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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,904

KEDRIN D. LITTLEJOHN,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

An inmate filing a second or successive motion under K.S.A. 60-1507 must show 

exceptional circumstances to avoid having the motion dismissed as an abuse of remedy.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 30, 2017.

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed August 23, 2019. 

Judgment of the Court of Appeals reversing the district court is reversed, and the case is remanded to the 

Court of Appeals with directions. 

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, chief assistant district attorney, argued the cause, and Julie A. Koon, assistant 

district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on 

the briefs for appellee.

The opinion of the court was delivered by

JOHNSON, J.: The State petitions this court for review of the Court of Appeals' 

decision reversing the district court's summary denial of Kedrin D. Littlejohn's K.S.A. 
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60-1507 motion and remanding the case to the district court for an evidentiary hearing on 

the issue of whether Littlejohn's trial counsel was ineffective for failing to pursue a 

defense of mental defect and to request jury instructions regarding the same defense. 

Littlejohn v. State, No. 115,904, 2017 WL 2833312 (Kan. App. 2017) (unpublished 

opinion). The State contends that the panel applied an incorrect standard to determine 

whether the district court should have considered a second or successive K.S.A. 60-1507 

motion. We agree and remand to the Court of Appeals to apply the correct standard.

FACTUAL AND PROCEDURAL OVERVIEW

A more complete recitation of the facts underlying Littlejohn's crimes is set forth 

in our opinion from the direct appeal, State v. Littlejohn, 298 Kan. 632, 316 P.3d 136 

(2014). During a May 2008 botched robbery by Littlejohn and Shannon Bogguess, the 

intended victim was shot, kidnapped, and then run over and killed by a vehicle driven by 

Bogguess. Littlejohn was arrested; police matched the blood at the scene with blood on 

Littlejohn's shoes; and Littlejohn eventually confessed to participating in the crimes. 298 

Kan. at 634-38. See also State v. Bogguess, 293 Kan. 743, 744-45, 268 P.3d 481 (2012).

Before trial, Littlejohn's counsel filed a motion to determine competency, as well 

as a motion to suppress Littlejohn's statements to police on the grounds that Littlejohn's 

Miranda waiver was involuntary or coerced. Littlejohn had several attorneys during the 

pretrial district court proceedings, and the record on appeal is not always clear as to 

which attorney filed which motion. Quentin Pittman represented Littlejohn during the 

jury trial.

After a hearing on December 4, 2009, the district court found that Littlejohn could 

understand the charges and assist in his defense, and, therefore, he was competent to 

stand trial. The court relied upon a report produced by Comcare (Comcare report). That 
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report, while finding Littlejohn competent to stand trial, noted that "it may be helpful to 

have IQ testing completed on Mr. Littlejohn." 

The Comcare report referred to a previous IQ test that had been administered by 

the Wichita Child Guidance Center in 2006, when Littlejohn was 16, and that had 

revealed Littlejohn to be moderately mentally retarded. That 2006 report is included in 

the record on appeal as an attachment to Littlejohn's 60-1507 motion. It includes a 

number of different scores on various types of tests and designates Littlejohn's full scale 

IQ as 49, which is less than the 0.1 percentile and considered to be in the moderate 

mental retardation range. 

The 2006 report noted a concern that another report from 1997, when Littlejohn 

was 7 years old, indicated that Littlejohn's IQ levels were normal at that point, with a full 

scale IQ of 100. The 2006 report questioned whether this was due to an intervening 

decline in mental abilities or whether the 1997 testing was flawed. The 1997 report is not 

in the record on appeal. Comcare's suggestion of an updated IQ test was premised on the 

discrepancy between the 1997 and 2006 test results. 

The district court again discussed Littlejohn's mental capacity at a suppression 

hearing on the eve of the jury trial on October 8, 2010. Dr. Mitchell Flesher, a 

psychologist, testified as an expert for the defense in the context of the voluntariness of 

Littlejohn's statements to the police. Based upon an in-jail evaluation of Littlejohn in 

September 2009, Dr. Flesher said Littlejohn read at a third grade level, spelled at a fourth 

grade level, and displayed fourth grade level math skills. All of these scores were in the 

first or second percentile, meaning that Littlejohn's scores would have been the lowest 

1 or 2 out of every 100 people. Dr. Flesher conducted other tests and evaluations with 

similar low results. He scored Littlejohn's verbal IQ at 70 and his full scale IQ at 71.

Dr. Flesher said that although Littlejohn's full scale score was technically above the 
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threshold IQ of 70 to be considered mentally retarded, Dr. Flesher diagnosed Littlejohn 

as mentally retarded and provided his reasons for doing so. 

Littlejohn's trial counsel did not mount a mental defect defense and did not request 

any jury instructions relative to his mental retardation. The defense focused on 

inconsistencies in the evidence and tried to portray Littlejohn as a victim of, and not a 

participant in, the crimes. Littlejohn, 2017 WL 2833312, at *8. The jury convicted 

Littlejohn of felony murder, aggravated robbery, aggravated kidnapping, and aggravated 

assault. His convictions were affirmed on direct appeal, and the mandate issued February 

10, 2014. Littlejohn, 298 Kan. at 660.

Littlejohn filed his first 60-1507 motion in June 2014, which was summarily 

denied "because the claims were conclusory." Littlejohn filed an untimely appeal of that 

denial in October 2014 but later voluntarily withdrew it. Neither the first 60-1507 motion 

nor any of the court orders associated with it are included in the record on appeal. But 

both parties refer to the existence of the first 60-1507 motion, and the facts surrounding it 

are not in dispute. 

Littlejohn filed his second 60-1507 motion—the subject of this appeal—on 

January 16, 2015. In his pro se memorandum in support of the motion, Littlejohn argued 

that his trial counsel was ineffective for failing to protect various constitutional rights, 

which constituted exceptional circumstances that would allow him to proceed with a 

second 60-1507. Among the several issues Littlejohn raised in the motion was an 

ineffective assistance of counsel claim for his trial attorney's failure to utilize a mental 

defect defense and a claim that the trial court erred in failing to give a jury instruction on 

mental defect as a defense. 
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The district court failed to take any action on the motion for some 10 months. 

After the State belatedly filed a response to the motion on November 4, 2015, in which it 

ignored the merits of Littlejohn's claims and simply argued for a dismissal based upon the 

motion being successive, Sedgwick County District Judge James Fleetwood finally 

addressed the motion on November 10, 2015. Chief Judge Fleetwood's order appears to 

be a copy-and-paste of the State's response, denying the motion as successive and an 

abuse of remedy.

On appeal, Littlejohn argued that the district court erred in summarily denying his 

60-1507 motion without appointing counsel, despite receiving a response from the State,

and that the district court erred in dismissing the 60-1507 motion as successive because 

he demonstrated exceptional circumstances that would permit a second motion.

The Court of Appeals held that the failure to appoint counsel was not error but 

reversed and remanded for a hearing on whether trial counsel was ineffective for failing 

to investigate Littlejohn's mental defect defense. Littlejohn, 2017 WL 2833312, at *10.

The panel held that justice would be served by considering Littlejohn's successive 60-

1507 motion and the issue of ineffective assistance of counsel, taking note of evidence in 

the record on appeal of Littlejohn's diminished mental capacity, full scale IQ of 71, and 

diagnosis of mild mental retardation. 2017 WL 2833312, at *10. In doing so, the panel 

opined that Supreme Court Rule 183(d) (2017 Kan. S. Ct. R. 222) does not require a 

court to find that exceptional circumstances exist that would allow a court to consider a 

second or successive 60-1507 motion, so long as the motion includes any colorable 

claims. 2017 WL 2833312, at *7.

The State timely petitioned for review, arguing that the panel erred in holding that 

the district court did not have to find exceptional circumstances to consider the merits of 
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Littlejohn's second 60-1507 motion. Littlejohn did not cross-petition on the appointment 

of counsel issue; that issue is not before this court. 

SECOND OR SUCCESSIVE MOTIONS UNDER K.S.A. 60-1507

The State contends that our precedent has required that a K.S.A. 60-1507 movant 

demonstrate exceptional circumstances before a district court is required to consider the 

merits of a second or successive 60-1507 motion. Accordingly, the State argues that the 

Court of Appeals erroneously interpreted Supreme Court Rule 183(d) (2018 Kan. S. Ct. 

R. 223) as requiring that a district court consider the merits of a second or successive 

motion if the movant "asserts any colorable claims." 2017 WL 2833312, at *7. We agree 

with the State; the panel applied an incorrect standard.

Standard of Review 

When a district court summarily denies a K.S.A. 60-1507 motion, appellate review 

of that ruling is de novo. See Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 

(2014). The interpretation of statutes and Supreme Court rules involves questions of law 

reviewable de novo. Stewart v. State, 310 Kan. ___, No. 115,149, 2019 WL 3047724, at 

*3 (2019).

Analysis 

Obviously, a K.S.A. 60-1507 motion is a creature of statute, and, therefore, we 

start by looking at the language of the statute. The statute contains a subsection that 

specifically deals with successive motions, to-wit: "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. 2018 Supp. 60-1507(c). 
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In Nguyen v. State, 309 Kan. 96, 107, 431 P.3d 862 (2018), we pointed out that 

"[a] plain language reading of [K.S.A. 60-1507(c)] might well suggest that the district 

court has unfettered discretion to decline to consider a second or successive 60-1507 

motion, notwithstanding the reason for the subsequent motion and regardless whether 

injustice may result from the refusal to consider the motion's merits." But we clarified 

that, for decades, our caselaw has not interpreted the provision as being without 

exception. See Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977) ("The sentencing 

court should not entertain a second or successive motion for relief under K.S.A. 60-1507 

on behalf of the same person unless the errors affect constitutional rights and there are

exceptional circumstances which justify entertaining a second or successive motion." 

[Emphasis added.]). Nguyen "confirmed that a movant could avoid having a second or 

successive K.S.A. 60-1507 motion dismissed as an abuse of remedy by establishing 

exceptional circumstances." 309 Kan. at 108. Accord Beauclair v. State, 308 Kan. 284, 

304-05, 419 P.3d 1180 (2018) (claim of innocence founded upon victim's recantation 

sufficient exceptional circumstance to avoid dismissal as successive motion). 

On the other hand, Nguyen pointed to Supreme Court Rule 183 as explaining and 

implementing the procedure to be followed under K.S.A. 60-1507 and recited the 

successive motions rule under subsection (d):

"A sentencing court may not consider a second or successive motion for relief by 

the same movant when:

(1) the ground for relief was determined adversely to the movant on a 

prior motion;

(2) the prior determination was on the merits; and
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(3) justice would not be served by reaching the merits of the subsequent 

motion." Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 225).

In contrast to the plain language of the statutory provision, we noted that "a plain reading 

of [Supreme Court Rule 183(d)(3)] would suggest that a district court is permitted to 

decline to consider a successive motion only 'when . . . justice would not be served by 

reaching the merits of the subsequent motion.' Supreme Court Rule 183(d)(3) (2018 Kan. 

S. Ct. R. 225)." 309 Kan. at 108.

We reconciled the contradictory implications of the respective plain language of 

the statute and the rule by incorporating the Rule 183(d)(3) determination—whether 

justice would be served by reaching the merits of a successive motion—into the 

statutorily driven analysis—whether exceptional circumstances exist. In discussing the 

exceptional circumstances in that case, e.g., movant's inability to understand English and 

counsel's dilatory performance, Nguyen noted that the district court must at least read the 

motion and consider the merits before dismissing the motion as successive. Moreover, 

Nguyen intimated that serving justice has to be part of analyzing the exceptional nature of 

the circumstances. 309 Kan. at 111.

The panel below, however, ignored the statutory provision and focused entirely on 

Rule 183(d). It noted that the phrase "exceptional circumstances" does not appear in that 

subsection of the rule, but rather the phrase only appears in Rule 183(c)(3) which directs 

that a 60-1507 motion is not to be used as a substitute for a direct appeal of mere trial 

errors or a substitute for a second appeal. Littlejohn, 2017 WL 2833312, at *10.

Consequently, the panel held that a showing of exceptional circumstances was 

unnecessary for a movant filing a second or successive 60-1507 motion. 2017 WL 

2833312, at *5. Rather, it chose the plain reading of subsection Rule 183(d)(3) that 

we subsequently rejected in Nguyen, i.e., that a district court is permitted to decline to 
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consider a successive motion only when justice would not be served by reaching the 

merits of the subsequent motion.

Then, after rejecting our long-standing requirement for a showing of exceptional 

circumstances, the panel veered further off-course by creating a new test to determine 

whether justice would not be served by reaching the merits of a successive 60-1507 

motion. It held that the question of whether justice requires reaching the merits of a 

successive motion is answered by determining whether the movant "asserts any colorable 

claims." 2017 WL 2833312, at *7. That test not only confuses decades of precedent and 

is unnecessary, it is unsupported by any precedent, except perhaps a passing reference in 

the previous unpublished opinion in Saleem v. State, No. 94,945, 2006 WL 3353769, at 

*13 (Kan. App. 2006) (unpublished opinion). Certainly, as we say above, the merit of a 

movant's claims will factor into the calculus of whether a movant has presented 

exceptional circumstances to avoid dismissal of a successive motion. But the presentation 

of any colorable claim is not the determinative factor on whether a successive motion 

gets an evidentiary hearing on the merits.

In sum, the Court of Appeals applied the wrong standard in determining whether 

the district court erred in summarily denying Littlejohn's 60-1507 motion as being an 

abuse of remedy. The test should have been whether Littlejohn had presented exceptional 

circumstances to justify reaching the merits of the motion, factoring in whether justice 

would be served by doing so. We remand to the Court of Appeals to apply the correct 

standard. In doing so, we do not intend to indicate any opinion as to the result of that 

correct analysis.

Reversed and remanded with directions.

NUSS, C.J. and BILES and STEGALL, JJ., concur in the result.