Williams v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,413

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARLIN DWAYNE WILLIAMS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 26, 2019.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant, and Marlin D.
Williams, appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., MALONE and GARDNER, JJ.

PER CURIAM: Marlin Dwayne Williams appeals the district court's summary
dismissal of his K.S.A. 60-1507 motion as untimely. He contends that his motion and its
accompanying affidavit show his actual innocence, warranting a finding of manifest
injustice which excuses the untimeliness of his motion. Finding no manifest injustice, we
affirm.



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Factual and Procedural Background

Marlin Dwayne Williams was convicted of aggravated trafficking of a person
under 18 years old, a felony. The Kansas Supreme Court affirmed Williams' conviction
and sentence of 246 months. State v. Williams, 299 Kan. 911, 916, 329 P.3d 400 (2014).
The facts of his case, which involved taking his 15-year-old victim from Wichita to
Dallas in 2007 to join his prostitution ring, are fully detailed in the Supreme Court's
opinion. 299 Kan. at 913-16. We need not repeat them here.

Williams filed his first K.S.A. 60-1507 motion in 2008 but the district court denied
it because his direct appeal was pending. Williams filed his second K.S.A. 60-1507
motion in 2014, alleging his trial counsel provided constitutionally deficient
representation. The district court summarily denied that motion and we affirmed.
Williams v. State, No. 114,200, 2016 WL 7428361 (Kan. App. 2016) (unpublished
opinion).

Williams filed his current K.S.A. 60-1507 motion, which underlies this appeal, in
2017. It argues (1) the district court erred by allowing hearsay testimony of the victim;
(2) trial counsel failed to investigate key issues surrounding the victim; (3) the district
court improperly admitted K.S.A. 60-455 evidence; and (4) the evidence was not
sufficient to sustain a conviction for aggravated trafficking. The district court denied the
motion as untimely and successive.

Williams moved the court to reconsider, arguing that it should have liberally
construed his motion as an actual innocence claim and that a miscarriage of justice would
occur if it did not do so. The district court denied Williams' motion to reconsider finding
that Williams had not put forth a colorable claim of actual innocence. Williams appeals.

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Do the 2016 Amendments to K.S.A. 60-1507(f) Deprive Williams of a Remedy and Violate
His Due Process Rights?

We first address Williams' argument that certain amendments made in 2016 to
K.S.A. 60-1507 deprive him of a remedy and violate his due process rights. This issue
asks us to interpret a statute and presents a question of law over which we have unlimited
review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). Whether due
process exists in a particular case is also a question of law over which we have unlimited
review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128
(2001).

Analysis

Kansas law provides that a defendant has one year from the date a conviction
becomes final to file a K.S.A. 60-1507 motion. K.S.A. 2018 Supp. 50-1607(f)(1). A
district court may extend that one-year time limit only to prevent manifest injustice.
K.S.A. 2018 Supp. 60-1507(f)(2). In determining manifest injustice, we previously
applied these three factors set forth in Vontress v. State, 299 Kan. 607, 616-17, 325 P.3d
1114 (2014):

"[W]hether (1) the movant provides persuasive reasons or circumstances that prevented
him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the
merits of the movant's claim raise substantial issues of law or fact deserving of the district
court's consideration; and (3) the movant sets forth a colorable claim of actual innocence,
i.e., factual, not legal, innocence." 299 Kan. at 616.

But the Legislature amended K.S.A. 60-1507(f) effective July 1, 2016, to state:

"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-
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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." K.S.A. 2018 Supp. 60-1507(f)(2)(A).

This 2016 amendment eliminated the second Vontress factor—whether the merits
of the movant's claim raise substantial issues of law or fact that render it deserving of
consideration. The Kansas Supreme Court discussed this change in State v. White, 308
Kan. 491, 421 P.3d 718 (2018). There, as here, the movant filed a K.S.A. 60-1507 motion
after the one-year deadline but argued that the manifest injustice exception warranted its
consideration. The White court held that the 2016 amendments to K.S.A. 60-1507 do not
apply retroactively; courts should apply the three Vontress factors for K.S.A. 60-1507
motions filed before July 1, 2016, but should use the two statutory factors for those filed
after that date. White, 308 Kan. at 498-99. The White court noted that the amendment
"took away more than one factor. It prohibited courts from looking at all circumstances
and assessing them in totality." 308 Kan. at 501. In reaching that ruling, the White court
found that the defendant, "like other pre-July 1, 2016 movants[,] had a vested right to
argue the Vontress test, including the second factor and any other factor that might
establish manifest injustice." 308 Kan. at 502. Williams claims that the elimination of the
three-factor Vontress test and its totality of circumstances analysis infringes on his vested
right to a remedy and violates his due process rights.

But Williams fails to acknowledge White's limitation that the right to argue the
Vontress factors was vested only as to pre-July 1, 2016 movants. Williams is not one of
those movants because he filed his 60-1507 motion in 2017, after the 2016 amendments
took effect. And those amendments do not eliminate his possibility of relief. Williams
still has a right to bring these claims within a year. And if he files a K.S.A. 60-1507
motion outside that time, the court may still consider his claim if he shows manifest
injustice. The statute allows courts to consider why the movant failed to file the motion
within the one-year time frame and whether the movant makes a colorable claim of actual
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innocence. K.S.A. 2018 Supp. 60-1507(f)(2)(A). The 2016 statutory amendments thus do
not deprive Williams of a vested right or eliminate his possibility of relief. As a result, we
apply the 2016 amendments, rather than Vontress, in reviewing whether Williams'
motion, filed in 2017, showed manifest injustice excusing the untimeliness of his motion.

Did the District Court Properly Deny Williams' Motion as Untimely?

A district court has three options when handling a K.S.A. 60-1507 motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

When the district court summarily denies a K.S.A. 60-1507 motion, as it did here, we
review the issue de novo to determine whether the motion, files, and records of the case
conclusively establish the movant was not entitled to relief. 300 Kan. at 881.

Williams does not dispute that his motion is untimely—his direct appeal was final
in July 2014, but he did not file this K.S.A. 60-1507 motion until October 2017. He
claims, however, that he properly alleged actual innocence as described in K.S.A. 2018
Supp. 60-1507(f)(2)(A), so manifest injustice would occur if the district court did not
extend the one-year time limit.

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To support his claim of actual innocence, Williams attached to his motion an
affidavit executed in 2010 by Demetrius Patterson. In that affidavit, Patterson states that
he would been a trial witness and could have contradicted the victim, L.M.'s, testimony:

"I am fully aware of who [L.M.] is. On or between April 1, 2007 and May 5,
2007, [L.M] was not in my presents [sic], nor was I riding in the car with Marlin
Williams.
. . . .
"Once I arrived here at [El Dorado Correctional Facility] I saw Marlin Williams,
and we were talking about how [L.M.] implicated me as being with Marlin Williams on
or between April 1, 2007 and May 5, 2007.
"If the Wichita Police Department would have attempted to interview me after
[L.M.] made the statements she was in my presents [sic] between the above dates, I
would have told the truth of the matter to clear my name, stating I was not around [L.M.]
during that those dates. The Wichita Police Department and Defense Attorney made no
attempt to locate me even though my first name (Demetrius) was mentioned in Marlin
Williams police report, and could have been a witness for the State or Defense. I am a
known gang member noted in the Wichita Police Department Gang File as Demetrius
Patterson AKA Little Cheese. Furthermore, at that time I was on State Parole and easily
accessible."

We find that Williams' claim of actual innocence fails for two reasons. First, in
denying Williams' motion, the district court noted that it was not persuaded that
Patterson's affidavit could not have been submitted with Williams' 2014 K.S.A. 60-1507
Motion, and "Movant provides no explanation other [than] it was simply not available."
We agree that the record shows Williams had Patterson's affidavit in his possession in
2010 and shows no reason why Williams did not include it in his earlier 60-1507 motion
which alleged ineffective assistance of counsel.

Second, this affidavit is not material enough to show that Williams is actually
innocent. K.S.A. 2018 Supp. 60-1507(f)(2)(A) states that "the term actual innocence
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requires the prisoner to show that it is more likely than not that no reasonable jury would
have convicted the prisoner in light of new evidence."

The affidavit contradicts little of L.M.'s testimony, her testimony alone is
sufficient to warrant Williams' conviction, and the record lacks evidence corroborating
Patterson's allegations in his affidavit. But the record contains evidence supporting L.M.'s
testimony, as well as that of other witnesses who testified. Two hotel managers in Dallas,
Texas, corroborated that Williams stayed at their hotels on the dates L.M. said she stayed
there with Williams, Casper, and the other female in late April and early May 2007. And
Williams admitted to having contact with L.M. in Dallas, Texas.

Even if we credit Patterson's assertion that he was not with L.M. or Williams on
the dates at issue, this fails to exonerate Williams of his crime. L.M. and other trial
witnesses testified to much more than whether Patterson was in the car with Williams and
L.M. from April 1, 2007, to May 5, 2007. L.M. testified in detail about her encounters
with Williams and his acts of prostituting her. L.M. testified that she first met Williams
when Patterson (whom she identified as Little Cheese) came to the house where she was
staying. L.M. spoke with Williams, who was still in the car, while Patterson went inside
the house. A few minutes later, Williams came back to the house, asked L.M. how old
she was, and if she wanted to go to Texas that night. L.M. then traveled with a person she
identified as Casper, Williams, and another female to the Dallas area. Patterson was
seemingly uninvolved at this point, and the affidavit does nothing to dispute the most
incriminating facts.

Considering all the evidence in the case, we find no error in the district court's
determination that the proffered information was immaterial and would not have shown
Williams' actual innocence.

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Williams also argues that the district court erred by determining Patterson was not
credible without holding an evidentiary hearing, citing Beauclair v. State, 308 Kan. 284,
295, 419 P.3d 1180 (2018) ("The district court is required to grant a new trial only when
satisfied the recantation is true and material. . . . [A] district court cannot make such a
credibility determination without an evidentiary hearing. . . . [C]redibility cannot
generally be determined through cold affidavit testimony.") (quoting Neer v. State, No.
111,230, 2015 WL 1310815, at *4 [Kan. App. 2015] [unpublished opinion]). But any
error in assessing Patterson's credibility without an evidentiary hearing was harmless, as
the information proffered in the affidavit, even if fully credited, is not enough to show
Williams' innocence.

Upon a de novo review of the record and files of the case, we find that Williams'
2017 K.S.A. 60-1507 motion, including Patterson's affidavit, does not establish manifest
injustice as is necessary to overcome its untimeliness. We find it unnecessary to
determine whether Williams' motion was also successive.

Did the District Court Unreasonably Apply Fischer?

Williams raises several arguments in his supplemental pro se brief. We have
addressed those claims of error above except for his claim that the district court's
dismissal of his K.S.A. 60-1507 motion "was a direct result of an unreasonable
application of Fischer v. State." The district court quoted Fischer v. State, 296 Kan. 808,
295 P.3d 560 (2013), when articulating the three options it had when reviewing Williams'
K.S.A. 60-1507 motion.

Williams argues that the district court erred by calling him "Defendant" in its order
denying his K.S.A. 60-1507 motion. He argues that because his direct appeal was over,
he could be considered the "'Movant,' the 'Complainant,' the 'Plaintiff,' the 'Petitioner,'
'Marlin D. Williams,' and/or any combination thereof," but not the defendant. So the
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district court's finding that the defendant had no right to relief failed to show that he was
not entitled to relief in this civil motion.

Even assuming that the district court misspoke in calling Williams "the defendant"
in this civil action, Williams has shown no prejudice from that mischaracterization. The
district court properly summarily denied Williams' 60-1507 motion by finding that the
motion, files, and records conclusively showed he was entitled to no relief. The district
court was not confused about the nature of this motion and did not refer to anyone but
Williams as the subject of its ruling. It reviewed the facts, applied the correct law to the
facts, and properly resolved Williams' K.S.A. 60-1507 motion under the standard set out
in Fischer. It then determined that Williams' motion was untimely, successive, and failed
to establish manifest injustice that would warrant its review. After reviewing the motion
and all the files and records of the case, we find no error in the district court's summary
denial of Williams' K.S.A. 60-1507 motion.

Affirmed.