Rojas-Marceleno v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,140

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LUIS ROJAS-MARCELENO,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed March 31, 2017.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., ATCHESON, J., and STUTZMAN, S.J.

ATCHESON, J.: Luis Rojas-Marceleno appeals the Lyon County District Court's
denial of his habeas corpus motion challenging multiple jury convictions resulting from
his repeated sexual abuse of C.N.V., his 13-year-old niece. Rojas-Marceleno contends the
district court erred both in finding that his criminal defense lawyer provided
constitutionally adequate representation despite her inability to introduce a specific cell
phone bill as evidence—a failure he says deprived him of a fair trial—and in finding that
additional deficiencies he outlined in a motion to reconsider were untimely. We find no
error in the district court's conclusions and, therefore, affirm the denial of relief.
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During a 7-day trial in 2009, a jury convicted Rojas-Marceleno of three counts of
aggravated criminal sodomy, one count of rape, and one count of aggravated indecent
solicitation of a child. The district court dismissed some other counts during trial, and the
jury acquitted Rojas-Marceleno of still other counts. All of the charges arose from a
series of sexual encounters between Rojas-Marceleno and his niece. The district court
imposed two consecutive life sentences without parole for 25 years, concurrent life
sentences, and a consecutive term of 57 months on the aggravated indecent solicitation
conviction. The Kansas Supreme Court affirmed the convictions and sentences on direct
appeal. State v. Rojas-Marceleno, 295 Kan. 525, 285 P.3d 361 (2012).

Rojas-Marceleno timely filed a motion in September 2013 collaterally attacking
the judgment, as permitted in K.S.A. 60-1507. The district court appointed a lawyer to
represent Rojas-Marceleno. The lawyer filed an amended 60-1507 motion. In September
2014, the district court dismissed all but one of the claims without hearing evidence. The
dismissed claims do not figure in this appeal. The district court ordered an evidentiary
hearing on the remaining claim that Rojas-Marceleno's trial counsel was constitutionally
ineffective for failing to admit the cell phone bill. In early December, Rojas-Marceleno
filed a pro se motion for reconsideration in which he also raised two new claims. The
district court held an evidentiary hearing on December 18 on the claim about the cell
phone bill.

On January 5, 2015, the district court issued a memorandum decision denying
Rojas-Marceleno relief on that claim, dismissing the additional claims made in the
motion for reconsideration as untimely, and otherwise denying reconsideration. Rojas-
Marceleno has appealed.

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On appeal, Rojas-Marceleno argues the district court erred in ruling on the cell
phone bill and treating the new claims as time barred. We take up those two points in that
order.

The cell phone bill bears on a sexual encounter between Rojas-Marceleno and
C.N.V. on September 14, 2008. C.N.V. and her younger brother were at the home of
Rojas-Marceleno and his wife Jamie. During part of that time, Jamie was out at a
birthday party and running errands. She testified she loaned her cell phone to C.N.V. At
trial, C.N.V. testified that Rojas-Marceleno had sex with her while Jamie was gone and
she later used the cell phone to talk with her boyfriend. C.N.V. testified that Jamie left
late in the afternoon. Jamie told the jurors she left the house about 6:20 p.m. and returned
about 7 p.m. At trial, Rojas-Marceleno's lawyer attempted to introduce as evidence two
pages of the monthly bill for Jamie's cell phone showing when calls were made on
September 14 and their duration. The district court sustained the State's objection to the
document because the lawyer had not offered the entire bill. The lawyer never
successfully admitted the cell phone bill for the jurors' consideration.

The cell phone bill, made part of the record in this case, shows calls placed
throughout the time Jamie said she was gone. The reported length of several of the calls
suggests extended conversations. The bill also shows two lengthy telephone calls after
Jamie said she returned home to a number that also had been called while she was gone.
Rojas-Marceleno contends the jurors would have doubted C.N.V.'s testimony had they
been given the cell phone bill to review. According to Rojas-Marceleno, the bill shows
that he and C.N.V. could not have had sex when Jamie was gone because the phone was,
more or less, continually in use during that time.

He contends his lawyer's inability to admit the bill as evidence amounted to
sufficiently inadequate legal representation to violate his right to counsel protected in the
Sixth Amendment to the United States Constitution.
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We pause to outline relevant habeas corpus principles. Upon receiving a 60-1507
motion, a district court has three options. The district court can dismiss the motion after
reviewing it and the record in the criminal case. Bellamy v. State, 285 Kan. 346, 353, 172
P.3d 10 (2007). But when "a motion . . . presents a substantial question of law or triable
issue of fact, the court shall appoint" a lawyer to represent the movant. Supreme Court
Rule 183(i) (2017 Kan. S. Ct. R. 224). After appointing a lawyer, the district court then
has two choices. It may conduct a preliminary hearing during which lawyers for the State
and for the movant present legal argument and otherwise address whether the
circumstances call for a full evidentiary hearing. Bellamy, 285 Kan. at 354. Or it may
bypass the preliminary hearing and hold a full evidentiary hearing. See 285 Kan. at 353-
54.

As to Rojas-Marceleno's contention about the cell phone bill, the district court
held an evidentiary hearing. Rojas-Marceleno testified at the hearing, but his criminal
defense lawyer did not. We consider the district court's rulings using a bifurcated
standard that accords deference to findings of fact supported by substantial evidence and
reserves unlimited review of legal conclusions. Fuller v. State, 303 Kan. 478, 485, 363
P.3d 373 (2015); Bellamy, 285 Kan. at 355.

Constitutionally inadequate legal representation may present an exceptional
circumstance warranting relief to a convicted defendant seeking habeas corpus relief
under K.S.A. 60-1507. See Bledsoe v. State, 283 Kan. 81, 88-89, 150 P.3d 868 (2007). To
satisfy that standard, the movant must show his or her representation in the direct
criminal case both fell below an objective standard of reasonableness and resulted in
legal prejudice, meaning there probably would have been a different outcome had the
representation been adequate. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3-
4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance);
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see also State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015) (restating
Strickland test and citing Chamberlain in assessing constitutionally inadequate legal
representation in context of new trial motion). As the United States Supreme Court and
the Kansas Supreme Court have explained, review of the representation should be
deferential and hindsight criticism tempered lest the evaluation of a lawyer's performance
be unduly colored by lack of success notwithstanding demonstrable competence. See
Strickland, 466 U.S. at 689-90; Holmes v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011).
Rarely should counsel's representation be treated as substandard when he or she
investigates the client's circumstances and then makes a deliberate strategic choice among
multiple options. Strickland, 466 U.S. at 690-91.

In general, the courts look at a lawyer's overall performance in representing a
criminal defendant in determining whether the Sixth Amendment right to counsel has
been satisfied, meaning that a minor mistake or even a number of minor mistakes do not
breach that duty. See Harrington v. Richter, 562 U.S. 86, 111, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011); Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L. Ed. 2d
305 (1986); Bland v. Hardy, 672 F.3d 445, 450 (7th Cir. 2012) ("[T]he question under
Strickland is not whether the lawyer made a mistake, even a serious one; it is whether the
lawyer's overall performance was professionally competent."). But a single error causing
sufficiently substantial legal harm to the defendant to call into question an adverse
outcome at trial or on appeal will suffice. See Miller v. State, 298 Kan. 921, 938-39, 318
P.3d 155 (2014).

A district court considering a 60-1507 motion may not be able to readily assess the
strategic considerations bearing on decisions the movant's criminal defense lawyer made
in handling the case without testimony from that lawyer. But the district court or a
reviewing appellate court can deny relief when the movant fails to show the lawyer's
errors had a material impact on the outcome of the criminal case even if they amounted to
constitutionally substandard representation. Strickland, 466 U.S. at 697 ("If it is easier to
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dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed."); Sola-Morales v. State, 300 Kan. 875, 886, 335 P.3d 1162
(2014). In other words, bad lawyering alone does not warrant relief in a 60-1507
proceeding.

We follow that approach on appeal here. The record does not suggest some readily
discernable strategy in the decision of Rojas-Marceleno's criminal defense lawyer to give
up on trying to admit the cell phone bill as evidence. The lawyer obviously thought the
document worthy of the jurors' consideration in deciding the charges against Rojas-
Marceleno, since she went to the effort to lay a foundation for it and to offer it as an
exhibit, albeit unsuccessfully. If there was a sound strategy in the works, it begs for an
explanation from the lawyer somewhere in this 60-1507 proceeding. The omission seems
conspicuous from our vantage point. We, therefore, assume without deciding that the
failure to admit the cell phone bill in and of itself caused the representation to fall below
the Sixth Amendment requirement of adequacy.

Rojas-Marceleno's argument, however, founders on prejudice. At best, the cell
phone bill would suggest, perhaps strongly, that no sexual encounter between Rojas-
Marceleno and C.N.V. took place from about 6:30 p.m. to 7:10 p.m., when a series of
calls were placed or received. But that alone doesn't really exculpate Rojas-Marceleno—
he and C.N.V. could have had sex earlier, as C.N.V. indicated in her testimony. The jury
could have drawn an exculpatory inference from the cell phone bill only if Jamie
accurately reported the precise time period she was gone from the house. But a jury easily
could have believed Jamie was honestly mistaken. Had Jamie left even a short time
earlier than she recalled, the encounter between Rojas-Marceleno and C.N.V. could have
occurred as C.N.V. testified it did. And Jamie, as Rojas-Marceleno's wife, could have
been viewed as an interested witness with an incentive to consciously shade her
testimony to his advantage in testifying about the chronology of events on September 14.
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In short, Rojas-Marceleno now attributes far more significance to the cell phone
bill than it actually would have had during the trial, inaccurately transforming it from a
piece of evidence with contingent or potential value into something conclusively proving
his innocence on at least one of the charges. The cell phone bill would have been a mere
sliver added to an already detailed mosaic presented to the jurors during the trial.
Moreover, that sliver would have been somewhat ambiguous—rather than definitive—in
its appearance. Accordingly, we cannot say it would have probably or even possibly
prompted the jury to come to a different result. Rojas-Marceleno cannot show the degree
of prejudice required for habeas corpus relief on this claim.

For his second point on appeal, Rojas-Marceleno argues the district court
improperly rejected as untimely the two new claims he raised in his motion to reconsider.
As provided in K.S.A. 60-1507(f)(1), a motion must be filed within 1 year of the final
disposition of the direct criminal case. Rojas-Marceleno's 60-1507 motion was timely,
but the claims in the motion to reconsider were asserted well over a year after the
disposition of the criminal case. Rojas-Marceleno does not argue that his new claims
relate back to the claims in his original motion, which would make them timely. See
Thompson v. State, 293 Kan. 704, Syl. ¶ 3, 270 P.3d 1089 (2011); Burden v. State, No.
114,738, 2016 WL 7324420, at *5 (Kan. App. 2016) (unpublished opinion). Rather,
Rojas-Marceleno relies on a statutory exception to the time limitation to prevent manifest
injustice. See K.S.A. 60-1507(f)(2)(A).

The Kansas Legislature modified the manifest injustice exception, effective July 1,
2016, to more specifically identify what may be considered. See K.S.A. 2016 Supp. 60-
1507(f). The amendment has been deemed procedural and, therefore, applicable to
pending 60-1507 proceedings. See Olga v. State, No. 115,334, 2017 WL 840296 at *2-3
(Kan. App. 2017) (unpublished opinion). That seems reasonable insofar as the Kansas
Supreme Court characterizes statutes of limitation as being procedural rather than
substantive. See State v. Spencer Gifts, 304 Kan. 755, 769, 374 P.3d 680 (2016) (statutes
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of limitation deemed procedural, so legislative changes apply retroactively, i.e., to
pending cases); Thompson, 293 Kan. at 711 (characterizing K.S.A. 60-1507[f] as a
"statute of limitations"). An exception to the time limitation, therefore, similarly ought to
be procedural.

Under the governing language of K.S.A. 60-1507(f)(2)(A), a movant may escape
the 1-year time bar if the reason why he or she failed to file within that period
demonstrates "manifest injustice." The term "manifest injustice" has not been statutorily
defined for habeas corpus proceedings but is generally understood to entail something
obviously unfair or shocking to the conscience. State v. Holt, 298 Kan. 469, 480, 313
P.3d 826 (2013); State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011).

Rojas-Marceleno posits that he was unable to raise the new issues in a timely
fashion because he had limited access to the prison law library and he did not receive the
necessary transcripts from the criminal case until August 20, 2013. We fail to see
manifest injustice based on those assertions. On appeal, Rojas-Marceleno does not detail
the claims or explain how he was impeded from asserting them. If he received the
transcripts in mid-August 2013, he had them for almost 2 months before the 1-year
deadline in K.S.A. 60-1507(f) expired. Likewise, he doesn't outline the research he had to
do to advance the claims, especially after the district court appointed a lawyer to
represent him in the 60-1507 proceedings.

The new claims assert that Rojas-Marceleno's criminal defense lawyer was
constitutionally ineffective for failing to call C.N.V.'s boyfriend and several "alibi"
witnesses to testify during the trial. We fail to see how supposedly limited access to the
transcripts would have inhibited Rojas-Marceleno from raising those claims. They turn
on what the trial lawyer did not do during the trial, so there would be little or nothing in
the transcripts. The potential usefulness of the witnesses turns on what they would have
said at trial. And that amounts to an assessment of factual considerations, not legal ones.
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So limited library time wouldn't appear to be a significant impediment to raising the
claims.

Based on what Rojas-Marceleno filed on his own in the district court, he submits
C.N.V.'s then-boyfriend would have testified he and C.N.V. had a sexually active
relationship. At trial, C.N.V. acknowledged as much, contradicting earlier statements she
had made to law enforcement officers and others involved in the investigation of Rojas-
Marceleno. Her boyfriend's testimony would have added little or nothing in that respect
to what the jurors heard from C.N.V. Rojas-Marceleno also submits C.N.V.'s boyfriend
was never charged with a crime for having sexual relations with her, notwithstanding her
age. Rojas-Marceleno says that raises the specter of selective prosecution. Even assuming
Rojas-Marceleno's assertions to be factually accurate, a selective prosecution such as he
outlines does not amount to a legal defense, so the jury would not have been informed
one way or the other about charges related to C.N.V.'s boyfriend. See State v. Gant, 288
76, Syl. ¶ 10, 201 P.3d 673 (2009) (grounds for selective prosecution defense), abrogated
on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013); State v.
Franks, No. 100,227, 2009 WL 2762463, at *2 (Kan. App. 2009) (unpublished opinion).

The other witnesses actually bore on C.N.V.'s credibility rather than on an alibi for
Rojas-Marceleno. According to Rojas-Marceleno, teachers or administrators from the
school C.N.V. attended would have testified that she was not at school on November 14,
2007. C.N.W. testified at trial to a sexual encounter with Rojas-Marceleno on that day—a
day she says she went to school. Again, assuming Rojas-Marceleno's representation to be
correct, the school employees would have impeached C.N.V. as to the particular day
related to one of the incidents. But that sort of discrepancy would not necessarily portray
C.N.V. as a liar, so much as a victim confused about a specific date among many that
Rojas-Marceleno sexually took advantage of her.

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Nothing about the circumstances of the new claims indicates manifest injustice
flowing from the district court's decision finding them time barred.

Having considered Rojas-Marceleno's points, we find the district court properly
denied the 60-1507 motion.

Affirmed.