Appeal from Sedgwick District Court; PAUL W. CLARK, judge.
1. The burden is on a movant to allege facts sufficient to warrant a hearing on a K.S.A. 60-1507 motion.
2. The doctrine of res judicata is based on the idea that when a cause of action has once been litigated to a final judgment, it is conclusive on the parties in any later litigation involving the same action.
3. Kansas law furnishes indigents in K.S.A. 60-1507 proceedings with a statutory right to counsel.
4. When counsel is appointed by a court in post-conviction matters, the appointment should be more than a useless formality.
5. When an appellate counsel files an untimely petition for review to our Supreme Court, the record allows a court to conclude that a movant has been denied effective assistance of counsel.
The opinion of the court was delivered by: Green, J.
Before BUSER, P.J., GREEN and CAPLINGER, JJ.
James A. Penn appeals from the trial court's judgment denying his K.S.A. 60-1507 motion. Penn argues that our Supreme Court's denial of his appellate counsel's request to file a petition for review out of time should not bar his post-conviction motion alleging ineffective assistance of counsel based on counsel's failure to timely file a petition for review. We agree. Accordingly, we reverse, and Penn, if he wishes to do so, may file a petition for review with our Supreme Court if the petition is filed within 30 days of the mandate issued in this appeal.
In 1999, a jury convicted Penn of one count of first-degree murder, two counts of attempted aggravated robbery, one count of aggravated assault, and one count of criminal possession of a firearm. He was sentenced to life imprisonment plus 192 months. Penn's convictions were affirmed by our Supreme Court in State v. Penn, 271 Kan. 561, 23 P.3d 889 (2001).
In 2003, Penn moved under K.S.A. 60-1507, alleging prosecutorial misconduct. Penn later voluntarily withdrew the motion. In 2004, Penn moved a second time under K.S.A. 60-1507. He again claimed prosecutorial misconduct, but he also alleged that his trial and appellate counsel were ineffective. The trial court denied the motion after determining that it was successive. This court affirmed the trial court's decision in Penn v. State, No. 94,231, unpublished opinion filed May 5, 2006. Before this court issued its ruling, however, Penn's counsel moved to withdraw.
On May 9, 2006, this court allowed counsel to withdraw, remanded the case for appointment of new appellate counsel, and stayed issuance of the mandate pending notice of appointment of new appellate counsel.
On May 15, 2006, new appellate counsel was appointed and the following day this court lifted the stay on issuance of the mandate. Because new counsel neglected to file a petition for review to our Supreme Court, within the 30-day required time limit under Supreme Court Rule 8.03(a)(1) (2006 Kan. Ct. R. Annot. 62), the mandate was issued on June 8, 2006. On June 13, 2006, Penn's appellate counsel moved to file a petition for review out of time, expressing confusion about the effect ...