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NOT DESIGNATED FOR PUBLICATION

No. 121,689

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANDRE D. BAILEY,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed February 12, 

2021. Affirmed.

Gerard C. Scott, of Wichita, for appellant. 

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.

PER CURIAM: We review Andre D. Bailey's second habeas corpus motion 

challenging his convictions for felony murder, two counts of aggravated robbery, 

aggravated burglary, and discharge of a firearm into an occupied building—all felonies 

arising from a home invasion carried out in search of a marijuana stash. The Sedgwick 

County District Court summarily denied the motion as untimely under K.S.A. 60-1507(f), 

and Bailey has appealed. Rather than wallow in procedural uncertainties about the 

motion, we examine the merits of Bailey's claims and find them wanting. We, therefore, 

affirm the district court's ultimate decision denying Bailey relief.
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LITIGATION HISTORY

In 2007, Bailey and three cohorts in crime forced their way into a Wichita home 

and held the residents—a man, a woman, and the woman's three young children—at 

gunpoint as they searched for what they anticipated would be a large amount of 

marijuana. Bailey struck the woman who lived there with his pistol and took her purse. 

His colleagues found what has been described as a single "brick" of marijuana. As they 

left, Bailey stood on the porch and fired his handgun multiple times through the front 

door. The man living there was on the other side of the door and was fatally wounded. 

Bailey and his accomplices drove away and later divvied up the money from the woman's 

purse and the marijuana.

Bailey was then 17 years old and lived with his mother Terrie Walker. After 

Bailey had been identified as a suspect in the crime, between 15 and 20 law enforcement 

officers surrounded Walker's house in the late evening. Nobody was home, so they 

waited. Walker pulled into the driveway shortly after midnight, and officers immediately 

surrounded her. During an evidentiary hearing on Bailey's first 60-1507 motion, Walker 

testified the officers refused to allow her into the house and insisted she sign a consent to 

search. According to Walker, the officers did not tell her she had a right to decline. 

Walker signed the consent, although she testified she could not read the document 

because it was dark outside. The resulting search turned up marijuana belonging to 

Bailey. Based on that evidence, the State also charged Bailey with possession of 

marijuana with the intent to distribute and having no drug tax stamps. 

Bailey was referred from juvenile court for prosecution as an adult. In 2008, a jury 

convicted Bailey on all of the charges against him. The trial evidence included testimony 

from the surviving adult victim of the home invasion and all three of Bailey's 

accomplices. The district court later sentenced Bailey to life in prison with parole 
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eligibility after 20 years on the felony-murder conviction to be served consecutive to a 

controlling prison term of 59 months on the remaining convictions, entailing concurrent 

sentences on all of them. Bailey appealed, and the Kansas Supreme Court affirmed the 

convictions and sentences. State v. Bailey, 292 Kan. 449, 255 P.3d 19 (2011) (Bailey I).

Bailey filed his first habeas corpus motion under K.S.A. 60-1507 asserting a host 

of grounds for relief from the convictions. Some of points were or could have been raised 

in Bailey's direct appeal; others asserted Bailey's lawyer provided constitutionally 

inadequate representation leading up to and during the jury trial. The district court 

appointed a new lawyer for Bailey and held an evidentiary hearing on the motion. The 

district court denied Bailey's motion. Bailey appealed that ruling to this court. 

We affirmed the district court in all respects except Bailey's claim his trial lawyer 

should have filed a pretrial motion to suppress the marijuana because Walker's consent 

may have been coerced. Bailey v. State, No. 114,844, 2017 WL 1197240, at *13-14 (Kan. 

App. 2017) (unpublished opinion) (Bailey II). In Bailey II, we reversed in part and 

remanded to the district court for further proceedings to determine whether the trial 

lawyer's failure amounted to constitutionally inadequately representation and, if so, what 

prejudice Bailey may have suffered. 2017 WL 1197240, at *14. The Kansas Supreme 

Court denied Bailey's petition for review in Bailey II.

Rather than going forward with the hearing on remand, the State moved to dismiss 

the marijuana and no drug tax stamp charges against Bailey. The district court granted the 

State's motion on January 26, 2018, effectively reversing those convictions and vacating 

the resulting sentences. Bailey's other convictions and sentences remained undisturbed. 

Bailey signed his second 60-1507 motion on February 5, 2019, and the district 

court clerk received it three days later. The district court summarily denied the motion as 
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untimely without appointing a lawyer for Bailey or holding a hearing. Bailey has 

appealed the denial of his second 60-1507 motion, and that is what we have in front of us.

LEGAL ANALYSIS

When a district court summarily denies a 60-1507 motion based on its content and 

the record in the underlying criminal case, we exercise unlimited review on appeal.

Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Under K.S.A. 2020 Supp., 60-

1507(f)(1)(A) and (2)(A), convicted defendants must file their habeas corpus motions no 

later than one year after the conclusion of their direct criminal cases unless they can show 

"manifest injustice," entailing either a legally substantial reason they did not timely file or 

a demonstrable claim of actual innocence based on newly discovered evidence. 

As we explain, Bailey builds his second 60-1507 motion on the State's dismissal 

of the marijuana and tax stamp charges. Bailey could not have filed his motion before 

then, so he may have had a year from the dismissal to do so. But he missed that ostensible 

deadline by a week or so. Kansas courts recognize that prisoners' habeas corpus pleadings 

are deemed "filed" when given to prison authorities for mailing. Wilson v. State, 40 Kan. 

App. 2d 170, Syl. ¶ 2, 192 P.3d 1121 (2008). The earliest Bailey could have presented his 

60-1507 motion for mailing was on February 5, 2019, when he signed it. That's more 

than a year after the dismissal, and Bailey has offered no explanation for that delay. But, 

as we have explained, Bailey could not have filed this motion within one year after the 

conclusion of his direct criminal case. And K.S.A. 60-1507(f) does not impose a deadline 

for filing a motion tied to a change in the law or some other material development that 

itself excuses the one-year limitation. Cf. Beauclair v. State, 308 Kan. 284, 302-05, 419 

P.3d 1180 (2018) (court reverses summary dismissal of 60-1507 motion as successive 

and untimely based largely on evidence indicative of actual innocence known to movant 

more than one year before motion filed). 
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In a memorandum Bailey filed with his second 60-1507 motion, he makes what he 

characterizes as an argument for his actual innocence that would avert the time limit. The 

argument is intertwined with the merits of his motion. As we discuss, the motion fails in 

its substantive claims, and those claims never dispute Bailey committed the criminal acts 

resulting in his convictions. There is also a sound (and largely unexplored) argument 

Bailey's motion is impermissibly successive in addition to being untimely. Rather than 

thrashing around with the procedural obstacles to Bailey's motion, we simply take up the 

merits. 

Bailey's claim for relief depends first on the legal significance of the State's 

dismissal of the marijuana charge and second on the interlocking nature of most of his 

convictions. As to the first, Bailey contends the State's decision to dismiss the marijuana 

charge rather than to continue litigating his original 60-1507 motion on remand amounts 

to a concession—really an admission—that the district court would have held that he 

would have prevailed on a pretrial motion to suppress the marijuana as evidence in the 

criminal case. But Bailey never lays out a developed argument for why that's the 

appropriate conclusion to draw from the State's dismissal. Expedience would be a 

perfectly reasonable alternative explanation for the State's decision, especially since the 

marijuana related convictions made no difference in the overall sentence Bailey had to 

serve. In our own version of expedience, we indulge Bailey's assumption without 

imputing any actual legal substance to it.

In turn, Bailey contends that if the marijuana were suppressed as evidence, the 

charges against him would have fallen like a house of cards. The faulty argument goes 

like this:

The felony-murder charge was premised on a homicide occurring during the 

commission of a predicate crime—either aggravated robbery or aggravated burglary. The 

aggravated robbery entailed the taking of property by a threat of bodily harm, and the 
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property was the brick of marijuana. Likewise, the aggravated burglary entailed entering 

the house with the intent to commit an aggravated robbery with the marijuana as the 

prize. So if the marijuana were suppressed as evidence, the State would have had 

insufficient evidence to prove both those predicate crimes and the felony murder.

Bailey's theory is predicated on the marijuana seized from his mother's house 

being the same marijuana taken at gunpoint in the home invasion. But why that's true is 

not obvious from the argument itself. Again, we simply assume as much to advance our 

analysis. The theory still fails for multiple reasons.

⦁ Assuming the district court should have granted a motion to suppress the 

marijuana the police seized from Walker's house, the State could not have offered the 

marijuana itself as evidence during the jury trial. The State, likewise, could not have 

introduced expert testimony from a chemist that the marijuana was, in fact, marijuana. As 

a practical matter, that would have left the State without sufficient evidence to prove the 

charges for possession of marijuana with intent to distribute and having no drug tax 

stamps. 

But the State still could have had the surviving adult victim of the home invasion 

and Bailey's accomplices testify that a brick of green leafy stuff everyone believed to be 

marijuana was taken in the robbery. The aggravated robbery charges simply required 

proof that some property was taken—not that the property was marijuana.

⦁ Bailey was charged with two counts of aggravated robbery, either of which 

would have supported the felony-murder conviction. One charge identified the victim as 

the man who was fatally shot and presumably relied on the brick of marijuana as the 

property taken by threat of bodily harm. Even assuming that charge would have been 

legally deficient without the actual marijuana as evidence (and, as we have explained, the 

assumption is mistaken), there was a second charge of aggravated robbery.
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The second charge identified the surviving woman as the victim, so the property 

taken from her presence would have been her purse and its contents. That aggravated 

robbery charge stands independently of anything having to do with the marijuana as

either the motive for the home invasion or the property taken during the criminal episode. 

So the second charge alone supports the felony-murder conviction. 

⦁ The aggravated burglary charge required that Bailey enter the house with the 

intent to commit an aggravated robbery. Again, as we have explained, each of the 

aggravated robbery charges could be proved without the marijuana as evidence at the 

trial. More to the point, however, the aggravated burglary charge merely required proof 

that Bailey intended to commit an aggravated robbery inside the house, not that he 

actually carried out a robbery. The trial testimony of his companions in crime was 

sufficient to prove that intent. So there would have been sufficient evidence of the 

aggravated burglary without the marijuana. The aggravated burglary, therefore, would 

have provided the predicate crime for the felony-murder charge even if the marijuana had 

been excluded as evidence.

⦁ Bailey was charged with and convicted of discharging a firearm into an occupied 

dwelling for shooting through the front door. Nothing about that charge depended upon 

the marijuana, and it alone supported the felony-murder conviction.

To prevail on a 60-1507 motion, a convicted defendant must show both that his or 

her legal representation "fell below an objective standard of reasonableness" guaranteed 

by the right to counsel in the Sixth Amendment to the United States Constitution and that 

absent the substandard lawyering there is "a reasonable probability" the outcome in the 

criminal case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 

694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Sola-Morales v. State, 300 Kan. 875, 882, 

335 P.3d 1162 (2014); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 
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(1985) (adopting and stating Strickland test for ineffective assistance). Bailey had to 

prove both constitutionally inadequate representation and sufficient prejudice attributable 

to that representation to materially question the resulting convictions. A reviewing court 

properly may deny a 60-1507 motion that fails on the prejudice component of the 

Strickland test without assessing the sufficiency of the representation. Strickland, 466 

U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be so, that course should be followed."); 

see Edgar v. State, 294 Kan. 828, 843-44, 283 P.3d 152 (2012); Oliver v. State, No. 

106,532, 2013 WL 2395273, at *5 (Kan. App. 2013) (unpublished opinion). Bailey's 

argument falls apart for that reason. 

Without belaboring the point, Bailey's hypothesized suppression of the marijuana 

seized from his mother's house would not have materially impaired the State's evidence 

on the felony-murder charge, the aggravated robbery charges, the aggravated burglary 

charge, or the unlawful discharge of a firearm charge. Bailey has not shown any resulting 

legal prejudice calling into question the jury verdicts on them. Accordingly, his second 

60-1507 motion fails on the merits of the underlying arguments it presents, wholly apart 

from any procedural bars based on untimeliness or successiveness. We may and do affirm 

the district court for that reason. See State v. Smith, 309 Kan. 977, 986, 441 P.3d 1041 

(2019). 

In wrapping up our discussion, we return to Bailey's miscast assertion of actual 

innocence he premised on the suppression of the marijuana. Actual innocence bears on 

whether the defendant factually committed the charged criminal conduct. See White v. 

State, 308 Kan 491, 512-13, 421 P.3d 718 (2018); Sims v. State, No. 117,239, 2018 WL 

911391, at *2 (Kan. App. 2018) (unpublished opinion). Suppression of evidence as a 

remedy for a government agent's violation of the protection against unreasonable 

searches and seizures in the Fourth Amendment to the United States Constitution does 

not rest on or establish a defendant's innocence. Suppression operates as a protective 
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device to deter those Fourth Amendment violations. See Herring v. United States, 555 

U.S. 135, 139-40, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009); United States v. Leon, 468 

U.S. 897, 908-09, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The device often stymies the 

successful prosecution of the guilty and, thus, has no direct correlation to actual 

innocence. See State v. Moore, No. 119,521, 2020 WL 2602056, at *12-13 (Kan. App.) 

(unpublished opinion) (Atcheson, J. concurring in part and dissenting in part), rev. denied

312 Kan. ___ (September 29, 2020). 

Bailey mistakenly argues successful suppression of the marijuana would mark him 

as innocent rather than as the subject of an unconstitutional search or seizure. He 

misunderstands the legal effect of suppression as a remedial tool for a Fourth 

Amendment violation. In some cases, of course, that success will impede or even prevent 

a conviction. But that's not the measure of actual innocence, either. 

Having reviewed Bailey's arguments, we conclude the district court correctly 

denied Bailey any relief on his second 60-1507 motion.

Affirmed.