Stewart v. State

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,149

REGINALD STEWART,
Appellant,

v.

STATE OF KANSAS,
Appellee.

SYLLABUS BY THE COURT

1.
If a motion under K.S.A. 60-1507 presents substantial questions of law or triable
issues of fact and the movant is indigent, the district court shall appoint counsel to assist
the indigent movant. If a motion under K.S.A. 60-1507 presents a potentially substantial
question of law or triable issue of fact, the district court has the statutory power to
appoint counsel for movant in the exercise of its judicial discretion.

2.
Even in circumstances where a K.S.A. 60-1507 movant is not statutorily entitled
to the appointment of counsel, if the court conducts a hearing at which the State will be
represented by counsel, due process of law requires that the movant be represented by
counsel unless the movant waives that right to counsel.

3.
The State is permitted to file a written response to a K.S.A. 60-1507 motion. The
district court's consideration of the State's response, standing alone, does not constitute a
hearing for purposes of determining whether due process of law requires the movant to be
represented by counsel.

1
4.
When a K.S.A. 60-1507 motion and the files and records of the case, including
any response to the motion from the State, conclusively show that the movant is entitled
to no relief under that motion, the district court may summarily deny the motion without
appointing counsel for the movant.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 7, 2017.
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed July 12, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and
Krystle M. S. Dalke, of the same firm, was with him on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Lesley A. Isherwood,
assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with
him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Reginald Stewart petitions this court for review of the Court of
Appeals' decision affirming the district court's summary denial of his K.S.A. 60-1507
motion. Stewart agrees with the Court of Appeals' holding that the district court erred in
reviewing and relying upon the State attorney's written response to Stewart's pro se
motion without first appointing counsel for Stewart. Stewart's challenge on review is to
the panel's determination that the district court's error was harmless because the motion,
files, and record—exclusive of the State's written response—conclusively established that
Stewart was not entitled to relief. Stewart claims that there were facts missing from the

2
record that required an evidentiary hearing and appointment of counsel. We conclude that
summary denial of the 60-1507 motion was appropriate in this case.

The State cross-petitions, arguing that the Court of Appeals erred in holding that
"the district court may not invite the State to respond to the [60-1507] motion or review
an unsolicited written response from the State until or unless the movant is represented by
a lawyer." Stewart v. State, No. 115,149, 2017 WL 2901146, at *5 (Kan. App. 2017)
(unpublished opinion) (Stewart II). We agree with the State that its filing of a written
response, standing alone, did not trigger Stewart's statutory right to counsel. Ultimately,
we affirm the district court's summary denial of the motion.

FACTUAL AND PROCEDURAL OVERVIEW

After two trials resulted in a hung jury, a third jury convicted Stewart of
aggravated robbery. The 2011 incident giving rise to the conviction involved three men
who accosted a pedestrian walking home from work on a dimly lit street. The assailants
battered the victim before removing $8, some cigarettes, and a white lighter from his
pockets. The victim flagged down a patrol officer who apprehended two fleeing
individuals, Gerard Sillemon and Stewart. Sillemon had $8 in his pocket, and the white
lighter lay on the ground between the two men. The victim identified Stewart—both at
the crime scene and at trial—as being one of the robbers.

At trial, Sillemon testified that he pled guilty because he was the only person
involved in robbing the victim. Stewart testified that he was in the vicinity and observed
the crime, but that he was not involved in the robbery in any way. He claimed that the
victim had misidentified him. Nevertheless, the jury convicted Stewart of aggravated
robbery.

3
 On direct appeal, Stewart raised three jury instruction challenges and a cumulative
error argument. One of Stewart's jury instruction challenges argued that the eyewitness
identification instruction was clearly erroneous for including "degree of certainty" as a
factor for the jury to consider. The Court of Appeals held this instruction was erroneous
but fell short of clear error. State v. Stewart, No. 107,723, 2013 WL 3455788 (Kan. App.)
(unpublished opinion), rev. denied 298 Kan. 1207 (2013) (Stewart I).

Subsequently, Stewart timely filed the pro se K.S.A. 60-1507 motion that is now
before this court. The motion alleged error by the trial judge, ineffective assistance of
trial counsel, wrongful failure to disclose a transcript by the State, discriminatory
collusion between the prosecutor and the accuser, and conspiracy to convict Stewart on
the basis of race by the Sedgwick County Public Defender's Office.

Almost a year later, the State, acting through counsel, filed a response to Stewart's
motion, addressing Stewart's claims and arguing no evidentiary hearing was needed to
resolve them. The record is not clear as to whether the district court ordered the State to
respond or whether the State responded on its own volition. The district court's motion
minutes sheet adopting the "authorities and arguments of the State . . . as persuasive" and
denying Stewart's motion without a hearing is dated the same day as the State filed its
response, albeit the motions sheet was file-stamped a week later.

Stewart appealed the summary denial to the Court of Appeals. He alleged that the
district court violated his due process rights by failing to appoint counsel to represent him
before it considered the State attorney's written response to the pro se motion. He also
asserted that there are facts absent from the record regarding trial counsel's representation
that require an evidentiary hearing, rendering the summary denial erroneous.

The Court of Appeals held that the district court materially erred in considering
the State's response to Stewart's pro se motion without appointing counsel for Stewart or

4
providing him with an opportunity to argue beyond the face of his original motion.
Stewart II, 2017 WL 2901146, at *5. But the panel held that even though Stewart was
improperly deprived of the opportunity to be heard through counsel, the error was
harmless. The panel considered Stewart's 60-1507 motion without referring to the State's
response and opined that the motion had presented no viable claims, thereby rendering
harmless the district court's procedural error. 2017 WL 2901146, at *2-4, 6.

Stewart petitioned this court for review, arguing that the district court and Court of
Appeals erred by not granting him an evidentiary hearing. The State cross-petitioned,
arguing that the Court of Appeals erred in holding that Stewart should have been
appointed counsel upon the State filing a written response to the motion.

APPOINTMENT OF COUNSEL FOR 60-1507 MOVANT

In addressing Stewart's procedural challenge to the manner in which the district
court handled the 60-1507 motion, the Court of Appeals noted the procedure set forth in
K.S.A. 60-1507(b); the statutory right to counsel provided by K.S.A. 22-4506(b); and our
restatement of the statutory mandates in Supreme Court Rule 183 (2017 Kan. S. Ct. R.
222). 2017 WL 2901146, at *5. The panel summarized our caselaw establishing three
options for a district court upon receiving a 60-1507 motion as follows:

"The district court can summarily dismiss the motion after reviewing it and the contents
of the case file. Bellamy v. State, 285 Kan. 346, 353-54, 172 P. 3d 10 (2007). Otherwise,
the district court has two choices. It can conduct a preliminary hearing during which
lawyers for the State and for the defendant present legal argument and otherwise address
whether the circumstances call for a full evidentiary hearing. A limited amount of
evidence may be received at that preliminary hearing. Bellamy, 285 Kan. at 354. Or the
district court can appoint a lawyer for the movant, bypass the preliminary hearing, and set
the motion for a full evidentiary hearing. See 285 Kan. at 353-54." 2017 WL 2901146, at
*5.

5
 The panel determined that the options do not include the circumstance in which
the district court considers the arguments contained in a written response filed by the
State, "without affording the movant the equivalent opportunity to be heard through a
lawyer." 2017 WL 2901146, at *5. Our task is to determine whether that interpretation of
the statutory right to counsel is correct.

Standard of Review

The extent of Stewart's statutory right to counsel during a K.S.A. 60-1507
proceeding is a question of law over which this court has unlimited review. See Mundy v.
State, 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State, 288 Kan. 217,
227, 201 P.3d 691 [2009]); see also Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10
(2007) (disapproving application of the abuse of discretion standard for reviewing the
results of K.S.A. 60-1507 motions without specifically discussing K.S.A. 22-4506). But
cf. State v. Sharkey, 299 Kan. 87, 95, 322 P.3d 325 (2014) ("The determination of
whether the motion presents substantial questions of law justifying the appointment of
counsel '"rests within the sound discretion of the trial court."'").

In addition, resolution of this issue requires interpretation of K.S.A. 60-1507,
K.S.A. 22-4506, and Supreme Court Rule 183 (2019 Kan. S. Ct. R. 228). "Interpretation
of statutes and Supreme Court rules raises questions of law reviewable de novo."
Thompson v. State, 293 Kan. 704, 710, 270 P.3d 1089 (2011).

Stewart also argued before the Court of Appeals that the district court's failure to
appoint counsel resulted in a due process violation. "The issue of whether due process has
been afforded is a question of law over which [this court has] unlimited review." Hogue
v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).

6
Analysis

Stewart's due process claim is based upon the notion that a response by the State
triggers a pro se 60-1507 movant's right to be appointed counsel. He points to the
decisions in State v. Hemphill, 286 Kan. 583, 596, 186 P.3d 777 (2008); Alford v. State,
42 Kan. App. 2d 392, 402, 212 P.3d 250 (2009); Oliver v. State, No. 113,035, 2016 WL
1391757, at *3 (Kan. App. 2016) (unpublished opinion); and Stevenson v. State, No.
96,082, 2007 WL 438745, at *2 (Kan. App. 2007) (unpublished opinion), as supporting
that contention. The State counters that these cases are clearly distinguishable because
their due process holdings were based upon the district court holding a hearing at which
the State was represented by counsel but the movant was not. Moreover, the State
contests Stewart's contention that, when a court considers a written response, it is
tantamount to the court conducting an in-court hearing. We agree with the State on these
points.

Our analysis of the procedural due process claim looks first to see whether the
State has deprived the claimant of life, liberty, or property. If so, the focus is on the
extent and nature of the process which was due the claimant. Hogue, 279 Kan. at 850-51;
see also State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006) ("[B]asic elements of
procedural due process are notice and an opportunity to be heard at a meaningful time
and in a meaningful manner."). The first step is satisfied because the very nature of a 60-
1507 motion involves the movant's liberty interest, to-wit: "A prisoner in custody under
sentence of a court of general jurisdiction claiming the right to be released." K.S.A. 60-
1507(a). The second inquiry—the nature and extent of the process to which a 60-1507
movant is due—involves a more nuanced analysis.

We begin by looking at the source of Stewart's right to an attorney, if any.
Although Stewart makes no claim that either the federal or state constitution provides
him with the right to be appointed an attorney to pursue a postconviction collateral attack,

7
it is helpful to keep in mind that neither constitution provides that right. The United
States Supreme Court, in Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95
L. Ed. 2d 539 (1987), declined to extend an indigent person's Fourteenth Amendment
right to counsel on direct appeal to a collateral attack, stating "[o]ur cases establish that
the right to appointed counsel extends to the first appeal of right, and no further." See
also Davila v. Davis, 582 U.S. ___, 137 S. Ct. 2058, 2062, 198 L. Ed. 2d 603 (2017)
("prisoner does not have a constitutional right to counsel in state postconviction
proceedings").

Likewise, this court has held that "[t]here is no constitutional right to effective
assistance of counsel in an action pursuant to K.S.A. 60-1507." Robertson, 288 Kan. at
228; see also In re Care & Treatment of Ontiberos, 295 Kan. 10, 21, 287 P.3d 855 (2012)
(noting that a prisoner in a K.S.A. 60-1507 proceeding has already been afforded exercise
of their Sixth Amendment right to counsel at trial and their direct appeal); Brown v. State,
278 Kan. 481, 483, 101 P.3d 1201 (2004) ("We acknowledge that there is no
constitutional right to effective assistance of legal counsel on collateral attacks because
they are civil, not criminal, actions."). Nevertheless, "Kansas does under some
circumstances 'provide a statutory right to counsel on collateral attack.'" Mundy, 307
Kan. at 295 (quoting Brown, 278 Kan. at 483).

K.S.A. 60-1507, the statute in the Code of Civil Procedure that establishes the
procedure for prisoners to file a motion seeking postconviction relief, does not mention
any right to counsel for the movant. But K.S.A. 22-4506, a statute in the Code of
Criminal Procedure, provides for the appointment of counsel for an indigent 60-1507
movant. Specifically, it provides:

"(a) Whenever any person who is in custody under a sentence of imprisonment
upon conviction of a felony files a petition for writ of habeas corpus or a motion
attacking sentence under K.S.A. 60-1507 and files with such petition or motion such

8
 person's affidavit stating that the petition or motion is filed in good faith and that such
person is financially unable to pay the costs of such action and to employ counsel
therefor, the court shall make a preliminary examination of the petition or motion and the
supporting papers.

"(b) If the court finds that the petition or motion presents substantial questions of
law or triable issues of fact and if the petitioner or movant has been or is thereafter
determined to be an indigent person as provided in K.S.A. 22-4504, and amendments
thereto, the court shall appoint counsel from the panel for indigents' defense services or
otherwise in accordance with the applicable system for providing legal defense services
for indigent persons prescribed by the state board of indigents' defense services, to assist
such person and authorize the action to be filed without a deposit of security for costs. If
the petition or motion in such case raises questions shown by the trial record, the court
shall order that the petitioner or movant be supplied with a transcript of the trial
proceedings, or so much thereof as may be necessary to present the issue, without cost to
such person." K.S.A. 22-4506.

In short, 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. Reiterating that concept is Supreme Court Rule 183(i) (2019 Kan. S.
Ct. R. 230), which directs: "If a motion to vacate, set aside, or correct a sentence presents
a substantial question of law or triable issue of fact, the court must appoint counsel to
represent an indigent movant." Moreover, this court has said that "[t]here is no statutory
right to counsel at the district court level stage for indigent K.S.A. 60-1507 movants until
they meet the threshold showing of substantial legal issues or triable issues of fact."
Guillory v. State, 285 Kan. 223, 228, 170 P.3d 403 (2007); see also Albright v. State, 292
Kan. 193, 199, 251 P.2d 52 (2011) ("K.S.A. 22-4506[b] limits the right to appointed
counsel to those cases in which the district court finds that the 60-1507 motion 'presents
substantial questions of law or triable issues of fact and if the petitioner or movant has
been or is thereafter determined to be an indigent person.'"); State v. Andrews, 228 Kan.
368, 374-75, 614 P.2d 447 (1980) ("It is clear that when an indigent defendant wishes to

9
pursue a writ of habeas corpus or a motion attacking sentence pursuant to K.S.A. 60-
1507, the district court is to examine the merits of the motion or petition and then make a
decision as to whether the appointment of counsel is necessary."); Robinson v. State, 218
Kan. 1, 5, 542 P.2d 305 (1975) ("It is only when a district court determines a 60-1507
motion presents substantial questions of law or triable issues of fact that it appoints
counsel to assist an indigent petitioner.").

Stewart's contention—that the potential for triable issues of fact is sufficient to
trigger the statutory right to counsel in a 60-1507 proceeding—most likely emanates from
an expansive reading of the following recitation from the oft-cited case of Lujan v. State,
270 Kan. 163, 14 P.3d 424 (2000). Lujan outlined three avenues a district court can take
upon receiving a 60-1507 motion, to-wit:

"First, it may determine that the motion, files, and records of the case conclusively show
that the petitioner is entitled to no relief, in which case it will summarily deny the
petitioner's motion. Second, the court may determine from the motion, files, and record
that a substantial issue or issues are presented, requiring a full evidentiary hearing with
the presence of the petitioner. Third, the court may determine that a potentially
substantial issue or issues of fact are raised in the motion, supported by the files and
record, and hold a preliminary hearing after appointment of counsel to determine whether
in fact the issues in the motion are substantial. In the event the court determines that the
issue or issues are not substantial, the court may move to a final decision without the
presence of the petitioner. If the issue or issues are substantial, involving events in which
the petitioner participated, the court must proceed with a hearing involving the presence
of the petitioner." (Emphasis added.) 270 Kan. at 170-71.

The actual question being addressed in Lujan, however, was whether the 60-1507
movant had the right to be present at a full evidentiary hearing under the second avenue
described above, i.e., after the district court had determined the motion, files, and record
presented a substantial issue. The Lujan court did not need to establish the point in the
proceedings at which the statutory right to counsel became effective because Lujan did,
10
in fact, have an attorney representing him at the evidentiary hearing; movant's complaint
was that he was not personally present to help his attorney prosecute his motion.

Moreover, the questions of when a movant is entitled to the appointment of
counsel and when the movant is entitled to be present at a court hearing on the motion are
separate inquiries. For instance, K.S.A. 60-1507(b) separates the right to a hearing from
the right to be present at the hearing. It first directs the district court to "grant a prompt
hearing" on a 60-1507 motion to "determine the issues and make findings of fact and
conclusions of law," except when "the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief." K.S.A. 60-1507(b). But then
K.S.A. 60-1507(b) goes on to provide that "[t]he court may entertain and determine such
motion without requiring the production of the prisoner at the hearing." Likewise,
Supreme Court Rule 183 separates the right to counsel and the right to be present: Rule
183(h) provides that an imprisoned movant "must be produced at the hearing on a motion
. . . if there are substantial issues of fact regarding events in which the movant
participated"; whereas Rule 183(i), as noted above, states that, if a motion "presents a
substantial question of law or triable issue of fact, the court must appoint counsel to
represent an indigent movant." Supreme Court Rule 183(h), (i) (2019 Kan. S. Ct. R. 230).

Consequently, Lujan's dicta about the third avenue of approach available to a
district court should not be read so expansively as to make the court's discernment of a
potential substantial issue the event that triggers the statutory requirement to appoint
counsel for an indigent movant. We intimated as much in Mundy when we noted that this
court had previously "implicitly recognized the district court [has] the statutory power to
exercise discretion and appoint counsel . . . where the motion presents a potentially
substantial question of law or triable issue of fact. Cf. Supreme Court Rule 183(i) (2017
Kan. S. Ct. R. 222) (court must appoint counsel if 60-1507 motion presents a substantial
question of law or triable issue of fact)." 307 Kan. at 295. In other words, the district
court may, but is not required to, appoint an indigent 60-1507 movant an attorney during

11
the period the court is making its determination of whether the motion, files, and record
present a substantial question of law or triable issue of fact.

Nevertheless, Lujan's reference to the appointment of counsel under its third
avenue of approach was not incorrect. Rather, the event in that circumstance that gives
rise to the need to appoint counsel for the movant is the district court's determination to
"hold a preliminary hearing," at which the State will be represented by an attorney. 270
Kan. at 171. As noted above, the cases cited by Stewart declaring that due process had
required the appointment of counsel for the postconviction movant involved a court
hearing at which the State appeared by counsel. For example, in Hemphill we
"emphasize[d] . . . that even though a court need not automatically hold a hearing or
appoint counsel in all postconviction matters, when a hearing is held 'at which the State
will be represented, then due process of law does require that the defendant be
represented unless the defendant waives the right to counsel.'" 286 Kan. at 596 (citing
State v. Pierce, 246 Kan. 183, 199, 787 P.2d 1189 [1990]; State v. Buckland, 245 Kan.
132, 142, 777 P.2d 745 [1989]). Pointedly, the State does not challenge that precedent.

The next step, then, is to look at what constitutes a hearing at which due process
requires an attorney for a 60-1507 movant. At one end of the spectrum, K.S.A. 60-
1507(b) requires the district court to notify the county attorney and grant a prompt
hearing "unless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief." If the district court has made that determination—that
the motion, files, and records do not conclusively show the movant is entitled to no
relief—and ordered the statutorily required hearing, it has necessarily determined the
presence of substantial questions of law or triable issues of fact. Consequently, that
determination invokes the movant's statutory right to counsel, and the district court must
appoint counsel for an indigent movant, without regard to whether the State is
represented by an attorney at the hearing.

12
 At the other end of the spectrum, when the district court determines on its own that
the motion, files, and records of the case conclusively show that movant is entitled to no
relief, the motion can be summarily denied, i.e., without hearing and without appointed
counsel. In-between—when the district court exercises its discretion to order a
preliminary hearing to assist in making the determination of whether the motion, files,
and records present substantial questions of law or triable issues of fact—our due process
jurisprudence dictates that the district court appoint an attorney to represent an indigent
movant if the State appears in court at that preliminary hearing through an attorney.

That leads us to Stewart's contention that the district court's consideration of a
written response by an attorney for the State is the functional equivalent of an in-court
preliminary hearing. He adopts the Court of Appeals' opinion in this case that declares
that a district court's summary denial of a 60-1507 motion can be "based only on the
motion and the record in the underlying criminal case," and that the district court may not
look at a written response by the State "until or unless the movant is represented by a
lawyer." Stewart II, 2017 WL 2901146, at *5. For authority, the panel relied on an
unpublished decision by another Court of Appeals panel in Jones v. State, No. 114,601,
2016 WL 7494363, at *3 (Kan. App. 2016) (unpublished opinion), which the Stewart II
panel found to have "legally indistinguishable facts." Stewart II, 2017 WL 2901146, at
*5.

The State counters that the Stewart II panel created a new test for determining
when counsel must be appointed in a 60-1507 proceeding that contravenes statutory
provisions, Supreme Court Rules, and established caselaw and that treats the process as if
it were intended to be an ex parte proceeding. Contrary to the panel's notion that a State
response to a 60-1507 motion triggers a right to counsel for the movant, the State
contends that the well-established existing test requires the appointment of counsel only
when movant has raised substantial issues or when the court conducts an actual hearing
at which the State is represented. The State argues that it is a party in the 60-1507

13
proceedings and that there is nothing in our statutes or rules precluding it from
responding as it would to any other civil motion. Cf. Pabst v. State, 287 Kan. 1, 24, 192
P.3d 630 (2008) ("nothing in [K.S.A. 60-1507] or our rules makes it impermissible for
the State to file a responsive pleading"); see Supreme Court Rule 183(a)(2) (2019 Kan. S.
Ct. R. 228) (procedure on 60-1507 motion governed by rules of civil procedure to the
extent applicable).

Further, the State challenges the Stewart II panel's assessment that the factual
distinctions in Jones have no legal significance. In that case, the district court reviewed
the motion, files, and records and summarily denied relief on all issues except one. Then
the court ordered the State to submit a brief on the one remaining issue, but the court did
not permit the movant to brief the issue or respond to the State's brief. Further, the court
did not appoint counsel for the movant. The State contends that the briefing order makes
Jones factually distinguishable.

Nevertheless, as the State points out, the Stewart II panel ignored the rationale of
other Court of Appeals panels that have rejected the argument that, for due process
purposes, the district court's review of the State's written response was the same as the
court conducting a preliminary hearing at which the State was represented by an attorney.
See, e.g., Noyce v. State, No. 114,971, 2017 WL 3112821, at *4-5 (Kan. App.)
(unpublished opinion), rev. granted 307 Kan. 987 (2017); Littlejohn v. State, No.
115,904, 2017 WL 2833312, at *3-4 (Kan. App.) (unpublished opinion), rev. granted 307
Kan. 987 (2017); Thuko v. State, No. 115,662, 2017 WL 2709779, at *3 (Kan. App.)
(unpublished opinion), rev. granted 307 Kan. 994 (2017); Hill v. State, No. 115,723,
2017 WL 2001615, at *3 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1317
(2017); Dawson v. State, 115,129, 2017 WL 262027, at *1-2 (Kan. App.) (unpublished
opinion), rev. granted 307 Kan. 986 (2017); State v. Roberts, No. 114,726, 2016 WL
6829472, at *4-5 (Kan. App.) (unpublished opinion), rev. granted 307 Kan. 992 (2017).
For instance, the Thuko panel suggested that a judge reviewing a motion and response

14
does not fit within our common understanding of a "hearing," which Black's Law
Dictionary describes as: "A judicial session, [usually] open to the public, held for the
purpose of deciding issues of fact or of law, sometimes with witnesses testifying." Thuko,
2017 WL 2709779, at *3; Black's Law Dictionary 836 (10th ed. 2014). There is simply
no indication here that a judge held a hearing.

In short, the Stewart II panel expanded upon the process that the Hemphill court
held was due to a postconviction movant with respect to appointed counsel. We decline
to make that expansion; rather, it is when the district court conducts an actual hearing
with the State represented that due process dictates a movant's right to counsel.

As we observed in State v. Nunn, 247 Kan. 576, 584, 802 P.2d 547 (1990), "it
would simplify matters for all courts and litigants if we were to adopt a bright-line rule
that counsel be appointed for all post-trial motions." But, like the Nunn court, we realize
that "such a rule would not appear to be feasible or justified." 247 Kan. at 584. Given that
constraint, the unfairness that bothered the Stewart II panel—having a layperson pitted
against an attorney on legal issues—is present regardless of whether the State files a
response. Ordinarily, an indigent layperson must prepare and file his or her own 60-1507
motion, in which the nonlawyer movant must state why he or she is legally entitled to
relief. Thereupon, a law-trained judge reviews the motion and can summarily deny it as
being legally infirm and conclusively showing no entitlement to relief. In other words,
any unfairness caused by a disparity in legal knowledge begins with the preparation of
the motion, not at the point of the State's response.

With respect to the statutory right to counsel, the Stewart II panel creatively
interpreted K.S.A. 60-1507(b). It declared that, without appointing an attorney for a
movant, a district court "can summarily deny relief based only on the motion and the
record in the underlying criminal case," and it "may not entertain argument from the
State" contained in a written response. Stewart II, 2017 WL 2901146, at *5. But, of

15
course, the statute does not actually say that. To reiterate, it refers to "the motion and the
files and records of the case." K.S.A. 60-1507(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.

In sum, an indigent 60-1507 movant has a statutory right to counsel if the district
court finds that the motion presents substantial questions of law or triable issues of fact.
That did not occur in this case. Further, as a matter of procedural due process, a movant
has the right to counsel when the court holds a hearing at which the State is represented
by counsel. There was no hearing in this case; the State's filing of a response to the
motion, standing alone, did not constitute a hearing. The Court of Appeals holding to the
contrary is overruled.

SUBSTANTIVE CLAIMS FOR RELIEF

Although we disagree with the Court of Appeals' resolution of the right to counsel
issue, we agree with the Court of Appeals' resolution of Stewart's substantive claims. The
Court of Appeals reviewed each of the substantive claims Stewart raised in his 60-1507
motion and explained why each did not warrant relief. On review, defense counsel
focuses on the claim that trial counsel was ineffective for failing to call an eyewitness
identification expert to testify and refute the victim's identification of Stewart as one of
the robbers. We begin with that claim.

Standard of Review

"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 any relief." Wimbley v. State,
292 Kan. 796, 804, 275 P.3d 35 (2011).

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Analysis

With respect to Stewart's claims that his trial counsel was ineffective, he must
establish:

"[T]hat counsel's performance was constitutionally deficient, which requires a showing
that counsel made errors so serious that his or her performance was less than that
guaranteed to the defendant by the Sixth Amendment to the United States Constitution,
and that counsel's deficient performance prejudiced the defense, which requires a
showing that counsel's errors were so serious as to deprive the defendant of a fair trial."
Trotter v. State, 288 Kan. 112, 132-33, 200 P.3d 1236 (2009).

As the panel noted, at the time of Stewart's trial, "the Kansas Supreme Court had
consistently ruled that expert testimony could not be admitted regarding potential
weaknesses in eyewitness identification. State v. Gaines, 260 Kan. 752, 763, 926 P.2d
641 (1996); State v. Warren, 230 Kan. 385, 395, 635 P.2d 1236 (1981)." Stewart II, 2017
WL 2901146, at *3. It would be more than two years before this court would overrule
that precedent and allow expert testimony on eyewitness identification under certain
circumstances. State v. Carr, 300 Kan. 1, 222-26, 331 P.3d 544 (2014). Consequently, we
agree with the panel's determination that a defense counsel's failure "to advocate for a
dramatic reversal of well-settled Kansas law" is not constitutionally deficient
performance. Stewart II, 2017 WL 2901146, at *4.

Granted, Laymon v. State, 280 Kan. 430, 439-40, 122 P.3d 326 (2005), recognized
that "a lawyer's failure to foresee a change in the law may lead to 60-1507 relief if the
failure was not objectively reasonable." But Laymon involved the unique circumstance
that the defense counsel who failed to preserve the change-in-law issue practiced out of
the same office in which other attorneys were actively advocating for, and ultimately
obtained, that particular change in the law. In Barr v. State, 287 Kan. 190, 197, 196 P.3d

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357 (2008), we declined to extend Laymon beyond its "'inside baseball' analysis." This
case fits squarely within Laymon's caveat that the "Sixth Amendment requires
competence, not omniscience." Laymon, 280 Kan. at 440 (discussing Starnes v. State, No.
88,225, 2003 WL 22764417, at *3 [Kan. App. 2003] [unpublished opinion]). In short,
summary denial of this claim was appropriate.

With respect to the other issues addressed by the panel, counsel in the petition for
review does not provide argument as to why the panel was wrong on the merits. Instead,
counsel simply inquires: "Similarly with the other issues made by Mr. Stewart, would
not the opportunity to have counsel available and able to review the petition and the
State's response potentially have made a difference in how the arguments and issues were
raised and framed before the district court?" While the answer to that question may be
yes, the issue is whether the arguments and issues that are actually contained in the
motion, files, and records conclusively show that Stewart is entitled to no relief. And on
that issue, the panel adequately addressed and correctly decided each claim.

On Stewart's claim that his trial counsel failed to challenge the sufficiency of the
evidence, the panel pointed out that trial counsel moved for judgment of acquittal at the
close of evidence and renewed the motion in written form after the jury's verdict. In other
words, the claim is factually flawed. Counsel did all that he could at the trial level to
challenge sufficiency.

With regard to Stewart's claim that trial counsel was deficient in failing to call the
arresting officer as a witness at the third trial, the panel noted the absence of any
explanation as to how the outcome of the case could have been different if defense
counsel had done so. Likewise, we are not provided with that explanation and the claim
lacks merit.

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 On Stewart's remaining three claims, the panel opined that they were "so
conclusory and lacking in any factual anchors that we cannot meaningfully review them."
Nothing we have received on review refutes the panel's determination that the remaining
claims "all fail to set forth intelligible grounds for relief." Stewart II, 2017 WL 2901146,
at *4.

Stewart's counsel would have us remand for an evidentiary hearing to permit a
fishing expedition in the hopes that the 60-1507 movant might catch a fact that could lead
to something favorable. To the contrary, it is incumbent upon the movant to show that a
triable issue of fact already exists and is identifiable at the time of the motion. Summary
denial was appropriate here.

CONCLUSION

The Court of Appeals' determination to affirm the district court's summary denial
of Stewart's 60-1507 motion on the merits of his claims is affirmed.

The panel's determination that the district court materially erred when it
considered the State's written response to Stewart's 60-1507 motion without appointing
Stewart an attorney is overruled. Because the district court correctly found that the
motion did not present substantial questions of law or triable issues of fact, Stewart's
statutory right to counsel did not arise. Because the district court did not conduct a
hearing at which the State was represented by counsel, Stewart's due process right to
counsel was not implicated or impaired.

Affirmed.

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