Skaggs v. State

479 P.3d 499

Kevin SKAGGS, Appellant,

v.STATE of Kansas, Appellee.

No. 121,065

Court of Appeals of Kansas.

Opinion filed December 4, 2020.

Richard Ney, of Ney, Adams & Miller, of Wichita, for appellant.

Todd G. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.

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

Standridge, J.:

Kevin Skaggs filed an untimely and successive motion for postconviction relief under K.S.A. 60-1507, alleging that two of his former attorneys were unconstitutionally ineffective and that the State wrongly withheld evidence in the underlying criminal case in violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The district court denied his motion as untimely and successive without conducting an evidentiary hearing. On appeal, Skaggs claims he is entitled to an evidentiary hearing on the issue of manifest injustice and exceptional circumstances. First, he claims the ineffective assistance of counsel in his first habeas motion prevented him from filing the claims in this second motion within the one-year time limitation. Second, he claims he has presented a colorable claim of actual innocence based on new evidence under two United States Supreme Court cases— Schlup v. Delo , 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), and Murray v. Carrier , 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) —that provide a "gateway" around any state court procedural hurdles like untimeliness and successiveness. Third, he claims the asserted colorable claim of actual innocence based on new evidence constitutes extraordinary circumstances precluding dismissal of his successive habeas motion. For the reasons stated below, we reverse the district court's decision to deny Skaggs' habeas motion as untimely and successive and remand for an evidentiary hearing to determine whether Skaggs has established the manifest injustice or exceptional circumstances sufficient to require the court to address the underlying merits of his ineffective assistance of counsel and Brady claims.

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2007, following a six-day jury trial, Skaggs was convicted of three counts of rape, one count of aggravated criminal sodomy, two counts of sexual exploitation of a child, and one count of promoting obscenity to a minor. Terence Lober represented Skaggs leading up to and through trial. After trial but before sentencing, Lober withdrew as Skaggs' attorney, and Skaggs hired Cheryl Pilate and Rebecca Kurz of the law firm of Morgan Pilate LLC to represent him at sentencing and on direct appeal. The court sentenced Skaggs to a controlling term of 310 months in prison. Skaggs appealed his convictions and sentencing alleging, in relevant part, prosecutorial misconduct related to forensic evidence and witnesses presented by the State at trial. A panel of this court affirmed his convictions and sentence. Skaggs petitioned the Kansas Supreme Court for review, but it was denied on September 7, 2010. State v. Skaggs , No. 100,201, 2009 WL 2436671 (Kan. App. 2009) (unpublished opinion) ( Skaggs I ). This court issued its mandate on September 9, 2010.

Skaggs filed a timely K.S.A. 60-1507 motion on August 23, 2011. Kurz represented Skaggs in this first habeas proceeding. Although Skaggs alleged a number of ineffective assistance of counsel claims in the first habeas motion, the one claim relevant to this appeal concerns whether Lober was ineffective for failing to challenge the State's medical expert, Dr. Kelly Sinclair, on cross-examination at trial.

We pause here to explain Dr. Sinclair's trial testimony and medical findings in the underlying case. On January 22, 2005, Dr. Sinclair conducted an initial sexual assault forensic examination (SAFE exam) of B.S., the child victim, in the Emergency Department of Children's Mercy Hospital. Dr. Sinclair testified at Skaggs' trial that during this initial examination, she observed most of B.S.'s hymen was absent except for anterior remnants. Dr. Sinclair also testified that the absence of a hymen likely indicated a history of persistent trauma. Dr. Sinclair said she observed notching during B.S.'s anogenital examination, which was indicative of recent trauma to that area. Based on the notching, Dr. Sinclair estimated that B.S. had suffered injury to her genital region within five days of the SAFE exam. Dr. Sinclair concluded her observations from the exam were consistent with B.S.'s statement that she had been sexually abused.

Dr. Sinclair testified that she did not take any photographs during the SAFE exam on January 22 because her camera was not working. On February 2, 2005, 11 days after the initial exam, B.S. came back to the hospital for a follow-up examination. A different doctor conducted the follow-up exam of B.S.'s anogenital region. During this exam, photographs were taken of the area with the aid of a colposcope, a camera which magnifies the vaginal area. Dr. Sinclair later reviewed the photographs and authored a report regarding B.S.'s follow-up examination. In this report, Dr. Sinclair stated that the magnified pictures showed B.S. had a "normal female genitalia with [an] intact hymen." Dr. Sinclair further stated that B.S.'s hymen had normalized. Dr. Sinclair noted that this normalization did not conflict with the detailed disclosures by B.S. of ongoing sexual contact with an adult male. Dr. Sinclair acknowledged the pictures reflected that B.S.'s hymen was intact, but she reported that this fact did not change her overall conclusion. Despite having authored this follow-up report that seemed to contradict her initial findings, Dr. Sinclair never testified about this report or her conclusions regarding the follow-up examination.

Returning to Skaggs' first habeas motion, Skaggs argued Lober should have cross-examined Dr. Sinclair regarding her inconsistent findings: upon examination at the emergency room, Dr. Sinclair observed most of B.S.'s hymen was absent except for anterior remnants; yet, her follow-up report readily acknowledged that B.S.'s hymen was intact. Skaggs asserted that if Lober had challenged Dr. Sinclair, Lober would have created reasonable doubt for the jury as to whether B.S.'s purported injuries were as notable as Dr. Sinclair described or whether they actually existed. Skaggs claimed that Lober's failure to do so constituted deficient performance and that, in the absence of such deficient performance, the outcome of his trial would have been different.

The district court held an evidentiary hearing on this and other claims in Skaggs' motion. Judge Gunnar A. Sundby presided. Skaggs called Lober to testify. In addressing why he did not cross-examine Dr. Sinclair about her seemingly inconsistent findings, Lober testified he "thought long and hard before" making the decision not to challenge her. He testified it would have been futile to question her because he believed her findings were not inconsistent, and therefore, any questioning would have done more harm to Skaggs' defense than good. In support of his decision, Lober testified that he knew it was not unusual for the hymen to regenerate, that the medical literature supported Dr. Sinclair's findings in both examinations, that Dr. Sinclair was medically correct, and that if he—an individual with no medical training—had pressed the issue with her, her initial findings that B.S.'s examinations were consistent with sexual abuse would morph into findings that they were conclusive proof of sexual abuse in the jury's minds.

On August 29, 2012, the district court issued a memorandum decision denying Skaggs' first K.S.A. 60-1507 motion. As to Lober's alleged ineffectiveness for failing to cross-examine Dr. Sinclair, the court found Lober's testimony on the matter to be persuasive. It stated that Lober "carefully considered and chose not to question her significantly about the issue and the perceived inconsistency." The court found Lober's decision to be a reasonable trial strategy and denied Skaggs relief because he failed to establish how Lober was ineffective as to this point.

Skaggs appealed the decision, alleging only five ineffective assistance of counsel claims. See Skaggs v. State , No. 108,644, 2014 WL 1193324 (Kan. App. 2014) (unpublished opinion) ( Skaggs II ). On the issue of ineffective assistance of counsel regarding Lober's failure to challenge Dr. Sinclair's findings, a panel of this court found the district court did not err in concluding that Lober's approach constituted reasonable trial strategy. 2014 WL 1193324, at *10. Skaggs petitioned for review, but the Kansas Supreme Court declined to review the matter.

Following denial of his first habeas motion, Skaggs wrote a letter to Judge Sundby. This letter is significant because it is the first time Skaggs alleged that he was unaware of the colposcopic photographs taken at B.S.'s follow-up examination. Skaggs alleged that the State withheld this potentially exculpatory evidence. He advised Judge Sundby that he had hired new counsel, Dennis Owens, and that Owens contacted the prosecutor's office several times to locate the photographs but had not been successful. Skaggs also advised Judge Sundby that he hired a medical expert to review the evidence presented at both his trial and at his first habeas proceeding. But the expert informed Skaggs that the colposcopic photographs were needed before the expert opinion could be finalized. Skaggs emphasized that the photographs were "potentially exculpatory evidence," they were never disclosed to the defense before trial, and they were never introduced at his trial. He asked the judge to assist him in obtaining the photographs. On January 26, 2016, Judge Sundby replied, stating that he reviewed the letter but the court did not have jurisdiction to consider Skaggs' request because there was no pending case before the court and, even if there was, the court did not possess the pictures.

On March 21, 2017, Skaggs filed a ...