Appeal from Crawford District Court; John C. Gariglietti, Judge.
Sarah A. Mills, of Beezley Law, LLC, of Girard, for appellant. Michael Gayoso, Jr., county attorney, for appellee.
Michael J. Buddenhagen appeals from the order of the district court denying his petition for relief pursuant to K.S.A. 60–1507. We find no error and affirm the district court.
In 2005, Buddenhagen was convicted by a jury of manufacture of methamphetamine, possession of methamphetamine with intent to sell, and possession of drug paraphernalia. The district court imposed a 178–month prison sentence. On direct appeal, this court affirmed the conviction and sentence and our Supreme Court denied review. State v. Buddenhagen, No. 95,316, 2006 WL 3877560 (Kan.App.2006) (unpublished opinion), rev. denied 286 Kan. 1180 (2008).
The controlling facts are set forth by the parties in their respective briefs and by this court in the direct appeal and are not in dispute. In his direct appeal, Buddenhagen raised five issues: (1) denial of his motion to suppress evidence; (2) jury instructions regarding Buddenhagen's prior drug use; (3) failure to give a limiting instruction; (4) improper sentencing under the identical offense doctrine; and (5) use of his prior convictions in sentencing. This court found against Buddenhagen on each issue. 2006 WL 3877560, at * 2–7.
On February 13, 2009, within a year after our Supreme Court denied his petition for review, Buddenhagen filed a 41–page pro se motion for writ of habeas corpus pursuant to K.S.A. 60–1507. On July 15, 2009, he filed a short addition to his motion.
In his lengthy motion and other associated pleadings, Buddenhagen raised myriad allegations. An inventory of his various claims yields some 41 allegations of trial error, 14 allegations of ineffective assistance of trial counsel, and 20 allegations of ineffective assistance of appellate counsel. Many of his claims are vague and conclusory and are often intertwined and repetitious. He filed more than 300 pages of exhibits, consisting of excerpts from transcripts of a suppression hearing, the preliminary hearing, and the 3–day jury trial, as well as correspondence which he claims to have sent to his appellate counsel.
Substantial delay ensued following the filing of his 60–1507 motion, in part due to issues with finding conflict-free counsel to represent Buddenhagen. The district court ultimately granted Buddenhagen's request to appear pro se with standby counsel.
On December 22, 2011, a district judge who had not presided over Buddenhagen's trial convened a preliminary hearing to determine whether Buddenhagen had raised issues of substance which would warrant a full evidentiary hearing. Buddenhagen appeared at the hearing by telephone and his standby counsel appeared in person.
The district court allowed Buddenhagen and his counsel to sequentially address the allegations raised in the 60–1507 motion; however, due to time constraints, the court was only able to resolve the first 15 of Buddenhagen's 41 allegations of trial error. The court ruled that none of these allegations entitled Buddenhagen to either a full hearing or habeas relief. The court found either that the issues were directly controverted by the record; the issues were raised and decided on the direct appeal; the issues were not raised by counsel as a matter of reasonable trial strategy; or that the issues could have been raised on direct appeal; and, Buddenhagen failed to show any exceptional circumstances warranting consideration in the 60–1507 proceeding.
The preliminary hearing was adjourned, and for reasons not disclosed in the record, was not reconvened until January 7, 2013. Buddenhagen and his standby counsel asked to resume sequential consideration of each of Buddenhagen's allegations. The district court denied that request, explaining that he had deferred ruling on the State's motion to dismiss “primarily to have an opportunity to allow [Buddenhagen] to present whatever [he] felt need[ed] to be added to anything that [he] didn't present in [his] original petition, which [the judge] read and considered.” The district court found that no further argument or presentation of the issues was necessary and orally pronounced judgment denying the remaining allegations in Buddenhagen's 60–1507 motion:
“With regard to those issues raised other than ineffective [assistance of] counsel I will sustain the [State's] motion at this time, not necessarily summarily ruling, but after hearing what points you have presented and considering the rest of the points presented in your brief, for those reasons and pursuant to case law as cited by the state.”
Turning to Buddenhagen's allegations of ineffective assistance of counsel, the court found that, based on reviews of “all of [trial counsel's] motions” as well as the portions of the transcripts Buddenhagen submitted in support of his 60–1507 motion, trial counsel “did not rise to the level of being ineffective with regard to statutory and case law standards.” The district court then made essentially the same finding with regard to appellate counsel. The district judge emphasized the procedural discretion vested in counsel and further noted that “most all of the quote constitutional issues with regard to the trial, admission of evidence [had] been argued at least twice before the trial court and on appeal.”
Buddenhagen also asked the district court to consider his allegations that the trial judge was biased. The district court had already rejected this claim at the first session of the preliminary hearing and again rejected the claim, ruling that Buddenhagen's argument at this point was not “newly related evidence.”
The district court directed the State to prepare a journal entry incorporating its rulings. The journal entry was filed on April 26, 2013, and Buddenhagen timely filed this appeal.
We are unable to easily determine precisely what issue Buddenhagen presents for our consideration. On page 1 of his appellate brief, he purports to raise two general issues:
“[1.] Did the district court commit error in denying the motion for relief and failing to find that the Appellant was denied his constitutional right to a fair trial and due process?
“a. Was counsel ineffective because of his failure to make proper objections to certain statements and evidence?
“b. Was appellate counsel ineffective because of his failure to argue any of the issues that Movant had preserved for appeal in his motion to suppress?
“[2.] Did the district court err in failing to grant to the Appellant a full evidentiary hearing on all allegations in his petition for relief and the amended petition?”
However, after setting forth the facts of the case and an introductory argument and citation of authority regarding the standards of review, Buddenhagen addresses and briefs only a single issue: Did the district court err in failing to grant the appellant a full evidentiary hearing on all allegations in his petition for relief and the amended petition?
This is the issue to which the State responds and which Buddenhagen seems to be, albeit somewhat vaguely and indirectly, addressing in the remainder of his brief. This is, therefore, the question which we address.
There are three approaches a court can take in dealing with 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.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
Our standard of review depends on which approach the district court follows in arriving at its judgment.
The district court here exercised the second option of conducting a preliminary hearing with regard to Buddenhagen's allegations of trial error. In addition to reviewing the motion, files, and records of the case, the court considered evidence, oral argument, and/or written briefs proffered by Buddenhagen and his standby counsel. The district court questioned Buddenhagen and relied on his responses in making factual findings on the record to support the determination that Buddenhagen's claims of trial error raised no substantial issues requiring a full evidentiary hearing.
When a trial court makes findings of fact based on evidence presented during a preliminary hearing, we review only to assure that those findings are supported by substantial competent evidence and are sufficient to support the legal conclusion regarding movant's right to 60–1507 relief. The legal conclusions are subject to de novo review. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).
To the extent that the district court more summarily denied Buddenhagen's claims of ineffective assistance of counsel based on the motion, files, and record, we exercise de novo review regarding the legal conclusion that no full evidentiary hearing is required. See Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012); Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
In determining whether a K.S.A. 60–1507 motion presents a viable cause of action, we are also governed by the procedures outlined in Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 286), which provides in pertinent part:
“A proceeding under K.S.A. 60–1507 ordinarily may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal.”
“Exceptional circumstances” under this rule “have been defined as ‘unusual events or intervening changes in the law.’ “ Rowland v. State, 289 Kan 1076, 1087, 219 P.3d 1212 (2009). Exceptional circumstances may also be found when:
“[T]here was ineffective assistance of trial counsel in failing to object regarding an issue; there was ineffective assistance of direct appeal counsel in failing to raise an issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at the time of the trial and direct appeal.” Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009).
Buddenhagen fails to identify or explain, either in his pro se motion or on appeal, any unusual events, intervening changes in the law, or any other unforeseen change in circumstances which would support his claims. From his repeated recitation of trial errors in his motion and brief, it would appear that he is, indeed, seeking to use the 60–1507 proceeding as a substitute for a direct appeal involving mere trial errors or as a substitute for a second appeal.
The district court, after hearing Buddenhagen and his standby counsel, and after reviewing the evidence and briefing submitted by and in behalf of Buddenhagen, ruled on each of the 41 allegations of trial error finding none sufficient to warrant 60–1507 relief. The district court's findings and conclusions were stated on the record and incorporated by reference into a subsequent written journal entry. On appeal, Buddenhagen fails to argue or show specifically where the trial court erred in its rulings, arguing only generally that the trial court failed to order a full evidentiary hearing on all issues raised in the 60–1507 motion. This lack of the requisite specificity certainly impedes our meaningful review.
Buddenhagen attempts to circumvent the “mere trial errors” rule by seeking to establish constitutionally ineffective assistance of trial and appellate counsel. He alleges that the district court failed to consider the totality of the circumstances—“the entire picture”—of what his counsel did or did not do. In support of his claims that both trial and appellate counsel failed to properly handle his case, he again sets forth yet another laundry list of trial errors. Most of these allegations deal with the same allegations and subject matter which was considered and already ruled upon by the trial court and on prior appeal. The record reveals that trial counsel did pose appropriate objections; that counsel did not object when such objections would have been without legal or factual support; that counsel properly cross-examined witnesses and explored evidentiary deficiencies; and that counsel made reasonable tactical decisions regarding the admission of evidence. Buddenhagen does not clearly suggest what would be accomplished by further evidentiary hearings.
Similarly, the alleged failure to raise certain issues on appeal does not on its face establish a constitutionally defective performance by appellate counsel. Counsel raised and briefed several substantive issues. Other issues suggested by Buddenhagen either lacked support in the trial record, lacked legal substance, or were actually incorporated in the substance of the issues presented on appeal. Competent appellate counsel is allowed reasonable latitude in culling out nonexistent issues or issues with little or no probability of success and in selecting and focusing on stronger issues which carry greater probability of favorable result. Buddenhagen makes no suggestion here as to how inclusion of the marginal issues he wanted raised would have changed the appellate result.
When the substance of his K.S.A. 60–1507 motion is distilled, it becomes apparent that Buddenhagen is not actually complaining regarding his counsel's deficiencies so much as he is merely reiterating his objections to virtually every trial and/or appellate ruling against him. This is an epitome of attempting to substitute the 60–1507 proceeding for a prohibited second appeal.
We find and conclude that the district court considered and correctly determined that Buddenhagen's allegations of trial error did not raise substantial issues which would entitle him to 60–1507 relief. The district court further correctly determined that neither trial counsel nor appellate counsel were unconstitutionally ineffective. The district court did not err in determining that no further evidentiary hearing was warranted on Buddenhagen's motion.
Affirmed.