Logan v. State

473 P.3d 961 (Table)

Victor LOGAN, Appellant,

v.STATE of Kansas, Appellee.

No. 122,215

Court of Appeals of Kansas.

Opinion filed October 16, 2020.

Brittany E. Lagemann, of Olathe, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Standridge, J., and McAnany, S.J.

Per Curiam:

MEMORANDUM OPINION

After Victor Logan was convicted of multiple child sex offenses, he moved for habeas corpus relief under K.S.A. 60-1507. Following a full evidentiary hearing, the district court denied the motion. Logan later filed a second K.S.A. 60-1507 motion, alleging in part that the judge who presided over his first 60-1507 case had a conflict of interest that disqualified the judge from hearing the case and that his attorney was ineffective in failing to address the conflict. The district court summarily denied Logan's second motion as untimely and successive. On appeal, Logan argues that his motion qualifies for an extension of time under K.S.A. 2019 Supp. 60-1507(f)(2) because he established the manifest injustice required to excuse his untimely filing. Logan also contends that the exceptional circumstances present here warrant the district court's consideration of his successive motion. We affirm, but for different reasons than those relied on by the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, the State charged Logan with a single count of aggravated indecent liberties with a child, two counts of indecent liberties with a child, and one count of lewd and lascivious behavior. Following a preliminary hearing, the district court found probable cause to support the charges and bound Logan over for trial.

Although no details are included in the record, it appears that the parties then sought to resolve the case through mediation. Johnson County District Court Judge Kevin P. Moriarty presided over the mediation.

After mediation proved unsuccessful, the case proceeded to trial in 2010, where a jury found Logan guilty as charged. The district court imposed a controlling 171-month prison sentence with a postrelease supervision term of 36 months. We affirmed Logan's convictions on direct appeal. State v. Logan , No. 106,542, 2013 WL 5735631 (Kan. App. 2013) (unpublished opinion).

In July 2015, Logan filed a pro se motion for habeas corpus relief under K.S.A. 60-1507 alleging multiple grounds for relief, including several claims of ineffective assistance of counsel. Relevant to the issue raised in the present appeal, Logan argued that Angela Keck, his first attorney on the case, and Scott Toth, his trial attorney, did not inform him of any plea offers.

Judge Moriarty, the same judge who presided over Logan's 2009 mediation in the underlying criminal case, was assigned hear Logan's 60-1507 motion.

In June 2016, the parties appeared at an evidentiary hearing where Logan was represented by attorney Jessica Sokoloff. Logan was the first witness called to testify. Before Logan's testimony, the following exchange occurred between Logan and Judge Moriarty:

"THE COURT: Before we go any further, Mr. Logan, you look familiar. Have I had a hearing with you before in mediation or something?

"[Logan]: That would be correct.

"THE COURT: Okay. A hearing or mediation?

"[Logan]: Mediation.

"THE COURT: On this case?

"[Logan]: On the 1507?

"THE COURT: No. On the underlying facts of which you're here on today.

"[Logan]: Correct.

"THE COURT: Okay. Do you have any problem with me hearing this case?

"[Logan]: Not at all.

"THE COURT: Okay. I don't remember the facts, but my guess is, as soon as I start hearing something, stuff will come back to me, but as we sit here, nothing right now. You may proceed."

After hearing testimony from Logan and his former attorneys, Judge Moriarty denied Logan's 60-1507 motion. We affirmed this decision on appeal. Logan v. State , No. 116,780, 2017 WL 4562569 (Kan. App. 2017) (unpublished opinion).

In July 2018, Logan filed a motion for habeas corpus relief under 28 U.S.C. § 2254 (2016) in the United States District Court for the District of Kansas. Logan raised many of the same issues alleged in his K.S.A. 60-1507 motion. Logan also argued that the state habeas corpus proceedings were "null and void" because Judge Moriarty "had an interest in the outcome as he sat as mediation judge for a plea that he himself offered initially but the state had not at that time." Logan also claimed that Sokoloff was ineffective in failing to raise the issue of Judge Moriarty's bias. The federal district court issued an order to show cause, ordering the State to file a response to Logan's motion within 30 days, but noted: "It appears that one issue, alleging that the state habeas corpus action is null and void due to judicial bias, has been procedurally defaulted."

In May 2019, Logan filed a second pro se motion under K.S.A. 60-1507. In the motion, Logan argued: (1) actual innocence based on an alibi defense, (2) Judge Moriarty's presence at the mediation disqualified him from hearing the first K.S.A. 60-1507 motion because he had a stake in the outcome of the criminal case and was "a witness to [the] State not offering [a] plea," and (3) Sokoloff provided ineffective assistance of counsel in failing to raise the issue of Judge Moriarty's conflict of interest. Logan also claimed he only learned that he needed to first raise the conflict of interest issue in state court when the federal district court held the issue was procedurally barred.

The district court summarily denied Logan's motion on procedural grounds, finding the motion was untimely filed and was successive to his first 60-1507 motion. In rejecting Logan's judicial conflict of interest argument, the district court concluded that Logan had waived any conflict.

LEGAL ANALYSIS

On appeal, Logan argues the district court erred in summarily denying his K.S.A. 60-1507 motion as untimely and successive.

A district court has three options when presented with a K.S.A. 60-1507 motion: It can summarily dismiss the motion if the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," hold a preliminary hearing and deny the motion if there are no substantial issues presented, or conduct a full evidentiary hearing on the issues. K.S.A. 2019 Supp. 60-1507(b) ; 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 the right to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record. Sola-Morales , 300 Kan. at 881. When, as here, the district court summarily denies 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 is not entitled to relief. Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2018).

Generally, a movant seeking relief under K.S.A. 60-1507 only has one year from the date the mandate was issued in his or her direct appeal to file the motion. K.S.A. 2019 Supp. 60-1507(f)(1)(A). The mandate in Logan's direct appeal was issued on September 2, 2014. He timely filed his first K.S.A. 60-1507 motion on July 1, 2015. Logan filed his second habeas motion in May 2019, well past the one-year time limit. The one-year time limit "may be extended by the court only to prevent a manifest injustice." K.S.A. 2019 Supp. 60-1507(f)(2). Effective July 1, 2016, the Legislature amended subsection (f)(2) and limited the factors a court may consider when determining whether the manifest injustice exception applies to "(1) a movant's reasons for the failure to timely file the motion ... or (2) a movant's claim of actual innocence." White v. State , 308 Kan. 491, 496, 421 P.3d 718 (2018). We apply the amended statute to Logan because it was in effect when he filed his second habeas motion.

A pro se pleading is liberally construed to give effect to substance rather than form. State v. Kelly , 291 Kan. 563, 565, 244 P.3d 639 (2010). Although Logan did not specifically acknowledge the untimeliness of his motion, he addressed both manifest injustice factors, alleging: (1) actual innocence based on an alibi defense and (2) ignorance of the requirement that he exhaust the judicial conflict issue in state court before filing a federal habeas motion. Logan's argument on appeal is limited to the latter claim, so he has waived his actual innocence argument. See In re Marriage of Williams , 307 Kan. 960, 977, 417 P.3d 1033 (2018) (issue not briefed is deemed waived or abandoned).

To support his claim of manifest injustice, Logan argues that he tried to exhaust all procedural remedies available to him but could not timely raise the judicial conflict issue because it did not arise until his first K.S.A. 60-1507 motion was resolved, well past the one-year time limit. The following chronology is relevant to Logan's argument:

• The mandate in Logan's direct appeal was issued on September 2, 2014.

• Logan timely filed his first K.S.A. 60-1507 motion on July 1, 2015. The mandate in that case was issued on May 22, 2018.

• Logan filed his federal motion for habeas corpus relief under 28 U.S.C. § 2254 on July 24, 2018. The federal court issued its order to show cause on February 27, 2019.

• Logan filed his second K.S.A. 60-1507 motion on May 30, 2019.

Logan's manifest injustice argument centers on his attempt to exhaust his judicial conflict claim in federal court. But manifest injustice may exist for a different reason. Even though Logan's second K.S.A. 60-1507 motion was not filed within one year after his direct appeal was final, a timely collateral attack alleging ineffective assistance of habeas corpus counsel might constitute manifest injustice and serve as a basis for tolling the...