                           NOT DESIGNATED FOR PUBLICATION

                                             No. 121,576

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       NATHANIEL E. COOPER,
                                            Appellant,

                                                    v.

                                           STATE OF KANSAS,
                                               Appellee.


                                    MEMORANDUM OPINION

        Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed July 24, 2020.
Affirmed.


        Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.


        Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.


Before STANDRIDGE, P.J., HILL and ATCHESON, JJ.


        PER CURIAM: Following a jury trial in July 2005, Nathaniel E. Cooper was
convicted of attempted first-degree murder. Cooper's conviction was affirmed by this
court, and the mandate was filed on September 25, 2008. In 2017, Cooper filed a petition
for relief and to vacate judgment. The district court construed the petition as a K.S.A. 60-
1507 motion and summarily denied it as untimely and successive, even though there
appeared to be pages missing from the motion. Cooper filed a timely notice of appeal and
then later filed a timely motion to reconsider. The district court denied the motion to
reconsider, reiterating that the original motion was untimely and successive and that the


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court lacked jurisdiction to rule on the motion to reconsider because Cooper's appeal of
its decision to deny the original motion already had been docketed. Cooper filed a second
notice of appeal to include this latest ruling. Because Cooper's underlying motion was
untimely filed under K.S.A. 2019 Supp. 60-1507(f), the district court did not err in
summarily denying his original motion and his motion for reconsideration. Accordingly,
we affirm.


                                           FACTS

       In State v. Cooper, No. 97,678, 2008 WL 2369818 (Kan. App. 2008) (unpublished
opinion), this court briefly summarized the facts of Cooper's underlying criminal matter.
Cooper was convicted of attempted first-degree murder in the shooting of Andra Ruff.
Ruff later identified Cooper in a photo lineup and testified that he saw Cooper holding an
Intertech nine-millimeter gun immediately before the shooting. Cooper shot Ruff and
immediately fled the scene.


       A firefighter was later dispatched to a secondary scene less than a quarter mile
away from where Ruff had been shot. The firefighter found Cooper laying on his back in
the street, extremely out of breath. The firefighter believed Cooper had been shot, so he
began examining Cooper. At that point, Cooper told the firefighter that he had shot and
killed "'Dray'" and that the "'war is over.'" 2008 WL 2369818, at *1. A police officer on
the scene also came over to speak with Cooper. The police officer also believed Cooper
had been shot and asked Cooper if that was the case. Cooper told the officer that he had
been running from the police, that he shot someone, and that he did it because Ruff owed
Cooper money.


       While the officer admittedly never read Cooper his Miranda rights when Cooper
gave him these statements, the district court addressed this issue before trial. See
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After a


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hearing on the matter, the district court found that all the statements Cooper made to the
firefighter and most of the statements he made to the officer were not subject to Miranda
protections.


       After trial, Cooper filed a motion for a new trial alleging, among other things, that
that the district court erred in allowing Cooper's statements to the arresting officer to be
introduced into evidence at trial. The district court took up the motion at the sentencing
hearing on August 5, 2005. After considering the parties' arguments, the district court
denied Cooper's motion.


       On direct appeal, this court affirmed Cooper's conviction in an opinion dated
June 6, 2008. See Cooper, 2008 WL 2369818, at *2. The mandate was filed with the
district court on September 25, 2008. There was no activity in the case until over eight
and a half years later, when Cooper filed a "Petition for Facts Which Must or May be
Judicially Noted Pursuant to [K.S.A. 60-409], To Void/Voidable Judgment for Further
Relief Pursuant to [K.S.A. 60-1703] and to Vacate Sentence" on May 2, 2017. In the
petition, Cooper asked the district court to take judicial notice of the following statutes
and caselaw:


       • The Kansas civil summary judgment affidavit requirements in K.S.A. 60-
          256(e)(1).
       • Several different federal cases to support his statement that "'[s]ilence can only
          be equated with fraud where there is a legal, or moral obligation/duty to speak
          or where an inquiry left unanswered would intentionally be misleading.'"
       • Several different federal and state cases to support his argument that a trial
          court must have jurisdiction over a case, and where it does not, the case is void.
       • Several different federal and state cases to support his argument that subject
          matter jurisdiction can never be presumed, waived, or constructed, even by
          agreement of the parties.

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      Cooper also asked the district court to take judicial notice of "the following issues"
that he argued "defraud[ed]" him of "a guaranteed Constitutional and statutory
fundamental right":


      • Issue 1:
             o The complaint/information filed in his criminal case was not based on
                 personal knowledge, thus "defraud[ing] [Cooper] of due process."
             o The probable cause affidavit executed by the investigating detective was
                 not made on personal knowledge and was based on inadmissible
                 hearsay.
             o An undated newspaper article in the Kansas City Star showing that the
                 investigating detective was being criminally charged in an unrelated
                 matter for bribery and aggravated intimidation of a witness. Cooper
                 alleged this showed that the investigating detective further defrauded
                 him.
             o Several witness statements obtained by the investigating detective were
                 made in bad faith and should have been struck from the record because
                 they were not signed by the witnesses.
             o The complaint, the probable cause affidavit, and the witness statements
                 were made in bad faith with an intent to defraud Cooper of his due
                 process rights.


      • Issue 2:
             o The district court had a legal obligation to ensure due process. Cooper
                 cited to the Kansas Supreme Court Rule governing motions for
                 summary judgment and accompanying affidavits to argue that affidavits
                 must be made with personal knowledge. See Supreme Court Rule 141
                 (2020 Kan. S. Ct. R. 205).


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       Notably, the petition appeared to randomly cut off after page 7. It seemed that it
was missing pages before it picked back up to ask the district court for "immediate
release for any one of the issues brought before the court in Issue 4." There was no Issue
3 or Issue 4 outlined in the petition or anywhere else in the record.


       Although Cooper filed his May 2, 2017 petition over eight years after the mandate
was filed on September 25, 2008, he failed to cite within it any reason explaining why he
did not file his motion within the one-year time limit or make any claim of actual
innocence, which is required by K.S.A. 2019 Supp. 60-1507(f)(2)(A) in order to establish
the manifest injustice necessary to extend the one-year time limit.


       On May 22, 2017, the district court filed its journal entry summarily dismissing
the action. It construed Cooper's petition as a K.S.A. 60-1507 motion and found that it
was untimely filed. In addition, the district court found that the motion was successive
because Cooper could have raised the issues on direct appeal. On June 14, 2017, Cooper
timely filed a notice of appeal challenging the court's decision to summarily deny his
motion.


       On June 23, 2017, before his appeal was docketed, Cooper filed a timely and
lengthy motion to reconsider. His motion looks more like an amended motion than a
request for reconsideration because the substance of the motion not only realleges the
issues in the motion but includes additional issues for the district court to consider as
well. Specifically, he argued the following:


       • He was never read his Miranda rights, so any statements made to the arresting
          officer should have been excluded. He asked the district court to vacate his
          sentence as to this issue.
       • The complaint/information was defective because it was based on false hearsay
          that the investigating detective obtained and used to compile the probable


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          cause affidavit. He argued that Ruff and another witness provided inconsistent
          statements, and the investigating detective only relied on Ruff's statements to
          draft the affidavit. Cooper alleged this inconsistency proved the affidavit was
          based on false information, and because the affidavit was flawed, so was the
          complaint. As the other witness was unavailable for trial, Cooper argued he
          could not properly confront his accuser. As a part of this issue, Cooper also
          alleged a quasi-Brady issue, arguing that the investigating detective was not
          credible because he was under criminal investigation at the time and that the
          State had to know the information the detective obtained for the probable cause
          affidavit was false. See Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463,
          25 L. Ed. 2d 747 (1970). Cooper asked the district court to set aside or vacate
          his conviction and called for his immediate release because his Fourth, Sixth,
          and Fourteenth Amendment rights were violated.
       • His trial counsel was ineffective for failing to investigate the defective
          complaint, failing to challenge the Miranda violation, failing to move the court
          for dismissal of the case when the arresting officer admitted he never read
          Cooper his Miranda rights, and failing to argue to suppress Cooper's pre-
          Miranda statements. Notably, Cooper failed to provide any specific facts as to
          how his trial counsel was deficient and how counsel's alleged deficient
          performance prejudiced him at trial. Instead of asking for specific relief as to
          this point, he merely quoted swaths of caselaw about ineffective assistance of
          counsel claims.


       Whether a motion to reconsider or an amended motion, however, Cooper again
failed to cite within it any reason explaining why he did not file his motion within the
one-year time limit or make any claim of actual innocence as required by K.S.A. 2019
Supp. 60-1507(f)(2)(A) to establish the manifest injustice necessary to extend the one-
year time limit. Instead, he conceded that his case was properly labeled as a K.S.A. 60-
1507 action and argued that he met all of the requirements outlined in the statute.


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       On August 23, 2017, the district court denied Cooper's motion to reconsider. The
district court again found that Cooper's K.S.A. 60-1507 motion was untimely filed and
successive and that Cooper cited to the incorrect affidavit standards. But the district court
also held that it did not have jurisdiction to rule on the motion to reconsider because
Cooper's appeal of its original decision already had been docketed with the appellate
court. Cooper filed a second notice of appeal.


                                         ANALYSIS

       A district court has three options when handling a K.S.A. 60-1507 motion: (1)
The court may determine that the motion, files, and case records conclusively show the
prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing. White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018). Where,
as here, the district court summarily dismisses a K.S.A. 60-1507 motion, an appellate
court conducts a de novo review to determine whether the motion, files, and records of
the case conclusively establish that the movant is not entitled to relief. Beauclair v. State,
308 Kan. 284, 293, 419 P.3d 1180 (2018).


       The heart of Cooper's claim on appeal is that the district court should not have
summarily denied his K.S.A.60-1507 motion as untimely because it was obvious from
the motion that there were pages missing. Cooper first asserts that the district court erred
in failing to notify him of the defect instead of dismissing it. Cooper next asserts that the
district court erred by summarily denying his motion before he had an opportunity to
amend his motion as a matter of right. Finally, Cooper asserts the district court erred by
summarily denying his motion without reviewing the missing pages because those pages


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could have established the manifest injustice necessary to make an exception to the one-
year time deadline.


Failure to notify

       Cooper cites no authority for his assertion that the district court had a duty to
notify him of a possible defect in his motion after he filed it. In fact, the statute itself and
cases construing the statute hold otherwise. To avoid the summary denial of a motion
brought under K.S.A. 60-1507, a movant bears the burden of establishing he or she is
entitled to an evidentiary hearing. See K.S.A. 2019 Supp. 60-1507(b) (court must grant
movant an evidentiary hearing "[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief"). To meet this burden, a
movant's contentions must be more than conclusory, and the movant must either set forth
an evidentiary basis to support those contentions or the basis must be evident from the
record. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014) (quoting Holmes
v. State, 292 Kan. 271, 274, 252 P.3d 573 [2011]). Of course, part of this burden is to
ensure that the movant's pleadings and the evidentiary record are complete and accurate
when filing the motion with the district court, which Cooper failed to do here.


Amend as a matter of right

       Cooper similarly cites no authority for his claim that the district court erred in
summarily dismissing his motion one day before he could have amended his motion as a
matter of right under K.S.A. 2019 Supp. 60-215. We begin by noting that K.S.A. 2019
Supp. 60-215, the statute upon which Cooper relies, refers to amendment of a "pleading."
K.S.A. 60-1507, however, is a proceeding launched by a "motion." Thompson v. State,
293 Kan. 704, 711, 270 P.3d 1089 (2011). Our Supreme Court, however, has


       "admitted that Rule 183(a) (2010 Kan. Ct. R. Annot. 255) tended to obscure the technical
       distinction between the terms [pleading and motion] by stating that a K.S.A. 60-1507


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       motion constituted 'an independent civil action which should be separately docketed.'
       This blurred distinction meant that a K.S.A. 60-1507 motion could be treated as a
       'pleading' within the meaning of K.S.A. 60-215." Thompson, 293 Kan. at 711-12 (quoting
       Pabst v. State, 287 Kan. 1, 23, 192 P.3d 630 [2008]).


So the amended and supplemental pleading provisions set forth in K.S.A. 2019 Supp. 60-
215 apply to a motion filed under K.S.A. 60-1507. But neither of the time periods in
which K.S.A. 2019 Supp. 60-215(a) authorizes amendment as a matter of right are
applicable here:


                   "(a) Amendments before trial. (1) Amending as a matter of course. A party may
       amend its pleading once as a matter of course within:
                   (A) 21 days after serving it; or
                   (B) if the pleading is one to which a responsive pleading is required, 21 days
       after service of a responsive pleading or 21 days after service of a motion under
       subsections (b), (e) or (f) of K.S.A. 60-212, and amendments thereto, whichever is
       earlier."


       Specifically, (A) Cooper filed his motion with the court but did not serve it on the
respondent, and (B) the State was not required to file a responsive pleading to his motion.
Bottom line, the district court did not err in summarily dismissing his petition one day
before he could have amended his petition as a matter of right under K.S.A. 2019 Supp.
60-215 because Cooper was not entitled to amend his petition as a matter of right in the
first place. See Pabst, 287 Kan. 1, Syl. ¶ 6 (holding the provision of K.S.A. 60-215[a]
providing party right to amend pleading once as a matter of course at any time before
responsive pleading is served does not apply to motion for relief under K.S.A. 60-1507).




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Manifest injustice

       Jurisdiction: motion to reconsider

       Whether jurisdiction exists is a question of law over which an appellate court's
scope of review is unlimited. Ponds v. State, 56 Kan. App. 2d 743, 745, 437 P.3d 85
(2019). This court's jurisdiction is further limited only to matters identified in the notice
of appeal. Associated Wholesale Grocers, Inc. v. Americold Corp., 293 Kan. 633, 637,
270 P.3d 1074 (2011).


       The district court held that it did not have jurisdiction to rule on the motion to
reconsider because Cooper's appeal of its original decision already had been docketed
with the appellate court. The record, however, reveals that Cooper's appeal was not
docketed until July 30, 2019:


05-22-17:     District court summarily denied K.S.A. 60-1507 motion.
06-14-17:     Cooper filed notice of appeal.
06-23-17:     Cooper filed motion to reconsider.
08-23-17:     District court denied motion to reconsider for lack of jurisdiction.
09-19-17:     Cooper filed notice of appeal.
07-30-19:     Cooper's motion to docket out of time granted (both 05-22-17 decision and
              08-23-17 decision).


Although the district court's reason for denying Cooper's motion to reconsider were
flawed, the discussion below readily establishes that the conclusion it reached was
correct.




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       Merits

       K.S.A. 2019 Supp. 60-1507(f) provides:


                "(1) Any action under this section must be brought within one year of:
                (A) The final order of the last appellate court in this state to exercise jurisdiction
       on a direct appeal or the termination of such appellate jurisdiction; or
                (B) the denial of a petition for writ of certiorari to the United States supreme
       court or issuance of such court's final order following granting such petition.
                "(2) The time limitation herein may be extended by the court only to prevent a
       manifest injustice.
                (A) For purposes of finding manifest injustice under this section, the court's
       inquiry shall be limited to determining why the prisoner failed to file the motion within
       the one-year time limitation or whether the prisoner makes a colorable claim of actual
       innocence. As used herein, the term actual innocence requires the prisoner to show it is
       more likely than not that no reasonable juror would have convicted the prisoner in light
       of new evidence." (Emphases added.)


       Because Cooper filed his K.S.A. 60-1507 motion after the 2016 amendment to
subsection (f) went into effect, he had to file his K.S.A. 60-1507 motion within one year
of the appellate court's final order or within one year after the denial of a petition for writ
of certiorari to the United States Supreme Court. The final appellate order in Cooper's
case was filed on September 25, 2008. Cooper never filed a petition for writ of certiorari.
Because he did not file his K.S.A. 60-1507 motion until May 2, 2017, his motion is
untimely. Nevertheless, Cooper made no argument in his original motion as to manifest
injustice—only that the missing pages could have shown manifest injustice. And even
though the district court denied his original motion on grounds that he failed to make a
claim of the manifest injustice required to excuse his untimely filing, Cooper again made
no claim of manifest injustice in his expanded and lengthy motion to reconsider.




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       Simply put, K.S.A. 2019 Supp. 60-1507(f)(3) requires a district court to
summarily dismiss an action as untimely filed if a movant fails to establish manifest
injustice. Because Cooper failed to allege manifest injustice in either his original motion
or his motion to reconsider, the district court was required to dismiss Cooper's petition.
We find no error in the district court's decision to summarily deny Cooper's K.S.A. 60-
1507 motion and to deny his motion to reconsider.


       Affirmed.




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