ADRIAN REQUENA v. STATE OF KANSAS (2017)

MEMORANDUM OPINION

Adrian M. Requena appeals the denial of his second K.S.A 60-1507 motion. Finding no error, we affirm.

Requena was convicted of rape in 1999. On direct appeal, we affirmed his conviction and sentencing. Requena then filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. The district court summarily denied that motion and this court affirmed that denial. Requena v. State, No. 95,443, 2006 WL 3740879 (Kan. App. 2006) (unpublished opinion).

In 2014, Requena filed the K.S.A. 60-1507 motion underlying this appeal. It sought relief on three grounds: (1) an incorrect criminal history score; (2) ineffective assistance of appellate counsel in his direct appeal; and (3) discovery of a new witness for his rape case. The district court denied Requena's motion in a thorough and well-written decision. As to Requena's contention that his criminal history score was incorrect, the district court found Requena had misconstrued the caselaw and explained why. The district court found Requena's contention that his appellate counsel was ineffective to be untimely, stating it had been over 12 years since the direct appeal was concluded and Requena had not shown manifest injustice or any reason to extend the one-year time limit. The district court also found Requena's claim of newly discovered evidence to be time-barred, stating the “newly-discovered” letter had been in Requena's possession for almost 15 years and no manifest injustice had been shown.

Requena then filed a motion to amend judgment and a motion to compel judgment (“related motions”). The district court denied those motions as well, finding in them “virtually nothing to support a modification of the earlier order.” The district court also expanded on the legal authority showing that Requena's 1989 crime of aggravated burglary had been properly classified as a person felony.

In this appeal from the district court's decisions on Requena's second K.S.A. 60-1507 motion and related motions, Requena contends that the district court erred in four respects: (1) failing to appoint counsel after the State filed a brief in opposition to his 60-1507 motion; (2) failing to grant an evidentiary hearing on his claim of ineffective assistance of appellate counsel; (3) failing to review his memorandum supporting his 60-1507 motion and to make findings as required; and (4) denying his claim regarding his criminal history score. Requena also mentions his actual innocence. We are not persuaded by any of these claims of error.

Did the district court err in not granting an evidentiary hearing and appointing counsel?

We first address Requena's argument that the district court violated his due process rights by not granting an evidentiary hearing and appointing counsel for him after the State filed a response to his 60-1507 motion. We exercise unlimited review over Requena's due process claim. State v. Robinson, 281 Kan. 538, 540, 132 P.3d 934 (2006).

There is no constitutional due process right to counsel in postconviction proceedings, but K.S.A. 22-4506(b) provides a right to counsel in 60-1507 proceedings if a hearing is granted. See Guillory v. State, 285 Kan. 223, 227, 170 P.3d 403 (2007). Under that statute, if the court finds that a K.S.A. 60-1507 motion presents substantial questions of law or triable issues of fact, the court shall appoint counsel if the movant is indigent. K.S.A. 22-4506(b). Similarly, Kansas Supreme Court Rule 183(i) (2017 Kan. S. Ct. R. 224) provides: “Right to Counsel. If a motion to vacate, set aside, or correct a sentence presents a substantial question of law or triable issue of fact, the court must appoint counsel to represent an indigent movant.” “Once this statutory right to counsel attaches, a [K.S.A. 60-1507] movant is entitled to effective assistance of counsel.” Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009).

A district court has three options when considering a 60-1507 motion:

“When a district court considers a K.S.A. 60-1507 motion, it may: (a) determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (b) determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held after appointment of counsel. If the court then determines there is no substantial issue, the court may deny the motion; or (c) determine from the motion, files, records, or preliminary hearing that there is a substantial issue requiring an evidentiary hearing.” Sola-Morales v. State, 300 Kan. 875, Syl. ¶ 1, 335 P.3d 1162 (2014).

The district court considered Requena's motion and determined that the documents conclusively showed he was entitled to no relief and denied his motion summarily. Because neither a preliminary hearing nor an evidentiary hearing was held, Requena was not entitled to appointment of counsel.

Requena contends that the State's filing of a response to his pro se motion had the same effect as a preliminary hearing at which the State was represented and he was not. We disagree.

We have repeatedly rejected similar claims when no evidence shows that the district court held a hearing on a K.S.A. 60-1507 motion. See, e.g., Littlejohn v. State, No. 115,904, 2017 WL 2833312, at *4 (Kan. App. 2017) (unpublished opinion), petition for rev. filed July 31, 2017; State v. Roberts, No. 114,726, 2016 WL 6829472 (Kan. App. 2016) (unpublished opinion), petition for rev. filed December 19, 2016. In Roberts, we rejected such a claim, stating:

“In conclusion, Supreme Court Rule 183(i) and Kansas caselaw make it perfectly clear that if a hearing is held on a postconviction motion and the State appears through counsel, then due process of law requires that the movant be represented. Here, Roberts would have this court equate the State's written response to a movant's K.S.A. 60-1507 motion with a formal hearing. The circumstances surrounding Roberts' case do not support this assertion. Thus, we determine that Roberts was not denied due process of law when he was not provided with counsel after the State filed a response to his K.S.A. 60-1507 motion. [Citations omitted.]” 2016 WL 6829472, at *5.

We agree with the reasoning of the Roberts panel. Nothing about the circumstances of this case shows that either a hearing or the appointment of counsel was required. Requena failed to identify any substantial or potentially substantial issues of fact regarding his appellate counsel's performance that would necessitate a hearing. The district court neither took an active role in soliciting the State's response nor selected certain issues for which a response was required. The State's response consisted of four sentences and related solely to Requena's Murdock claim, which we find legally unsupported. The district court's mere reading of the State's written response to Requena's motion was not equivalent to holding a preliminary hearing.

We thus find no error in the district court's failure to hold a hearing and appoint counsel for Requena after the State filed a response to his K.S.A. 60-1507 motion.

Did the district court fail to make required factual findings?

Requena next contends that the district court erred in not making specific factual findings regarding his assertions of lack of jurisdiction. Requena has not made clear whether he asserts a lack of personal jurisdiction or a lack of subject matter jurisdiction, and the briefs fail to shed any light on that matter. He contends that the district court failed to review his pro se supporting memorandum, which raised the jurisdictional issue, and requests a remand for an evidentiary hearing on this issue and specific findings by the district court, as required by Supreme Court Rule 183(j).

Supreme Court Rule 183(j) requires a court to “make findings of fact and conclusions of law on all issues presented.” (2017 Kan. S. Ct. R. 224). As applied to a K.S.A. 60-1507 motion, we look at the face of the motion to determine which issues were presented. The form Requena completed for this motion required him to “[s]tate concisely all the grounds on which you base your allegation that you are being held in custody unlawfully.” Requena did so, listing only the three grounds noted above. None of those three related whatsoever to jurisdiction.

The district court squarely addressed each of the three issues stated in Requena's K.S.A. 60-1507 motion and made findings of fact and conclusions of law on each of them. Alternatively, because the district court judge exercised jurisdiction over Requena's motion, finding some claims untimely and others misguided, he tacitly rejected Requena's assertion of some jurisdictional defect in the proceedings.

Even if we were to assume, without finding, that the district court failed in its duty to make specific findings on the jurisdictional issue, we would find no reversible error. Whether the district court complied with Supreme Court Rule 183(j) is a question of law subject to our unlimited review. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009). The purpose of that rule's requirement that a court make findings of fact and conclusions of law is to give appellate courts the opportunity for meaningful review. State v. Moncla, 269 Kan. 61, 64-65, 4 P.3d 618 (2000). Where we can meaningfully review the district court's decision despite its lack of specific findings, we have no need to remand. See Keltner v. State, No. 115,683, 2017 WL 2210666, at *3 (Kan. App. 2017) (unpublished opinion), petition for rev. filed June 19, 2017; Hutton v. State, No. 112,862, 2016 WL 368066, at *4 (Kan. App. 2016) (unpublished opinion) (holding that a district court order stating: “'Motion denied, untimely, failed to show any manifest injustice,”' complied with Supreme Court Rule 183(j) and was sufficient to allow an opportunity for meaningful appellate review), rev. denied 305 Kan. 1251 (2017).

Such is the case here. The district court's lack of findings or conclusions of law on the issue of jurisdiction do not hinder our review on this question of law. We have reviewed Requena's supporting memoranda which mention the jurisdictional issue and find the jurisdictional assertions to be unintelligible and unsupported by law. We include some of these assertions below, as examples.

Requena alleges that because the charging document filed by the State puts his name in all caps, he is a “juristic person” or a corporation. Requena alleges that the State of Kansas is a corporation and that it filed a charge against him as a corporation without his consent and without convening a grand jury. “Plaintiff sees this as an act of war by an artificial entity to capture his natural exist[e]nce without jurisdiction.” Requena refers to 28 U.S.C. § 3002(15) (1990), which defines the United States, in part, as “a Federal corporation.” But that statute does not divest a court of jurisdiction. Nothing in that provision supports any claim, contract-based or otherwise, that Requena sits beyond the jurisdiction of this court. See United States v. Nabaya, No. 3:17CR3, 2017 WL 1424802, at *5 (E.D. Va. 2017).

The papers filed by Requena also refer to “sovereignty” and may thus suggest he is part of the sovereign citizen movement. But an individual's belief that his status as a “sovereign citizen” puts him beyond the jurisdiction of the courts “has no conceivable validity in American law.” United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). Thus, “the judge would not have permitted it to be presented to the jury and no reputable lawyer could have been found to attempt to persuade the judge otherwise.” Schneider, 910 F.2d at 1570.

“Regardless of an individual's claimed status of descent, be it as a 'sovereign citizen,' a 'secured-party creditor,' or a 'flesh-and-blood human being,' that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily, however they are presented.” United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011).

See United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (finding similar issues to be “completely without merit” and “patently frivolous” and rejected it “without expending any more of this Court's resources on their discussion”).

The district court did not err in similarly rejecting Requena's undecipherable assertions of lack of jurisdiction.

Did Requena show manifest injustice?

Requena recognizes that to show his motion was timely, he had to show manifest injustice. He further acknowledges that to make that showing, he had to show why he failed to file his motion within a year or had to “make a colorable claim of actual innocence.” K.S.A. 2016 Supp. 60-1507(f)(2)(A). Requena asserts the latter in his pro se supplemental brief on appeal, which states that he is “declaring his innocence.”

In support of Requena's claim of actual innocence, he states solely: “The failure of appellate counsel to address the lack of evidence against him and the favorable scientific evidence included in Mr. Requena's attachments support a finding of actual innocence ․” This is a vague and conclusory statement that fails to rise to the level of a colorable claim of actual innocence. See Aguilera v. State, No. 112,929, 2016 WL 299078, at *3 (Kan. App. 2016) (unpublished opinion) (movant's claim that evidence against him at trial was “not completely convincing” was conclusory statement insufficient to demonstrate colorable claim of actual innocence), rev. denied 305 Kan. 1251 (2017); Salinas v. State, No. 112,830, 2016 WL 1545846, at *5 (Kan. App. 2016) (finding claim of actual innocence waived or abandoned where movant did not explain his assertions, identify the crimes in question, cite authority on actual innocence, or explain how his assertions meet that standard), rev. denied 306 Kan. __ (2017). We thus find no error in the district court's finding that Requena did not show manifest injustice as is necessary to make his claims timely.

Did the district court err in denying Requena's Murdock claim?

Requena contends that the district court erred in calculating his criminal history and that he should have been sentenced as a criminal history E. His claim is based on State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016).

Requena acknowledges that Keel overruled Murdock and asks us to reconsider Keel. We lack any authority to do so, however. We are duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015), rev. denied 303 Kan. 1078 (2016). Finding no indication of departure, we agree with the district court that Requena's arguments relating to the classification of his criminal history are meritless.

Affirmed.

PER CURIAM: