III v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

Never one to take no for an answer, Levi Love III once again challenges his convictions from 1997. In this timely appeal, Love challenges the denial of his most recent K.S.A. 60-1507 motion attacking the validity of his convictions. As in a past filing, Love once again submits an affidavit reflecting the State's key eyewitness has recanted while failing to acknowledge the affidavit was previously deemed to be untrustworthy. The district court summarily denied his current motion, finding it was procedurally barred for being untimely and successive. After a complete, exhaustive, and extensive review of the record, we find Love's K.S.A. 60-1507 motion is both untimely and successive. We affirm.

Factual and Procedural Background

In 1997, a jury convicted Love on all of the State's charges against him. The district court sentenced him to life imprisonment for first-degree murder with a concurrent sentence of 816 months for attempted first-degree murder. His convictions were affirmed on appeal in State v. Love, 267 Kan. 600, 986 P.2d 358 (1999). During the pendency of his direct appeal, Love filed a pro se K.S.A. 60-1507 motion and a motion for a new trial. Both motions were dismissed by the district court because his direct appeal was pending.

In December 1999, Love filed a motion for a new trial alongside a new pro se K.S.A. 60-1507 motion. The motion for a new trial included two affidavits from different respective affiants, one claiming the main witness—Darryl Peppers—falsely accused Love to conceal his own culpability and the other claiming to know Love was elsewhere at the time of the crime. After the State responded to these claims, a hearing was held and the district court denied both motions. On appeal, another panel of this court affirmed the district court's denial, pointing out Love had not presented the court with evidence of exceptional circumstances to consider the merits of his arguments. Love v. State, No. 87,937, 2003 WL 22119223, at *5 (Kan. App. 2003) (unpublished opinion). Over the next several years Love filed multiple posttrial motions, all of which have been unsuccessful, and we deem it unnecessary to detail.

Then, in December 2011, Love filed another pleading entitled “Newly Discovered Evidence” and attached three affidavits. In two of the affidavits, Peppers avowed he was the only eyewitness to Love's underlying crimes and suggested he was compelled to identify Love as the suspect. The State responded to the motion, claiming the signature of the notary was forged and the affidavits did not qualify as newly discovered evidence. The district court entered a lengthy memorandum treating the motion as a new K.S.A. 60-1507 motion and denied it. The district court specifically stated Love needed to present “a truly exceptional circumstance not founded on hearsay or rumor.” The district court also challenged the validity of the affidavits from Peppers because they did not have a valid notary seal. Love did not appeal the district court's memorandum opinion and entry of judgment.

Now, more than 10 years later, Love filed the present K.S.A. 60-1507 motion. In his current motion, Love asserts several arguments, including: The district court lacked subject matter jurisdiction to convict him; newly discovered evidence proved his actual innocence; and his trial and appellate counsel were ineffective for failing to raise certain issues at trial and on appeal. In support of his motion, Love filed multiple documents, including the affidavits from his 2011 K.S.A. 60-1507 motion, which the district court found lacked credibility.

On May 23, 2024, the district court issued an order summarily denying Love's current K.S.A. 60-1507 motion. The district court concluded Love's motion was procedurally barred as it was both untimely and successive. It further noted Love failed to establish manifest injustice or exceptional circumstances to permit his motion.

Analysis

Love argues, through his counsel, the district court's summary denial of his K.S.A. 60-1507 motion was improper. Primarily, Love claims his motion and supporting memorandum set forth a colorable claim of actual innocence justifying an evidentiary hearing. Alternatively, Love contends the district court failed to make appealable rulings over his claims of lack of subject matter jurisdiction and ineffective assistance of counsel.

The State responds that the district court properly denied Love's claims because the motion was both untimely and successive.

Additionally, Love contends, through a pro se supplemental brief, the district court's summary denial of his K.S.A. 60-1507 motion should not have been procedurally barred. He further alleges the State's charging complaint and affidavit for his arrest were fraudulent.

Standard of Review

The district court has three options when ruling on a motion under K.S.A. 60-1507: (1) deny the motion summarily after determining that the prisoner is not entitled to relief; (2) determine that potentially substantial issues exist and hold a preliminary hearing but deny the motion if no substantial issues are present; or (3) hold a full evidentiary hearing after deciding that a substantial issue is present. State v. Adams, 311 Kan. 569, 577-78, 465 P.3d 176 (2020).

We review the summary denial of a K.S.A. 60-1507 motion de novo “ ‘to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief.’ ” Stewart v. State, 310 Kan. 39, 52, 444 P.3d 955 (2019).

Discussion

There are two limitations for filing a K.S.A. 60-1507 motion. First, the district court does not have to entertain successive motions. K.S.A. 60-1507(c). Second, a one-year statute of limitations starts to run after the final order of the last appellate court to exercise jurisdiction in a direct appeal, the denial of a writ of certiorari to the United States Supreme Court, or the final decision from a prior K.S.A. 60-1507 motion. K.S.A. 60-1507(f)(1)(A)-(C). The one-year time limitation may be extended only to prevent manifest injustice. K.S.A. 60-1507(f)(2).

Love, as the movant, has the burden to establish grounds for relief by a preponderance of the evidence. See Noyce v. State, 310 Kan. 394, 400, 447 P.3d 355 (2019) (burden of proof); Supreme Court Rule 183(g) (2026 Kan. S. Ct. R. at 242) (preponderance of evidence). To warrant an evidentiary hearing, “ ‘the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ ” 310 Kan. at 398. A movant is also presumed to have listed all grounds for relief in the movant's first motion. State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013).

Successiveness

“A district court may not entertain a second or successive motion for relief under [K.S.A. 60-1507] unless the alleged errors affect constitutional rights and exceptional circumstances justify” doing so. State v. Brown, 318 Kan. 446, 448, 543 P.3d 1149 (2024). This includes situations where the successive motion is made by the same movant where relief has already been determined. See Beauclair v. State, 308 Kan. 284, 304, 419 P.3d 1180 (2018); Rule 183(d). Exceptional circumstances include “ ‘unusual events or intervening changes in the law.’ ” Brown, 318 Kan. at 448. Still, the motion cannot raise an issue that should have been raised on direct appeal unless those exceptional circumstances apply. 318 Kan. at 448-49. Love's current motion is clearly successive.

Another panel of our court has noted the use of affidavits and other evidence to cast doubt on trial evidence fails in satisfying exceptional circumstances to overcome the procedural bar of successiveness. Bell v. State, No. 124,447, 2022 WL 17882344, at *8 (Kan. App. 2022) (unpublished opinion). In Bell, the defendant attempted to use affidavits and other evidence from his relatives whose testimony he had previously presented at his first K.S.A. 60-1507 hearing. The panel found the testimony was inconsistent and insufficient to warrant an evidentiary hearing on the matter, and the panel concluded the present K.S.A. 60-1507 motion was successive. 2022 WL 17882344, at *8.

Love acknowledges his claim is successive. But he reasons his claim of actual innocence satisfies the exceptional circumstances standard promulgated in Beauclair. It does not.

Beauclair did provide recantation could constitute the basis of a colorable claim of actual innocence to excuse the procedural bar of successiveness, but Love's claims do not necessitate holding an evidentiary hearing to resolve factually conflicting evidence. See 308 Kan. at 302-03. Like Bell, Love presents recycled evidence from his 2011 filing to try and overcome the procedural bar of successiveness and cast doubt on trial evidence. But there was no new evidence in his current K.S.A. 60-1507 motion. The district court was correct to summarily deny Love's motion. See Bell, 2022 WL 17882344, at *8.

Love's claim of actual innocence is not one of the rare occurrences constituting an unusual event which prevented him from previously raising the issue. See Beauclair, 308 Kan. at 304. And his claim fails to meet the threshold for exceptional circumstances to bring the same challenge multiple times. See Brown, 318 Kan. at 448.

Timeliness

Generally, an action filed under K.S.A. 60-1507 must be brought within one year of the final order of the appellate court. K.S.A. 60-1507(f)(1)(A). But the limitation on the proper time to file may be extended to prevent manifest injustice, and the district court must state those legal and factual bases in writing with service to the parties. K.S.A. 60-1507(f)(2)(A)-(B). If the court determines dismissing the motion “would not equate with manifest injustice, the district court must dismiss the motion as untimely filed.” K.S.A. 60-1507(f)(3).

Manifest injustice is described as “ ‘ “obviously unfair” ’ or ‘ “shocking to the conscience.” ’​​​​​​​”​​​​​​​ State v. Roberts, 310 Kan. 5, 13, 444 P.3d 982 (2019). A movant can show manifest injustice by making a colorful claim of actual innocence. To show actual innocence, the movant must show “it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence.” K.S.A. 60-1507(f)(2)(A). We also look at other nonexhaustive factors, including whether “ ‘(1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the [K.S.A.] 60-1507 motion within the 1-year time limitation; [and] (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration.’ ” Roberts, 310 Kan. at 13.

But the application of an actual innocence claim requires the introduction of some “ ‘new reliable evidence ․ that was not presented at trial.’ ” Beauclair, 308 Kan. at 299. The claim cannot simply be a movant relying on his or her word alone. The movant must make “more than conclusory contentions, must state [an] evidentiary basis in support of [the] claims, or [the] evidentiary basis must be in [the] record[.]” See 308 Kan. at 302. Otherwise, the practical result would allow for the “evisceration of the one-year time limit.” 308 Kan. at 302. Yet, at the gateway stage, the movant must merely demonstrate it was “ ‘more likely than not any reasonable juror would have reasonable doubt.’ 547 U.S. at 538.” Beauclair, 308 Kan. at 301. Love cannot meet his burden with his recycled affidavits because his current claims are not credible and the district court already found the same affidavits lack credibility.

Like his successive claim, Love concedes his K.S.A. 60-1507 motion is untimely since it was brought well after the one-year time limitation. However, he believes he has fully met the manifest injustice standard through his colorable claim of actual innocence set out in his motion, alongside his claim of subject matter jurisdiction. Love further points out the crux of his claim of actual innocence is based on the recantation from Peppers, the State's only eyewitness to the crime.

However, the record confirms Love relied upon the affidavit from Peppers in his K.S.A. 60-1507 motion from 2011 under the title of “Newly Discovered Evidence.” And in the most recent motion from 2024, Love once again included this evidence in support of his claim. Potentially, the affidavits provided by Love could be considered as new and reliable evidence which would satisfy the procedural actual innocence claim. See Beauclair, 308 Kan. at 302. But, the district court, in 2012, determined his filing lacked the requisite level of credibility to support his claims. Specifically, the district court noted the affidavits “materially add[ ] nothing to the evidence which was not fully explored at trial except the implicit inference from purportedly [Pepper's] own mouth ․ that he was not telling the truth during the proceedings against [Love].” Similarly, in its dismissal of Love's current K.S.A. 60-1507 motion, the district court emphasized the evidence in this filing was unpersuasively relied upon in Love's previous 2011 filing. Thus, Love presents nothing new or credible about the evidence with his recycled affidavits to support his current claims. See 308 Kan. at 299, 302.

As a result, Love's colorful claim of actual innocence fails to meet the standard showing it was “more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence.” K.S.A. 60-1507(f)(2)(A); Beauclair, 308 Kan. at 300.

Conclusion

Love's current collateral challenge is procedurally foreclosed since he fails to defeat either procedural bar of timeliness or successiveness to bring his jurisdictional or ineffective assistance of counsel claims. See K.S.A. 60-1507(c), (f)(1).

Affirmed.

Per Curiam: