               IN THE SUPREME COURT OF THE STATE OF KANSAS


                                         No. 115,129

                                   ALCENA M. DAWSON,
                                       Appellant,

                                              v.

                                     STATE OF KANSAS,
                                         Appellee.


                              SYLLABUS BY THE COURT

1.
       A K.S.A. 60-1507 movant has no constitutional right to the effective assistance of
counsel in the postconviction proceedings, but under K.S.A. 22-4506(b) a district court
has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant
whenever the motion presents substantial questions of law or triable issues of fact.


2.
       As a matter of procedural due process, a K.S.A. 60-1507 movant has the right to
counsel when the court holds a hearing to determine whether the motion, files, and
records present a substantial question of law or triable issue of fact and the State is
represented by counsel at the hearing.


3.
       The district court's solicitation of a written response to a K.S.A. 60-1507 motion
from the State's attorney, and the court's review of the State's response, is not the
functional equivalent of a hearing and does not trigger the movant's due process right to
an attorney.


                                              1
4.
        A district court is not required to entertain successive K.S.A. 60-1507 motions on
behalf of the same movant unless there are exceptional circumstances. If the K.S.A. 60-
1507 movant files a second or successive motion, the movant has the burden of
establishing exceptional circumstances to avoid dismissal of the motion as an abuse of
remedy.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed January 20,
2017. Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed July 12, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.


        Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, and Krystle M.S. Dalke, of
the same firm, were on the brief for appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        JOHNSON, J.: Alcena M. Dawson petitions for our review of the Court of Appeals'
affirmance of the district court's summary denial of his fourth K.S.A. 60-1507 motion. He
claims the district court violated his due process rights when it asked the State for a
response to the motion and reviewed that response without appointing counsel for
Dawson. Dawson also contends that he is entitled to an evidentiary hearing on his motion
based upon exceptions that would permit his untimely and successive filing. Finding no
error, we affirm the lower courts.




                                                     2
                         FACTUAL AND PROCEDURAL OVERVIEW


       In 1997, a jury found Dawson guilty of the rape of his then girlfriend's seven-year-
old daughter, D.C. The allegations of Dawson's genitalia-to-genitalia touching of D.C.
came to light after Dawson moved out of the girlfriend's house. The girlfriend called the
police and subsequently took her daughter to the hospital for a sexual assault
examination. During a colposcopic examination, one of the two sexual assault nurse
examiners (SANE) involved noted some debris inside D.C., and collected it with a swab.
The SANE could not say whether the debris contained DNA material. The swab was
apparently never submitted to laboratory testing and at some point was destroyed.


       On direct appeal, Dawson challenged the SANEs' qualifications, the sufficiency of
the evidence, and his criminal history. The Court of Appeals affirmed his conviction and
sentence. State v. Dawson, No. 79,652, unpublished opinion filed December 23, 1999
(Kan. App.), rev. denied 269 Kan. 935 (2000) (Dawson I).


       Since his direct appeal, Dawson has filed multiple postconviction motions, several
of which are relevant here. In 2001, Dawson filed what appears to be his first K.S.A. 60-
1507 motion. This motion is not included in the record of this appeal, but according to the
district court's final order dismissing Dawson's current motion, Dawson's 2001 motion
raised a Batson challenge and a claim of ineffective assistance of counsel. The district
court denied the 2001 motion and Dawson did not appeal.


       In 2002, Dawson filed his second K.S.A. 60-1507 motion, which is also not
included in the record of this appeal. According to the resulting Court of Appeals
opinion, that motion asserted ineffective assistance of counsel and multiple trial errors,
including:




                                              3
       "the exclusion of evidence, such as rape kit report, DNA testing, and polygraph tests; the
       aggregation of Dawson's misdemeanor convictions; the inclusion of two rape victims and
       jurors with personal knowledge of the case on the jury; the credibility of witnesses'
       testimony; the trial court's refusal to allow psychiatric exams of the mother of the victim;
       the exclusion of expert testimony refuting the medical exams performed in this case; and
       prosecutorial misconduct." Dawson v. State, No. 94,720, 2006 WL 3877559, at *1 (Kan.
       App. 2006) (unpublished opinion), rev. denied 283 Kan. 930 (2007) (Dawson II).


       The district court had appointed counsel and held a pretrial hearing before
determining that Dawson's second 60-1507 motion was successive, failed to provide an
evidentiary basis to review his claims, and failed to identify exceptional circumstances to
warrant relief. "The district court granted Dawson an additional 30 days to gather
additional information to support his arguments; however, after Dawson filed a motion to
reconsider, the district court again determined that Dawson failed to identify exceptional
circumstances to warrant a review." 2006 WL 3877559, at *1.


       On appeal, Dawson argued the district court erred in dismissing his motion
without an evidentiary hearing, that his 60-1507 counsel was ineffective, and that the
district court did not enter findings of fact and conclusions of law on all issues presented.
The Court of Appeals affirmed, holding that many of Dawson's claims involved trial
errors and further that Dawson had not demonstrated exceptional circumstances that
prevented him from raising his claims on direct appeal or in his first 60-1507 motion.
2006 WL 3877559, at *3. The Court of Appeals specifically rejected Dawson's
contention that he did not raise an issue of ineffective assistance of counsel in his first
motion and held "Dawson should not be permitted to piecemeal an issue of ineffective
assistance of counsel to circumvent Supreme Court Rule 183(d)." 2006 WL 3877559, at
*2. Further, the Court of Appeals rejected Dawson's contention that his 60-1507 counsel
for his second motion was ineffective. 2006 WL 3877559, at *2.




                                                    4
          In April 2014, Dawson filed a motion for forensic DNA testing under K.S.A. 21-
2512. The district court appointed counsel and held a hearing on the motion. The district
court denied the motion because the evidence Dawson sought to have tested was
destroyed and therefore could not be produced. In the order denying Dawson's present
motion, the district court found "the evidence had been destroyed in the regular course of
business, with no bad faith, prior to movant's direct appeal." This finding appears to have
been adopted from the State's response. Dawson appealed the denial of his motion for
DNA testing. But Dawson later filed a motion to withdraw the notice of appeal.


          In July 2014, Dawson filed his third 60-1507 motion. This motion is also not in
the record, but the district court's order on the current motion found that the third motion
raised several claims, including ineffective assistance of trial counsel based on the
attorney's failure to, inter alia, prepare a defense, call witnesses, and demand production
of lab results and evidence. The district court's order on the current motion also provides
that in March 2015, the district court declined to address Dawson's third motion and
summarily denied it because Dawson had a pending appeal. Dawson did not appeal this
denial.


          In February 2015, Dawson filed the subject pleading, his fourth 60-1507 motion.
The pro se motion asked for a writ of habeas corpus to correct a manifest injustice created
by ineffective assistance of counsel and the State's destruction of material exculpatory
evidence. More specifically, Dawson argued his trial counsel, Susan Martin, was
ineffective for failing to honor Dawson's request to test existing DNA material in order to
prove that he was innocent of the rape allegations; counsel was ineffective for failing to
object to a SANE's testimony about a DNA test swab kit, which was not actually tested
but led the jury to believe DNA evidence existed showing Dawson's guilt; and the State
violated Dawson's due process rights to discovery and confrontation when the State
destroyed material DNA evidence in bad faith and in violation of statutory law.


                                               5
       The register of actions reflects that on July 22, 2015, the district court emailed the
assistant district attorney, requesting the State's response to the motion. The State
responded, arguing that Dawson's motion was time-barred and that Dawson had not
established manifest injustice for failing to timely file his motion. Further, the State
asserted that Dawson had failed to carry his burden to establish exceptional
circumstances for considering a successive motion.


       The district court denied Dawson's fourth motion, finding it was untimely,
successive, and an abuse of remedy. The district court specifically held that Dawson had
failed to present a credible argument or evidence showing that exceptional circumstances
excused Dawson's failure to raise his present issues on direct appeal or in his first 60-
1507 motion.


       Dawson appealed to the Court of Appeals, claiming the district court had violated
his due process rights when it failed to appoint counsel to represent him after the State's
attorney filed a formal written response to the motion at the district court's request.
Dawson also argued that he had shown the district court manifest injustice and
exceptional circumstances to overcome the procedural bars to the review of his motion on
its merits.


       The Court of Appeals held that the district court did not err in summarily
dismissing Dawson's motion. The panel rejected Dawson's due process argument, but
also held that any error stemming from the State's response was harmless because the
motions, files, and records conclusively showed Dawson was not entitled to relief. The
panel opined that the question of whether the manifest injustice extension of the time
limit should have been applied could not be determined from the record. But the panel
held that Dawson's motion was nevertheless barred as successive and an abuse of remedy
because Dawson failed to show exceptional circumstances allowing him to raise his


                                              6
claims in his fourth 60-1507 motion. Dawson v. State, No. 115,129, 2017 WL 262027
(Kan. App. 2017) (unpublished opinion) (Dawson III).


       Dawson timely petitioned this court for review.


                       ALLEGATIONS OF DUE PROCESS VIOLATIONS


       Dawson contends that the district court violated his due process rights when it
solicited a written response from the State's attorney, but then failed to appoint counsel to
represent Dawson. He also asserts that the failure to appoint him counsel violated the
protocol on handling K.S.A. 60-1507 motions established by caselaw. See, e.g., Lujan v.
State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000) (outlining three avenues a district court
can take upon receiving a 60-1507 motion). In addition, Dawson complains that the
State's response was untimely under Supreme Court Rule 133(b) (2019 Kan. S. Ct. R.
204) and that the Kansas Judicial Council forms for filing a K.S.A. 60-1507 are defective.


Standard of Review


       The extent of Dawson's statutory right to counsel during a K.S.A. 60-1507
proceeding is a question of law over which this court has unlimited review. See Mundy v.
State, 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State, 288 Kan. 217,
227, 201 P.3d 691 [2009]); see also Thompson v. State, 293 Kan. 704, 710, 270 P.3d
1089 (2011) (interpretation of statutes and Supreme Court rules reviewable de novo).
Likewise, Dawson's due process claims present questions of law over which we exercise
unlimited review. See Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).




                                              7
Analysis


       In Stewart v. State, 309 Kan. ___, ___ P.3d ___ (2019) (No. 115,149, this day
decided), we addressed the question of whether the district court's consideration of a
written response from an attorney for the State without first appointing counsel for an
indigent 60-1507 movant violated the movant's right to due process of law. We held that
the district court's review of the State's filed response to a 60-1507 motion, standing
alone, did not create an indigent movant's right to counsel. Stewart, 309 Kan. at ___, slip
op. at 14-16. Rather, "as a matter of procedural due process, a movant has the right to
counsel when the court holds a hearing at which the State is represented by counsel."
Stewart, 309 Kan. at ___, slip op. at 16. Given that the district court did not conduct a
hearing in this case, its refusal to appoint counsel for Dawson did not constitute a due
process violation.


       Dawson suggests that, here, it was the district court's actively seeking a written
response from the State's attorney that triggered its due process obligation to appoint an
attorney to represent him. In State v. Redding, 309 Kan. ___, ___ P.3d ___ (2019) (No.
115,037, this day decided), the district court sent a copy of a postconviction pro se
motion directly to the State's attorney and advised that the court would wait for the State's
response before reviewing the motion. Notwithstanding the court's solicitation of a
response from the State, we applied the same test for determining the due process right to
counsel for a postconviction movant, i.e., due process is implicated when the district
court conducts an actual hearing at which the State is represented by an attorney.
Redding, 309 Kan. at ___, slip op. at 10. To be clear, a district court's request for or
solicitation of the State's written response to a pro se postconviction motion does not
change the due process calculus set forth in Stewart.




                                              8
       Dawson's argument that the district court violated the protocol mandated by the
applicable statutes and Supreme Court Rules is likewise unavailing. Stewart reiterated
that a 60-1507 movant has no constitutional right to the effective assistance of counsel in
the postconviction proceedings, but that, under some circumstances, a statutory right to
counsel exists for such a collateral attack. Stewart, 309 Kan. at ___, slip op. at 8.
Specifically, pursuant to K.S.A. 22-4506(b), "a district court has a statutory duty to
appoint an attorney to represent an indigent 60-1507 movant whenever the motion
presents substantial questions of law or triable issues of fact." Stewart, 309 Kan. at __,
slip op. at 9. But the district court's identification of a potentially substantial issue does
not trigger that statutory duty. During the period that the district court is making its
determination of whether the motion does, in fact, present a substantial question of law or
triable issue of fact, "the district court may, but is not required to, appoint an indigent 60-
1507 movant an attorney." Stewart, 309 Kan. at ___, slip op. at 11-12. It is only when the
district court convenes a hearing to assist in that determination, at which the State is
represented by counsel, that the appointment of counsel is required as matter of due
process unless the movant has waived his or her right to counsel. Redding, 309 Kan. at
___, slip op. at 10.


       In sum, because the district court determined that the motion, files, and records
conclusively showed that Dawson was entitled to no relief, i.e., determined that there was
no substantial question of law or triable issue of fact, it was not statutorily required to
appoint counsel for Dawson. Further, because the district court did not conduct a hearing
to determine the existence of a substantial question of law or triable issue of fact, the
failure to appoint counsel for Dawson did not violate his due process rights.


       Dawson also complains that the State's response to his motion was untimely. The
panel had cited to our Rule 133(b), which states:




                                                9
               "An adverse party may file a memorandum in opposition to a motion, stating
       without extended elaboration the reasons the motion should be denied and citing
       authorities, if any, the court should consider in ruling on the motion. Except as otherwise
       provided by statute or these rules, the response must be filed not later than 7 days after
       service of the motion or as otherwise provided by the court." Supreme Court Rule 133(b)
       (2019 Kan. S. Ct. R. 205).


Dawson argues that if the panel relied on that rule as the authority for the State to file a
response to his 60-1507 motion, it should have enforced the rule's seven-day time limit,
as well.


       Without discussing Rule 133, we have previously recognized that nothing in 60-
1507 or our rules prohibits the State from responding to a 60-1507 motion. Pabst v. State,
287 Kan. 1, 24, 192 P.3d 630 (2008). Our Supreme Court Rule 183(a)(2) (2019 Kan. S.
Ct. R. 229), that governs 60-1507 motions, provides: "[T]he procedure on a motion
under K.S.A. 60-1507 is governed by the rules of civil procedure, K.S.A. 60-201 et seq.,
to the extent the rules are applicable." (Emphasis added.) But in Vontress v. State, 299
Kan. 607, 612, 325 P.3d 1114 (2014), superseded by statute as stated in Hayes v. State,
307 Kan. 9, 13-14, 404 P.3d 676 (2017), this court recognized that "despite the general
rule that K.S.A. 60-1507 motions are governed by the Kansas Rules of Civil Procedure,
the plain language of Rule 183 provides that those rules will not always control."
Similarly, we have never required the State's response to a 60-1507 motion to be filed
within seven days of service of the motion under Rule 133(b).


       Finally, Dawson suggests that he should be excused from complying with the
procedural rules applicable to K.S.A. 60-1507 motions because the Judicial Council
forms for filing a motion and poverty affidavit do not advise the movant of the time
limitations or the legal standards for successive motions.




                                                    10
       In his petition for review, Dawson's counsel, Michael P. Whalen, acknowledges
that this challenge to the Judicial Council forms is being raised for the first time before
this court. But counsel flippantly suggests that "before we get all excited to dismiss this
argument because it wasn't raised before the district court or the Court of Appeals," we
should note two exceptions permitting consideration of a newly raised constitutional
issue. The arguments, however, are unpersuasive.


       We first acknowledge that Dawson did not utilize the Judicial Council motion
form, so one could question his standing to complain about its content. Nevertheless, for
purposes of this appeal, we will assume Dawson relied on the form to draft his motion, as
Supreme Court Rule 183(e) encourages "substantial compliance" with the Judicial
Council motion form. See Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 230) (stating
that a K.S.A. 60-1507 motion "is sufficient if it is in substantial compliance with the
judicial council form. The form must be furnished by the clerk on request.").


       Assuming Dawson did refer to the Judicial Council motion form, Dawson's
appellate counsel references the form adopted in July 2012. This form instructs the
movant to state concisely the reasons why a ground for relief has not been previously
presented to any court. See July 1, 2012 Judicial Council Form. Nevertheless, Dawson is
correct that the 2012 Judicial Council form did not explicitly mention the one-year time
limitation in K.S.A. 60-1507(f)(1) or the manifest injustice exception for untimely
motions. Nor does the form explicitly state that to avoid having a second or successive
motion dismissed as an abuse of remedy, the movant must establish exceptional
circumstances.


       Even so, today in Sherwood v. State, 309 Kan. ___, ___, ___ P.3d ___ (No.
115,899, this day decided), slip op. at 6-7, we considered similar arguments and rejected
a due process claim based on a 2013 version of the Judicial Council form. The 2012 and
2013 versions of the motion form contain the same language; the 2013 version contains

                                             11
amendments to the poverty affidavit form not at issue here. Compare July 1, 2012
Judicial Council Form with July 1, 2013 Judicial Council Form. As in Sherwood, Dawson
has not shown he was prejudiced by the motion form. See also State v. Heironimus, 262
Kan. 796, 808-09, 941 P.2d 1356 (1997) (rejecting due process claim based on defective
notice because the defendant failed to show prejudice). The record suggests that Dawson
had independent knowledge of the time limitations and the legal standards applicable to
such motions. For instance, Dawson's motion states that it should be considered to correct
a manifest injustice and cites to K.S.A. 60-1507(f)(2), indicating an actual knowledge of
the time limitations. Moreover, this is Dawson's fourth 60-1507 motion and the 2006
Court of Appeals opinion on his second motion specifically stated that the motion was
successive and that Dawson had failed to identify exceptional circumstances to warrant
review. Dawson II, 2006 WL 3877559, at *1-2. In other words, whatever shortcomings
might have been present in the Judicial Council form was trumped by Dawson's actual
knowledge of the time limits and legal standards applicable to his 60-1507 motion. On
these facts, we cannot conclude that the 2012 Judicial Council form deprived Dawson of
due process.


                    MOVANT'S RIGHT TO AN EVIDENTIARY HEARING


       The district court summarily denied Dawson's motion without conducting a
hearing on the merits of his claims because it found the motion to be procedurally barred.
Specifically, the district court found the motion to be untimely, successive, and an abuse
of remedy. The Court of Appeals opined that the record was insufficient for it to
determine whether the manifest injustice extension to the K.S.A. 60-1507(f) time limit
was applicable in this case. Dawson III, 2017 WL 262027, at *2-3. Consequently, the
panel relied on its determination that the motion was an abuse of remedy because
Dawson had failed to show exceptional circumstances that would justify waiting to bring
his current claims until his fourth successive 60-1507 motion. 2017 WL 262027, at *3.


                                            12
Standard of Review


       "When the district court summarily denies a K.S.A. 60-1507 motion, an appellate
court conducts de novo review to determine whether the motion, files, and records of the
case conclusively establish that the movant is not entitled to any relief." Wimbley v. State,
292 Kan. 796, 804, 275 P.3d 35 (2011).


Analysis


       Dawson argues that the district court erred in finding that he had not established
the requisite manifest injustice and exceptional circumstances to permit a merits review
of his motion. But the absence of either exception would procedurally bar Dawson's
motion. Indeed, the panel relied solely on the successive motion constraint to affirm the
district court's summary denial. Accordingly, we will focus our attention on reviewing
the exceptional circumstances holding by the Court of Appeals.


       "[U]nder K.S.A. 60-1507(c), a court is not required to entertain successive
motions on behalf of the same prisoner." State v. Trotter, 296 Kan. 898, 904, 295 P.3d
1039 (2013). Nevertheless, "[t]his court has decades of caselaw holding that K.S.A. 60-
1507's prohibition on successive motions is subject to exceptions." Nguyen v. State, 309
Kan. 96, 107, 431 P.3d 862 (2018). But a movant has the burden of establishing
exceptional circumstances to avoid an abuse-of-remedy dismissal of a second or
successive 60-1507 motion. Beauclair v. State, 308 Kan. 284, 304, 419 P.3d 1180 (2018);
See also Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014) (movant has
burden to prove 60-1507 motion warrants evidentiary hearing).


       Dawson bases his claims on allegations that his trial attorney provided ineffective
assistance of counsel. Specifically, he contends that his trial attorney was ineffective for
failing to effect the preservation and testing of the DNA evidence on the rape kit swab,

                                             13
for failing to conduct a reasonable investigation to discover whether the swab was ever
lab tested, and for failing to object to the SANE's trial testimony about collecting debris
with a swab when the State did not present evidence that the swab had been lab tested. He
asserts that he repeatedly asked his trial attorney to obtain forensic testing of the swab
because it would prove his innocence, but that his counsel simply ignored his requests.


       Dawson suggests that trial counsel's ineffectiveness excuses the successiveness of
his current claims. Granted, we have opined that the ineffective assistance of counsel can
qualify as an exceptional circumstance that could justify failing to raise an issue on direct
appeal. See, e.g., Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). But
Dawson must also establish some causal connection between the alleged ineffective
assistance of counsel and the delay in asserting the postconviction claims, i.e., the
exceptional circumstances must explain or justify the failure to assert a claim in a prior
60-1507 motion. See Toney v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122 (2008)
("Because Toney has not alleged any unusual events or intervening changes in the law
which prevented him from reasonably being able to raise his [ineffective assistance of
counsel] claim in his first K.S.A. 60-1507 motion, the trial court properly denied Toney's
current K.S.A. 60-1507 motion as successive under K.S.A. 60-1507[c].").


       Since the alleged ineffectiveness of Dawson's trial attorney, he has filed a direct
appeal and three prior 60-1507 motions. Consequently, trial counsel's performance was
not an intervening event that would explain the omission of the current claims from the
first (or second or third) 60-1507 motion. Moreover, each of Dawson's prior 60-1507
motions included claims of ineffective assistance of counsel, some of which complained
of the same conduct alleged in the current motion. Accordingly, as the State argues,
Dawson's claims were known to him during, or immediately following, his trial, and the
claims are related to those that were raised and rejected in his prior 60-1507 motions.
Such successive consideration of the same issues is exactly what K.S.A. 60-1507(c) is
designed to prevent.

                                             14
       In addition, Dawson makes the specious argument that his delay in raising the
current claims of ineffective counsel was the result of his not knowing until October 2014
that the swab had been destroyed. The knowledge of the posttrial destruction of evidence
obtained in 2014 was not necessary for Dawson to raise the complaint that his attorney at
his 1997 trial repeatedly ignored his requests to have the rape kit swab tested for DNA
evidence. Granted, the subsequent destruction of the evidence might impact the
prejudicial effect of counsel's conduct, but it did not prevent Dawson from raising the
ineffectiveness of trial counsel claim. In short, the Court of Appeals did not err in
affirming the district court's finding that Dawson failed to establish exceptional
circumstances to permit a merits review of his successive 60-1507 motion.


       Affirmed.




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