Woods v. State

NOT DESIGNATED FOR PUBLICATION

No. 121,466

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CLINT E. WOODS,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed July 24, 2020.
Affirmed.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

Clint E. Woods, appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before WARNER, P.J., MALONE and BRUNS, JJ.

PER CURIAM: Clint E. Woods appeals the district court's summary denial of his
third K.S.A. 60-1507 motion as untimely and successive. Finding no error, we affirm the
district court's judgment.

1
 FACTUAL AND PROCEDURAL BACKGROUND

In 2003, the State charged Woods with two counts of first-degree murder and one
count of aggravated battery stemming from a gang fight in which two people were killed
and a third was injured. State v. Woods, No. 93,417, 2006 WL 851245, *1 (Kan. App.
2006) (unpublished opinion) (Woods I). Woods was represented by attorneys Steven
Mank and Kurt Kerns and, in accordance with a plea agreement, Woods pled guilty to
one count of second-degree murder. 2006 WL 851245, at *1. At the plea hearing, Woods
understood that both parties would be recommending a sentence of 258 months, but the
district court was not bound by the recommendation and could sentence him to between
147 and 653 months' imprisonment. 2006 WL 851245, at *1. Woods provided a factual
basis for his guilty plea. 2006 WL 851245, at *1.

Before his sentencing, Woods moved to withdraw his plea, arguing actual
innocence and asserting that his attorneys had not told him about the consequences of his
plea and had improperly induced him to plead guilty. 2006 WL 851245, at *1. The
district court appointed Michael Brown to represent Woods and held an evidentiary
hearing on his motion. 2006 WL 851245, at *1.

At the evidentiary hearing, Woods testified that his attorneys led him to believe
that an oral agreement had been reached whereby the State had agreed to recommend a
reduced sentence of 60 months in exchange for Woods cooperating with the law
enforcement in its investigation of the gang fight. 2006 WL 851245, at *2. Woods also
testified that Kerns coerced him into entering his plea by telling him that the judge who
was scheduled to preside over his trial would not give him a fair trial. 2006 WL 851245,
at *2. Finally, Woods testified that Kaylen Irby, a witness who had implicated him in the
shooting, recanted that story on the day Woods pled guilty. 2006 WL 851245, at *2.

2
 Mank testified that he and the prosecutor had orally agreed that if Woods
cooperated with police, the State would consider allowing a motion for departure
sentence. 2006 WL 851245, at *2. But Mank also testified that there was no agreement
on a specific departure sentence and that he never told Woods he might receive a 60-
month sentence. 2006 WL 851245, at *2. According to Mank, Woods wanted a 60-month
sentence, but Mank "told Woods there was no way he was going to get a 60-month
sentence since two people had been killed." 2006 WL 851245, at *2. Kerns testified that
he knew some witnesses had recanted, but he was concerned that their testimony might
continue to change. 2006 WL 851245, at *2.

The district court denied Woods' motion to withdraw his plea and sentenced him
to 258 months' imprisonment. 2006 WL 851245, at *1. Woods appealed and this court
affirmed. 2006 WL 851245, at *2-3. The Kansas Supreme Court denied Woods' petition
for review, and the mandate was issued on September 21, 2006.

The first K.S.A. 60-1507 motion

On September 18, 2007, Woods filed a timely pro se K.S.A. 60-1507 motion,
arguing that Mank and Kerns had provided unconstitutionally ineffective assistance of
counsel through their failure "'to adequately investigate the facts and circumstances' of
his case." Woods v. State, No. 105,948, 2012 WL 6734507, at *2 (Kan. App. 2012)
(unpublished opinion) (Woods II). He contended that Mank and Kerns provided
ineffective assistance of counsel when they failed to locate or interview Irby or
Rawshanda Solomon—whom he asserted would have established his alibi—and they
failed to tell him before he entered his plea that Irby had recanted his statements
incriminating Woods. 2012 WL 6734507, at *2. Woods asserted he had not made this
argument during his plea withdrawal motion "because 'the factual and legal significance'
of these issues were unknown to him at that time.'" 2012 WL 6734507, at *2.

3
 On May 21, 2009, the district court held an evidentiary hearing on Woods' motion,
at which Kerns and Mank testified that they did not remember whether they had
investigated Irby. 2012 WL 6734507, at *3. Woods testified that a few days before his
scheduled trial date, Mank and Kerns told him that Irby's anticipated trial testimony
would likely lead to a jury convicting Woods, but Woods learned from his mother just
before sentencing that Irby wanted to recant his statements. 2012 WL 6734507, at *3.
Woods claimed he would not have pled guilty had he known that Irby wished to recant.
2012 WL 6734507, at *3. Irby testified that he had gone to Kerns' law office and
explained to two people there that he actually had no knowledge of what happened during
the gang fight. 2012 WL 6734507, at *4.

The district court denied Woods' motion, finding that Irby's recantation "'would
not produce a great amount of evidence [and] does not rise to the level of alibi as was
alleged in the 60-1507 motion.'" 2012 WL 6734507, at *4. The district court also found
that Mank and Kerns were not ineffective and Woods was not prejudiced by their
behavior: "'Mr. Woods received the benefit of a plea agreement which called for a
substantially less [sic] sentence than he would have received had he gone to trial and
been convicted.'" 2012 WL 6734507, at *4.

Woods appealed, arguing that he had sufficiently demonstrated in the district court
that manifest injustice would result unless the district court set aside the conviction and
allowed him to withdraw his guilty plea. 2012 WL 6734507, at *4. Noting that Woods
did not present any evidence about Solomon in the district court or refer to Solomon on
appeal, this court held that Woods had waived any argument related to Solomon. 2012
WL 6734507, at *5. It also declined to consider issues Woods raised for the first time on
appeal about a failure to interview additional individuals. 2012 WL 6734507, at *6.

Next, this court held that Woods' claims were barred by the doctrine of res judicata
because his K.S.A. 60-1507 motion raised "the exact same issue" that the district court
4
resolved on its merits while deciding Woods' presentencing motion to withdraw his plea.
2012 WL 6734507, at *6. This court "conclude[d] that Woods has had his day in court
[on the recantation issue] and the doctrine of res judicata obviates the need to reconsider
the issues Woods raises once again." 2012 WL 6734507, at *7. The Kansas Supreme
Court denied Woods' petition for review, and the mandate issued on August 27, 2013.

The second K.S.A. 60-1507 motion

In May 2014, Woods filed a second K.S.A. 60-1507 motion, again arguing that his
trial counsel provided ineffective representation by failing to investigate Solomon's and
Irby's changing statements and by misrepresenting the terms of the plea agreement.
Woods v. State, 52 Kan. App. 2d 958, 961, 379 P.3d 1134 (2016) (Woods III). Woods
also argued that Brown—his counsel at the hearing on his motion to withdraw his plea—
was ineffective because he failed to call Manuel Roach to testify despite knowing that
Roach would also recant his statements implicating Woods. 52 Kan. App. 2d at 959, 962.
Woods submitted signed statements from supporting witnesses which he characterized as
newly discovered evidence, and he argued that he had a colorable claim of actual
innocence, so the district court had to consider his arguments on their merits in order to
avoid manifest injustice. 52 Kan. App. 2d at 962.

The State responded that Woods was attempting to relitigate issues already
decided against him, that there was no "newly discovered evidence," and that Woods had
failed to establish a reason to consider his untimely and successive K.S.A. 60-1507
motion. 52 Kan. App. 2d at 962. The district court summarily denied the motion, holding
that Woods had made "'no showing of manifest injustice'" and that his claims were barred
by res judicata. 52 Kan. App. 2d at 962.

On appeal, this court agreed with the State that res judicata barred Woods' claims
to the extent that they were based on "his attorney's failure to fully investigate witnesses

5
and their changing stories" or were based on "his attorney's representation about the
length of his sentence." 52 Kan. App. 2d at 965. In addition, this court found that Woods
had waived and abandoned in his first K.S.A. 60-1507 proceeding any claims based on a
failure to investigate Solomon's changing stories and "a defendant cannot revive an
abandoned point in a subsequent proceeding." 52 Kan. App. 2d at 966.

This court also addressed the impact of Woods' claim of actual innocence and
noted that Kansas courts presume that "'[a] plea of guilty is admission of the truth of the
charge and every material fact alleged therein." See 52 Kan. App. 2d at 966-67. And
"[w]here judgment and sentence have been entered upon a plea of guilty, there can be no
review of the sufficiency of the evidence in a K.S.A. 60-1507 proceeding." 52 Kan. App.
2d at 967. This court concluded:

"Woods' overarching claim on appeal is that his allegations in the current K.S.A.
60-1507, if true, establish his actual innocence. A claim of actual innocence, he argues,
provides the gateway to overcome the procedural bars of timeliness and successiveness
by establishing the manifest injustice and exceptional circumstances required to pursue
his claim and receive an evidentiary hearing. Clearly a colorable claim of innocence can
be the basis to find manifest injustice. That said, we do not need to reach Woods'
assertion that a colorable claim of innocence may also be the basis for a finding of
exceptional circumstances, because even if we did find that a colorable claim of
innocence opens both gateways, it is still insufficient to override the longstanding rule
that a freely and voluntarily entered guilty plea bars a collateral attack on the sufficiency
of the evidence. Accordingly, we find that the district court did not err in summarily
denying Woods' untimely and successive K.S.A. 60-1507 motion. [Citation omitted.]" 52
Kan. App. 2d at 967-68.

Woods filed a petition for review, which the Kansas Supreme Court denied. The
mandate was issued on October 11, 2017.

6
The third K.S.A. 60-1507 motion

On December 6, 2017, Woods filed a third pro se K.S.A. 60-1507 motion, once
again seeking to set aside his guilty plea. This time, he argued (1) Mank, Kerns, and
Brown provided ineffective assistance of counsel; (2) the district court judge, the
prosecutor, Mank, and Kerns conspired to deny Woods fair proceedings; (3) the State
erred by initially charging him with first-degree murder and by arguing false facts at the
sentencing hearing; (4) there was insufficient evidence to support a conviction for
intentional second-degree murder; and (5) the district court erred when it failed to rule on
a motion in the proceedings on his second K.S.A. 60-1507 motion.

More specifically, Woods again argued that Mank and Kerns provided ineffective
assistance of counsel by misrepresenting the impact of his guilty plea. He also raised a
new claim that Mank and Kerns were ineffective because they failed to obtain relevant
impeachment evidence about Detective Robert Chisholm and Officer James Espinoza.
Under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the State must
"disclose evidence favorable to the defense, even after conviction, if the State knew of
that evidence during trial." See State v. Robinson, 309 Kan. 159, 160, 432 P.3d 75 (2019).
Woods asserted that the impeachment evidence about Chisholm and Espinoza would
have forced the State to dismiss the charges against him.

Woods also argued that both Mank and Brown misinformed him that his criminal
history score was C and he would receive a 194-month sentence. And he asserted that
Brown was ineffective for not arguing this point at the presentencing hearing on the
motion to withdraw his plea and for failing to adequately advocate for a downward
departure sentence. According to Woods, the State and the district judge who accepted
his plea "set [him] up" by appointing Brown to represent him. Woods alleged that the
same district judge improperly presided over his plea hearing.

7
 Woods also asserted that the State argued "false evidence" during his sentencing
hearing and that the facts supported only a manslaughter conviction, not a conviction for
second-degree murder. Relatedly, Woods argued that the State erred by initially charging
him with first-degree murder when the facts, in his opinion, only supported a charge of
involuntary manslaughter. He also alleged that the district judge did not specifically find
him guilty of second-degree intentional murder, so his conviction must be changed to
second-degree unintentional murder. Finally, Woods asserted that he had filed a motion
for continuance of the hearing on his second K.S.A. 60-1507 motion in those proceedings
but due to the mail system, the district court did not receive it in time. Because the district
court "suppressed and never answered" that motion for continuance, Woods sought in his
third K.S.A. 60-1507 motion to "resubmit" it, asking the court "to review, apply law,
[and] properly answer this motion either within this 60-1507 or separately."

On January 9, 2019, Woods filed a motion seeking to amend his third K.S.A. 60-
1507 motion to add claims of a defective complaint and lack of jurisdiction. He argued
that his conviction should be reversed and vacated because the complaint filed in 2003
was fatally defective since the State charged him with two counts of first-degree
premeditated murder and one count of aggravated battery, but the State knew at the time
that the evidence did not support those murder charges.

On January 18, 2019, the district court held a status hearing, found that the issues
in Woods' motion had been addressed in prior actions, and ordered the parties to submit
proposed findings of facts and conclusions of law. On May 22, 2019, the district court
filed its journal entry of judgment, finding: "All claims by movant in this motion and his
motion to alter and amend either have been or could have been raised in his prior
motions, and are therefore barred from subsequent litigation." Thus, the district court
denied Woods' third K.S.A. 60-1507 motion as well as the motion to alter and amend as
being untimely and successive. Woods timely appealed.

8
 DID THE DISTRICT COURT ERR BY SUMMARILY
DENYING WOODS' K.S.A. 60-1507 MOTION?

Woods argues that the district court's denial of his third K.S.A. 60-1507 motion
resulted in manifest injustice because it was based on the "newly discovered" Giglio and
Brady evidence, and because he alleged actual innocence. He also contends that the
exceptional circumstance of "a colorable claim of actual innocence based on the failure of
the State of Kansas to disclose Giglio and Brady information on the investigating law
enforcement officers" justifies consideration of his third K.S.A. 60-1507 motion despite it
being successive. The State disagrees, arguing that the district court properly denied the
motion as successive and untimely because Woods failed to show that manifest injustice
or exceptional circumstances required the court to consider the motion on its merits.

"When a district court summarily denies a K.S.A. 60-1507 motion, appellate
review of that ruling is de novo. The interpretation of statutes and Supreme Court rules
involves questions of law reviewable de novo." Littlejohn v. State, 310 Kan. 439, 443,
447 P.3d 375 (2019).

Woods does not dispute the district court's finding that this K.S.A. 60-1507 motion
is untimely or successive, and clearly it is. This is Woods' third K.S.A. 60-1507 motion
and was filed more than 11 years after the termination of appellate jurisdiction over
Woods' direct appeal. See K.S.A. 2019 Supp. 60-1507(c) ("The sentencing court shall not
be required to entertain a second or successive motion for similar relief on behalf of the
same prisoner."); K.S.A. 2019 Supp. 60-1507(f) (stating that 60-1507 motions must be
brought within one year of the termination of state appellate jurisdiction). Because
Woods' current motion is untimely, "he must establish manifest injustice" in order to
obtain consideration of its merits and because it is successive, "he must establish
exceptional circumstances." See Thuko v. State, 310 Kan. 74, 80-81, 444 P.3d 927
(2019).

9
Did Woods establish a manifest injustice would result from a failure to consider his
untimely K.S.A. 60-1507 motion?

"For purposes of finding manifest injustice under this section, the court's inquiry
shall be limited to determining why the prisoner failed to file the motion within the one-
year time limitation or whether the prisoner makes a colorable claim of actual
innocence." K.S.A. 2019 Supp. 60-1507(f)(2)(A). The movant bears the burden to prove
manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2020
Kan. S. Ct. R. 223).

Reasons for untimely filing

Woods' appellate argument explaining the timing of the claims in this K.S.A. 60-
1507 motion focuses only on the alleged impeachment evidence about Espinoza and
Chisholm to which he argues he was entitled under Giglio and Brady. Although Woods
generally alleged in his motion the existence of impeachment evidence about other
witnesses, he does not renew that allegation on appeal, so it is waived and abandoned.
See State v. Roberts, 310 Kan. 5, 13, 444 P.3d 982 (2019) ("[A]n issue not briefed is
deemed waived and abandoned.").

In the district court, Woods stated that he "had very limited knowledge until
recently what Brady/Giglio issues was [sic] [and] meant" and that he had "just recently"
received "information" that indicated Chisholm and Espinoza "potentially [had]
themselves Brady/Giglio issues that would [have] prevented them from having any
involvement in [Woods']s case." Somewhat more specifically, he asserted that Chisholm
and Espinoza had "been exposed recently as corrupt officers whom [sic] potentially have
Brady/Giglio issues that have been intentionally suppressed [and] buried [and] not
exposed to defendant[] or [the] public."

10
 Woods attached to his motion what appears to be a copy of a screenshot from a
cell phone showing Chisholm's and Espinoza's inclusion on a list of unknown origin
entitled, "The top ten most corrupt officer in t [sic]." The text of the screenshot alleges
that Chisholm "engages in illegal interrogation tactics," such as knowingly interrogating a
witness who was under the influence of drugs. The screenshot alleges that Espinoza was
accused of being "responsible for overlooking" many crimes committed by a police unit
and intimidating those who might complain about police misconduct. Woods asked the
court to "order the prosecution to fully disclose to [Woods] any [and] all information
covered by Brady/Giglio."

On appeal, Woods reiterates that he did not know about the impeachment evidence
related to Chisholm and Espinoza within the one-year time limitation for a K.S.A. 60-
1507 motion; "he could not have discovered" that evidence unless the State disclosed it;
and had he known about the evidence prior to pleading guilty, "he would have insisted
his counsel seek dismissal of his charges." He contends that the denial of his current
K.S.A. 60-1507 motion resulted in a manifest injustice because the district court did not
consider this "newly discovered evidence"—the impeachment evidence he contends he
was entitled to under Giglio and Brady.

Woods' arguments lack merit for two reasons. First, other than attaching a
screenshot to his motion with vague allegations about Chisolm and Espinoza from an
unknown source, Woods failed to allege in his motion with any specificity what
"impeachment evidence" the State failed to disclose about Chisholm and Espinoza that
would have led to dismissal of the charges against him.

Second, as the State points out, Woods' lack of understanding about Giglio and
Brady issues until "recently" is not sufficient to excuse his untimely filing. See State v.
Woodward, 288 Kan. 297, 304, 202 P.3d 15 (2009) (holding that the "recent discovery"
of a legal concept is not "'newly discovered evidence'" that justifies raising an argument
11
based on that concept in an untimely fashion); Harris v. State, No. 120,942, 2020 WL
1482424, at *2-3 (Kan. App. 2020) (unpublished opinion) (holding that a prisoner's
"ignorance of the law"—i.e., his or her "'lack of legal knowledge, training, and familiarity
with the rules of procedure'"—"does not constitute manifest injustice" that requires
consideration of an untimely 60-1507 motion), petition for rev. on other grounds filed
April 24, 2020. And Woods did not tell the district court when he received the
information that led him to believe there were Giglio and Brady issues.

By not articulating when he received the information or even clearly what the
information is, Woods failed to prove by a preponderance of the evidence that he did not
have the information during any of his previous K.S.A. 60-1507 proceedings or that it
could not have been discovered until now. Thus, Woods' alleged Giglio/Brady evidence
is not a sufficient reason for the untimely filing of his third K.S.A. 60-1507 motion.

A colorable claim of actual innocence

The second way a movant can establish that a district court must consider an
untimely motion to prevent a manifest injustice is by making "a colorable claim of actual
innocence." See K.S.A. 2019 Supp. 60-1507(f)(2)(A). "As used herein, the term actual
innocence requires the prisoner to show it is more likely than not that no reasonable juror
would have convicted the prisoner in light of new evidence." K.S.A. 2019 Supp. 60-
1507(f)(2)(A).

Woods argues on appeal that he "made allegations in his motion regarding actual
innocence." Notably, he does not provide a pinpoint citation to the record on appeal at
which we can find those allegations of actual innocence. A review of the K.S.A. 60-1507
motion reveals that Woods mentioned actual innocence in only two places. First, he
asked the district court to order the State to provide all evidence required by Giglio and
Brady so that he could examine it, arguing that only then would he have a "fair

12
opportunity to show fully movant['s] actual[] innocents [sic] [and] obtain either a new
trial or dismissal of charges in full." Second, while alleging prosecutorial misconduct at
sentencing, Woods argued that the State made the baseless assertion at sentencing that he
had started the shooting instead of the codefendant, "[w]hich [is] to say Mitchell was shot
first [and] to say [co-defendant] started the shooting then inclines to movant[']s point of
'actual[] innocents [sic].'" On appeal, Woods argues: "The autopsy results, circumstantial
evidence, and witness statements indicating a co-defendant was the actual perpetrator of
the crime, as set forth in [Woods'] motion, coupled with the newly discovered evidence
that there were credibility issues with the investigating law enforcement officers, create a
colorable claim of actual innocence."

But as the State notes, this court has already considered and resolved against
Woods the propriety of a claim of actual innocence when Woods pled guilty to the crime
of conviction. See Woods III, 52 Kan. App. 2d at 966. By voluntarily entering a guilty
plea, Woods admitted "'the truth of the charge and every material fact alleged therein.'"
52 Kan. App. 2d at 966. Although Woods has repeatedly attacked the validity of his
guilty plea, his plea has repeatedly been upheld. And "[w]here judgment and sentence
have been entered upon a plea of guilty, there can be no review of the sufficiency of the
evidence in a K.S.A. 60-1507 proceeding." 52 Kan. App. 2d at 967. As this court held in
Woods III, an assertion of actual innocence does not trump the "longstanding rule that a
freely and voluntarily entered guilty plea bars a collateral attack on the sufficiency of the
evidence." 52 Kan. App. 2d at 968.

Woods neither acknowledges this prior holding nor offers any reason why this
panel should decide differently in the present appeal. Even if this court liberally construes
Woods' third K.S.A. 60-1507 motion to include a claim of actual innocence, the fact
remains that by pleading guilty, he admitted to the facts underlying his conviction and
may not collaterally attack his conviction on the basis of insufficient evidence or actual
innocence. Because he is precluded from making these arguments, it cannot be manifest
13
injustice to deny the consideration of their merits. Woods failed to show by a
preponderance of the evidence that manifest injustice would result from the district
court's refusal to consider the merits of his untimely third K.S.A. 60-1507 motion. Thus,
the district court did not err in denying the motion as untimely.

Did Woods establish exceptional circumstances that justified consideration of his
successive K.S.A. 60-1507 motion?

"[A] movant has the burden of establishing exceptional circumstances to avoid an
abuse-of-remedy dismissal of a second or successive 60-1507 motion." Dawson v. State,
310 Kan. 26, 36, 444 P.3d 974 (2019). "'"[E]xceptional circumstances are unusual events
or intervening changes in the law that prevented the defendant [from] raising the issue in
a preceding [K.S.A.] 60-1507 motion."' [Citations omitted.]" Nguyen v. State, 309 Kan.
96, 109, 431 P.3d 862 (2018).

Woods argues that his "colorable claim of actual innocence based on the failure of
the State of Kansas to disclose Giglio/Brady information on the investigating law
enforcement officers" establishes exceptional circumstances to allow consideration of his
successive motions. But Woods' claim that the State failed to disclose evidence that could
have been used to impeach Chisholm and Espinoza is not a claim of actual innocence. It
is, at best, a hybrid claim of prosecutorial misconduct and ineffective assistance of trial
counsel. And, as we have already discussed, Woods has not sufficiently articulated—
either in the district court or here on appeal—when or how he learned that this alleged
impeachment evidence exists. Thus, he has not established by a preponderance of the
evidence that exceptional circumstances prevented him from raising his Giglio and Brady
claims in one of his prior K.S.A. 60-1507 motions. As such, the district court did not err
in denying this K.S.A. 60-1507 motion as successive.

14
 DID THE DISTRICT COURT ERR BY IGNORING
WOODS' MOTION TO AMEND HIS K.S.A. 60-1507 MOTION?

In his pro se supplemental brief, Woods argues that the district court erred by
failing to recognize that his jurisdictional argument and his assertion of a defective
complaint—raised in his motion to amend this K.S.A. 60-1507 motion in the district
court—are issues that he may raise at any time. He also contends that the State's failure to
adhere to the alleged plea agreement that he claims should have resulted in a lower
sentence constitutes a breach of contract that "voids the plea itself." He asks the court to
vacate his sentence and reverse his convictions because the defective complaint deprived
the district court of jurisdiction. The State does not respond to these arguments.

First, Woods' assertion that the district court "ignored [his] 60-1507 motion to alter
or amend in whole" is inaccurate. The district court held: "All claims raised by movant
in this motion and his motion to alter or amend either have been or could have been
raised in his prior motions and are therefore barred from subsequent litigation."
(Emphasis added.) The district court further held that "[t]he instant motion and
subsequent motion to amend or alter are untimely" and "are barred as being successive."
The journal entry makes clear that the district court considered Woods' motion to alter
and amend and the additional claims raised therein.

Next, Woods argues that under State v. Fitzgerald, 308 Kan. 659, 423 P.3d 497
(2018); State v. Rodriguez, 305 Kan. 1139, 390 P.3d 903 (2017); State v. Dunn, 304 Kan.
773, 375 P.3d 332 (2016); State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010); and
United Sates v. Peter, 310 F.3d 709, 713-16 (11th Cir. 2002), he may raise at any time an
argument that a complaint was statutorily insufficient and thus the district court lacked
jurisdiction over him. But these cases do not support Woods' assertion.

15
 In Sales, as in many other cases, the Kansas Supreme Court noted that "[s]ubject
matter jurisdiction may be raised at any time." 290 Kan. at 135; see also Dunn, 304 Kan.
at 784 ("The existence of subject matter jurisdiction cannot be waived, and its
nonexistence may be challenged at any time."). But in Dunn, the Kansas Supreme Court
examined the relationship between subject matter jurisdiction and charging documents at
length and held:

"Charging documents do not bestow or confer subject matter jurisdiction on state courts
to adjudicate criminal cases; the Kansas Constitution does. Charging documents need
only show that a case has been filed in the correct court, e.g., the district court rather than
municipal court; show that the court has territorial jurisdiction over the crime alleged;
and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas
crime committed by the defendant." 304 Kan. at 811.

In his motion to alter and amend, Woods did not argue that the complaint in his
criminal case was filed in the wrong court, that it did not demonstrate territorial
jurisdiction, or that it did not allege facts that, if sufficiently proved, would prove that he
committed a Kansas crime. Rather, he argued that the State was aware of evidence that
Woods asserts showed he was not guilty of the crimes charged. Even if a defective
complaint deprived a district court of jurisdiction—which Dunn clearly held it does not—
Woods did not allege a defect recognized under Dunn.

Rodriguez and Dunn addressed situations in which the complaint failed to allege
facts that, if proven, would have supported the required intent elements of the crimes. See
Rodriguez, 305 Kan. at 1147; Dunn, 304 Kan. at 820-21. Woods makes no such
argument, instead focusing on whether the evidence supported the charges. So Rodriguez
and Dunn do not help him.

Similarly, Fitzgerald is factually and legally materially distinguishable from
Woods' situation. In Fitzgerald, the State charged the crime of causing a child under 14 to
16
engage in oral copulation with another person, but then "all parties thereafter proceeded
with the case as though Fitzgerald had been charged with engaging in sodomy with [the
victim] himself." 308 Kan. at 660. The evidence at trial showed that Fitzgerald personally
sodomized his victim, the relevant jury instruction listed the elements of the uncharged
crime, and Fitzgerald was convicted of and sentenced for the uncharged crime. Contrary
to Woods' argument here, Fitzgerald did not allege that the district court lacked
jurisdiction because of a defective charging document; he argued that the proof the State
presented at trial was not sufficient to support the crime actually charged.

Likewise, Peter is distinguishable. In Peter, the Eleventh Circuit held that the
district court lacked jurisdiction to accept a plea when the indictment failed to allege
conduct that constituted a federal crime. 310 F.3d at 714-15. But in that case, the
indictment alleged "only a non-offense." 310 F.3d at 715. Here, Woods does not argue
that the complaint charged him with a non-offense; he argues that the complaint did not
allege certain evidence known to the State at the time it charged him.

While Woods is correct that the district court did not explicitly address his
argument that a defective complaint deprived the district court of jurisdiction over his
original criminal prosecution, the district court did find that Woods' current K.S.A. 60-
1507 motion and his motion to alter and amend were untimely and successive. The
arguments Woods made in his motion to alter and amend do not implicate jurisdiction nor
do they allege a complaint defect recognized in Dunn. Like any other arguments brought
in a successive and untimely K.S.A. 60-1507 motion, Woods bore the burden to establish
why the district court should consider it on the merits.

Our Supreme Court provided relevant guidance in State v. Robertson, 309 Kan.
602, 603, 439 P.3d 898 (2019), an appeal from the summary denial of a motion to correct
illegal sentence that sought the reversal of convictions based on an allegedly defective
complaint that purportedly deprived the district court of jurisdiction. After holding that a
17
motion to correct illegal sentence was not the appropriate vehicle to seek reversal of his
convictions due to an allegedly defective complaint, the Robertson court acknowledged
that Kansas courts have liberally construed pro se motions seeking relief from a
conviction as being brought under K.S.A. 60-1507. 309 Kan. at 608. But the Robertson
court held that even construing the motion as one brought under K.S.A. 60-1507

"does not get Robertson out of the procedural woods. He faces two other procedural
obstacles.
"First, Robertson had earlier pursued relief under 60-1507, and that statute is
clear that a district court is not 'required to entertain a second or successive motion.'
Robertson has argued no exceptional circumstances warranting a successive motion. Nor
do we see any. Robertson could have raised these arguments in an earlier proceeding. He
did not. The district court did not have to entertain Robertson's motions had he raised
them under K.S.A. 2018 Supp. 60-1507.
"Second, Robertson's [motion was] filed outside the one-year period for seeking
60-1507 relief and Robertson does not argue manifest injustice would support extending
this limitation. Thus, Robertson would be procedurally barred from relief even if we
convert [his motion] to a motion under K.S.A. 2018 Supp. 60-1507. [Citations omitted.]"
309 Kan. at 608-09.

Just like Robertson, Woods has previously pursued relief under K.S.A. 60-1507
and, as explained above, he has not successfully argued exceptional circumstances
warranted consideration of this successive motion. Woods could have raised arguments
related to a defective complaint in earlier K.S.A. 60-1507 proceedings, but he did not.
Woods' current K.S.A. 60-1507 motion is also untimely, and he has not successfully
argued that manifest injustice will occur if his current claims are not considered on their
merits. Thus, the district court correctly denied the K.S.A. 60-1507 motion as well as the
motion to alter and amend.

Affirmed.

18