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Manco v. State

Court of Appeals of Kansas

July 10, 2015

DARRYL W. MANCO, Appellant,
v.
STATE OF KANSAS, Appellee

Page 552

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge.

Affirmed.

SYLLABUS

BY THE COURT

1. Determining a statute's constitutionality is a question of law subject to unlimited review. An appellate court presumes a statute is constitutional and must resolve all doubts in favor of a statute's validity.

2. Supreme Court Rule 183 (2014 Kan. Ct. R. Annot. 285) provides the rules and procedure that control K.S.A. 60-1507 motions.

3. K.S.A. 60-1507(c) provides: " The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." Subsection (c) provides a reasonable limitation on the right to seek habeas corpus relief by a prisoner. It does not suspend the right to seek habeas corpus relief. Successive motions for habeas corpus relief under K.S.A. 60-1507(c) and Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 285) are allowed if exceptional circumstances are shown by the prisoner.

4. K.S.A. 60-1507(f) provides: " (1) Any action under this section must be brought within one year of: (i) 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 (ii) 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." It further provides: " (2) The time limitation herein may be extended by the court only to prevent a manifest injustice." Subsection (f) provides a reasonable limitation on the right to seek habeas corpus relief absent a showing of manifest injustice by the prisoner. It does not suspend the right to seek habeas corpus relief.

Barry Albin, of Council Grove, for appellant.

Christopher E. Biggs, deputy county attorney, and Derek Schmidt, attorney general, for appellees.

Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.

OPINION

Page 553

Schroeder, J.:

Darryl W. Manco appeals the district court's denial of his third K.S.A. 60-1507 motion as successive and untimely. Manco was convicted over 20 years ago for indecent liberties with a child and aggravated criminal sodomy. On appeal, Manco claims the restrictions on filing successive and untimely 60-1507 motions contained in K.S.A. 60-1507(c) and (f) are unconstitutional denials of the right to seek a writ of habeas corpus. The limitation on filing multiple 60-1507 motions is not an unconstitutional denial of the right to seek habeas corpus relief; but rather, it is a reasonable limitation in order to stop an abuse of remedy. We affirm.

Facts

Manco filed a 51-page motion for habeas corpus relief under K.S.A. 60-1507. Manco raised various allegations against almost everyone involved in his 1992 jury convictions for indecent liberties with a child and aggravated criminal sodomy. Manco is now serving a controlling term of imprisonment of 15 to 50 years. In support of his habeas corpus motion under K.S.A. 60-1507(a), Manco alleges all trial participants--including the trial judge, court reporters, the prosecutor, the investigating officer, the child victim, the child's mother, the jury, and even defense counsel--conspired or otherwise worked in concert to secure a conviction and deprive an innocent Manco of his constitutional right to a fair trial.

In response, the State moved to dismiss Manco's motion as untimely and successive. Manco's prior appeals are discussed in detail in Manco v. State, No. 94,976, 2006 WL 2562851 (Kan. App. 2006) (unpublished opinion) (discussing history of Manco's prior appeals including his direct appeal and his appeals from the denial of his first 60-1507 motion filed in 1999 and his second 60-1507 motion filed in 2004), rev. denied 282 Kan. 790 (2006).

Manco claims his current allegations have not been previously considered by the district court and now fit within the exceptions that allow consideration of untimely or successive 60-1507 motions. The district court appointed counsel to represent Manco and scheduled a hearing. At the hearing on the State's motion to dismiss, Manco's court-appointed counsel conceded that Manco's motion was both untimely and successive, but counsel argued the court could reach its merits because the statutory limitations on the ...


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