Habeas Corpus in Kansas the Great Writ Affords Postconviction Relief at K.s.a. 60.1507
| Jurisdiction | Kansas,United States |
| Citation | Vol. 67 No. 02 Pg. 16 |
| Pages | 16 |
| Publication year | 1998 |
67 J. Kan. Bar Assn. February, 16 (1998). HABEAS CORPUS IN KANSAS THE GREAT WRIT AFFORDS POSTCONVICTION RELIEF AT K.S.A. 60.1507
February, 1998
Copyright (c) 1998 by the Kansas Bar Association; Martha J. Coffman
Although the general habeas corpus statute, K.S.A. 60-1501, is available to challenge confinement in a wide variety of cases, [FN1] the procedure used to attack the legality of a state conviction or sentence is a motion filed pursuant to K.S.A. 60-1507. This article will examine the procedural issues that arise in handling K.S.A. 60-1507 motions. These include whether to appoint counsel, whether a hearing is necessary, the need for petitioner's presence at the hearing, the burden of proof at the hearing and the relief that can be granted. Also, because many postconviction filings are pro se, and therefore must be liberally construed, the article will briefly examine alternative remedies the movant may be pursuing.
*17 I. What is a K.S.A. 60-1507 motion?
The manifest purpose of K.S.A. 60-1507 is "to provide a means of collateral attack on a sentence in the court where it was imposed by a prisoner in custody under such sentence. The language used clearly presupposes a conviction and sentence." [FN2] K.S.A. 60-1507(a) provides:
A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence. The Kansas Legislature enacted K.S.A. 60-1507 as part of the Revised Code of Civil Procedure, which became effective Jan. 1, 1964. [FN3] Before K.S.A. 60-1507 was enacted, all habeas corpus petitions were filed in the judicial district where the person was restrained, which taxed resources in districts that had a penal institution. [FN4] K.S.A. 60-1507 follows the language of 28 U.S.C. § 2255, enacted in 1948 to alleviate the similar burden of habeas corpus petitions filed in U.S. district courts where penal institutions were located. Kansas courts, recognizing the close relationship between K.S.A. 60-1507 and 28 U.S.C. § 2255, have consistently followed federal decisions interpreting Section 2255 and have given those interpretations great weight in construing the provisions of 60-1507. [FN5] Following enactment of the Antiterrorism and Effective Death Penalty Act of 1996, which significantly changed federal habeas corpus law, [FN6] Kansas courts should be cautious when construing 60-1507 to comply with recent interpretations of 28 U.S.C. § 2255 under the new act. Meanwhile, the substantive provisions of 60-1507 have remained unchanged since its enactment in 1964. Therefore, previous discussions of 60-1507 remain helpful resources. [FN7]
A. K.S.A. 60-1507 is a civil proceeding
K.S.A. 60-1507 "is intended to provide in a sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in district courts in whose jurisdiction the prisoner was confined." [FN8] Although a motion pursuant to K.S.A. 60-1507 challenges an illegal sentence, the motion is a civil action independent from the criminal proceeding and should be docketed separately as a civil case. [FN9] The rules of civil procedure govern a 60-1507 proceeding. [FN10]
B. Kansas Supreme Court Rule 183
After the Legislature enacted K.S.A. 60-1507, the Kansas Supreme Court adopted a rule to supplement the statutory text, which sets out procedures to assure an adequate remedy to substitute habeas corpus and provides a model form to use in filing these motions. [FN11] Motions must substantially comply with this form, which is to be furnished by the court. [FN12] In reviewing pro se filings, the trial court should keep in mind that use of this form does not mean the filing automatically should be treated as a 60-1507 motion if the pleading can more properly be construed as an attempt to initiate a different proceeding. [FN13]
II. Procedures involving a K.S.A. 60-1507 motion
A. Should the trial court set a hearing?
The statute requires a trial court to make a preliminary review of a motion filed pursuant to 60-1507 before directing that the county attorney be served. K.S.A. 60-1507(b) provides:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The conclusive showing required under the first phrase of this subsection suggests the initial review will not be extensive. [FN14] This provision gives the trial judge power to dismiss cases that are obviously frivolous following a cursory review of the record. The statute requires any motion, which is not
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conclusively lacking in merit, be served on the county attorney and set for a hearing. Rule 183 further requires the clerk of the district court to "forthwith deliver a copy thereof to the county attorney and make an entry of such fact in the appearance docket." [FN15]
In Wright v. State, [FN16] Judge John Rees outlined what a trial judge should consider in deciding whether a 60-1507 motion alleges information sufficient to warrant a hearing:
Guidelines for granting an evidentiary hearing on a K.S.A. 60-1507 motion are provided by statute, court rule and case law. A hearing, whether evidentiary or non-evidentiary, should be granted unless the motion and the files and records of the case conclusively show the movant is entitled to no relief.... A presumption of regularity attaches to a judgment of criminal conviction and sentencing thereon. The plaintiff has the burden of establishing irregularity of his conviction and sentence; in a K.S.A. 60-1507 proceeding the movant has the burden of proof.... Contentions that assert conclusions without evidentiary basis are not sufficient for relief.... While corroboration of plaintiff's factual allegations is no longer a formal requirement ... corroboration is desirable. The motion must set forth a factual background, names of witnesses or other sources of evidence demonstrating plaintiff's entitlement to relief.... An evidentiary hearing is not required if no substantial issue of fact is presented by the motion.... Where a K.S.A. 60-1507 motion alleges facts which do not appear in the original record and which if true would entitle plaintiff to relief, and identifies readily available witnesses whose testimony would support such facts or other sources of evidence, it is error to deny the motion without an evidentiary hearing.... Even where factual issues raised seem improbable, an evidentiary hearing is required unless the files and records of the case enable their complete resolution. [FN17] Once the trial court concludes the filings in the case fail to conclusively show petitioner is entitled to no relief, both K.S.A. 60-1507(b) and Rule 183(f) require the court to grant a "prompt" hearing. The term "prompt" is defined in Rule 183(f) to mean "as soon as reasonably possible considering other urgent business of the court." [FN18] While somewhat ambiguous, it is at least clear the court should set a 60-1507 case for hearing as soon as feasible. These cases should not languish unattended and overlooked in a crowded docket. Rule 183(f) also requires all proceedings on the motion to be recorded by the official court reporter. [FN19]
B. Should counsel be appointed?
If a motion pursuant to K.S.A. 60-1507 does not raise a substantial issue of fact or question of law, the trial court is not required to appoint counsel or hold an evidentiary hearing. [FN20] If the petition does raise a substantial legal issue, but will not require testimony to develop the facts, the trial court should appoint counsel to develop the issues and appear for argument even when defendant's presence is not required. [FN21]
Even if the petition does not appear to present allegations that would entitle petitioner to relief, the court retains discretion to appoint counsel. [FN22] In such a case the court may conduct a preliminary hearing without petitioner's presence to permit counsel to present evidence that would be submitted if a formal hearing were conducted. [FN23] If the motion, files and records of the case, with any offers of proof, show the district court correctly concluded the motion is without merit, then a further hearing with movant present is unnecessary. [FN24]
In Taylor v. State, petitioner filed a motion to represent himself in a 60-1507 proceeding. [FN25] When the trial court appointed a public defender to represent Taylor at an evidentiary hearing on the motion, the attorney, at Taylor's request, filed a motion to withdraw. The trial court denied the motion and required appointed counsel to proceed because of the nature of the constitutional and legal issues involved. [FN26] The Supreme Court affirmed, finding no prejudice in the trial court's refusal to allow Taylor to proceed pro se. [FN27]
Although K.S.A. 60-1507 is a civil proceeding, the Kansas Supreme Court has always required compensation for counsel appointed in these cases. While procedurally governed by civil rules, the court pointed out "especially in respect to the appointment and compensation of counsel for an indigent prisoner at trial and appellate levels," 60-1507...
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