Coleman v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,037

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RASHEEM A. COLEMAN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed April 12,
2019. Affirmed.

Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant.

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

Before BRUNS, P.J., MALONE and POWELL, JJ.

PER CURIAM: Rasheem A. Coleman appeals the district court's summary denial of
his fourth K.S.A. 60-1507 motion. Realizing that his motion is successive and untimely,
Coleman argues that the restrictions in K.S.A. 2018 Supp. 60-1507(c) and (f) do not
supersede his constitutional right to habeas corpus relief. He also argues that his trial
counsel's failure to object to prosecutorial misconduct and prejudicial jury instructions
was ineffective assistance of counsel. We affirm the district court's judgment.


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FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Coleman of attempted premeditated first-degree murder and two
counts of aggravated robbery for his role as an aider and abettor for crimes committed in
2000. Coleman appealed, and this court ordered a new trial after finding that Coleman's
statements to police should not have been admitted at trial because they were obtained in
violation of his Sixth Amendment rights. State v. Coleman, 30 Kan. App. 2d 988, 56 P.3d
290 (2002) (Coleman I). The Kansas Supreme Court reversed this court's decision after
finding that Coleman was advised of his Miranda rights and knowingly, intelligently, and
voluntarily waived his Sixth Amendment right to counsel. State v. Coleman, 275 Kan.
796, 69 P.3d 1097 (2003) (Coleman II). The Supreme Court summarized the underlying
facts of the crime, subsequent investigation, and Coleman's arrest as follows:

"On September 11, 2000, Aaron Douglas and Mario Merrills entered the Gold
and Diamond Traders jewelry store in Wichita. Merrills shot the owner of the store in the
chest. The men took $450 in cash and various items of jewelry from the store.
"Rasheem Coleman's involvement in these crimes was as an aider and abettor.
Coleman knew the store's owner, his security practices, and the store layout. He shared
this information in helping to plan the robbery. Coleman and his girlfriend, Tiffany
Mayson, drove Douglas and Merrills to the store and waited outside while the robbery
took place. Coleman had a walkie talkie with which he could communicate with Douglas
and Merrills. Coleman and Mayson picked up Douglas and Merrills after the robbery and
disposed of the t-shirts Douglas and Merrills had been wearing. Douglas and Merrills
divided the jewelry that had been taken during the robbery, giving some to Coleman.
"Coleman made three statements to police. The day after the robbery, Coleman
and Mayson were pulled over because their car matched the description of a car seen at
the robbery. Police found jewelry in the car and a business card from Gold and Diamond
Traders. Coleman was questioned for 10 to 15 minutes, and Coleman told police he knew
the owner of Gold and Diamond Traders but denied any involvement in the robbery.
Coleman was not arrested at that time.
"Police contacted Coleman again on September 28, 2000, and he agreed to return
to their office for questioning. After being advised of his Miranda rights, Coleman signed
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a waiver and agreed to talk to police without an attorney present. Coleman told police
that, on the day of the robbery, Douglas and Merrills came to his house and he and
Mayson gave them a ride to Gold and Diamond Traders. Coleman denied any knowledge
of the robbery either before or after he took Douglas and Merrills to the jewelry store.
"The full extent of Coleman's participation was made clear by his October 18,
2000, statement in which he described planning and carrying out the robbery." 275 Kan.
at 797-98.

Coleman filed a K.S.A. 60-1507 motion in 2004, arguing that he had received
ineffective assistance of counsel. He claimed his trial counsel was ineffective for failing
to request a lesser included offense instruction, and he claimed his appellate counsel was
ineffective for failing to raise the issue of insufficient evidence on direct appeal. The
district court summarily denied his motion, and this court affirmed. Coleman v. State, No.
95,307, 2006 WL 2661565, at *1 (Kan. App. 2006) (unpublished opinion) (Coleman III).

In 2008, Coleman filed a second K.S.A. 60-1507 motion requesting a new trial
based on evidence that he claimed was unavailable or undiscoverable during his trial.
After a preliminary hearing, the district court denied the motion, finding that it was
untimely, successive, and that no newly discovered evidence supported its consideration.
This court affirmed. Coleman v. State, No. 102,385, 2010 WL 4668331, at *2-5 (Kan.
App. 2010) (unpublished opinion), rev. denied 291 Kan. 911 (2011) (Coleman IV).

Coleman filed a third K.S.A. 60-1507 motion in 2011, arguing that the jury
instructions on premeditation were erroneous and that the prosecutor committed
misconduct based on his closing argument about premeditation. The district court
summarily denied the motion as untimely and successive. This court agreed, finding that
although Coleman may have raised a viable claim about the instructions, he demonstrated
no exceptional circumstances or manifest injustice warranting review of his motion.
Coleman v. State, No. 106,003, 2012 WL 3822699, at *5, 7 (Kan. App. 2012)
(unpublished opinion), rev. denied 297 Kan. 1243 (2013) (Coleman V).
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On June 21, 2017, Coleman filed his current K.S.A. 60-1507 motion. In the
motion, Coleman again challenged the jury instructions and the prosecutor's comments
about premeditation. He also alleged there was insufficient evidence to support his
convictions. The district court summarily denied the motion, noting that Coleman had
filed other motions raising similar issues. The district court also stated: "The movant's
arguments are conclusory in nature and have no basis in the evidence presented or record
of trial. This petition is successive in nature. The present petition is dismissed without
further hearing[.]" Coleman timely appealed the district court's judgment.

ANALYSIS

On appeal, Coleman first argues that the restrictions on successive and untimely
motions in K.S.A. 2018 Supp. 60-1507 do not supersede his constitutional right to habeas
corpus relief. Review of a statute's constitutionality is a question of law subject to
unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).

The statutory provisions that Coleman complains of are K.S.A. 2018 Supp. 60-
1507(c) and (f). K.S.A. 2018 Supp. 60-1507(c) provides that a sentencing court need not
entertain a second or successive motion for similar relief on behalf of the same prisoner.
A movant in a K.S.A. 60-1507 motion is presumed to have listed all grounds for relief,
and courts need not consider later motions without a showing of circumstances justifying
the original failure to list a ground. State v. Trotter, 296 Kan. 898, Syl. ¶ 2, 295 P.3d
1039 (2013); Supreme Court Rule 183(d) (2019 Kan. S. Ct. R. 228) (providing, "[a]
sentencing court may not consider a second or successive motion for relief by the same
movant when: [1] the ground for relief was determined adversely to the movant on a
prior motion; [2] the prior determination was on the merits; and [3] justice would not be
served by reaching the merits on the subsequent motion").

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The other subsection that Coleman complains of provides that a defendant has one
year from when a conviction becomes final to file a K.S.A. 60-1507 motion. K.S.A. 2018
Supp. 60-1507(f)(1). Individuals who had claims preexisting the 2003 statutory
amendment had until June 30, 2004, to file a K.S.A. 60-1507 motion. Pabst v. State, 287
Kan. 1, 22, 192 P.3d 630 (2008). This time limitation may be extended by the district
court only when necessary to prevent a manifest injustice. K.S.A. 2018 Supp. 60-
1507(f)(2). Coleman asserts that these statutory restrictions on successive and untimely
motions suspended his constitutional right to seek habeas corpus relief.

This court has previously rejected the same argument Coleman now makes in this
appeal, finding that the provisions of K.S.A. 60-1507(c) and (f) are reasonable procedural
limitations subject to recognized exceptions. See Manco v. State, 51 Kan. App. 2d 733,
738, 740-41, 354 P.3d 551 (2015), rev. denied 304 Kan. 1017 (2016); Taylor v. State, No.
117,897, 2018 WL 3194355, at *2 (Kan. App. 2018) (unpublished opinion), rev. denied
309 Kan. ___ (February 28, 2018). In Manco, the defendant argued that the restrictions in
K.S.A. 60-1507(c) and (f) unconstitutionally denied his right to seek a writ of habeas
corpus. This court rejected that argument and held that the statutory restrictions are not an
unconstitutional denial of the right to seek habeas corpus relief; instead, the restrictions
are reasonable, legislatively-provided limitations to stop an abuse of remedy. 51 Kan.
App. 2d at 741. Recently, the Taylor court found Manco persuasive, noting that a movant
has "a right to due process in the proceedings on [his or her] K.S.A. 60-1507 motion, but
that right [is] not unlimited." 2018 WL 3194355, at *2.

Coleman cites Manco and admits that courts have found these limitations
reasonable and not unconstitutional. Still, Coleman tries to distinguish his case from
Manco. Coleman claims that unlike the defendant in Manco, he presents a viable claim
for relief. He also claims that he does not seek relief under K.S.A. 60-1507, "but under
the Constitutions of the United States and Kansas."

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But like the Manco court determined, the restrictions provided in K.S.A. 2018
Supp. 60-1507(c) and (f) do not act as a "suspension of the writ, just procedural
limitations with exceptions." 51 Kan. App. 2d at 738. Here, Coleman neither complied
with the procedural requirements for filing a K.S.A. 60-1507 motion nor alleged that any
exceptions to the procedural bars applied to him. As a result, we conclude that the
limitations in K.S.A. 2018 Supp. 60-1507(c) and (f) did not suspend Coleman's
constitutional right to seek habeas corpus relief.

Turning to the merits, Coleman's fourth K.S.A. 60-1507 motion argued that
erroneous jury instructions and prosecutorial misconduct during closing argument misled
the jury, leading to an improper conviction. He also alleged there was insufficient
evidence to support his convictions. The district court summarily denied his motion.
When a district court summarily denies a K.S.A. 60-1507 motion, an appellate court
conducts a de novo review to determine if 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).

Coleman is not entitled to relief because his K.S.A. 60-1507 motion is both
successive and untimely, and he has shown no exceptional circumstances that warrant its
consideration nor has he demonstrated that manifest injustice will occur if the motion is
not addressed. Coleman's motion is successive and Kansas courts need not entertain
successive motions. K.S.A. 2018 Supp. 60-1507(c). Claims that were raised or could
have been raised in prior motions may be denied as successive. The rationale for this rule
is the need for finality in the criminal appeal process and to prevent endless piecemeal
litigation. Toney v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122 (2008).

A movant must show circumstances justifying the failure to include a newly raised
issue in a previous motion to avoid dismissal. Trotter, 296 Kan. 898, Syl. ¶ 2; Supreme
Court Rule 183(d) (2019 Kan. S. Ct. R. 228). Exceptional circumstances that will permit
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review include unusual events or intervening changes in the law that prevented the
movant from raising the issue in a previous K.S.A. 60-1507 motion. Upchurch v. State,
36 Kan. App. 2d 488, 492, 141 P.3d 1175 (2006). The movant has the burden of showing
exceptional circumstances exist that permit this court's review. Wimbley v. State, 292
Kan. 796, 805, 275 P.3d 35 (2011).

This case is Coleman's fourth K.S.A. 60-1507 motion. He alleges no exceptional
circumstances that would allow this court to entertain his successive motion. He claims
that erroneous jury instructions and prosecutorial misconduct led to an improper
conviction, and he alleges there is insufficient evidence to support his convictions. But
Coleman has brought these claims before, and each court from which he has sought relief
has denied his claims. Coleman does not argue that any unusual events or changes in the
law allow him to overcome the successive nature of his current K.S.A. 60-1507 motion.

In Coleman V, this court found that Coleman's claimed instructional error, which
the court found to be a potentially viable claim, was based on Kansas Supreme Court
decisions in State v. Englehardt, 280 Kan. 113, 119 P.3d 1148 (2005), and State v.
Overstreet, 288 Kan. 1, 200 P.3d 427 (2009). Coleman V, 2012 WL 3822699, at *3. But
as this court noted in that opinion, Englehardt was decided before Coleman filed his
second K.S.A. 60-1507 motion, and the holding in Overstreet did not amount to a change
in the law. 2012 WL 3822699, at *5-6. Thus, this court found that Coleman failed to
show exceptional circumstances to bring his third K.S.A. 60-1507 motion. 2012 WL
3822699, at *6. If Coleman's third K.S.A. 60-1507 motion was rejected as successive,
then his fourth K.S.A. 60-1507 motion can also be rejected as successive without a
proper showing of exceptional circumstances.

Coleman's current K.S.A. 60-1507 motion is also untimely. Generally, a defendant
has one year after a conviction becomes final to file a motion under K.S.A. 60-1507.
K.S.A. 2018 Supp. 60-1507(f)(1). Defendants who had claims preexisting the 2003
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statutory amendment had until June 30, 2004, to file a K.S.A. 60-1507 motion. Pabst,
287 Kan. at 22. This statutory time limitation may be extended to prevent manifest
injustice. K.S.A. 2018 Supp. 60-1507(f)(2). In determining whether manifest injustice
exists for motions filed after July 1, 2016, the court should consider only two factors: (1)
whether the movant provides persuasive reasons or circumstances that prevented him or
her from filing the motion within the time limitation; and (2) whether the movant sets
forth a colorable claim of actual innocence. K.S.A. 2018 Supp. 60-1507(f)(2)(A); White
v. State, 308 Kan. 491, 496, 421 P.3d 718 (2018).

Coleman filed his current K.S.A. 60-1507 motion well after the deadline. If
Coleman's third K.S.A. 60-1507 motion was untimely, then his fourth K.S.A. 60-1507 is
untimely, as well. Coleman's current K.S.A. 60-1507 motion failed to assert any claims
of manifest injustice to avoid the time limitation, and he makes no new argument on
appeal about why the time limitation should be extended to prevent manifest injustice.

To sum up, after conducting a de novo review, Coleman is not entitled to relief
because his current K.S.A. 60-1507 is both successive and untimely. Coleman has shown
no exceptional circumstances that warrant its consideration nor has he demonstrated that
manifest injustice will occur if the motion is not addressed. As a result, we conclude the
district court did not err in summarily denying Coleman's motion.

Affirmed.