Fidelis K. Thuko, Appellant,
State of Kansas, Appellee.
BY THE COURT
K.S.A. 60-1507 movant has no constitutional right to the
effective assistance of counsel in the postconviction
proceedings, but under K.S.A. 22-4506(b), a district court
has a statutory duty to appoint an attorney to represent an
indigent 60-1507 movant whenever the motion presents
substantial questions of law or triable issues of fact.
During the period after receipt of a K.S.A. 60-1507 motion in
which the district court is making its determination of
whether the motion, files, and record present a substantial
question of law or triable issue of fact-for example, after
the district court has discerned a potentially substantial
issue-the district court may, but is not required to, appoint
an indigent 60-1507 movant an attorney. On the other hand, if
the district court conducts a preliminary hearing to
determine whether substantial issues are presented and the
State is represented by counsel at that hearing, due process
of law mandates that the movant be represented by counsel
unless he or she has waived that right. The district
court's review of the State's written response to a
K.S.A. 60-1507 motion is not the functional equivalent of an
movant has the burden to prove his or her K.S.A. 60-1507
motion warrants an evidentiary hearing; the movant must make
more than conclusory contentions and must state an
evidentiary basis in support of the claims, or an evidentiary
basis must appear in the record.
K.S.A. 60-1507(f) places a time limit on filing an action
under that statute of one year from the date the movant's
direct appeal becomes final, unless the time limitation is
extended by the court to prevent a manifest injustice. A
K.S.A. 60-1507 movant has the burden of establishing manifest
district court is not required to entertain successive K.S.A.
60-1507 motions on behalf of the same movant unless there are
of the judgment of the Court of Appeals in an unpublished
opinion filed June 23, 2017.
from Sedgwick District Court; James R. Fleetwood, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, and Krystle M.S. Dalke, of the same firm, were on
the brief for appellant.
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
K. Thuko seeks our review of the Court of Appeals'
decision affirming the district court's summary denial of
his second K.S.A. 60-1507 motion. He argues that the district
court violated his due process rights when it failed to
appoint counsel to represent him after requesting and
receiving the State's response to his pro se motion.
Thuko also contends that he is entitled to an evidentiary
hearing on his motion based upon exceptions that would permit
his untimely and successive filing. Finding no error, we
affirm the lower courts.
and Procedural Overview
2004, the State charged Thuko in two separate cases with a
total of five counts of rape and one count of attempted rape.
The charges were based on incidents involving four women:
M.A.S.; N.N.K; E.A.B.; and S.L.S. On the State's motion,
the trial court consolidated the cases for a jury trial. The
jury found Thuko guilty of rape and attempted rape of M.A.S.;
not guilty of another count of rape of M.A.S.; not guilty of
rape of N.N.K.; and not guilty of rape of E.A.B. The jury
could not reach a verdict on the charge of rape of S.L.S. and
the State later dismissed this charge. The court sentenced
Thuko to 147 months' imprisonment for rape and 55
months' imprisonment for attempted rape, to run
consecutive to each other, for a total of 202 months'
direct appeal, Thuko argued: (1) the trial court abused its
discretion in consolidating the two cases against him, (2)
his speedy trial rights were violated, (3) prosecutorial
misconduct denied him a fair trial, and (4) cumulative error.
State v. Thuko, No. 94, 228, 2007 WL 92642 (Kan.
App. 2007) (unpublished opinion), rev. denied 284
Kan. 951 (2007) (Thuko I). The Court of Appeals
rejected Thuko's claims and affirmed the district court.
2007 WL 92642, at *4. This court denied review.
2008, Thuko filed his first 60-1507 motion. According to the
Court of Appeals' opinion in that case, Thuko raised five
claims: (1) he was denied effective assistance of trial
counsel; (2) the district court's failure to guide the
jury and answer a jury question denied him a fair trial; (3)
he was denied effective assistance of appellate counsel; (4)
he was denied his right to DNA testing; and (5) the State
withheld exculpatory evidence. The district court dismissed
the motion and Thuko appealed. Thuko v. State, No.
101, 168, 2010 WL 1253623, at *1 (Kan. App. 2010)
(unpublished opinion) (Thuko II).
Thuko II panel rejected all of Thuko's claims
except for his DNA testing claim, which the panel remanded to
the district court for consideration. 2010 WL 1253623, at
*1-3 (Kan. App. 2010). On remand, the district court denied
Thuko's request for DNA testing, the Court of Appeals
affirmed, and this court denied review. Thuko v.
State, No. 106, 535, ...