BY THE COURT
Under K.S.A. 22-4506(b), a district court has a statutory
duty to appoint an attorney to represent an indigent K.S.A.
60-1507 movant whenever the motion presents substantial
questions of law or triable issues of fact.
protocol set forth in Lujan v. State, 270 Kan. 163,
14 P.3d 424 (2000), for a district court's handling of a
K.S.A. 60-1507 motion does not require the
appointment of counsel when the district court discerns a
potentially substantial issue, albeit the court has
the discretion to do so. The district court may, but is not
required to, appoint an indigent K.S.A. 60-1507 movant an
attorney during the period the court is making its
determination of whether the motion, files, and records
present a substantial question of law or triable issue of
the district court conducts an actual hearing to determine
whether a K.S.A. 60-1507 motion, together with the files and
records in the case, present substantial questions of law or
triable issues of fact, and the State is represented by
counsel at the actual hearing, due process of law requires
that the movant be represented by counsel unless he or she
has waived the right to counsel.
the district court summarily denies a K.S.A. 60-1507 motion,
an appellate court conducts de novo review to determine
whether the motion, files, and records of the case
conclusively establish that the movant is not entitled to any
prisoner filing a K.S.A. 60-1507 motion has the burden to
establish that an untimely motion falls within the manifest
injustice exception of K.S.A. 60-1507(f)(2) and that a
successive motion falls within the caselaw exceptional
of the judgment of the Court of Appeals in an unpublished
opinion filed November 18, 2016.
from Sedgwick District Court; Benjamin L. Burgess and James
R. Fleetwood, Judges.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, and Krystle M.S. Dalke, of the same firm, were on
the briefs for appellant.
J. Maloney, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
consolidated appeal, Sameli G. Roberts petitions this court
for review of the Court of Appeals' decision affirming
the district court's summary denial of his motion to be
discharged from custody, filed in his underlying criminal
case, and his civil K.S.A. 60-1507 motion. With respect to
the district court's denial of the motion to be
discharged from custody filed in his underlying criminal
case, Roberts does not dispute the Court of Appeals'
findings. With respect to the district court's denial of
his K.S.A. 60-1507 motion, Roberts argues that the district
court violated his due process rights when it failed to
appoint counsel to represent him after receiving the
State's response to his pro se motion. He also contends
that he should have been given an evidentiary hearing to make
his case for relief. We affirm the lower courts on those
and Procedural Overview
2005, a jury found Roberts guilty of aggravated burglary,
criminal restraint, kidnapping, aggravated assault on a law
enforcement officer, criminal possession of a firearm, and
four counts of aggravated robbery, and the district court
sentenced him to 327 months in prison. The underlying facts
of Roberts' case are set out in his direct appeal,
State v. Roberts, No. 95, 046, 2007 WL 2080373 (Kan.
App. 2007) (unpublished opinion) (Roberts I).
direct appeal, Roberts alleged insufficient evidence to
support his convictions, ineffective assistance of counsel,
and prosecutorial misconduct. The Court of Appeals remanded
for a hearing on Roberts' ineffective assistance of
counsel claims. On remand, the trial court held Roberts was
not entitled to relief on his ineffective assistance of
counsel claims. Roberts then filed an amended notice of
appeal and the Court of Appeals ...