                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,545

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     LAWRENCE C. STAFFORD,
                                          Appellant,

                                                   v.

                                         STATE OF KANSAS,
                                             Appellee.


                                  MEMORANDUM OPINION

       Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed August 28, 2020.
Affirmed.


       J. Bo Turney, of Irigonegaray, Turney, & Revenaugh, L.L.P., of Topeka, for appellant.


       Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before HILL, P.J., MALONE, J., and WALKER, S.J.


       PER CURIAM: Lawrence C. Stafford appeals the district court's denial of his
motion for habeas corpus relief under K.S.A. 60-1507. Stafford's motion must overcome
two procedural hurdles. First, because this K.S.A. 60-1507 motion was filed 23 years
after the mandate for resentencing following his direct appeal, Stafford must establish
that the court should extend the one-year time limit to prevent manifest injustice. Second,
because this is his second 1507 motion, Stafford must show exceptional circumstances to
justify consideration of this successive motion. We find the district court's denial of the
present 1507 motion to be appropriate because Stafford's motion was untimely and failed




                                                    1
to demonstrate manifest injustice, as well as being successive. For the reasons set out
below, we affirm.


                                            FACTS

       In 1992, Stafford was convicted of aggravated burglary, unlawful possession of a
firearm, and two counts of first-degree premeditated murder. The Kansas Supreme Court
affirmed his convictions but remanded the case for resentencing. State v. Stafford, 255
Kan. 807, 878 P.2d 820 (1994). On remand, the district court imposed consecutive
sentences of 15 years to life with the possibility of parole for each murder conviction.


       Stafford filed his first K.S.A. 60-1507 motion on June 30, 2004, alleging 29 claims
of ineffective assistance of counsel. Among them, Stafford claimed his trial counsel
failed to investigate whether he was unable to formulate the intent to murder because of
his use of alcohol and/or prescription drugs or because of his mental and/or emotional
instability. After a full evidentiary hearing, the district court denied Stafford's motion. A
panel of our court affirmed the district court's decision, and the Kansas Supreme Court
denied review. See Stafford v. State, No. 98,305, 2008 WL 2717769 (Kan. App. 2008)
(unpublished opinion).


       In November 2013, Stafford was diagnosed with posttraumatic stress disorder
(PTSD). In April 2017, Stafford filed the current K.S.A. 60-1507 motion and requested a
full evidentiary hearing. In his motion, Stafford raised 24 claims of ineffective assistance
of trial, appellate, and previous K.S.A. 60-1507 counsel. Stafford claimed his counsel
failed to investigate whether PTSD caused him to suffer a dissociative state leaving him
unable to formulate the specific intent necessary to commit first-degree murder. He
claimed counsel failed to investigate whether his use of Prozac, other prescription and/or
illicit drugs, and alcohol diminished his capacity to formulate specific intent for first-
degree murder. Additionally, Stafford claimed ineffective assistance of counsel by failing


                                              2
to object, failing to develop a penalty phase strategy, and cumulative error. Additional
facts about the motion will be added as needed to discuss the issues.


       In its response, the State argued Stafford's motion was untimely and he failed to
assert manifest injustice or a colorable claim of actual innocence to justify an extension
of time to file this K.S.A. 60-1507 motion.


       The district court denied Stafford's motion. The court held the diagnosis of PTSD
did not constitute an exceptional circumstance to merit consideration of a successive
motion. It also held Stafford failed to provide an explanation for his untimely filing and
failed to meet the requirements for actual innocence. The court noted it would require a
"significant inferential leap" to assume the 2013 PTSD diagnosis applied during the
crimes in 1992.


       Stafford timely appealed the denial of this K.S.A. 60-1507 motion.


                                          ANALYSIS

Was Stafford's K.S.A. 60-1507 motion untimely?

       When the district court summarily dismisses a K.S.A. 60-1507 motion, our review
is unlimited. We must determine on our own whether the motion, files, and records of the
case conclusively show that the movant is not entitled to relief. Beauclair v. State, 308
Kan. 284, 293, 419 P.3d 1180 (2018). The resolution of this issue requires us to interpret
a statute, which is a question of law subject to de novo review. State v. Gross, 308 Kan.
1, 7, 417 P.3d 1049 (2018).


       A K.S.A. 60-1507 motion must be timely. The movant must file the motion within
one year of the "final order of the last appellate court in this state to exercise jurisdiction



                                               3
on a direct appeal or the termination of such appellate jurisdiction." K.S.A. 2019 Supp.
60-1507(f)(1)(A). Courts may extend the one-year time limit to prevent manifest
injustice. K.S.A. 2019 Supp. 60-1507(f)(2). In a habeas corpus proceeding, manifest
injustice means "obviously unfair" or "shocking to the conscience." Thuko v. State, 310
Kan. 74, 81, 444 P.3d 927 (2019).


       A K.S.A. 60-1507 movant has the burden to prove his or her motion warrants an
evidentiary hearing and must state either an evidentiary basis in support of the claims or
an evidentiary basis must appear in the record. Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014). K.S.A. 2019 Supp. 60-1507(b) requires a hearing on a motion,
"'[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.'" Beauclair, 308 Kan. at 303.


       In this appeal, the 2016 amendments to K.S.A. 60-1507(f) apply to Stafford's
current motion because he filed it after the amendments went into effect. See White v.
State, 308 Kan. 491, 503, 421 P.3d 718 (2018). Under those amendments, to find
manifest injustice the court's inquiry is limited to two factors: "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." K.S.A. 2019 Supp. 60-
1507(f)(2)(A); see White, 308 Kan. at 497. A finding of actual innocence requires the
movant show "it is more likely than not that no reasonable juror would have convicted
the prisoner in light of new evidence." K.S.A. 2019 Supp. 60-1507(f)(2)(A).


       Regarding the first factor—reasons explaining the failure to meet the one-year
time limit—Stafford does not explain why he filed this K.S.A. 60-1507 motion years
after the resolution of the 2004 motion. Stafford bears the burden to explain newly
discovered evidence if he expects this court to excuse his untimely motion. See Sola-
Morales, 300 Kan. at 881.



                                              4
       For the second factor—a colorable claim of actual innocence—Stafford argues the
district court erred in finding his motion untimely because the court held him to a
standard of factual innocence, rather than legal innocence. Stafford contends K.S.A. 2019
Supp. 60-1507(f)(2)(A) requires the court to consider if the claim satisfies the "no
reasonable juror" standard instead of factual or legal innocence.


       In opposition, the State argues the 2016 amendments to K.S.A. 60-1507 mean a
finding of actual innocence includes both factual and legal innocence. They contend that
for Stafford to demonstrate a colorable claim of actual innocence, he must show it is
"'more likely than not that no reasonable juror would have convicted the prisoner in light
of new evidence.'" The State emphasizes the Legislature's intent, the plain language of the
statute, and the statute's legislative history.


       In the current K.S.A. 60-1507 motion, Stafford claims actual innocence but
provides no elaboration or explanation. In the same motion, he provides newspaper
articles about "Prozac defenses." In his appeal from the denial of his motion by the
district court, Stafford cites K.S.A. 60-1507(f), but fails to explain what new evidence
should be used to determine his actual innocence or to provide a substantial basis he
suffered from PTSD or used prescription and/or illicit drugs at the time of the crime.
Instead, Stafford argues the district court conflated actual innocence with factual
innocence. Based on Stafford's brief, we are asked to assume the new evidence that
affected his ability to form specific intent is: (1) the 2013 diagnosis of PTSD and (2) use
of prescription medication and/or illicit drugs prior to the murders.


       Stafford has failed to show that "it is more likely than not that no reasonable juror
would have convicted [him] in light of new evidence." K.S.A. 2019 Supp. 60-
1507(f)(2)(A). Stafford has not demonstrated any legal events that were "obviously
unfair" or "shocking to the conscience" to establish manifest injustice. Thus, he has failed
to carry his burden of proving manifest injustice that would excuse the untimely filing of


                                                  5
his K.S.A. 60-1507 motion. For this reason, we affirm the district court's decision to
dismiss Stafford's motion as untimely.


Was Stafford's motion successive?

       As we have noted, when the district court summarily dismisses a K.S.A. 60-1507
motion, the standard of review is de novo. We must determine for ourselves whether the
motion, the files, and records of the case conclusively show that Stafford is not entitled to
relief. Beauclair, 308 Kan. at 293.


       Our courts are not required to hear successive motions from the same prisoner for
similar relief. K.S.A. 2019 Supp. 60-1507(c). A court hearing a motion under K.S.A. 60-
1507 presumes a movant listed all grounds for relief in his or her initial motion. State v.
Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). A subsequent K.S.A. 60-1507 motion
need not be considered unless there are circumstances that justify the original failure to
list the claim. 296 Kan. at 904.


       A movant under K.S.A. 2019 Supp. 60-1507 bears the burden to establish
"'exceptional circumstances'" to avoid dismissal of a second or successive motion. Thuko,
310 Kan. at 84. Exceptional circumstances are "'unusual events or intervening changes in
the law that prevented the defendant [from] raising the issue in a preceding [K.S.A.] 60-
1507 motion.'" 310 Kan. at 84.


       Stafford argues the district court erred in denying his motion as successive because
the substance underlying his claims differs from his 2004 motion. Stafford argues the
court should analyze his capability of forming specific intent through the new "lens" of
his 2013 diagnosis of PTSD. He contends this is the unusual event that he could not have
raised in his 2004 motion under K.S.A. 60-1507 in which he claimed mental and
emotional instability.


                                              6
       In response, the State argues Stafford provides no explanation for his failure to
raise such claims in his previous K.S.A. 60-1507 motion. It contends that now Stafford is
merely seeking reconsideration of previously considered and resolved issues from the
2004 appeal.


       Many of Stafford's claims of ineffective assistance of counsel in the current K.S.A.
60-1507 motion do overlap with those raised in his 2004 motion. In 2004, Stafford raised
29 ineffective assistance of counsel claims. In the current motion, he raised 24 ineffective
assistance of counsel claims. Two pairs of claims are particularly similar between the
2004 motion and the current motion.


       First, in his current motion, Stafford asserts that trial counsel was ineffective by
failing to "investigate obvious signs that [movant] suffered from Post-Traumatic Stress
Disorder ('PTSD') and whether, because of such, [movant] was in a form of a dissociative
state when he allegedly killed the victims and thus could not have formed the specific
intent necessary to commit murder in the first degree." In comparison, the 2004 motion
stated trial counsel was ineffective by "failing to investigate movant's mental and
emotional stability and status on January 4/5, 1992, to determine whether movant could
(1) formulate the intent required by K.S.A. 21-3401 or (2) distinguish between right and
wrong."


       These claims are obviously not identical, but they are closely related in their
contention that Stafford lacked the mental capacity to form the requisite intent for first-
degree murder. We certainly concur that a diagnosis of PTSD is significant in someone's
life, but we conclude, in the context of our law, that it is not an unusual event or
intervening change in the law. And Stafford provides nothing from the evaluators
establishing his 2013 diagnosis of PTSD to indicate this condition was of such severity
and long duration that it was likely to have been a critical part of his mental condition at
the time of his 1992 crimes.


                                              7
       Second, Stafford now claims his trial counsel failed to investigate whether
Stafford's "use and abuse of Prozac, other prescription medications and illicit drugs, and
alcohol, simultaneously or otherwise . . . diminished his capacity to (1) formulate the
intent required by K.S.A. 21-3401 or (2) to distinguish between right and wrong." The
2004 motion alleged trial counsel failed to investigate whether Stafford was "under the
influence of alcohol and/or prescription drugs and/or both on or about January 5, 1992, to
the extent he could not (1) formulate the necessary and required intent to violate K.S.A.
21-3401 or (2) to know or distinguish between right and wrong."


       The remaining current ineffective assistance of counsel claims focus on other
failures to investigate the case and to object to or prevent trial errors. Stafford does not
explain the absence of these claims from his 2004 K.S.A. 60-1507 motion. In 2004,
Stafford was aware of his ability to allege ineffective assistance of counsel as shown by
the 29 different claims of ineffectiveness in the 2004 motion. These allegations were
denied by both the trial and appellate courts.


       Stafford's claims do not overcome the statutory hurdles a successive K.S.A. 60-
1507 motion must pass to be considered by this court. The district court properly denied
his motion.


       Affirmed.




                                               8
