Gilbert v. State

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NOT DESIGNATED FOR PUBLICATION

No. 113,240

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRY LEE GILBERT,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed August 19, 2016.
Affirmed.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant.

Ellen Hurst Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: Terry Lee Gilbert appeals from a ruling of the Saline County District
Court denying his habeas corpus motion filed under K.S.A. 60-1507 as successive and
untimely. He argues the statutory limitations on repetitive and late 60-1507 motions
violate the Supremacy Clause of the United States Constitution. We find the argument
legally unavailing and, therefore, affirm the district court.

The issue, as Gilbert frames it, is exceptionally narrow and presents a question of
law addressing the interplay of the Supremacy Clause, U.S. Const., art. VI, cl. 2, and the
general prohibition on serial habeas corpus motions in K.S.A. 60-1507(c) and the 1-year
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deadline for filing those motions in K.S.A. 60-1507(f)(1). The circumstances of Gilbert's
convictions and his earlier efforts to upend them are irrelevant to the issue before us. We
mention them briefly for context. A little more than 16 years ago, a jury convicted Gilbert
of felony murder, aggravated robbery, aggravated burglary, and criminal damage to
property. He received a controlling sentence of life in prison plus 81 months and likely
will become parole eligible in the next several years. The Kansas Supreme Court
affirmed Gilbert's convictions on direct appeal in 2001. State v. Gilbert, 272 Kan. 209,
215, 32 P.3d 713 (2001). For the curious, that case and State v. Branning, 271 Kan. 877,
26 P.3d 673 (2001), involving a codefendant, recount details about the crimes.

In early 2003, Gilbert filed a 60-1507 motion asserting constitutional deficiencies
in his trial and the resulting convictions. The district court denied the motion, and Gilbert
did not appeal. Four years ago, Gilbert filed a motion to correct an illegal sentence based
on changes in the law governing felony murder. The district court denied Gilbert relief on
that theory, and the Kansas Supreme Court affirmed. State v. Gilbert, 299 Kan. 797, 803,
326 P.3d 1060 (2014).

In June 2014, Gilbert filed this 60-1507 motion, his second. The district court
summarily denied the motion as successive in light of the 2003 motion and untimely,
since it was filed well beyond the 1-year time limit. Gilbert has appealed the denial; that
is what we have in front of us.

Gilbert contends the statutory restrictions on 60-1507 motions impermissibly
interfere with federally protected rights and, therefore, may not be enforced. He says their
enforcement violates the Supremacy Clause. We disagree.

In pertinent part, the Supremacy Clause states: "This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof . . . shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
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Constitution or Laws of any State to the contrary notwithstanding." U.S. Const., art. VI,
cl. 2. This court recently outlined "the purpose and effect" of the provision this way:

"The Supremacy Clause renders state statutes and common law ineffective to the extent
they materially conflict with or impede federal law. Cipollone v. Liggett Group, Inc., 505
U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); Hillsborough County v.
Automated Medical Labs., Inc., 471 U.S. 707, 712-13, 105 S. Ct. 2371, 85 L. Ed. 2d 714
(1985) ('It is a familiar and well-established principle that the Supremacy Clause, U.S.
Const., Art. VI, cl. 2, invalidates state laws that "interfere with, or are contrary to,"
federal law.') (quoting Gibbons v. Ogden, 22 U.S. [9 Wheat.] 1, 6 L. Ed. 23 [1824])."
State v. Franco, 49 Kan. App. 2d 924, 934-35, 319 P.3d 551 (2014), rev. denied 301 Kan.
1049 (2015).

See also Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292
Kan. 285, 294, 255 P.3d 1186 (2011) ("Simply put, the Supremacy Clause invalidates
state laws that interfere with, or are contrary to, federal law.").

In his briefing, Gilbert did not identify a particular part of the United States
Constitution or a federal statute imperiled by the limitations on successive or late 60-
1507 motions. At oral argument, Gilbert's lawyer clarified that Gilbert contends the
restrictions sufficiently contravene the procedural due process protections of the
Fourteenth Amendment to the United States Constitution to run afoul of the Supremacy
Clause.

As outlined by the United States Supreme Court, constitutionally protected
procedural due process requires that a person be afforded a right to be heard in a
meaningful way in conjunction with a deprivation of "life, liberty, or property." U.S.
Const. amend. XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L.
Ed. 2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.' [Citation omitted.]"); Mullane
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v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865
(1950) (The Due Process Clause "at a minimum" requires that "deprivation of life, liberty
or property by adjudication be preceded by notice and opportunity for hearing appropriate
to the nature of the case."). The Kansas Supreme Court similarly defines due process
rights. State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009); Winston v. Kansas Dept. of
SRS, 274 Kan. 396, 409-10, 49 P.3d 1274 (2002). The nature and extent of the due
process protections must be calibrated to the significance of the protected interest—here
Gilbert's liberty. Mathews, 424 U.S. at 349. The more important the interest at stake, the
more elaborate the protections. See Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S. Ct.
1011, 25 L. Ed. 2d 287 (1970).

We fail to see how the restrictions on 60-1507 motions deprive Gilbert or others of
procedural due process. First, of course, a criminal defendant may challenge his or her
convictions on direct appeal, providing broad protection against legal errors
compromising the fundamental right to a fair trial. The defendant may then file a 60-1507
motion to address constitutional defects in the proceedings, including ineffective
assistance of counsel during trial and on direct appeal. Those protections afford a
significant degree of additional procedural due process.

As we have said, criminal defendants are expected to bring all of their
constitutional claims of error in a single 60-1507 motion, and the motion must be filed
within a year after the avenues for direct judicial review have been exhausted. See K.S.A.
60-1507(c), (f); see also State v. Fraley, No. 113,178, 2016 WL 3219099, at *2 (Kan.
App. 2016) (unpublished opinion); Clark v. State, No. 109,982, 2014 WL 4916462, at *1
(Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1008 (2015). But those
restrictions on 60-1507 motions are not absolute and will yield in exceptional
circumstances to avoid manifest injustice.

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When Gilbert filed his second 60-1507, the Kansas Supreme Court had just issued
Vontress v. State, 299 Kan. 607, 325 P.3d 1114 (2014), outlining factors to be considered
in assessing manifest injustice that would allow an otherwise barred 60-1507 motion. The
court identified relevant considerations to include: (1) persuasive reasons for failing to
file a timely motion; (2) substantial legal or factual grounds indicative of a claim
"deserving of the district court's consideration" on the merits; and (3) a "colorable claim"
of actual innocence. 299 Kan. at 616. The Kansas Legislature amended K.S.A. 60-
1507(f), effective July 1, 2016, to tie relief from the 1-year filing period to reasons the
deadline was missed or to a "colorable claim of actual innocence." We need not plumb
the contours of the amendment. The relevant point here is that under either the common-
law Vontress test or the recently amended version of K.S.A. 60-1507, a movant may
obtain a reprieve from the time bar in certain meritorious situations. And the same
remains true of the general prohibition on successive motions. Those mechanisms afford
yet another, albeit limited, layer of procedural due process protection against a
constitutionally deficient conviction.

Gilbert does not contend the grounds for his second motion bring him within the
scope of Vontress or the amended version of 60-1507. That is, he does not seek relief
from the prohibitions on successive or untimely 60-1507 motions because of the merits of
his particular case. Rather, he submits those limitations cannot be applied to any
successive or late motion as a matter of law because they violate the Supremacy Clause.
We hold that the restrictions on habeas corpus motions codified in K.S.A. 60-1507 do not
categorically impair constitutionally protected procedural due process rights in a way that
offends the Supremacy Clause. In turn, we reject Gilbert's Supremacy Clause argument.

As an alternative ground for relief, Gilbert contends K.S.A. 60-2606, providing an
amorphous fail-safe for the courts to protect "a substantive right" that might otherwise be
lost under the Code of Civil Procedure, entitles him to file a successive, untimely habeas
corpus motion. The Kansas Supreme Court has rejected that specific argument, finding
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K.S.A. 60-2606 to be inapplicable to direct or collateral attacks on criminal convictions.
State v. Kingsley, 299 Kan. 896, 896, 326 P.3d 1083 (2014) ("We . . . hold that relief
from a criminal conviction cannot be obtained pursuant to . . . K.S.A. 60-2606.); see also
State v. Sellers, 301 Kan. 540, 544, 344 P.3d 950 (2015) (recognizing rule in Kingsley).
The holding in Kingsley is dispositive and disposes of Gilbert's argument adversely to
him. We need not consider the intriguing possibilities as to when K.S.A. 60-2606 might
be properly invoked. The court has unmistakably said it doesn't apply here. That's the end
of the matter.

Affirmed.