NOT DESIGNATED FOR PUBLICATION
No. 123,673
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DONALD HAYGOOD,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed November 12,
2021. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
PER CURIAM: The prison mailbox rule dictates we use the certificate of service to
determine whether a K.S.A. 60-1507 motion is timely filed. Donald Haygood now
appeals from the district court's summary dismissal of his K.S.A. 60-1507 motion as
untimely and on the merits. Haygood specifically argues the district court erred in finding
his motion untimely. He also asserts the district court erred in summarily denying his
claim of ineffective assistance of trial counsel for failing to request a voluntary
manslaughter jury instruction as a killing upon a sudden quarrel or in the heat of passion.
We agree the district court erred in summarily dismissing Haygood's motion as untimely
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but, for reasons discussed below, we find the error was harmless. We also find Haygood's
other claims fail as a matter of law. Therefore, we affirm.
FACTS
In August 2015, a jury convicted Donald Haygood of first-degree premeditated
murder of Demetria Mills and criminal possession of a firearm by a convicted felon for
acts committed in September 2011. The district court sentenced Haygood to
imprisonment for life with no eligibility for parole prior to serving 25 years for his first-
degree murder conviction. The district court also imposed a consecutive sentence of 12
months' imprisonment for criminal possession of a firearm. Haygood's convictions and
sentences were affirmed by our Supreme Court in State v. Haygood, 308 Kan. 1387, 430
P.3d 11 (2018). The mandate was issued on December 20, 2018.
In April 2020, Haygood filed a pro se "Memorandum of law in support of
Petitioner's K.S.A. 60-1507 motion." In his motion, Haygood asserted, among many
other things, his trial counsel was ineffective for failing to request an instruction on
voluntary manslaughter for an intentional killing committed upon a sudden quarrel or in
the heat of passion. Haygood signed his motion and had it notarized on November 18,
2019. The certificate of service was also dated November 18, 2019. The notary signed the
last page of the motion as well as the certificate of service page. Along with Haygood's
60-1507 motion, Haygood submitted a poverty affidavit to the district court, signed and
notarized in March 2020, and filed it with the district court in April 2020. The record
contains an inmate account statement from the Kansas Department of Corrections dated
in November 2019.
The State responded Haygood's motion was untimely because our Supreme Court
issued a mandate on December 20, 2018, and Haygood's motion was not filed until April
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2020, with no assertion of manifest injustice. The State also challenged Haygood's
motion on the merits, explaining:
"All of Haygood's claims of error are conclusory, unsupported by law, or
contradicted conclusively by the record. In none of them does he establish prejudice
required by the second prong of Strickland. There is no issue which needs to be resolved
with an evidentiary hearing. This Court should summarily deny his [motion]."
The State addressed each of Haygood's 10 enumerated claims but did not
specifically address the issue of alleged ineffective assistance of counsel for failure to
request a voluntary manslaughter instruction under a heat of passion or sudden quarrel
theory. Though the issue was not as clearly enumerated as many of Haygood's other
allegations were, we interpret this allegation as one claiming his counsel was ineffective
when he failed to request an instruction on voluntary manslaughter on the sudden quarrel
or heat of passion theory. Haygood's exact claim is unclear but appears to be a mixed
allegation about the sufficiency of the evidence and ineffective assistance of counsel.
Haygood specifically alleged, in relevant part:
"Issue 10: Sufficiency of the Evidence
"Mr. Haygood claims that there was insufficient evidence to convict him of first-
degree murder because [the] State failed to prove motive that he had engaged in a
premeditated act and states a 'mere argument' was not sufficient to show motive to kill the
victim. . . .
"Here, Haygood claims that while he and the victim argued, 'mere evidence of an
altercation does not alone support a finding of sufficient provocation—mere words or
gestures, however insulting, abusive, opprobrious, or indecent, do not constitute adequate
provocation.['] See State v. Gooding, 50 Kan. App. 2d 964, 335 [P].3d 698 (2014). 'Even
when considered in a light most favorable to the State, the evidence presented concerning
Haygood's argument with the victim failed to establish provocation or motive sufficient
to support a conviction of premeditated first-degree murder.
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"The State's witness gave testimony it was a heated conversation . . . so, trial
counsel was deficient in failing to [request] an instruction on voluntary manslaughter
which is defined as the intentional killing of a human being committed upon a sudden
quarrel or in the heat of passion. Thus, this court must conclude that there was
insufficient evidence of a premeditated act to uphold Haygood's conviction of first-degree
murder."
In September 2020, the district court summarily dismissed Haygood's K.S.A. 60-
1507 motion as untimely and on the merits. The district court found his convictions and
sentences were affirmed by our Supreme Court on November 21, 2018, with the mandate
issued on December 20, 2018, and Haygood's motion was not filed until April 2020 and
failed to argue manifest injustice or actual innocence necessary to permit an untimely
filing. See K.S.A. 2020 Supp. 60-1507(f)(1)(A) and (f)(2)(A).
The district court noted a K.S.A. 60-1507 motion may not be used as a substitute
for a direct appeal. While noting Haygood failed to cite to the record and failed to
provide a factual basis supporting his allegations, the district court still addressed the
merits of Haygood's seven claims of ineffective assistance of counsel. Just as the State
did in its response to Haygood's motion, the district court only addressed the claims
specifically enumerated in Haygood's motion. Though the issue on appeal does not arise
from one of Haygood's enumerated claims, he also asserted—albeit intertwined with a
sufficiency of the evidence claim—his trial counsel was ineffective for failing to request
an instruction on voluntary manslaughter under the theory of a sudden quarrel or heat of
passion. The district court denied Haygood's motion as untimely and on the merits.
In February 2021, Haygood filed a notice of appeal, though incorrectly titled
"Motion to Docket Appeal Out of Time," explaining his intent to appeal the district
court's denial of his 60-1507 motion. Deadlines were suspended in March 2020 under
Kansas Supreme Court Administrative Order 2020-PR-016, effective March 18, 2020,
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and resumed in March 2021 under Kansas Supreme Court Administrative Order 2021-
PR-009, effective January 26, 2021, rendering Haygood's notice of appeal timely.
ANALYSIS
I. HAYGOOD'S K.S.A. 60-1507 MOTION WAS TIMELY FILED.
Haygood argues his K.S.A. 60-1507 motion was timely filed under the prison
mailbox rule. The State contends the district court correctly denied Haygood's motion as
untimely and for failure to show manifest injustice.
The State admits our caselaw supports Haygood's position on the prison mailbox
rule but argues the district court file-stamped Haygood's motion on the same date as his
poverty affidavit—April 15, 2020—suggesting the documents were sent at the same time.
The State explains the certificate of service attached to Haygood's motion was dated
November 18, 2019—within the one-year deadline to file a 60-1507 motion—but his
poverty affidavit was signed and notarized in March 2020, which was beyond the one-
year deadline. The State, without evidentiary support, claims because the district court
file-stamped Haygood's motion and poverty affidavit on the same date, Haygood must
have given the documents to prison authorities for mailing at the same time and the
documents had to have been sent at the same time after the poverty affidavit was signed
in March 2020.
In his reply brief, Haygood correctly notes the State made a different argument to
the district court. Before the district court, the State simply claimed Haygood's motion
was untimely because it was filed in April 2020. We decline to further address the State's
argument as to the correct filing date. Its position on appeal differs from its arguments
before the district court; therefore, a factual record was not developed on this point. Our
role is to decide questions of law, not to make factual findings or resolve conflicting
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evidence. In re Adoption of C.L., 308 Kan. 1268, 1279, 427 P.3d 951 (2018). The record
before us reflects a notarized motion and certificate of service dated November 18, 2019.
Thus, the salient question on appeal is whether, based upon that date, Haygood's motion
was timely filed under the prison mailbox rule.
A district court has three options when handling a K.S.A. 60-1507 motion:
"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citations omitted.]" White v. State, 308 Kan. 491, 504, 421 P.3d
718 (2018).
When the district court summarily dismisses a K.S.A. 60-1507 motion, an
appellate court conducts 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.
Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).
A defendant has one year from when a direct appeal becomes final to file a motion
under K.S.A. 2020 Supp. 60-1507(a). K.S.A. 2020 Supp. 60-1507(f)(1); White, 308 Kan.
at 492. Here, the mandate from Haygood's direct appeal was issued on December 20,
2018. Thus, Haygood had until December 20, 2019, to timely file his K.S.A. 60-1507
motion.
The prison mailbox rule "deems a prisoner's pro se documents 'filed' when he or
she submits them to prison authorities for mailing." Wahl v. State, 301 Kan. 610, 615,
344 P.3d 385 (2015). In Rowell v. State, 60 Kan. App. 2d 235, 242, 490 P.3d 78 (2021),
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another panel of our court found the date on the certificate of service as the date a 60-
1507 motion was filed under the prison mailbox rule.
Under the prison mailbox rule, Haygood's motion was considered filed when he
submitted it to prison authorities. Following Wahl and Rowell, we find the date
Haygood's motion should be considered filed is the date he submitted his motion to
prison authorities as shown on the certificate of service—November 18, 2019. Therefore,
Haygood's motion was filed within one year from the date his convictions and sentences
became final. The district court erred in dismissing Haygood's motion as untimely.
However, the error was harmless because the district court considered the merits of his
motion, as discussed below.
II. THE DISTRICT COURT PROPERLY DISMISSED HAYGOOD'S K.S.A. 60-1507 MOTION.
Haygood argues the district court addressed only the enumerated claims in his
K.S.A. 60-1507 motion but failed to address one specific claim of ineffective assistance
of trial counsel, which is the subject of this appeal. Specifically, Haygood argues his trial
counsel was ineffective for failing to request a voluntary manslaughter jury instruction as
a killing upon a sudden quarrel or in the heat of passion. Haygood also asserts the district
court should have appointed him counsel and held a preliminary hearing on his motion.
The State argues trial counsel did not render ineffective assistance of counsel as
there was no legally sufficient provocation to warrant a jury instruction on voluntary
manslaughter heat of passion or sudden quarrel. At trial, the district court instructed the
jury on voluntary manslaughter under the imperfect self-defense theory.
The movant bears the burden to prove his or her K.S.A. 60-1507 motion warrants
an evidentiary hearing by making more than conclusory contentions and stating an
evidentiary basis in support of the claims. Swenson v. State, 284 Kan. 931, 938, 169 P.3d
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298 (2007). In deciding whether an evidentiary hearing must be held, the district court
generally must accept the factual allegations set out in the motion as true. Hogue v.
Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). But the factual allegations must be
specific, not mere conclusions. Mundy v. State, 307 Kan. 280, 304, 408 P.3d 965 (2018).
The district court was required to construe Haygood's pro se pleadings liberally.
See State v. Ditges, 306 Kan. 454, 457, 394 P.3d 859 (2017) ("'Judges must liberally
construe a pro se pleading to "giv[e] effect to the pleading's content rather than the labels
and forms used to articulate the defendant's arguments."'"). While Haygood clearly listed
10 claims in his motion, 7 of which were claims of ineffective assistance of counsel, he
stated at the end of his motion:
"The State's witness gave testimony it was a heated conversation . . . so, trial
counsel was deficient in failing to [request] an instruction on voluntary manslaughter
which is defined as the intentional killing of a human being committed upon a sudden
quarrel or in the heat of passion. Thus, [the district] court must conclude that there was
insufficient evidence of a premeditated act to uphold Haygood's conviction of first-degree
murder." (Emphasis added.)
Haygood's motion seems to assert both ineffective assistance of trial counsel and
sufficiency of the evidence arguments. A liberal interpretation of the motion shows
Haygood claimed ineffective assistance of trial counsel for failure to request a jury
instruction on voluntary manslaughter committed in the heat of passion or upon sudden
quarrel. Though the factual allegations lack specificity, Haygood asserted there was trial
testimony about a heated conversation. Construing Haygood's motion liberally, the
district court should have addressed his claim of ineffective assistance of trial counsel for
failure to request a jury instruction on voluntary manslaughter under the heat of passion
or upon sudden quarrel theory. However, as discussed below, any error was harmless
because this claim is procedurally barred.
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Issue for direct appeal
Haygood was essentially alleging a hybrid claim of ineffective assistance of
counsel and sufficiency of the evidence. Haygood suggested the State failed to provide
sufficient evidence to convict him of first-degree premeditated murder due to a lack of
premeditation or motive and that his counsel was ineffective for failing to request an
instruction on voluntary manslaughter based on a sudden quarrel or heat of passion.
There are limits to the types of claims a movant can raise in a K.S.A. 60-1507
motion. See Manco v. State, 51 Kan. App. 2d 733, 741, 354 P.3d 551 (2015) ("[T]he
legislature provided movants with the right to file [a K.S.A. 60-1507 motion], but it
placed reasonable limits on that right to avoid the abuse of remedy."). Ordinarily, a
K.S.A. 60-1507 motion cannot be used as a substitute for a second appeal involving mere
trial errors. See State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) ("[O]ur general
rule requires a defendant to raise all available issues on direct appeal."); Supreme Court
Rule 183(c)(3) (2021 Kan. S. Ct. R. 239) ("Mere trial errors must 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 exceptional circumstances excuse the failure
to appeal.").
To the extent Haywood is challenging the sufficiency of the evidence supporting
his convictions or the soundness of the jury instructions, he should have alleged those
claims in his direct appeal. In fact, on direct appeal, Haygood argued the district court
erred in denying his request for jury instructions on the affirmative defense of self-
defense and on the lesser included offense of involuntary manslaughter. Haygood should
have raised his additional concern on direct appeal regarding the lack of a jury instruction
on voluntary manslaughter based on a sudden quarrel or heat of passion. Haygood fails to
provide exceptional circumstances excusing his failure to raise mere trial errors on direct
appeal, and we find he is procedurally barred from raising the claim now.
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Ineffective assistance of counsel
Even if we were to construe Haygood’s jury instruction challenge as a claim for
ineffective assistance of counsel, his claim is not persuasive. A district court must set
aside a movant's conviction if "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 2020 Supp. 60-1507(b). The right to effective counsel is embodied in the
Sixth Amendment to the United States Constitution and "plays a crucial role in the
adversarial system." Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80
L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]); see Chamberlain v. State, 236 Kan.
650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). Ineffective assistance of counsel
can be categorized into three subgroups, one of which is a claim that defense counsel's
"performance was so deficient that the defendant was denied a fair trial." Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014). That is, "counsel's conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result." Strickland, 466 U.S. at 686.
"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
probability the jury would have reached a different result absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
There is a strong presumption that counsel rendered adequate assistance and
exercised reasonable professional judgment. Strickland, 466 U.S. at 689.
Haygood claimed in his 60-1507 motion his trial counsel's performance was
deficient for failing to request a jury instruction on voluntary manslaughter arising out of
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the heat of passion or sudden quarrel. Haygood supports his claim on appeal, explaining
"there was a considerable amount of eyewitness testimony . . . that the shooting occurred
in the heat of an argument between Haygood and Mills, each telling the other to leave the
house, with the triggering event just before the shooting being Mills' 911 telephone call,
whether real or feigned."
K.S.A. 2011 Supp. 21-5404(a)(1)—the applicable statute at the time of the
offense—defines voluntary manslaughter as knowingly killing a human being in the heat
of passion or upon a sudden quarrel. To reduce a murder charge to the lesser included
offense of voluntary manslaughter, there must be adequate provocation causing an
ordinary person to objectively lose control of his or her actions and reason. Gooding, 50
Kan. App. 2d at 971. Mere evidence of an altercation, however, is insufficient to establish
objective provocation. State v. Mitchell, 269 Kan. 349, 353, 7 P.3d 1135 (2000).
"'A sudden quarrel can be one form of heat of passion. "[A]n unforeseen angry
altercation, dispute, taunt, or accusation could fall within th[e] definition [of heat of
passion] as sufficient provocation."' [Citations omitted]." State v. Bernhardt, 304 Kan.
460, 476, 372 P.3d 1161 (2016). In Bernhardt, our Supreme Court explained an argument
between the defendant and victim was insufficient to qualify as provocation for a
voluntary manslaughter instruction because mere words or gestures do not constitute
legally sufficient provocation and the type of argument between the two was not unusual,
negating the "sudden" aspect of a quarrel. 304 Kan. at 477. Interestingly, Haygood
acknowledged in his motion mere words or gestures do not constitute adequate
provocation. Haygood stated in his motion: "[T]he State's witnesses gave testimony
about a heated conversation." It appears Haygood was trying to argue there was a lack of
provocation or motive to support a conviction of first-degree premeditated murder, but,
while doing so, he correctly identifies the fact his dispute with Mills was insufficient to
qualify as provocation for a voluntary manslaughter instruction.
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At trial, two witnesses testified Haygood and Mills began arguing shortly after
returning home from the bars on the night of the incident. The argument was "heated" but
never escalated to a point in which the parties were yelling at each other. The two
witnesses gave corroborating testimony that Haygood and Mills were arguing, and Mills
tried calling the police when Haygood briefly left the room. Haygood then returned and
shot Mills.
Haygood told a different story. According to Haygood, Mills told him to leave the
house; he refused. Mills then retrieved a knife from the kitchen sink and threatened
Haygood, saying, "I'm gonna show you." Haygood alleged Mills rushed him with the
knife in her hand and he pulled a gun from his pocket and shot one time. Haygood
claimed he never heard Mills threaten to call the police. The two witnesses at his trial
testified they never saw Mills try to stab Haygood with a knife.
Haygood's trial counsel made a voluntary manslaughter argument at trial under the
alternative theory of imperfect self-defense because of the trial evidence reflecting Mills
rushed Haygood with a knife when Haygood shot Mills. Haygood now argues his trial
counsel was ineffective for not raising an additional, or alternative, voluntary
manslaughter argument as the result of a sudden quarrel or heat of passion. Haygood's
argument that Mills reasonably provoked him by calling, or threatening to call, 911 fails
as a matter of law because mere words or gestures do not constitute reasonable
provocation. See Bernhardt, 304 Kan. at 477. Moreover, Haygood's assertion on appeal is
at odds with his trial testimony wherein he claimed he did not hear Mills call 911.
Haygood's trial counsel could not have been ineffective for failing to request an
instruction that was factually inappropriate given Haygood's trial testimony. See State v.
Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016) (jury instruction applicable to particular
theory of defense must be factually appropriate).
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A jury instruction on voluntary manslaughter based on a sudden quarrel or heat of
passion was not factually appropriate because the argument between Haygood and Mills
was insufficient to establish objective provocation. Trial counsel's performance was not
so deficient the defendant was denied a fair trial due to counsel's failure to request a jury
instruction that was not appropriate. Not only was trial counsel's performance not
deficient under the totality of the circumstances, Haygood was not prejudiced by his trial
counsel's performance. See Salary, 309 Kan. at 483. Haygood has failed to meet his
burden to establish his trial counsel's representation fell below an objective standard of
reasonableness or that the district court erred by not conducting a preliminary hearing
with appointed counsel.
Affirmed.
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