Kan. Stat. Ann. § 60-1507

Section 60-1507 does not require an evidentiary hearing when the files and records conclusively show the prisoner is not entitled to relief.

Reedy v. State · filed 1972-12-09

Where a proceeding is brought under K. S. A. 60-1507 and files and records conclusively show the prisoner is not entitled to relief, it is not required that formal plenary hearing be held (Smith v. State, 199 Kan. 293, 429 P. 2d 103).

Section 60-1507 does not require appointment of counsel or an evidentiary hearing when the motion raises no substantial issue of fact or question of law.

Rhone v. State · filed 1973-01-20

If there is no substantial issue of fact or question of law raised by appellant’s motion the trial court is not required to appoint counsel or hold an evidentiary hearing.

A section 60-1507 motion may be denied without an evidentiary hearing when the motion, files, and records conclusively show that the movant is entitled to no relief.

Griffin v. State · filed 1973-03-03

This is an appeal from an order denying relief under K. S. A. 60-1507. ... The trial judge states that “the files and the records reflect that Mr. Roscoe Austin was appointed and did represent the defendant from one day after the crime was committed, to-wit: July 30, 1960, continuously through January 3, 1961, when the defendant was convicted and sentenced;” that “the motion, file and records of this case conclusively show that movant is entitled to no relief and that his motion should be denied.” On this record, and pursuant to Rule No. 121 (f) and (i) (201 Kan. XXXII) the court did not err in denying an evidentiary hearing and in denying relief.

A court may deny an evidentiary hearing on a § 60-1507 motion when the record conclusively shows that the petitioner is entitled to no relief.

Rice v. State · filed 1974-01-26

Since this is contained in the trial record, the district court did not err in failing to hold an evidentiary hearing on appellant’s 60-1507 motion attacking his sentence in Case No. 27,688. ... When the record is conclusive that petitioner is entitled to no relief, it is not error to deny an evidentiary hearing.

Section 60-1507 permits the court to decide an application without appointing counsel or holding an evidentiary hearing when the record conclusively shows those steps are unnecessary.

Henderson v. State · filed 1974-01-26

The record conclusively shows the appointment of counsel and evidentiary hearing on petitioners application for relief under K. S. A. 60-1507 were unnecessary.

When a § 60-1507 motion asserts only conclusions, the district court has discretion to decide whether the movant must appear or evidence must be presented.

Bruffett v. State · filed 1972-03-04

In addition, where mere conclusions are asserted in the motion to vacate, the decision whether the presence of the defendant or the presentation of evidence is required remains within the sound discretion of the district court.

A 60-1507 motion may be denied summarily without the petitioner or appointed counsel when the record conclusively shows no entitlement to relief.

Jamerson v. State · filed 1972-12-09

The trial court had the records before it in ruling on the motion. The law has long been settled that if the records conclusively show the petitioner is entitled to no relief, it is not error to conclude the proceedings by summary hearing, in absence of the petitioner and without appointing counsel to represent him at the hearing (Daugherty v. State, 204 Kan. 604, 464 P. 2d 221).

Section 60-1507 requires more than conclusory allegations and does not provide a forum to retry guilt or innocence or obtain a second appeal.

Potts v. State · filed 1974-04-06

Conclusory allegations alone are insufficient to present a justiciable issue under 60-1507; moreover, this proceeding was never designed to supply a forum in which to retry guilt or innocence of one convicted of crime nor to have a second appeal.

A district judge may summarily deny a § 60-1507 motion without appointing counsel or holding an evidentiary hearing when the motion, files, and records conclusively show that the movant is not entitled to relief.

Edgar v. State · filed 2012-07-27

Generally, when presented with a K.S.A. 60-1507 motion, a district judge has three procedural options for handling the motion. One option is to summarily deny the motion without appointing counsel or conducting an evidentiary hearing. A summary denial is appropriate only if the motion, files, and records of the case conclusively show that the movant is not entitled to relief.

A summary denial of a K.S.A. 60-1507 motion receives de novo review to determine whether the motion, files, and records conclusively establish that the movant is not entitled to relief.

Perez v. State · filed 2015-09-18

When, as in this case, the district court summarily denies a movant's K.S.A. 60- 1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief.

A summary denial of a K.S.A. 60-1507 motion receives de novo review to determine whether the motion, files, and records conclusively show that the movant is not entitled to relief.

McColpin v. State · filed 2015-12-11

When 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 relief.

A court may summarily deny a § 60-1507 motion when the motion, files, and case record conclusively show that the movant is not entitled to relief.

Davis v. State · filed 2015-12-11

Summary denial of a K.S.A. 60-1507 motion is proper when the motion, files, and the records of a case conclusively show that the movant is not entitled to relief.

In a § 60-1507 proceeding, the district court’s oral explanation and journal entry together provide adequate findings when they permit meaningful appellate review.

State v. Brooks · filed 2016-02-05

Thus, we conclude that when considering the district court's oral expressions explaining its reasons for denying Brooks' K.S.A. 60-1507 motion along with the journal entry, we are able to conduct meaningful appellate review.

Section 60-1507 permits summary denial of a motion when the record conclusively shows the movant is entitled to no relief.

Cervantes-Puentes v. State · filed 2016-02-05

Because the record conclusively shows Cervantes-Puentes is entitled to no relief, the district court did not err in summarily denying his K.S.A. 60-1507 motion.

When ruling on a § 60-1507 motion, the district court must make findings and conclusions sufficient for meaningful appellate review; its written entry and a reconstructed account of its oral ruling may be considered together.

Trotter v. State · filed 2017-02-03

The journal entry by itself would not enable meaningful appellate review, but the written journal entry and the agreed-upon statement of proceedings together clearly indicate the district court denied Trotter's K.S.A. 60-1507 motion after concluding that Alleyne would not apply retroactively.

A court need not make findings of fact and conclusions of law on an argument not raised in a K.S.A. 60-1507 motion.

Parker v. State · filed 2017-03-10

The district court did not err by failing to make findings of fact and conclusions of law for an argument not raised in Parker's K.S.A. 60-1507 motion.

Section 60-1507 permits summary denial when the motion, files, and records conclusively show that the movant is entitled to no relief.

Savery v. State · filed 2017-07-14(b)

In sum, we agree with the district court that the motion, files, and records of this case conclusively show that Savery is entitled to no relief based on the claims he made in his K.S.A. 60-1507 motion. Thus, we conclude the district court did not err in summarily denying Savery's motion.

A court may summarily dismiss a K.S.A. 60-1507 motion when the motion, files, and records conclusively show that the movant is not entitled to relief.

Ramos-Beleta v. State · filed 2017-08-11

As the motion, files, and records conclusively demonstrate Ramos-Beleta is not entitled to relief, we find that it was appropriate for the district court to summarily dismiss his 60-1507 motion.

Section 60-1507(b) permits summary denial without an evidentiary hearing when the motion and case file conclusively show the prisoner is not entitled to relief.

Sellers v. State · filed 2018-05-04(b)

A district court may summarily deny an inmate's habeas claim without holding an evidentiary hearing when the motion and the court's file conclusively show that the prisoner isn't entitled to relief. K.S.A. 60-1507(b).

Section 60-1507(b) allows a district court to dispose of a collateral attack summarily on the case files and records without the prisoner present; a hearing is not automatic.

State v. Jarmon · filed 2018-06-15(b)

But such a collateral attack does not guarantee the movant a full hearing and neutral appointed counsel. K.S.A. 60-1507(b) allows a district court to summarily dispose of a motion based on the files and records of the case and without the presence of the prisoner.

An untimely, successive K.S.A. 60-1507 motion may be denied without a hearing when the movant fails to allege an exception to the procedural bars.

Taylor v. State · filed 2018-06-29

Taylor did not comply with the reasonable procedural requirements for making a claim under K.S.A. 60-1507 and failed to properly allege why any of the exceptions to the procedural bars applied to him. Thus, the district court was not required to hold a hearing on the matter.

Section 60-1507(b) permits summary denial only when the motion, files, and case records conclusively show that the movant is entitled to no relief.

Rucker v. State · filed 2018-07-20(b)

A district court may summarily deny a K.S.A. 60-1507 motion if the court determines that the motion, files, and case records conclusively show that the movant is entitled to no relief.

A court must grant a preliminary hearing on a § 60-1507 claim when an evidentiary basis appears in the case record, even if the motion itself states no supporting facts.

Bollinger v. State · filed 2018-10-19

Because an evidentiary basis for Bollinger's claims appears in the record, the district court needed to grant a hearing.

A court deciding whether to summarily deny a § 60-1507 motion must consider the files and record as well as the motion; an evidentiary basis apparent in the record can require a hearing even when the motion states only conclusory claims.

Bollinger v. State · filed 2018-10-19

However, in making a determination as to whether a motion is to be summarily denied, a trial court is required to base its determination on not only the motion but also upon the files and record. While Bollinger states no evidentiary basis in his motion to support his claim, an evidentiary basis appears in the record.

Section 60-1507 permits summary denial without a hearing when the motion, files, and case records conclusively show that the movant is not entitled to relief.

Mitchell v. State · filed 2019-02-01

Where, as here, a district court determines that the motion, files, and case records conclusively show that the 60-1507 movant is not entitled to relief, the district court may deny the motion summarily, without a hearing.

Section 60-1507(b) permits summary dismissal when the motion, files, and record conclusively show that the prisoner is entitled to no relief.

Schaeffer v. State · filed 2019-03-29(b)

Summary dismissal of a K.S.A. 60-1507 motion is appropriate when the motion, files, and record in the case "conclusively show that the prisoner is entitled to no relief."

Section 60-1507(b) permits the district court to consider the State's written response as part of the case files when deciding whether to summarily deny a motion without appointing counsel.

Stewart v. State · filed 2019-07-12(b)

The panel did not explain why a response to a 60-1507 motion would not then become part of the case files, subject to the district court's review, and we decline to construe K.S.A. 60-1507(b) so narrowly.

Section 60-1507 permits summary denial without appointing counsel when the motion, case files, records, and any State response conclusively show that the prisoner is entitled to no relief.

Sherwood v. State · filed 2019-07-12(b)

Summary denial is appropriate, without appointing counsel, when the motion and the files and records of the case, including any response to the motion by the State, conclusively show that the prisoner is entitled to no relief.

Section 60-1507(b) permits summary denial without appointed counsel when the motion, case files and records, and any State response conclusively show that the prisoner is entitled to no relief.

Requena v. State · filed 2019-07-12(b)

Summary denial is appropriate, without appointing counsel, when the motion and the files and records of the case, including any response to the motion by the State, conclusively show that the prisoner is entitled to no relief.

Section 60-1507 permits summary denial without an evidentiary hearing when the motion, files, and records conclusively show that the movant is not entitled to relief.

McIntyre v. State · filed 2019-11-08

But if the motion, files, and records conclusively show that the movant is not entitled to relief, the district court may deny the motion without holding an evidentiary hearing.

A § 60-1507 movant seeking an evidentiary hearing must support the claim with more than conclusory allegations by identifying an evidentiary basis in the motion or record.

Cushinberry v. State · filed 2019-12-06

To avoid summary denial of a K.S.A. 60-1507 motion, the movant has the burden to establish entitlement to an evidentiary hearing. To meet this burden, the movant's contentions must be more than conclusory. The movant must set forth an evidentiary basis to support his or her contentions, or the evidentiary basis must appear in the record.

A 60-1507 motion that facially supports an ineffective-assistance claim cannot be summarily denied merely because the underlying trial error could have been raised on direct appeal.

Daniels v. State · filed 2019-12-06

In his motion, Daniels asserted and facially supported a claim of ineffective assistance of counsel violating his Sixth Amendment rights precisely because his lawyers failed to challenge the verdict forms. The district court, therefore, could not have summarily denied the motion as a second appeal of a mere trial error.

Summary dismissal of a § 60-1507 motion receives de novo review to determine whether the motion, files, and records conclusively show the movant is not entitled to relief.

Hardyway v. State · filed 2020-12-18

Here, the district court summarily dismissed Hardyway's K.S.A. 60-1507 motion; thus, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief.

A § 60-1507 movant avoids summary denial by presenting more than conclusory claims and identifying supporting evidence or an evidentiary basis apparent from the record.

Casey v. State · filed 2021-01-08(b)

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a movant bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record.

When some § 60-1507 claims are summarily dismissed, an appellate court reviews each claim de novo and affirms only if the motion, files, and records conclusively show no entitlement to relief; otherwise, it may remand for further proceedings.

Davis v. State · filed 2021-05-07(b)

Because our review is de novo we follow the same procedure applicable to the district court: we must consider with respect to each of Davis' claims whether the motion, files, and records of the case conclusively show that Davis is not entitled to relief. K.S.A. 2020 Supp. 60-1507(b). If so, then we affirm the district court on that issue. If not, we can remand to the district court for further proceedings on that issue.

A 60-1507 motion may be summarily denied when the movant offers only conclusory claims without an evidentiary basis in the motion or record.

Nguyen v. State · filed 2022-05-13

To avoid the summary denial of a motion, a movant's contentions must be more than conclusory—either the movant must provide an evidentiary basis to support his or her claims or the basis must be evident from the record.

A movant seeking relief under § 60-1507 must support claims with evidence rather than conclusory assertions to avoid summary dismissal.

Paulson v. State · filed 2022-06-17

Yet, to avoid summary dismissal of his or her motion, the K.S.A. 60-1507 movant must make more than conclusory contentions. This means that the movant must provide evidentiary support for his or her claims.

A court may not summarily deny a § 60-1507 motion as previously decided on direct appeal when the motion raises ineffective-assistance claims that were not raised on direct appeal.

Parks v. State · filed 2022-08-05

Thus, this court finds that the district court erred in finding that Parks' ineffective assistance of counsel claims related to failure to seek a lesser included jury instruction were previously brought in Parks' direct appeal, and thus the court erred in summarily denying his first 60-1507 motion based on that finding.

A § 60-1507 motion may be summarily denied when the motion and underlying criminal record conclusively show that the movant is entitled to no relief.

Ross v. State · filed 2022-12-09

Denial of the motion is proper if the 60-1507 motion and the record in the underlying criminal case conclusively show the movant is entitled to no relief.

A summary dismissal of a K.S.A. 60-1507 motion is reviewed de novo, and the motion, files, and records must conclusively establish that the movant is not entitled to relief.

Macomber v. State · filed 2022-08-05

When the district court summarily dismisses a K.S.A. 60-1507 motion, our review is de novo. In other words, we must determine whether the motion, files, and records of the case conclusively establish that Macomber is not entitled to relief.

A K.S.A. 60-1507 motion may be summarily dismissed when the motion, files, and records conclusively establish that the movant is not entitled to relief.

Wasylk v. State · filed 2024-02-02

When a district court summarily dismisses a K.S.A. 60-1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief.

A pro se movant must support a K.S.A. 60-1507 motion with more than conclusory statements and incomplete facts; otherwise the motion may be summarily denied without an evidentiary hearing.

Ross v. State · filed 2024-04-19

Even a pro se movant must offer more than conclusory statements and incomplete facts to support the claims presented in the K.S.A. 60-1507 motion. Otherwise, the motion may be summarily denied.

A section 60-1507 motion may be summarily denied when the motion, files, and records conclusively show that the movant is entitled to no relief.

Smith-Parker v. State · filed 2024-05-17

Because the motion, files, and records of the case conclusively show that Smith-Parker is entitled to no relief, the district court did not err in summarily denying his motion.

Summary dismissal of a § 60-1507 motion is reviewed de novo to determine whether the motion, files, and records conclusively show that the movant is entitled to no relief.

State v. Sprague · filed 2015-12-04

Sprague and the State both argue this matter should be treated as a summary denial of the motion, and we agree. "The standard of review for the summary dismissal of K.S.A. 60-1507 motions is de novo, requiring an appellate court to determine whether the motion, files, and records of the case conclusively show that the movant is entitled to no relief." Trotter, 288 Kan. at 132.

Section 60-1507 claims are civil, so a movant has no constitutional right to counsel for those claims.

Greene v. State · filed 2018-06-08

Greene does not have a constitutional right to counsel for claims brought under his 60-1507 motion because the claims are civil, not criminal.

Section 60-1507 provides an adequate and effective post-conviction remedy even though a prisoner must show exceptional circumstances to raise constitutional trial errors that could have been raised on direct appeal.

Kinnell v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas · filed 1967-12-04

Appellant apparently puts some stress upon the wording of Rule 121(c) (4) which reads in part, “Mere trial errors are to 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 there are exceptional circumstances excusing the failure to appeal.” His objection goes to the “exceptional circumstances” part of the quote. This same statement is found in the Minor case. This is consistent with language used in several cases interpreting § 2255 and we cannot say that such language makes 60-1507 inadequate or ineffective.

Section 60-1507 provides an adequate and effective Kansas post-conviction remedy that a state prisoner must exhaust before seeking federal habeas relief.

Bratt v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas,appellee · filed 1965-05-25

The Order of Dismissal appealed from shows that the dismissal was grounded upon petitioner’s failure to allege that he had exhausted his post-conviction remedies under K.S.A. 60-1507. Counsel for appellant argues here that such remedies are inadequate and ineffective, with which argument we do not agree. For us to say that the statutory remedy is inadequate and ineffective, we would have to assume that the Kansas courts will construe the statute so as to make it inadequate and ineffective, which we will not do.

Section 60-1507 provides the exclusive state post-conviction remedy when it is adequate and effective; a prisoner who has not pursued that remedy to a decision on the merits has not exhausted state remedies.

Carpenter v. Crouse · filed 1966-07-29

The denial of his writ of habeas corpus by the Supreme Court of Kansas does not constitute a decision on the merits of his claims, since See. 60-1507 provides that the remedy thereunder is exclusive if adequate and effective. Petitioner’s two previous applications to the District Court of Reno County did not result in adjudications on the merits of his claims. There is no showing that the 60-1507 remedy in that court, or in the District Court of Sedgwick County is not adequate.

Section 60-1507 provides an available Kansas post-conviction remedy that a state prisoner must seek before obtaining federal habeas relief.

Sanders v. Crouse · filed 1969-10-09

Sanders has not filed a motion for post-conviction relief under KSA 60-1507. ... However, he has not exhausted his state remedies where he has failed to seek available post-conviction relief. This is a prerequisite to federal habeas corpus.

A federal court must examine the circumstances of a prolonged delay in a direct appeal before requiring a prisoner to pursue a § 60-1507 motion as a state remedy.

Way v. Sherman H. Crouse, Warden, Kansas State Penitentiary · filed 1970-02-09

Treating the claimed denial of bail as the sole substantive allegation, the court dismissed the petition on the ground that the claim had not been first presented to the state courts by a motion to vacate under K.S.A. 60-1507. ... In our view, Way properly resorted to the federal court, which should not, without knowing the facts and circumstances of the eighteen-month delay, have required him at this late ... date to commence a completely new and independent proceeding through the very courts which are responsible, on the face of the pleadings, for the very delay of which he complains.

Section 60-1507 gives Kansas prisoners a post-conviction remedy whose pending appeal generally must be exhausted before federal habeas review.

Prescher v. Sherman H. Crouse, Warden, Kansas State Penitentiary · filed 1970-09-09

K.S.A. 60-1507 provides Kansas state prisoners with a state court remedy exactly commensurate with 28 U.S.C. § 2255. In the face of such statute, federal courts must under 28 U.S.C. § 2254, defer from ruling on the merits of habeas corpus petitions by state prisoners until the state courts have had reasonable opportunity to decide the claims.

Section 60-1507 provides state postconviction relief that a prisoner must pursue after a direct appeal to exhaust state remedies before seeking federal habeas relief.

Denney v. State of Kansas, Its Agent, Sheriff Dayton Evans, Cherokee County, Columbus, Kansas · filed 1971-01-14

The federal district court denied habeas corpus relief for failure to exhaust available state remedies. We agree. This court has held that state remedies cannot be exhausted if an appeal from a state conviction is pending. Kessinger v. Page, 369 F.2d 799 (10th Cir. 1966) and Lee v. State of Kansas, 346 F.2d 48 (10th Cir. 1965). He must thereafter also initiate state postconviction relief pursuant to K.S.A. § 60-1507.

Section 60-1507 provides a procedure to present additional evidence that materially strengthens a claim raised on direct appeal before seeking federal habeas relief.

Ferguson v. McKune · filed 1999-06-08

Thus, the court agrees with the conclusion of the report and recommendation that petitioner would need to file a motion pursuant to K.S.A. § 60-1507 in order to present this additional evidence and fully exhaust her state court remedies.

Section 60-1507(a) motions to vacate, set aside, or correct a sentence cannot be maintained while a direct appeal is pending or the time to appeal remains open.

State v. Lewis · filed 1965-09-20(a)

“A motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected.” ... The district court correctly summarily dismissed the defendant’s motion filed under K. S. A. 60-1507 as being premature.

Section 60-1507 generally cannot be used to raise mere trial errors in place of a direct appeal or to obtain a second appeal.

Miles v. State · filed 1965-11-06

“(c) . . . (4)a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to 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 there were exceptional circumstances excusing the failure to appeal.”

Section 60-1507 does not provide relief for trial errors that could have been raised on direct appeal.

Hanes v. State · filed 1966-03-05

The other allegations of petitioner’s motion concern matters not properly justiciable in a 60-1507 proceeding. Hanes’ contention that a police officer was erroneously permitted to testify as an expert relates solely to an alleged trial error which could have been raised in a direct appeal, properly perfected.

A § 60-1507 motion to vacate, set aside, or correct a sentence cannot be filed or maintained while a direct appeal is pending or during the time for taking that appeal.

State v. Washington · filed 1967-03-04

It is said that the appellant’s points on appeal are actually in the nature of an application to vacate and set aside a void judgment under K. S. A. 60-1507. There is nothing in the record to indicate the appellant has ever filed a motion pursuant to the foregoing statute and Rule No. 121 of this court (194 Kan. xxvh ) although he wrote the district court he was aware of his right to file such a motion and would do so in the future. Under Rule No. 121 (c) (3) any motion to vacate, set aside, or correct ... the appellant’s sentence could not be filed or maintained while his appeal from his conviction was pending in this court or during the time within which an appeal might be perfected.

A defendant who acquiesces in a judgment by seeking probation cannot later challenge its validity in a collateral proceeding under § 60-1507.

Sanders v. State · filed 1965-12-11

Since appellant acquiesced in and recognized the validity of the judgment by seeking and seeming probation, he can not now challenge the validity of that judgment in a collateral proceeding under K. S. A. 60-1507.

An issue omitted from a § 60-1507 motion cannot be raised for the first time on appeal from that proceeding.

McCuan v. State · filed 1966-04-09

This point was not raised by the petitioner in his motion to vacate the judgment and sentence and therefore was not presented to the trial court. In the criminal proceeding which resulted in the appellant’s conviction he was represented by counsel of his own choosing, and this point was not raised at the trial by any objection to such evidence or in the appellant’s motion for a new trial. Under these circumstances it comes too late for the appellant to attempt to raise this question on appeal in the 1507 proceeding for the first time. He is presumed to have waived any objection to this point by his conduct, through counsel, at the trial in the criminal proceeding.

Section 60-1507 does not provide relief for trial errors that could have been corrected on direct appeal.

Addington v. State · filed 1967-03-04

Other points have been raised by the defendant, but they are trial errors which could be corrected only upon appeal from his conviction and, as such, present no justiciable question in a proceeding to vacate and set aside the sentence under K. S. A. 60-1507.

Section 60-1507 cannot be used as a second appeal to relitigate issues already considered on direct appeal.

Brown v. State · filed 1967-04-08

It recognized that these points had previously been considered by the Supreme Court on appeal, and held that a proceeding under the provisions of K. S. A. 60-1507 is not to be used as a substitute for a second appeal. The foregoing is the rule of the Supreme Court.

Section 60-1507 cannot be used as a second appeal to raise trial errors after the prisoner has already taken a direct appeal.

Minor v. State · filed 1967-06-10

Inasmuch as he has already exercised that right, at which time all alleged trial errors were to be presented, he has not brought himself within that portion of Rule No. 121 (c) (4) which permits one in custody to raise for the first time in a 60-1507 proceeding trial errors affecting constitutional rights. The generous use now attempted of our postconviction statute as a substitute for a second appeal is forbidden.

Section 60-1507 proceedings may not be used as a substitute for a second appeal to relitigate contentions decided on direct appeal.

Jolly v. State · filed 1967-12-09

Notwithstanding that a proceeding under K. S. A. 60-1507 is not to be used as a substitute for a second appeal (Brown v. State, 198 Kan. 527, Syl. 1, 426 P. 2d 49), we have reexamined our former decision and adhere to what was there said and held with respect to those seven contentions.

Section 60-1507 does not permit review of an alleged trial error that the defendant waived by failing to object at trial.

Mize v. State · filed 1967-11-13

It would serve no useful purpose to deny review on appeal because .of the contemporaneous objection rule and then permit review by the more circuitous route under K. S. A. 60-1507 proceedings. The rule is necessary if a court is to be permitted to correct its own errors and litigation is to be brought to an end. The rule serves a legitimate state purpose.

Section 60-1507 does not permit reconsideration of points considered and rejected on direct appeal.

Basker v. State · filed 1968-11-09

The present appeal is from post conviction proceedings pursuant to K. S. A. 60-1507. ... The first three points now raised were considered and rejected in the direct appeal. These points presented no substantial question of law or issue of fact to the trial court. They will not be reconsidered by this court.

Section 60-1507 permits review of a constitutional trial error that could have been raised on direct appeal when exceptional circumstances excuse the failure to appeal.

Holt v. State · filed 1969-03-08

In the instant case the trial error claimed, concerning the admission of petitioner’s confession, affected his constitutional rights and we believe the conditions existing fall within the exceptional circumstances contemplated in Rule No. 121 (c) (3). ... Under the circumstances present, the matter was a proper subject for review in a 60-1507 proceeding.

Section 60-1507 does not permit a collateral attack on a conviction based solely on counsel’s or the court’s failure to advise the defendant of the right to appeal.

Wippel v. State · filed 1969-04-12

If, in fact, counsel, as well as the court, failed to advise petitioner of his appeal right, such failure provides no basis for a collateral attack on the judgment and sentence in a 60-1507 proceeding.

Section 60-1507 does not provide relief for trial error involving alleged contact between a victim’s relative and jurors.

Miller v. State · filed 1969-11-08

At most this was a trial error and could not, in any event, afford ground for relief by way of 1507 proceeding (Rule 121 (c) (3), 201 Kan. xxxiii).

A § 60-1507 proceeding may address trial errors affecting constitutional rights despite the absence of a direct appeal when exceptional circumstances excuse the failure to appeal.

Jackson v. State · filed 1970-03-07

Generally, a 60-1507 proceeding cannot be used as a substitute for a direct appeal involving mere trial errors; but if the trial errors affect constitutional rights, they may be raised in the collateral proceeding even though they could have been raised by direct appeal, provided there were exceptional circumstances excusing the failure to appeal. ... In our opinion the situation here presents exceptional circumstances justifying consideration of the trial errors.

Trial errors may be considered under § 60-1507 only when they implicate constitutional rights and exceptional circumstances exist.

Zimmer v. State · filed 1970-12-12

“It is only where trial errors impinge on constitutional rights that they will be considered in a post-conviction action brought under K. S. A. 60-1507, and then only in exceptional circumstances.” ... The record reveals no such exceptional circumstances.

Section 60-1507 cannot substitute for a direct appeal of mere trial errors; constitutional trial errors require exceptional circumstances excusing the failure to appeal.

Hannon v. State · filed 1971-01-23

The post-conviction remedy provided by K. S. A. 60-1507 cannot be used as a substitute for a direct appeal involving mere trial errors. If trial errors affect constitutional rights it is required that exceptional circumstances be shown excusing the failure to appeal before such errors will be considered in collateral post-conviction proceedings.

Section 60-1507 ordinarily cannot be used to relitigate issues decided on direct appeal.

Baker v. State · filed 1970-01-24

A 60-1507 proceeding ordinarily cannot be used as a substitute for a second appeal.

Section 60-1507 cannot be used to review trial errors that could have been reviewed on direct appeal.

Cantrell v. State · filed 1970-12-12

A proceeding under K. S. A. 60-1507 cannot be used for the purpose of reviewing trial errors which might have been reviewed in the original appeal.

A proceeding under § 60-1507 ordinarily cannot be used to revisit an issue already decided on direct appeal.

Ingram v. State · filed 1970-03-07

As to the second point raised by the petitioner it is only necessary to point out the propriety of the so-called “Allen” or “dynamite” instruction was directly raised and passed upon adversely to petitioner in his former appeal. Our rules specifically provide that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for a second appeal.

A proceeding under § 60-1507 cannot serve as a second appeal to relitigate issues already decided on direct appeal.

Jones v. State · filed 1970-03-07

An examination of our opinion in State v. Jones, supra, reveals that each of the points raised by petitioner was discussed and disposed of. We find no further arguments presented on any of the points which compels reconsideration. Supreme Court Rule No. 121 (c) (3) (201 Kan. xxxiii) provides that a proceeding under K. S. A. 60-1507 is not to be used as a substitute for a second appeal.

Section 60-1507 does not permit a second appeal of issues resolved on direct appeal; trial errors generally must be raised on direct appeal unless they affect constitutional rights and exceptional circumstances excuse the omission.

Eaton v. State · filed 1970-11-07

Under Rule 121 (c) (3) trial errors are to be corrected by direct appeal unless they affect constitutional rights and there are exceptional circumstances excusing the petitioner’s failure to present the alleged errors in his direct appeal.

Section 60-1507 generally cannot be used to relitigate an issue already decided on direct appeal.

Young v. State · filed 1971-04-10

The state further calls attention to Supreme Court Rule No. 121 (c) (2), 205 Kan. xlv, which provides that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for a second appeal. ... The position taken by the state is correct.

Section 60-1507 provides a way to present a due process claim based on delay in perfecting a criminal appeal to the trial court.

State v. Hamrick · filed 1971-01-23

This complaint, of course, has not been presented to the trial court for a determination of the facts involved. It is a matter to be presented under the provisions of K. S. A. 60-1507 at the proper time.

A proceeding under K. S. A. 60-1507 cannot be used as a second appeal to relitigate an issue raised on direct appeal.

Neil v. State · filed 1971-04-10

This court has adhered to die rule that a proceeding under K. S. A. 60-1507 cannot be used as a vehicle for a second appeal.

Section 60-1507 cannot be used to relitigate questions raised and decided against the defendant on direct appeal.

Cipolla v. State · filed 1971-07-16

The post-conviction remedy (K. S. A. 60-1507) cannot be used as a second appeal to re-examine questions raised and determined adversely to the defendant in a direct appeal.

Section 60-1507 generally does not permit relitigation of questions already raised and considered on direct appeal, though intervening legal principles affecting the original decision may justify an exception.

Turner v. State · filed 1972-03-04

It is well settled that proceedings authorized by K. S. A. 60-1507 may not be used as a second appeal on questions previously raised and considered by this court. ... The exception, which gives rise to the use of the term “ordinarily”, refers to circumstances of a particular case where new principles of law affecting the court’s original opinion have been declared after the case was considered on direct appeal.

Section 60-1507 does not provide for reexamination of an issue decided on direct appeal absent circumstances warranting reconsideration.

Sagebiel v. State · filed 1972-04-08

This is an appeal from an order denying relief under K. S. A. 60-1507. In this proceeding appellant’s only contention is that he was denied a trial by an impartial jury, an issue that was raised and determined in his direct appeal, State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44. Appellant has shown no circumstances which would require us to re-examine that question.

A proceeding under § 60-1507 ordinarily cannot be used to review trial errors that could have been raised on direct appeal.

Delano v. State · filed 1972-06-10

The remaining issue, that the district court erred in failing to instruct on manslaughter is a trial error and does not take on constitutional proportions. This court has held on numerous occasions that a 60-1507 proceeding may not ordinarily be used for the purpose of reviewing trial errors that might have been considered in a direct appeal.

Section 60-1507 does not allow reconsideration of an issue considered and rejected on direct appeal.

Jenkins v. State · filed 1973-03-03

This matter having been considered and rejected on direct appeal will not be reconsidered in an appeal from an order denying relief on a motion to vacate sentence under K. S. A. 60-1507 (Carter v. State, 199 Kan. 290, 428 P. 2d 758; Basker v. State, 202 Kan. 177, 446 P. 2d 780).

Section 60-1507 cannot be used to reexamine questions raised and decided against a defendant on direct appeal.

Jones v. State · filed 1973-11-03

The postconviction remedy provided by 60-1507 cannot be used as a second appeal to reexamine questions raised and determined adversely to a defendant upon his direct appeal (Cipolla v. State, 207 Kan. 822, 486 P. 2d 1391).

Section 60-1507 ordinarily cannot be used as a substitute for an appeal to raise alleged trial errors.

Preston v. State · filed 1972-01-22

The post-conviction remedy (K. S. A. 60-1507) cannot ordinarily be used as a substitute for an appeal in raising alleged trial errors.

Section 60-1507 cannot serve as a second appeal for issues omitted from a direct appeal unless exceptional circumstances excuse the omission, even when the issues are constitutional.

Weathers v. State · filed 1972-01-22

Absent a showing of exceptional circumstances excusing failure to raise matters in a direct appeal, we have consistently held, in accord with our Rule No. 121 (205 Kan. xliv), that a proceeding under K. S. A. 60-1507 cannot be used as a substitute for a second appeal, even though constitutional questions may be involved.

Section 60-1507 cannot be used as a substitute for a second appeal to raise trial errors that could have been raised on direct appeal without exceptional circumstances excusing that failure.

Yurk v. State · filed 1972-03-04

The answer to the matter presented is found in Rule No. 121 of this court (205 Kan. xliv) prescribing the procedure under the provisions of K. S. A. 60-1507. ... Upon examination of the record, we are unable to find any unusual or intervening changes in law which prevented this petitioner from raising all of his alleged trial errors in the direct appeal. ... It is especially true because petitioner could have raised this point in a direct appeal from the conviction, and is attempting to convert this proceeding into a substitute for a second appeal.

A proceeding under § 60-1507 cannot be used as a second appeal to raise an issue that could have been raised on direct appeal.

Kirtdoll v. State · filed 1972-05-06

Failure to raise this issue in his direct appeal prevents the appellant from raising the issue in this proceeding. We have said frequently and repeatedly that a proceeding under K. S. A. 60-1507 which collaterally attacks a judgment of conviction should not be used as a substitute for a second appeal.

A movant under § 60-1507 is not entitled to discharge because appointed counsel failed to perfect a timely direct appeal when the movant was offered an out-of-time appeal.

Brizendine v. State · filed 1972-07-19

We hold that the contentions of the appellant under the circumstances shown in the record in this case are without merit and that he is not entitled to discharge from confinement. The district court at the time of the 60-1507 hearing granted appellant an opportunity to present his evidence. ... Appellant was offered an opportunity to take an out-of-time appeal in the case at bar but refused to take such an appeal. He now has no cause to complain.

Section 60-1507 does not permit a double jeopardy claim to be raised for the first time in a post-conviction proceeding.

Miller v. State · filed 1972-11-04

Furthermore, the issue of double jeopardy cannot be raised for the first time in a proceeding under K. S. A. 60-1507.

A movant seeking relief under § 60-1507 for a trial error not raised on direct appeal must show exceptional circumstances.

Johnson v. State · filed 1972-11-04

Since refusal to grant a continuance is a trial error, the appellant must show exceptional circumstances at this late date to avail himself of relief on this ground.

Section 60-1507 cannot serve as a second appeal for trial errors unless the errors affect constitutional rights and exceptional circumstances excuse the failure to raise them on direct appeal.

Roy v. State · filed 1973-10-11

The post-conviction remedy provided by K. S. A. 60-1507 is not to be used as a substitute for a second appeal involving trial errors, unless such errors affect constitutional rights and there were exceptional circumstances excusing the failure to raise the alleged errors in the direct appeal.

A § 60-1507 proceeding cannot ordinarily substitute for a direct appeal of trial errors unless exceptional circumstances excuse the failure to raise them on direct appeal.

Melton v. State · filed 1976-07-23

Supreme Court Rule 121 (c) (214 Kan. xxxix) provides that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for direct appeal involving trial errors or as a substitute for a second appeal, but that trial errors affecting rights may be raised even though they could have been raised on direct appeal provided there were exceptional circumstances excusing the failure to appeal. ... We discern no unusual circumstances which would have excused plaintiff’s failure to raise points one to four on the direct appeal nor, indeed, does the plaintiff himself suggest any such circumstances.

A district court lacks jurisdiction to consider a § 60-1507 motion while the movant’s direct appeal is pending.

State v. Duke · filed 1994-12-22

Because Duke filed his pro se motion under K.S.A. 60-1507 while his direct appeal was pending, the trial court properly denied it on jurisdictional grounds.

A § 60-1507 motion cannot substitute for a direct appeal to raise mere trial errors or serve as a second appeal.

Zimmer v. McKune · filed 2000-01-24

It is well established in Kansas that a § 60-1507 motion can not be used as a substitute for a direct appeal involving mere trial errors or as a substitute for a second appeal.

Section 60-1507 ordinarily cannot be used in place of a direct appeal to raise a mere trial error, including denial of allocution at sentencing.

State v. Mebane · filed 2004-06-25

Moreover, a motion to correct an illegal sentence filed more than 10 days after sentencing has been treated as a motion filed pursuant to K.S.A. 60-1507. See State v. Duke, 263 Kan. at 195-96. Proceedings under K.S.A. 60-1507 “cannot ordinarily be used as a substitute for direct appeal involving mere trial errors.” Supreme Court Rule 183 (2003 Kan. Ct. R. Annot. 213). Mebane filed no direct appeal and instead waited more than 14 years before filing his motion to correct an illegal sentence. The district court correctly denied Mebane’s motion on the ground that the allocution issue should have been raised in a direct appeal from his resentencing.

A defendant who pleads guilty and does not directly appeal cannot use a § 60-1507 collateral challenge to obtain the lesser sentence available under the identical offenses rule.

Bryant v. State · filed 2005-09-02

In May 2003 Bryant filed a K.S.A. 60-1507 motion seeking to have his sentence vacated and the case remanded for resentencing pursuant to State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). ... In fact, we note Biyant did waive a challenge to his sentence by not appealing the sentence, whereas by appealing their sentences, Barnes and Heywood had preserved their challenges. ... Clements and Nunn were direct appeals; nothing in those decisions requires application of the rule to cases on collateral review.

A § 60-1507 motion cannot substitute for a direct appeal unless trial errors affected constitutional rights and exceptional circumstances excuse the failure to appeal.

Porter v. State · filed 2007-02-23

He now seeks to raise the issue in this 60-1507 proceeding. A 60-1507 motion cannot be used as a substitute for a direct appeal absent a showing that there were trial errors affecting constitutional rights and there were exceptional circumstances excusing the failure to appeal. Supreme Court Rule 183(c)(3); Bruner v. State, 277 Kan. 603, 607, 88 P.3d 214 (2004). Porter shows neither.

A pending appeal from an earlier collateral motion does not deprive the district court of jurisdiction to consider a K.S.A. 60-1507 action.

State v. Barnes · filed 2007-01-19

Thus, while a defendant may not pursue an action under K.S.A. 60-1507 while a direct appeal is pending, the district court does not lose jurisdiction while an appeal is pending from a prior collateral motion.

Section 60-1507 does not govern an ineffective-assistance hearing ordered on remand during a direct criminal appeal.

State v. Coryell · filed 2016-02-26

At the outset of our analysis, it is important to note that Dylan's ineffective assistance of counsel claims are not presented as a K.S.A. 60-1507 proceeding as the trial court indicated on remand and as Dylan assumes on appeal.

A K.S.A. 60-1507 motion cannot be used as a substitute for a direct appeal or a second appeal.

Todd v. State · filed 2016-07-29

As noted above, a K.S.A. 60-1507 motion cannot be used as a substitute for a direct appeal or as a substitute for a second appeal.

A Section 60-1507 motion ordinarily cannot substitute for a direct appeal of mere trial errors or serve as a second appeal.

Adkins v. State · filed 2017-06-02

Pursuant to Rule 183(c)(3), Adkins' K.S.A. 60-1507 motion cannot be used as a substitute for a direct appeal involving mere trial errors or as a substitute for a second appeal.

A proceeding under § 60-1507 ordinarily cannot substitute for a direct appeal of mere trial errors or for a second appeal, but it may address an ineffective assistance claim based on counsel’s failure to request a jury instruction.

Fulton v. State · filed 2017-07-14

The State is correct that 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. Supreme Court Rule 183(c)(3) (2017 Kan. S. Ct. R. 222). In this case, however, Fulton is bringing an ineffective assistance of counsel claim based on a failure to request jury instructions.

A K.S.A. 60-1507 proceeding cannot be pursued at the same time as a direct appeal; a defendant who elects the direct appeal cannot have an ineffective-assistance claim from the post-conviction proceeding considered in that appeal.

Walker v. State · filed 2018-11-02

Because Kansas law does not allow an accused to have a direct appeal and a K.S.A. 60-1507 motion pending at the same time, this court issued an order for Walker to choose to proceed as a direct appeal or to proceed as an appeal of any adverse rulings in the K.S.A. 60-1507 proceeding. Walker elected to proceed as a direct appeal from his conviction. Therefore, Walker's final issue regarding ineffective assistance of counsel will not be considered by this court.

Section 60-1507 cannot be used as a substitute for a direct appeal of mere trial errors or for a second appeal.

Delacruz v. State · filed 2018-11-02

A proceeding under K.S.A. 60-1507 may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.

Section 60-1507 cannot be used to raise a sufficiency-of-the-evidence claim that should have been raised on direct appeal.

Deshazer v. State · filed 2019-05-10

Such a question is appropriate for a direct appeal, not a K.S.A. 60-1507 motion. Because Deshazer should have raised this issue in his direct appeal but did not, the district court did not err in dismissing this claim.

Section 60-1507 ordinarily cannot substitute for a direct appeal to raise mere trial errors.

Krebs v. State · filed 2020-10-09

A 60-1507 motion is ordinarily not a substitute for a direct appeal involving mere trial errors.

A § 60-1507 motion cannot serve as a substitute for direct appeal to raise ordinary trial errors; constitutional trial errors omitted from appeal require exceptional circumstances.

Blacklock v. State · filed 2021-12-17

To begin, we find that the district court was correct in finding that Blacklock cannot assert new arguments regarding alleged trial errors in a K.S.A. 60-1507 motion. ... In this regard, Blacklock articulates no exceptional circumstances to justify his failure to raise this argument in his direct appeal.

A double jeopardy claim waived by failing to raise it in time cannot be pursued through a K.S.A. 60-1507 motion.

State v. Stanford · filed 2022-08-26

After reviewing his petition and the supporting record on appeal, we find that the double jeopardy argument is not properly raised in a collateral challenge to his convictions and sentence. ... We find that Stanford's dereliction in raising his double jeopardy issue resulted in its waiver.

Section 60-1507(a) allows a prisoner to challenge a sentence only when a favorable decision would result in release from custody; an unexpired sentence in another case prevents relief.

King v. State · filed 1965-12-11(a)

In our judgment, it was the intention of the legislature when it enacted K. S. A. 60-1507 that proceedings brought thereunder should be coextensive with habeas corpus proceedings. ... We have heretofore expressly held that a question of law will not be determined in an action of habeas corpus unless a favorable decision thereon will result in the prisoner’s release from custody.

Section 60-1507 permits a prisoner to challenge sentences from two separate criminal cases in one motion when the cases were before the same district court, the pleas occurred on the same day, the sentences run consecutively, and the challenges rest on the same grounds.

Coats v. State · filed 1966-04-09

“Was the appellant entitled to consolidate the sentences received in two completely separate and independent criminal actions as a basis for his motion pursuant to K. S. A. 60-1507?” ... Under the facts as disclosed by the record we are forced to answer the foregoing question in the affirmative. Both cases involved were before the same district court. The arraignments were on the same day and a plea of guilty was entered in each case. The sentence in case 6005 was to be served consecutively with the sentences imposed in case 6001. The appellant attacked the judgment and sentences in 6001 and the judgment and sentence in 6005 on the same grounds.

A prisoner cannot maintain a § 60-1507 motion attacking one sentence when other unchallenged sentences would keep him confined even if the motion succeeded.

Whiteaker v. State · filed 1966-04-09

The express terms of the rule preclude the petitioner from maintaining this action at this time. No matter what our conclusion might be on the merits of the contentions advanced by petitioner in his motion, he would not be released from prison, for he still would be confined under other sentences whose validity is not involved in this case.

A prisoner who files a Section 60-1507 motion remains in custody if released on parole while the appeal from denial of the motion is pending, so the appeal is not moot.

Baier v. State · filed 1966-11-05

We therefore hold that a prisoner who institutes a 60-1507 proceeding, and is released on parole from the state penitentiary while his appeal from a denial of his motion by the district court is pending, remains in “custody” within the purview of the statute. His release on parole under such circumstances does not render moot the questions raised in his appeal.

A prisoner cannot maintain a motion under § 60-1507 challenging a sentence when vacating that sentence would still leave the prisoner confined under another unchallenged sentence.

Jackson v. State · filed 1966-11-05

At the outset we are faced with the state’s challenge as to the right of petitioner to maintain the action under the provisions of K. S. A. 60-1507. ... It appears from the record, and able counsel for appellant does not otherwise contend, that even though the appellant was freed from his life sentence in Case No. 2415, that he would still be serving the sentence for robbery in the first degree under Case No. 2428. ... The sentence in Case No. 2428 has not been challenged. Consequently the second action cannot be maintained.

Section 60-1507 does not permit a prisoner to challenge a sentence if vacating it would leave the prisoner confined under another sentence.

Davis v. State · filed 1967-03-04

Under these circumstances it has been held that a prisoner is not entitled to challenge the validity of a sentence by a motion filed pursuant to K. S. A. 60-1507, where, despite an adjudication finding the sentence void, he would still be confined under another sentence.

Section 60-1507 does not entitle a prisoner to challenge a sentence when voiding it would leave the prisoner confined under another sentence.

Lee v. State · filed 1966-07-14

“A prisoner is not entitled to challenge the validity of a sentence by a motion filed under K. S. A. 60-1507 where, despite an adjudication finding the sentence void, he would still be confined under another sentence.”

A prisoner cannot challenge a sentence under § 60-1507 if invalidating it would leave the prisoner confined under another sentence.

Peterson v. State · filed 1967-12-09

It is firmly established a prisoner may not challenge die validity of a sentence by a motion filed pursuant to K. S. A. 60-1507 where notwithstanding an adjudication finding the sentence void he would still be confined under another sentence.

A probationer subject to significant restraints on freedom is in custody and may seek relief under § 60-1507.

Miller v. State · filed 1968-03-09

Inasmuch as the petitioner remains a probationer at this time, the period of probation having been extended to May 13, 1968, we hold that he is entitled to maintain this action for relief under K. S. A. 60-1507.

Section 60-1507(a) permits a collateral attack only by a prisoner in custody under a conviction and sentence; a pretrial commitment for treatment does not qualify.

Johnson v. State · filed 1968-03-09(a)

The manifest purpose of the statute is to provide a means of collateral attack on a sentence in the court where it was imposed by a prisoner in custody under such sentence. The language used clearly presupposes a conviction and sentence.

A prisoner may obtain a determination of a section 60-1507 challenge to a sentence even if another sentence would keep the prisoner confined.

Davis v. State · filed 1968-11-09

This is an appeal in a proceeding instituted pursuant to K. S. A. 60-1507, wherein the trial court, after an evidentiary hearing, denied relief on the grounds that, despite an adjudication invalidating the sentence attacked, petitioner would still be confined under another sentence. ... In order to obtain conformance with the holding in the cases cited Rule No. 121 was amended by deleting subparagraph (2) of paragraph (c). It follows that the judgment of the trial court must be reversed and the case remanded with directions to grant a new hearing and determine issues raised by petitioner.

Section 60-1507(a) permits a prisoner to challenge only the sentence under which the prisoner is presently in custody, even when an expired Kansas sentence enhanced a current sentence in another state.

Johnson v. State · filed 1980-04-04(a)

K.S.A. 60-1507 thus provides relief only when a person is “in custody under sentence of a court of general jurisdiction.” The statute clearly contemplates that the sentence being attacked is the one resulting in the present custody. In this case appellant attempts to challenge a Kansas conviction which has expired, but which was used for enhancement purposes for his present Texas confinement. Our statute does not permit such a challenge since plaintiff is not “in custody” under the Kansas sentence he attempts to challenge.

Section 60-1507 is available only to prisoners held under a sentence of a court of general jurisdiction, so it does not provide relief from a municipal court sentence.

In Re Habeas Corpus Application of Gilchrist · filed 1985-10-25

K.S.A. 60-1507 was not available to petitioner since it may be used only by a prisoner in custody under ... sentence of a court of general jurisdiction. A municipal court is not a court of general jurisdiction.

Section 60-1507 permits a person held in another state to challenge a Kansas sentence if the person is in custody, is subject to a sentence of a court of general jurisdiction, and seeks to vacate, set aside, or correct that Kansas sentence.

Maggard v. State · filed 2000-09-22

We interpret 60-1507 as permitting an inmate to bring a habeas corpus claim under that statute if: (1) the inmate is in custody, whether in Kansas or elsewhere; (2) the inmate is subject to a sentence of a court of general jurisdiction; and (3) the inmate is claiming that his or her Kansas sentence should be vacated, set aside, or corrected.

A person on probation is in custody for purposes of a § 60-1507 motion challenging a sentence as unconstitutional.

State v. Whitesell · filed 2001-11-02

K.S.A. 60-1507 allows a prisoner in custody under sentence of a court of general jurisdiction who claims to be held in violation of the United States Constitution to move the court which imposed the sentence to vacate, set aside, or correct the sentence. Even though on probation, Whitesell is “in custody” for the purposes of a K.S.A. 60-1507 motion.

Section 60-1507 relief is unavailable to a person who is not in custody under any sentence.

State v. Stough · filed 2002-03-08

Although the State’s response to Stough’s motion only contended the trial court lacked jurisdiction to consider the relief requested, it also suggested that if a remedy existed, it would be under K.S.A. 60-1507. The State now admits this assertion to be erroneous because Stough was not in custody under any sentence. We agree.

Section 60-1507 applies to prisoners in custody under a court sentence; a motion filed before sentencing is a posttrial motion rather than a section 60-1507 motion.

State v. Holmes · filed 2004-12-17(a)

These motions' are best characterized as posttrial motions rather than 60-1507 motions because sentencing had not been imposed.

Section 60-1507(a) requires the movant to be in custody when the motion is filed; later release does not end jurisdiction if the challenge remains live.

Rawlins v. State · filed 2008-05-16(a)

The holding, said another way, means once a K.S.A. 60-1507 motion has been filed while a prisoner is in custody, the court will not lose jurisdiction because the prisoner is later released before the court has ruled on the motion.

Section 60-1507(a) applies to prisoners in custody under a sentence, not to persons facing civil commitment under the KSVPA.

In re the Care & Treatment of Ontiberos · filed 2012-08-17(a)

The obvious distinction from Van Cleave is that K.S.A. 60-1507 would not apply to a KSVPA proceeding. See K.S.A. 60-1507(a) (defining statute’s scope as extending to a prisoner in custody under a sentence).

Section 60-1507(a) requires a movant to be in custody when filing; possible immigration consequences do not satisfy that requirement after the sentence and probation have been fully served.

Tran v. State · filed 2017-01-13(a)

We agree with several other courts that have concluded that Padilla did not expand the field of those who might be "in custody" for habeas purposes to include those who might still have some immigration consequence from the conviction even though their sentence and probation had been fully served.

A court obtains jurisdiction over a Section 60-1507 motion filed while the movant is in custody and retains jurisdiction if custody ends before the judgment becomes final.

Mundy v. State · filed 2018-01-19(a)

We thus conclude a Kansas court obtains jurisdiction over a 60-1507 motion if a motion is filed while a movant is in custody. Jurisdiction is not lost if a 60-1507 movant's custody ends before judgment on the motion becomes final.

Section 60-1507 does not cover challenges to the KDOC’s calculation of an inmate’s release date; those claims must be brought under section 60-1501.

State v. Bohanon · filed 2018-06-15

Challenges to the calculation of a sentence by the KDOC to determine an inmate's release date are properly brought under K.S.A. 60-1501—not under K.S.A. 60- 1507 or K.S.A. 22-3504.

Section 60-1507(a) permits relief only when the movant is in custody under a sentence of a court of general jurisdiction.

State v. Lindsey · filed 2018-09-28(a)

But K.S.A. 2017 Supp. 60-1507(a) does not permit relief when the movant is not "in custody under sentence of a court of general jurisdiction."

A person on probation satisfies the custody requirement for relief under § 60-1507.

Jacobs v. State · filed 2019-03-15

Contrary to the court's ruling, she was "in custody" as required by K.S.A. 60-1507. The State concedes this point and we need not elaborate, but we hold that the court was in error when it found otherwise.

A continuing duty to register as a sex offender does not count as custody for relief under § 60-1507(a).

Woods v. State · filed 2020-07-31(a)

As a result, Woods' ongoing duty to register as a sex offender cannot be considered custodial for purposes of establishing jurisdiction to consider his K.S.A. 60-1507 motion.

Section 60-1507 relief is unavailable when the movant is no longer in state custody at the time the motion is filed.

In re D.L. · filed 2021-11-12(a)

Moreover, to the extent D.L. asserts that his motion is more properly considered as being brought under K.S.A. 60-1507, we agree with the district court's conclusion that such a motion is not available to D.L. as he was no longer in the State's custody when he filed his motion.

Section 60-1507(a) permits relief only while the movant is serving the sentence being attacked.

Woods v. State · filed 2021-12-10(a)

When a prisoner files a motion under K.S.A. 60-1507 and is not serving the sentence that they are attacking, the prisoner cannot obtain relief under K.S.A. 60- 1507.

Section 60-1507(a) requires the movant to be in custody under the sentence being challenged; a court lacks jurisdiction over a motion filed after that sentence has been fully served.

Goodpasture v. State · filed 2022-04-22(a)

In sum, the district court correctly determined that it lacked jurisdiction to enter an order on Goodpasture's K.S.A. 60-1507 motion filed more than 10 years after he served his entire sentence for the challenged conviction.

Section 60-1507(c) prohibits successive postconviction motions, and subsection (f) requires postconviction motions to be filed within one year of the specified events.

Tiger v. Cline · filed 2024-01-23(c), (f)

Further, Mr. Tiger now faces an anticipatory procedural bar because his federal claim would be rejected in state court as successive and untimely. See Kan. Stat. Ann. § 60-1507(c) (prohibiting successive postconviction motions); id. § 60-1507(f) (requiring that postconviction motions be filed within one year of termination of appellate jurisdiction on direct appeal, denial of certiorari by the Supreme Court, or denial of postconviction relief and any appeal).

Subsections (c) and (f) can bar a later § 60-1507 motion as successive and untimely.

Tiger (ID 105962) v. Cline · filed 2023-04-14(c), (f)

The Court also agrees with Respondent that there no longer exists a procedural avenue by which Petitioner may raise the Ground One arguments to the state courts. Any 60-1507 motion filed now that sought to assert ineffectiveness of direct-appeal counsel would be successive and untimely. See K.S.A. 60-1507(c), (f).

A § 60-1507 motion raising new grounds is not barred as successive when the prisoner’s earlier letter was filed before Rule 121 supplied the prescribed motion form.

Perrin v. State · filed 1966-01-22

However, that letter-motion was prepared and mailed to the district court prior to the adoption of Rule No. 121, and before the form of the motion prescribed in subsection ( e ) was made available to prisoners in the state penitentiary for their use. For this reason we are of the opinion the ends of justice would be served by our holding that the petitioner's motion filed on January 18, 1965, should be set for hearing and findings of fact and conclusions of law be made disposing of its allegations on the merits. It contained additional grounds for relief not alleged in the first motion, and, under the specific facts of this case, we are of the opinion that motion was not a second or successive motion as contemplated by the statute ( Sanders v. United States, 373 U.S. 1, 10 L.Ed.2d 148, 83 S.Ct. 1068), and does not fall within the rule announced in Smith v. State, supra.

A withdrawn and dismissed motion under § 60-1507 makes a later motion seeking the same relief a second or successive motion under subsection (c).

State v. Foulk · filed 1965-08-17(c)

We are of the opinion the statute means just what it says and until a future legislature sees fit to make any change, modification or enlargement thereof, this defendant properly commenced the proceeding under 60-1507 (a) whereby he could have had a full hearing, but when he and his counsel withdrew and dismissed the motion and case respectively, that matter was finally concluded and any further attempt to seek the same relief would be a second or successive attempt which is forbidden by 60-1507 (c).

Section 60-1507(c) does not require a court to entertain a second or successive motion seeking similar relief for the same prisoner.

Goodwin v. State · filed 1965-11-06(c)

The court was not in any event required to act at all as it was not obliged to entertain a second or successive motion for similar relief on behalf of the same prisoner (K. S. A. 60-1507 [c]; see, also, rule No. 121 [d] of this court).

Section 60-1507(c) permits denial of a successive motion for similar relief when the prisoner raises grounds that should have been included in the first motion.

Smith v. State · filed 1965-12-11(c)

It was within the province of this court to adopt rules implementing the statute, and when, in answer to question No. 10 of the prescribed form of motion a petitioner sets out a ground or grounds for relief—he is presumed to have-listed all of the grounds upon which he is relying.

A second motion under § 60-1507 may be denied under the rule for successive motions when the prisoner’s first motion was filed by counsel and received an evidentiary hearing.

Hanes v. State · filed 1966-03-05

Disposition of this matter is governed by what was said and held in Smith v. State, 195 Kan. 745, 408 P. 2d 647, in which this court dealt with the question of a second or successive motion for similar relief on behalf of the same prisoner, under the provisions of K. S. A. 60-1507. The rule of that case is particularly applicable where, as here, petitioner’s first motion for relief was prepared and filed by counsel, and an evidentiary hearing was granted. ... The order denying relief on petitioner’s second motion was correct and is affirmed.

Section 60-1507(c) permits a second motion raising different grounds that have not previously been determined on the merits.

Adair v. State · filed 1967-01-21(c)

Such a motion would not be in violation of K. S. A. 60-1507 (c) or Rule No. 121 (d) of the Supreme Court, Procedure Under Section 60-1507, effective January 1,1967.

A sentencing court must consider new grounds in a second 60-1507 motion when the first motion predates Rule No. 121 and those grounds were not previously alleged and determined.

McQueeney v. State · filed 1967-04-08

When a 60-1507 motion is filed on the prescribed form, the presumption is that all grounds upon which a petitioner is relying have been listed in his answer to question No. 10. Under such circumstances, the sentencing court is not required to entertain a second or successive motion, even though it contains additional grounds for relief (Smith v. State, 195 Kan. 745, 408 P. 2d 647); however, where, as here, the first motion was filed prior to the adoption of Rule No. 121, the district court is required to consider any additional grounds in the second motion not previously alleged and determined (Perrin v. State, 196 Kan. 228, 410 P. 2d 298). After examining the present grounds alleged, we are of the opinion they were not squarely presented in the first motion, and hence, it was proper for the district court to proceed to adjudicate such grounds on their merits.

Section 60-1507(c) permits a sentencing court to deny a successive motion raising grounds previously decided on the merits when the prisoner fails to show that reconsideration would serve the ends of justice.

Thomas v. State · filed 1967-07-12(c)

K. S. A. 60-1507(c) provides: “Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” ... We cannot say the ends of justice would be served to permit relitigation of issues once finally determined on the basis of the record here presented. The petitioner has not met the required burden of showing that the ends of justice would be served by a redetermination of the grounds asserted.

Section 60-1507 does not afford relief on a successive motion raising an unexplained new identity challenge to a prior conviction used for habitual criminal sentencing when the record shows no identity dispute.

Fairbanks v. State · filed 1967-07-12

This is an appeal from an order denying a second motion for relief under the provisions of K. S. A. 60-1507. ... Petitioner offers no explanation whatsoever as to why this complaint was not lodged in his first motion. ... For the reasons stated it is clear that petitioner is not entitled to relief on a second or successive motion under the circumstances related.

A court may dismiss a successive section 60-1507 motion as an abuse of the remedy when the movant offers no justification for failing to raise previously available grounds.

Cox v. State · filed 1967-12-09

This item was left blank by appellant. The record on appeal reveals he made no attempt to furnish this information at the hearing; he gave no justification or excuse for having failed to raise the particular points in his prior motions although the matter appears to have been in issue. ... We think the foregoing principle applicable as well to 1507 proceedings. ... The trial court in effect made the requisite finding that appellant’s application constituted an abuse of the remedy. Having so done, and we think correctly, such application should have been dismissed.