1 NOT DESIGNATED FOR P UBLICATION
No

. 1 21 , 576
IN THE COURT OF APPE ALS OF THE STATE OF KANSAS
N ATHANIEL E. C OOPER , Appel lant ,

v. S TATE OF K ANSAS , Appell ee
.

MEMORANDUM OPINION
Appeal from Wyandotte D istrict C ourt; R. W AYNE L AMPSON , judge. Opinion filed July 24 , 20 20

. Affirmed.

J

oseph A. Desch , of Law Office of Joseph A. Desch, of Topeka , f or appellant.

Daniel G. Obermeier , assistant district attorney , Mark A. Dupree Sr. , district attorney, and Derek Schmidt , attorney general, for appellee.

Before S TANDRIDGE , P.J., H ILL and A T CHESON , J J

.

P ER C URIAM : Following a jury trial in July 2005, Nathaniel E. Cooper was convicted of attempted first

- degree murder. Cooper's conviction was affirmed by this court , and the mandate was filed on September 25, 2008

. In 2017, Cooper filed a petition for relief and to vacate judgment. The district court construed the petition as a K.S.A. 60

- 1507 motion and summarily denied it as untimely and successive , e ven though there appear ed to be pages missing from the motion. Cooper filed a timely notic e of appeal and then later filed a timely motion to reconsider

. The district court denied the motion to reconsider , reiterating t hat the original motion was untimely and successive and that the2 court lacked jurisdiction to rule on t he motion to reconsider because Cooper's appeal of its decision to deny the original motion already had b een docketed. Cooper filed a second notice of appeal to include this latest ruling. Because Cooper's underlying motion was untimely filed under K.S.A. 2019 Supp. 60

- 1507(f), t he district court did not err in summarily denying his original motion and his motion for reconsideration. Accordingly, we affirm.

F ACTS

In State v. Cooper , No. 97,678, 2008 WL 2369818 (Kan. App. 2008) (unpublished opinion), this court briefly summarize d the facts of Coop er's underlying criminal matter. Cooper was convicted of attempted first

- degree murder in the shooting of Andra Ruff

. Ruff later identified Cooper in a photo lineup and testified that he saw Cooper holding an Intertech nine

- millimeter gu n immediately before the shooting. Cooper shot Ruff and immediately fled the scene.
A firefighter was later dispatched to a secondary scene less than a quarter mile away from where Ruff had been shot. The firefighter found Cooper laying on his back in th e street, extremely out of breath. The firefighter believed Cooper had been shot, so he began examining Cooper. At that point, Cooper told the firefighter that he had shot and killed " ' Dray ' " and that the " ' war is over. ' " 2008 WL 2369818, at *1. A police officer on the scene also came over to speak with Cooper. The police officer also believed Cooper had been shot and asked Cooper if that was the case. Cooper told the officer that he had been running from the police, that he shot someone, and that he did it because Ruff owed Cooper money.
While the officer admittedly never read Cooper his Miranda rights when Cooper gave him these statements, the district court addressed this issue before trial. See Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After a3 hearing on the matter, the district court found that all the statements Cooper made to the firefighter and most of the statements he made to the officer were not subject to Miranda protections

.
After trial, Cooper filed a motion for a new trial alleging , among other things, that that the district court erred in allowing Cooper's statements to the arresting officer to be introduced into evidence at trial. The district court took up the motion at the sentencing hearing on Au gust 5, 2005. After considering the parties' arguments, the district court denied Cooper's motion.
On direct appeal, this court affirmed Cooper's conviction in an opinion dated June 6, 2008. See Cooper , 2008 WL 2369818, at *2. The mandate was filed with the district court on September 25, 2008. There was no activity in the case until ove r eight and a half years later, when Cooper filed a "Petition for Facts Which Must or May be Judicially Noted Pursuant to [ K.S.A. 60

- 409 ] , T o Void/Voidable Judgment for Fu rther Relief Pursuant to [ K.S.A. 60

- 1703 ] and to Vacate Sentence" on May 2, 2017. In the petition, Cooper ask ed the district court to take judicial notice of the following statutes and caselaw:

• The Kansas civil summary judgment affidavit requirements in K .S.A. 60

- 256(e)(1).

• Several different federal cases to support his statement that " ' [ s ]ilence can only be equated with fraud where there is a legal, or moral obligation/duty to speak or where an inquiry left unanswered would intentionally be misleading. ' "

• Several different federal and state cases to support his argument that a trial court must have jurisdiction over a case, and where it does not, the case is void.

• Several different federal and state cases to support his argument that subject matter jurisdi ction can never be presumed, waived, or constructed, even by agreement of the parties

.4 Cooper also ask ed the district court t o take judicial notice of "the following issues " that he argued "defraud[ed]" him of "a guaranteed Constitutional and statutory fundamental right" :

• Issue 1:

o The complaint/information filed in his criminal case was not based on personal knowledge, thus "defraud[ing] [Cooper] of due process."

o The probable cause affidavit executed by the investigating detective was not made on personal knowledge and was based on inadmissible hearsay.

o An undated newspaper article in the Kansas City Star showing that the investigating detective was being criminal ly charged in an unrelated matter for bribery and aggravated intimidation of a witness. Cooper alleged this showed that the investigating detective further defrauded him.

o Several witness statements obtained by the investigating detective were made in bad f aith and should have been struck from the record because they were not signed by the witnesses.

o The complaint, the probable cause affidavit, and the witness statements were made in bad faith with an intent to defraud Cooper of his due process rights.

• Iss ue 2:

o The district court had a legal obligation to ensure due process. Cooper cited to the Kansas Supreme Court Rule governing motions for summary judgment and accompanying affidavits to argue that affidavits must be made with personal knowledge. See Supre me Court Rule 141 (2020 Kan. S. Ct. R. 205).5 Notably, t he petition appear ed to randomly cut off after page 7. It seem ed that it

was missing pages before it pick ed back up to ask the district court for "immediate release for any one of the issues brought be fore the court in Issue 4." T here was no Issue 3 or Issue 4 outlined in the petition or anywhere else in the record.
Although Cooper filed his May 2, 2017 petition over eight years after the mandate was filed on September 25, 2008 , he failed to cite with in it any reason explaining why he did not file his motion within the one

- year time limit or make any claim of actual innocence , which is required by K.S.A. 2019 Supp. 60

- 1507(f)(2)(A) in order to establish the manifest injustice necessary to extend the on e - year time limit.
On May 22, 2017, the district court filed its journal entry summarily dismissing the action. It construed Cooper's petition as a K.S.A. 60

- 1507 motion and found that it was untimely filed. I n addition, t he district court found that the motion was successive because Cooper could have raised the issues on direct appeal. On June 14, 2017, Cooper timely filed a notice of appeal challenging the court's decision to summarily deny his motion

.

On June 23, 2017 , b efore his appeal was docketed, C ooper filed a timely and lengthy motion to reconsider

. His motion looks more like an amended motion than a request for reconsideration because the substance of the motion not only reallege s the issues in the motion but includes additi onal issues for the district court to consider as well . Specifically, he argue d the following:

• He was never read his Miranda rights, so any statements made to the arresting officer should have been excluded. He asked the district court to vacate his sente nce as to this issue.

• The complaint/information was defective because it was based on false hearsay that the investigating detective obtained and used to compile the probable6 cause affidavit. He argued that Ruff and another witness provided inconsistent st atements, and the investigating detective only relied on Ruff's statements to draft the affidavit. Cooper alleged this inconsistency proved the affidavit was based on false information, and because the affidavit was flawed, so was the complaint. As the oth er witness was unavailable for trial, Cooper argued he could not properly confront his accuser. As a part of this issue, Cooper also alleged a quasi

- Brady issue, arguing that the investigating detective was not credible because he was under criminal invest igation at the time and that the State had to know the information the detective obtained for the probable cause affidavit was false. See Brady v. United States , 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Cooper asked the district court to set aside or vacate his conviction and called for his immediate release because his Fourth, Sixth, and Fourteenth Amendment rights were violated.

• His trial counsel was ineffective for failing to investigate the defective complaint, failing to challenge the Mir anda violation, failing to move the court for dismissal of the case when the arresting officer admitted he never read Cooper his Miranda rights, and failing to argue to suppress Cooper's pre

Miranda statements. Notably, Cooper failed to provide any specifi c facts as to how his trial counsel was deficient and how counsel's alleged deficient performance prejudiced him at trial. Instead of asking for specific relief as to this point, he merely quote d swaths of caselaw about ineffective assistance of counsel cl aims.

Whether a motion to reconsider or an amended motion , however, Cooper again fail ed to cite within it any reason explaining why he did not file his motion within the

one - year time limit or make any claim of actual innocence as required by K.S.A. 2019 Supp. 60

- 1507(f)(2)(A) to establish the manifest injustice necessary to extend the on e year time limit. Instead, he concede d that his case was properly labeled as a K.S.A. 60

- 1507 action and argue d that he met all of the requirements outlined in the statute.7 On August 23, 2017, the district court denied Cooper's motion to reconsider. The district court again found that Cooper's K.S.A. 60

- 1507 motion was untimely filed and successive and that Cooper cited to the incorrect affidavit standards . But the district court also held that it did not have jurisdiction to rule on the motion to reconsider because Cooper's appeal of its origi nal decision already had been docketed with the appellate court. Cooper filed a second notice of appeal

.

A NALYSIS 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 rec ords 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. White v. State , 308 Kan. 491, 504, 421 P.3d 718 (2018). Where, as here, 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).

The heart of Cooper's claim on appeal is that the district court should not have summarily denied his K.S.A. 60

- 1507 motion as untimely b ecause it was obvious f rom the motion that there were pages missing

. Cooper first asserts that the district court erred in failing to notify him of the defect instead of dismissing it. Cooper next asserts that the district court erred by summarily denying his motion before he ha d an opportunity to amend his motion as a matter of right. Finally, Cooper asserts the district court erred by summarily denying his motion without reviewing the missing pages because those pages8 could have established the manifest injustice necessary to m ake an exception to the one

year time deadline.
Failure to notify
Cooper cites no authority for his assertion that the district court had a duty to notify him of a possible defect in his motion after he filed it. In fact, the statute itself and cases construing the statute hold otherwise

. To avoid the summary denial of a motion brought under K.S.A. 60

- 1507, a movant bears the burden of establishing he or she is entitled to an evidentiary hearing. See K.S.A. 2019 Supp. 60

- 1507(b) ( court must grant movant an evidentiary hearing "[u] nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief ")

. To meet this burden, a movant's contentions must be more than conclusory, and the movant must either s et forth an evidentiary basis to support those contentions or the basis must be evident from the record. Sola

- Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014) (quoting Holmes v. State , 292 Kan. 271, 274, 252 P.3d 573 [ 2011 ] ). Of course, part of th is burden is to ensure that the movant's pleadings and the evidentiary record are complete and accurate when filing the motion with the district court , which Cooper failed to do here.
Amend as a matter of right
Cooper similarly cites no authority for his claim that the district court erred in summarily dismissing his motion one day before he could have amended his motion as a matter of right under K.S.A. 2019 Supp. 60

- 215. We begin by noting that K.S.A. 2019 Supp. 60

- 215, the statute upon which Cooper relies, refers to amendment of a "pleading." K.S.A. 60

- 1507, however, is a proceeding launched by a "motion." Thompson v. State , 293 Kan. 704, 7 1 1, 270 P.3d 1089 (2011)

. Our Supreme Court, however, has

"admitted that Rule 183(a) (2010 Kan. Ct. R. Annot. 255) tended to obscure the technical distinction between the terms [pleading and motion] by stating that a K.S.A. 60

- 15079 motion constituted 'an independent civil action which should be separately docketed.' This blurred distinction meant that a K.S .A. 60

- 1507 motion could be treated as a 'pleading' within the meaning of K.S.A. 60

- 215. " Thompson , 293 Kan. at 711

- 12 (quoting Pabst v. State , 287 Kan. 1, 23, 192 P.3d 630 [ 2008 ] ).

So the amended and supplemental pleading provisions set forth in K.S.A. 2019 Supp. 60

- 215 apply to a motion filed under K.S.A. 60

- 1507. But neither of the time periods in which K.S.A. 2019 Supp. 60

- 215(a) authorize s amendment as a matter of right are applicable here:

" (a) Amendments before trial . (1) Amending as a matter of course . A party may amend its pleading once as a matter of course within: (A) 21 days after serving it; or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after serv ice of a motion under subsections (b), (e) or (f) of K.S.A. 60

- 212, and amendments thereto, whichever is earlier. "
Specifically, (A) Cooper filed his motion with the court but did not serve it on the respondent , and (B) the State was not required to file a responsive pleading to his motion. Bottom line, the district court did not err in summarily dismissing his petition one day before he could have amended his petition as a matter of right under K.S.A. 2019 Supp. 60

- 215 because Cooper was not entitled to amend his petition as a matter of right in the first place. See Pabst , 287 Kan

. 1, Syl

. ¶ 6 (holding the provision of K.S.A. 60

- 215[a] providing party right to amend pleading once as a matter of course at any time bef ore responsive pleading is served does not apply to motion for relief under K.S.A. 60

- 1507).10 Manifest injustice

Jurisdiction: motion to reconsider
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is u nlimited. Ponds v. State , 56 Kan. App. 2d 743, 745, 437 P.3d 85 (2019). This court's jurisdiction is further limited only to matters identified in the notice of appeal. Associated Wholesale Grocers, Inc. v. Americold Corp ., 293 Kan. 633, 637, 270 P.3d 1074 (2011).

The district court held that it did not have jurisdiction to rule on the motion to reconsider because Cooper's appeal of its original decision already had been docketed with the appellate court. The record, however, reveals that Cooper's appeal w as not docketed until July 30, 2019:

05

- 22

- 17 : District court summarily denie d K.S.A. 60

- 1507 motion

. 06

- 14

- 17: Cooper file d notice of appeal

. 06

- 23

- 17: Cooper file d motion to reconsider

. 08

- 23

- 17: District court denie d motion to reconsider for lack of jurisdiction

. 09

- 19

- 17: Cooper filed notice of appeal

. 07

- 30

- 19: Cooper's motion to docket out of time granted (both 05

- 22

- 17 decision and 08

- 23

- 17 decision)

.
Although the district court's reason for denying Cooper's motion to reconsider were flawed, the discussion below readily establishes that the conclusion it reached was correct.11 Merits
K.S.A. 2019 Supp. 60

- 1507(f) provides:

"(1) Any action under this section must be brought within one year of : (A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition. "(2) The time limitation herein may be extended by the court only to prevent a manifest injustice. (A) 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 . As used herein, the term a ctual 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." (Emphas e s added.)

Because Cooper filed his K.S.A. 60

- 1507 motion after the 2016 amendment to sub section (f) went into effect , he had to file his K.S.A. 60

- 1507 motion within one year of the appellate court's final order or within one year after the denial of a petition for writ of certiorari to the United States Supreme Court. The final appellate ord er in Cooper's case was filed on September 25, 2008. Cooper never filed a petition for writ of certiorari. Because h e did not file his K.S.A. 60

- 1507 motion until May 2, 2017 , his motion is untimely

. Nevertheless, Cooper ma de no argument in his original mo tion as to manifest injustice

— only that the missing pages could have shown manifest injustice. And even though the district court denied his original motion on grounds that he failed to make a claim of the manifest injustice required to excuse his untimely filing, Cooper again made no claim of manifest injustice in his expanded and lengthy motion to reconsider.12 Simply put, K.S.A. 2019 Supp. 60

- 1507(f)(3) requires a district court to summarily dismiss an action as untimely filed if a movant fails to establi sh manifest injustice. Because Cooper failed to allege manifest injustice in either his original motion or his motion to reconsider, the district court was required to dismiss Cooper's petition. We find no error in the district court's decision to summaril y deny Cooper's K.S.A. 60

- 1507 motion and to deny his motion to reconsider.

Affirm ed

.