                           NOT DESIGNATED FOR PUBLICATION

                                             No. 121,327


               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      MARC ANWAR WILLIAMS,
                                            Appellant,

                                                    v.

                                           STATE OF KANSAS,
                                               Appellee.


                                    MEMORANDUM OPINION


        Appeal from Wyandotte District Court; AARON T. ROBERTS, judge. Opinion filed July 24, 2020.
Affirmed.


        Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, 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: Prisoner Marc Anwar Williams appeals the district court's denial of
his motion attacking his sex crime convictions. He asks us to reverse and remand for a
"full-blown" evidentiary hearing on his motion. The court took evidence on his motion
and determined that there were no grounds for relief. Because the evidence supports the
court's ruling, we see no need to remand and affirm the district court's ruling.




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Williams committed his crimes against S.G.


       The details of Williams' crimes against S.G. are not pertinent here. They can be
found in the opinion affirming his convictions. See State v. Williams, No. 114,962, 2017
WL 2832629, at *1-2 (Kan. App. 2017) (unpublished opinion). Basically, Williams
began sexually molesting S.G. when she was eight years old. The crimes surfaced about
six years later when her mother made her tell the police. Williams was criminally charged
after the authorities completed their investigation. Charles Lamb was appointed to defend
Williams. Williams waived his right to a preliminary hearing and the matter was put
before a jury. The girl had difficulties testifying at trial and was slow in her responses to
questions. Williams offered no testimony in his defense. The jury convicted him on all
counts.


His habeas corpus motion claims ineffective assistance of trial counsel.


       Without benefit of legal assistance, Williams filed a K.S.A. 60-1507 motion
attacking his convictions. He claimed that Lamb was ineffective because he:
       • failed to impeach the prosecutor for making inconsistent statements;
       • should have secured an expert to cross-examine and impeach the prosecutor;
       • forced him to waive his right to a preliminary hearing when Lamb knew he
          was "under heavy medication";
       • failed to conduct a preliminary hearing for use in cross-examining the State's
          witnesses at trial;
       • failed to investigate the Sunflower House video for inconsistent statements
          made by S.G.; and
       • did not consider hiring an expert for use in cross-examining S.G. at trial.




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       In response, the State argued Williams' insufficient evidence and prosecutorial
misconduct claims were simply allegations of trial errors that should have been addressed
on direct appeal and were not appropriate in a 60-1507 motion. The State also argued that
Williams' allegations that his trial attorney was ineffective were vague, speculative, and
conclusory. The State asked the court to summarily dismiss Williams' motion.


The court heard the testimony of Williams and his attorney, Lamb.


       Lamb testified he never noticed anything about Williams that made him question
his mental state, but he was aware Williams had previous hospitalizations for mental
health reasons. Williams did not have any trouble communicating with Lamb or
understanding the charges. Lamb stated he moved to declare the defense's intent to rely
on the defense of mental defect. After the Wyandotte Center found Williams competent,
Lamb continued to pursue the mental defect defense. He had an independent evaluation
of Williams completed by an expert who specialized in sex abuse cases. Lamb testified
that the independent evaluation did not help the defense, so he did not use it or the expert
at trial. Lamb did not seek out more experts. Based on the independent evaluation, Lamb
believed Williams was competent to stand trial.


       Lamb testified he always consults with his clients about whether they want to
waive their preliminary hearing. He testified that in this case, he recommended waiver
because the State was considering adding counts against Williams but would not do so if
Williams waived his right to a preliminary hearing. Lamb did not expect S.G.'s testimony
to change, but—if warranted—he had what he needed to impeach her testimony with her
prior statements made to Sunflower House and others. Lamb testified he knew the State
had enough evidence to bind Williams over for trial and he did not want to risk another
potential life sentence. He said it was strategically better to defend against known
charges. Lamb testified he discussed this strategy with Williams and Williams agreed.
Lamb did not recall if Williams was taking medication at the time. He recalled Williams

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did not appear to be under the influence of drugs, unable to communicate, or unable to
understand the situation.


       Lamb stated that the independent expert also evaluated the Sunflower House
interviews of S.G. to assess the interviewer's techniques to make sure the method of
questioning did not lead or mislead S.G. Again, Lamb testified that the results of this
evaluation did not help the defense, so he did not call this expert. Lamb did not recall if
the expert only read the transcripts of the Sunflower House interviews or if he also
reviewed the videos. He testified that he would have an expert look at everything
available and then give their impression, and he did so here. Even so, Lamb said the
videos were not as important because S.G. was an older child when she was interviewed
at Sunflower House. Lamb recalled S.G. was in high school at the time of the trial, so he
was less concerned—than he would have been with a smaller child—that the Sunflower
House interviewer could have planted a false memory.


       Lamb recalled cross-examining S.G. at trial. He remembered some inconsistencies
in her testimony but could not recall any specifics. He recalled he brought out some
inconsistencies between her prior statements and her trial testimony. Lamb testified that
he did his best to cross-examine her without alienating the jury because she was still a
child. He stated that an attorney cannot appear to attack a child on the stand because
people tend to want to protect them: "You don't want to override your objective by your
performance." Lamb testified he believed that he pointed out all of S.G.'s inconsistent
statements. He also stated that if S.G.'s direct testimony revealed obvious inconsistencies,
he did not need to bring it out on cross-examination, but he would just include it in his
closing argument.


       Lamb testified that he did not recall Williams telling him he had information that
someone else abused S.G., and there was nothing in his notes on the subject. Lamb stated
that if Williams had told him that, he would have investigated it at the time.

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       Lamb testified he did not recall Williams criticizing his services or asking for a
new attorney.


       For his part, Williams testified that he did not have issues with Lamb during his
representation of him. Williams conceded that Lamb tried to cross-examine S.G., but
"they overruled it, they said there wasn't basically nothing we could do." Williams
testified Lamb revealed inconsistencies in S.G.'s statements, but the prosecutor still
argued the jury should convict him. Even so, Williams said Lamb "probably could have
done a better job [of impeaching S.G.]. Probably could have. I don't know."


       Williams claimed he did not want to waive his right to a preliminary hearing, but
Lamb told him he should waive to avoid the other possible charges. He said he did not
commit any crimes, but he did not know if he waived his preliminary hearing voluntarily
or was "pushed into it." He "didn't feel no type of way about it." Williams testified that
S.G. told him in 2012 or 2013—about two years before he was arrested and charged in
this case—that somebody else did something to her, but Williams told her he thought she
was lying.


The court denied Williams any relief.


       The court ruled that Williams' prosecutorial misconduct and insufficient evidence
claims were direct appeal issues, which were inappropriate in a 60-1507 motion. The
court also found that Williams' claim of prosecutorial misconduct was already addressed
in his direct appeal.


       The district court also found there was no credible evidence that Lamb was
ineffective as defense counsel. Finally, the district court noted that Williams implied
during his testimony that he was innocent. The court, however, also noted that Williams
did not actually testify at the hearing that he was innocent of abusing S.G. Consequently,

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the district court found no evidence supported the implication that Williams was "actually
innocent" and denied his motion.


We must follow some fundamental rules in deciding this appeal.


       To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either:
       • the judgment was rendered without jurisdiction;
       • the sentence imposed was not authorized by law or is otherwise open to
           collateral attack; or
       • there has been such a denial or infringement of the constitutional rights of the
           prisoner that it renders the judgment vulnerable to collateral attack.


K.S.A. 2019 Supp. 60-1507(b) (grounds for relief); Supreme Court Rule 183(g) (2019
Kan. S. Ct. R. 228) (preponderance burden). Williams contends his convictions are open
to collateral attack because his trial counsel was ineffective.


       After an evidentiary hearing on a K.S.A. 60-1507 motion, the district court must
issue findings of fact and conclusions of law on all issues presented. Supreme Court Rule
183(j) (2019 Kan. S. Ct. R. 228). We review the court's findings of fact to determine
whether they are supported by substantial competent evidence and can support the court's
conclusions of law. Appellate review of the district court's ultimate conclusions of law is
de novo. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).


The record shows Lamb was not ineffective.


       Williams argues that Lamb should have "pushed the victim harder on her
credibility" at his trial and suggests that he was ineffective for failing to do so. He
acknowledged at the 60-1507 hearing that S.G.'s trial testimony revealed inconsistencies
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from her prior statements. The balance of Williams' brief is silent on the subject. In other
words, he fails to explain what "further pushing" would have disclosed. Williams leaves
that for us to speculate about. But that is an inapt argument.


         To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish both that the performance of defense counsel was deficient
under all of the circumstances, and that there is a reasonable probability the jury would
have reached a different result without the deficient performance—that is, that he was
prejudiced by the attorney's deficient performance. State v. Salary, 309 Kan. 479, 483,
437 P.3d 953 (2019) (relying on Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 [1984]). A reasonable probability means a probability sufficient
to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015).


         These questions are not easy to answer. Judicial scrutiny of counsel's performance
in a claim of ineffective assistance of counsel is highly deferential and requires
consideration of all the evidence before the judge or jury. The reviewing court must
strongly presume that counsel's conduct fell within the broad range of reasonable
professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). If
counsel made a strategic decision after making a thorough investigation of the law and
the facts relevant to the realistically available options, then counsel's decision is virtually
unchallengeable. Strategic decisions made after a less than comprehensive investigation
are reasonable precisely to the extent that reasonable professional judgment supports the
limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318
(2013) (quoting Strickland, 466 U.S. at 690-91).


         Williams offers us nothing to overcome the strong presumption mentioned in
Kelly.


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          The district court found there was "no credible evidence" to establish Lamb was
ineffective as Williams' defense counsel. We agree. Lamb testified about Williams'
competency, their defense strategy, his investigative efforts including those that included
expert involvement and possible testimony, and his strategic reasons for his approach to
cross-examining S.G. Williams did not refute any of Lamb's testimony. Lamb's testimony
is a record of an attorney trying to create a defense. We will not second-guess his
strategy. This record displays Lamb's exercise of professional judgement—not a lack of
effort.


          In fact, Williams does not argue that Lamb was deficient. He testified that Lamb
accomplished what he could while cross-examining S.G. While Williams thought Lamb
could have done more, he conceded he did not know. Williams also does not claim that
Lamb's performance fell outside the broad range of reasonable professional assistance,
nor does he claim that Lamb's approach to cross-examining S.G.—a child—was not an
appropriate strategy. Nor does Williams claim that he was prejudiced by Lamb's cross-
examination of S.G.


          We see no reason to reverse and remand for more evidence on Lamb's
effectiveness as defense counsel.


          At this point, we note that the focus of Williams' appeal turns to his brief mention
that someone else may have done something to S.G. In his brief, he offers several reasons
why we should remand. First, the court should have continued the matter so he could call
more witnesses. Second, the court should have granted him more time to amend his
motion to claim that he was "actually innocent." Third, the court failed to make adequate
findings of fact and conclusions of law. Finally, he contends the court failed in its
obligation to provide substantial competent evidence that supported its findings. In our
view, these arguments are a conflation of a passing remark given by Williams in his
testimony. They are four arguments with no basis in reality.

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Williams did not claim he was actually innocent at the 60-1507 hearing.


       Williams testified at his 60-1507 hearing that S.G. told him in 2012 or 2013—
about two years before he was arrested and charged in this case—that somebody else did
something to her, but Williams told her that he thought she was lying. He argues now that
we should remand so S.G. can testify about this.


       The district court addressed this implied claim and noted Williams did not actually
say he was innocent of abusing S.G. The district court also noted Williams did not raise
this alleged other abuser as part of his defense at trial. The district court found there was
no evidence that another party molested her. Nor was there any evidence that would lead
to a finding that Williams was actually innocent.


       A movant must support a claim with an evidentiary basis, which requires more
than a bald assertion of actual innocence. Courts should reserve the manifest injustice
exception for only rare and extraordinary cases. See Beauclair v. State, 308 Kan. 284,
302, 419 P.3d 1180 (2018), where the court remanded the case to the district court for an
evidentiary hearing on the gateway claim of actual innocence. A claim is "'colorable' if
there is 'sufficient doubt' about [a movant's] guilt 'to undermine confidence' in his
conviction 'without the assurance' that the conviction 'was untainted by constitutional
error.'" 308 Kan. at 303.


       Williams did not even make a "bald assertion" of actual innocence. At his hearing,
he testified that well before he was ever arrested for abusing S.G., she told him someone
did something to her. It is not reasonable to interpret that as a colorable claim of actual
innocence that warrants the application of the manifest injustice exception.


       We hold that Williams' vague reference to hearing about someone else doing
something to S.G.—about two years before his arrest—does not set forth an evidentiary

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basis to support his implied claim that he was innocent of abusing S.G. Further, since the
first time he raised this claim was at his 60-1507 hearing, the basis for his contention is
not evident from the trial record. See Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d
1162 (2014). Williams fails to meet his burden to establish he was entitled to an
evidentiary hearing on this implied claim of innocence.


       There is no real substance to these claims. We need not address Williams'
remaining four arguments because the district court adequately gave the issue of some
unknown person who may have done something to S.G. the treatment it deserved.


       Affirmed.




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