument. However, Maxwell asserted that he controlled the case
and everything that Irigonegaray did on the case was subject to Maxwell's prior approval.

"On July 18, 2006, the district court issued its memorandum decision denying
Pabst's 60-1507 motion. Pabst timely appealed." Pabst v. State, 287 Kan. 1, 2-5, 192 P.3d
630 (2008).

In affirming the district court's 70-page memorandum decision denying Pabst's
initial K.S.A. 60-1507 motion, the Kansas Supreme Court carefully reviewed
Irigonegaray's role in the underlying criminal case. 287 Kan. at 5-15. Although it found
that his prosecutorial role conflicted with his role in representing the decedent's family in
proceedings to terminate Pabst's parental rights, our Supreme Court did not find the
conflict to rise to the level of structural error. 287 Kan. at 13-14. Likewise, it concluded
that "Pabst has failed to establish that any conflict of interest that Irigonegaray may have
had as a result of concurrently representing the victims in civil matters substantially
affected the criminal prosecution so as to impair Pabst's right to a fair trial." 287 Kan. at
15. Furthermore, our Supreme Court held that Pabst had not been deprived of effective
assistance of either trial or appellate counsel. 287 Kan. at 17-18.


5

Failing to prevail in state court, Pabst turned to the federal courts in an attempt to
find relief. In 2009, he filed a federal habeas petition under 28 U.S.C § 2254 (2006) in the
United States District Court for the District of Kansas. Again, Pabst alleged that the state
district court should have removed Irigonegaray from his criminal case due to a conflict
of interest. Pabst v. McKune, No. 08-3258-SAC, 2009 WL 4508573 (D. Kan. 2009)
(unpublished opinion). After the federal district court denied his petition, Pabst appealed
to the United States Court of Appeals for the Tenth Circuit. In 2011, the Tenth Circuit
affirmed the district court's finding that Irigonegaray's participation as a privately retained
attorney for the prosecution did not violate Pabst's due process rights and that he was not
denied effective assistance of trial or appellate counsel. Pabst v. McKune, 438 Fed. Appx.
674 (10th Cir. 2011) (unpublished opinion). Subsequently, on March 5, 2012, the United
States Supreme Court denied Pabst's petition for writ of certiorari. Pabst v. McKune, 565
U.S. 1250 (2012).

On August 24, 2016, Pabst filed the Amended Petition for Relief Pursuant to
K.S.A. 60-1507 that is at issue in this appeal. In his amended petition, Pabst asserts that
his appellate counsel was ineffective for failing to call his trial counsel to testify
regarding why he failed to object to Irigonegaray's involvement in the case as a special
prosecutor. Pabst further asserts that he timely filed his amended petition because it
"relates back" to the original K.S.A. 60-1507 motion he filed in 2003. In a 10-page
Memorandum Decision, the district court found that the amended petition did not relate
back to the motion filed 15 years ago. Thus, the district court summarily denied the
amended petition on the grounds that it was untimely filed.

ANALYSIS

On appeal, Pabst contends that the district court erred in summarily denying his
Amended Petition for Relief Pursuant to K.S.A. 60-1507. Specifically, Pabst argues that
his current pleading should relate back to the K.S.A. 60-1507 motion he filed in 2003. He
6

further argues that he is entitled to an evidentiary hearing on his amended petition for
relief. We disagree.

When a district court summarily denies a K.S.A. 2017 Supp. 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 is not entitled to relief. Sola-Morales v. State, 300
Kan. 875, 881, 335 P.3d 1162 (2014). To avoid the summary denial of a motion brought
under K.S.A. 60-1507, a movant bears the burden of establishing entitlement to an
evidentiary hearing. To meet this burden, a movant's contentions must be more than
conclusory. In other words, the movant must set forth an evidentiary basis to support
those contentions or the basis must be evident from the record. State v. Sprague, 303
Kan. 418, 425, 362 P.3d 828 (2015).

Under K.S.A. 2017 Supp. 60-1507(f)(1)(A), movants have one year to timely file
a motion following the last appellate court to exercise jurisdiction on direct appeal. A
movant that files a K.S.A. 60-1507 motion outside the one-year time limitation and fails
to affirmatively assert "manifest injustice" is procedurally barred from maintaining the
action. State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013). In this case, Pabst
makes no argument—either in his amended petition for relief or in his brief on appeal—
that the one-year time limitation should be extended pursuant to K.S.A. 2017 Supp. 60-
1507(f)(2) due to manifest injustice.

Here, it is undisputed that Pabst's conviction for the first-degree premeditated
murder of his fiancée became final upon the issuance of a mandate in the case of State v.
Pabst, 273 Kan. 658, 44 P.3d 1230 (2002). We note that the Clerk of the Appellate
Courts issued the mandate on May 20, 2002. It is also undisputed that Pabst did not file
his amended petition for relief until August 24, 2016. Thus, we find that Pabst's Amended
Petition for Relief Pursuant to K.S.A. 60-1507 is untimely on its face.

7

Nevertheless, Pabst attempts to get around the timeliness bar by arguing that his
amended petition for relief should relate back to the K.S.A. 60-1507 motion that he filed
in 2003. While movants filing K.S.A. 60-1507 motions generally do not have the right to
amend their original motions, they may do so if the district court—in its discretion—
allows them to do so. See Thompson v. State, 293 Kan. 704, 714, 270 P.3d 1089 (2011).
An abuse of discretion occurs when a judicial action is (1) arbitrary, fanciful, or
unreasonable, i.e., no reasonable person would take the view adopted by the trial court;
(2) based on an error of law; or (3) based on an error of fact. State v. Marshall, 303 Kan.
438, 445, 362 P.3d 587 (2015).

Even if the district court allows an amendment, any new claims in the amended
motion must also meet a separate test for timeliness. Under this test, the new claims only
relate back to the date of the filing of the original K.S.A. 60-1507 motion if they arose
"out of the conduct, transaction or occurrence set out, or attempted to be set out, in the
original pleading." K.S.A. 2017 Supp. 60-215(c)(2); see Thompson, 293 Kan. at 714. We
note that in Thompson, our Supreme Court distinguished between allegations relating to
the ineffectiveness of appellate counsel and allegations relating to the ineffectiveness of
trial counsel, finding their circumstances to be legally distinct from one another. 293 Kan.
at 713.

Here, Pabst had already fully litigated the issues set forth in his original K.S.A. 60-
1507 motion, and the district court issued a 70-page ruling following an evidentiary
hearing. Moreover, the Kansas Supreme Court affirmed the district court's decision and
the Clerk of the Appellate Courts issued a mandate. As such, to allow Pabst to relate the
allegations in his current motion back to his prior K.S.A. 60-1507 motion would require
the district court to reopen a 15-year-old motion that our Supreme Court has already ruled
upon. Furthermore, we find no basis to justify a district court reopening a matter in which
the court entered a final judgment and an appellate court has issued a mandate. See
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Hongphakdy v. State, No. 116,625, 2017 WL 2022871, at *3 (Kan. App. 2017)
(unpublished opinion), rev. denied 307 Kan. 986 (2018).

It is important to recognize that decisions of an appellate court—including
directions or instructions on remand—form a part of its mandate to the district court,
which "shall be controlling in the conduct of any further proceedings necessary in the
district court." K.S.A. 60-2106(c). Absent special circumstances, district courts must
execute a mandate and cannot give future relief other than to follow any directions given
on remand. In re Estate of Einsel, 304 Kan. 567, 584, 374 P.3d 612 (2016); see also State
v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998) (quoting Sibbald v. United States, 37
U.S. [12 Pet.] 488, 492, 9 L. Ed. 1167 [1838]). Once the appellate court issues the
mandate, it becomes part of the final judgment and becomes the law of the case. See
Collier, 263 Kan. at 636.

The Kansas Supreme Court issued its mandate affirming the district court's denial
of Pabst's K.S.A. 60-1507 motion on November 5, 2008. Likewise, we note that the
Kansas Supreme Court did not remand the matter to the district court for further action.
As such, the district court cannot modify the mandate notwithstanding Pabst's request for
his amended petition to relate back to a K.S.A. 60-1507 motion filed in 2003.

We also note that Pabst raises a claim of ineffective assistance of appellate counsel
on grounds that are distinct from those in his original K.S.A. 60-1507 motion. As our
Supreme Court found in affirming the denial of Pabst's prior motion, "[a]n amendment to
a motion for relief under K.S.A. 60-1507 that asserts a new ground for relief which is
supported by facts that differ in both time and type from those grounds set forth in the
original motion does not relate back to the date of the original motion." Pabst, 287 Kan.
1, Syl. ¶ 7. Pabst's current allegation is that his appellate counsel failed to call his trial
counsel as a witness. As the district court found, Pabst is attempting to "assert another
ineffective assistance claim based upon an entirely distinct type of attorney malfeasance."
9

Memorandum Decision, pp. 9-10 (quoting United States v. Champi, 419 F.3d 20, 24 [1st
Cir. 2005]).

Under the circumstances presented, we do not find that the district court abused its
discretion in denying Pabst's request to relate back and reopen the original K.S.A. 60-
1507 motion. We also do not find that the district court erred as a matter of law. Rather,
we find that the district court appropriately applied the law. Under these circumstances,
we conclude that justice does not require the district court to grant Pabst leave to amend
his prior K.S.A. 60-1507 motion at this late date.

To the extent that Pabst is reasserting the allegation found in his original K.S.A.
60-1507 motion that Irigonegaray's conflict denied him a fair trial, this claim is barred on
the ground that it is successive. A district court is not required to entertain a second or
successive motion for similar relief on behalf of the same prisoner. Trotter, 296 Kan. at
904. It is presumed that a movant filing a K.S.A. 60-1507 motion has "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; see
Supreme Court Rule 183(d) (2017 Kan. S. Ct. R. 222). Kansas courts will only consider
successive motions upon a showing of exceptional circumstances justifying
consideration. State v. Kelly, 291 Kan. 868, Syl. ¶ 2, 248 P.3d 1282 (2011).

Ultimately, Pabst is making a backdoor attempt to relitigate the issue of whether
he received a fair trial in light of the special prosecutor's conflict of interest. As indicated
above, the Kansas Supreme Court has already considered this issue and found that Pabst
received a fair trial. The United States District Court for the District of Kansas and the
United States Court of Appeals for the Tenth Circuit have decided similar, if not
identical, issues. Pabst has not attempted to assert the existence of any exceptional
circumstances that would allow him to have this issue litigated yet again.
10

We conclude that the motion, files, and records in this case conclusively establish
that Pabst is not entitled to relief on his amended petition. Specifically, we find the
amended petition for relief to be time barred and successive. Accordingly, we affirm the
district court.

Affirmed.