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NOT DESIGNATED FOR PUBLICATION

No. 122,359

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CELESTER MCKINNEY,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed October 2, 

2020. Reversed and remanded with directions.

Joseph A. Desch, of Law Office of Joseph A. Desch, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.

PER CURIAM: Celester McKinney appeals the district court's summary denial of 

his second K.S.A. 60-1507 motion without a hearing. Immediately after his trial in 1998, 

McKinney claimed that his 1997 murder conviction was rendered suspect because his 

uncle—who had testified as a State's witness in the trial—had since recanted his 

testimony, claiming detectives who had worked on the case had pressured him to change 

his story. The district court found that the uncle's trial testimony was credible and

discounted his effort to recant that testimony. The Kansas Supreme Court affirmed that 

finding. McKinney then filed a motion under K.S.A. 60-1507 on similar grounds, which 

the district court denied; this court affirmed the lower court's decision.
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In his current motion, McKinney again points to his uncle's changed statement. 

This motion, however, points out that his uncle's trial testimony and the testimony of 

another witness could have been influenced by a Kansas City detective whose actions 

contributed to the wrongful conviction of another individual. McKinney states that he has 

since learned that this detective, who is tied to the case through trial testimony, was the 

uncle of the murder victim and the brother-in-law of the other key trial witness. We 

conclude that based on these circumstances, viewed in light of the testimony at 

McKinney's trial that the detective was one of two law enforcement officers who worked 

on the case, that the district court erred when it summarily denied McKinney's motion. 

We therefore reverse that decision and remand the case for an evidentiary hearing on 

McKinney's claim. 

FACTUAL AND PROCEDURAL BACKGROUND

The Kansas Supreme Court addressed the facts giving rise to McKinney's murder 

conviction in his direct appeal. See State v. McKinney, 272 Kan. 331, 33 P.3d 234 (2001), 

overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). Early 

on the morning of December 29, 1997, Greg Miller was shot and killed in Kansas City. 

The State charged McKinney, his brother Dwayne McKinney, and their cousin Brian 

Betts with Miller's murder. In separate trials, juries convicted McKinney and Brian but 

acquitted Dwayne. McKinney received a hard 25 life sentence, making him ineligible for 

parole for 25 years.

The State's case against McKinney relied primarily on two witnesses. Jimmy 

Spencer, Jr.—Miller's uncle and roommate—implicated McKinney. Spencer testified that 

before the shooting, Miller told him that McKinney wanted to talk. Shortly after Miller

left to speak with McKinney, Spencer heard gunshots. Spencer then found Miller and left

to find whoever shot him. Though he had previously told the police that he did not see the 
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murder, at trial Spencer testified that he did witness the shooting and identified the type 

of gun used to commit the murder. 

The State's primary witness at trial was Carter Betts—the uncle and housemate of 

all three murder suspects. Betts testified that after the shooting, he heard the front door to 

his house open and close. He went downstairs and found McKinney, Dwayne, and Brian

in the basement with two guns. There, McKinney explained to Betts how and why they 

killed Miller.

Betts talked to Kansas City, Kansas, Police Department (KCKPD) detectives 

twice. Three weeks after the shooting, two detectives came to his house to ask questions. 

He told the detectives that he and his nephews had been in bed asleep during the 

shooting. But on February 5, 1998, Betts gave a formal statement at the police 

department, substantially altering his previous account. In his formal statement, Betts 

discussed McKinney's confession. Betts explained that he had initially lied to the 

detectives to protect his nephews but decided to implicate them because it was the right 

thing to do. Betts later stated that he had feared that if he had not implicated his nephews, 

he would have been suspected for involvement in the crime.

Although Betts found it difficult to testify against his nephews, his testimony 

remained consistent throughout the preliminary hearing, the pretrial hearings, and the 

three nephews' trials. But after McKinney's conviction, Betts sent a letter (which he 

admitted was written by his sister, McKinney's mother) recanting his trial testimony and 

reaffirming his original statement—that he had been asleep the morning of Miller's 

murder. Betts stated in the letter that he fabricated McKinney's confession, using details 

provided by the KCKPD detectives, to avoid becoming a suspect. And he alleged "the 

detectives" pressured him to change his story, and the prosecutor threatened to implicate 

him in the murder if he told the truth.
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McKinney requested a new trial based on Betts' recanted testimony, and the 

district court held an evidentiary hearing. Betts explained he was originally interviewed 

by two detectives—Detective Smith, who was a black man, and another male detective, 

who was white. When Betts told the detectives that he had slept through the events, they 

informed him that they did not believe his story; they already knew McKinney and 

Dwayne were involved and pressed Betts for additional information. The record includes 

no definitive statement as to the identity of the second detective, but one officer who 

testified at trial indicated that it was "Detective Golubski."

Betts further explained that when he provided his formal statement to the police a 

few weeks later, the only detective present was Detective Smith. At that point, Detective 

Smith suggested that Betts could become a suspect if he did not provide the information 

the department was seeking. Betts testified that the formal statement he had given to the 

police was "false." And he testified that he "felt pressured by the detective and the DA to 

make that statement." Betts then testified extensively about actions the prosecutor took 

during the course of McKinney's pretrial proceedings and trial to ensure Betts would 

provide testimony consistent with his formal statement.

After the hearing on this motion, the district court found Betts' recantation 

unconvincing and denied McKinney's motion for a new trial. The Kansas Supreme Court 

affirmed McKinney's convictions, holding that the district court's findings were supported 

by the record and that the court did not abuse its discretion by denying the motion for a 

new trial. 272 Kan. at 337-39.

McKinney filed a federal habeas petition, raising many of the same challenges he 

brought in his direct appeal. McKinney v. Bruce, No. 02-3248-JAR, 2004 WL 1730326, 

at *1 (D. Kan. 2004) (unpublished opinion), aff'd 125 F. Appx. 947 (10th Cir. 2005). In 

its review of the district court's denial of the petition, the Tenth Circuit noted that the 

"trial court found that Carter Betts's trial testimony was truthful." 125 F. Appx. at 952. 
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The court thus again rejected McKinney's argument that he should be allowed a new trial 

in light of Betts' posttrial efforts to recant his testimony. 

In June 2005, roughly four months after the Tenth Circuit issued its opinion 

affirming the dismissal of his federal habeas action, McKinney filed a motion in state 

court under K.S.A. 60-1507. He argued, among other things, that the district court's 

posttrial determination regarding whether Betts' recantation was credible should have 

been made by the jury, not a judge. This court rejected that argument, finding that "our 

cases clearly hold whether to grant a motion for a new trial based on newly discovered 

evidence lies within the sound discretion of the trial court." McKinney v. State, No. 

97,513, 2007 WL 4577926, at *4 (Kan. App. 2007) (unpublished opinion).

In August 2019, McKinney filed the K.S.A. 60-1507 motion now before us. This 

motion asserted six claims. Relevant to this appeal, McKinney asserted that the State had 

not revealed that Detective Roger Golubski was an uncle to the victim and brother-in-law 

to Spencer. He also noted that it has recently come to light that Detective Golubski was 

instrumental in the wrongful conviction of another man, Lamonte McIntyre. McKinney 

argued that this information, combined with the detective's relationship with the victim 

and a witness, and viewed in light of Betts' repeated assertions that he altered his story 

after pressured by KCKPD detectives, warranted a new trial. Although McKinney noted 

his motion was both untimely and successive, he argued manifest injustice and

exceptional circumstances overcame these procedural barriers.

The district court summarily denied his motion, concluding it was untimely,

successive, and barred, in part, by res judicata. It also discussed the merits of each claim. 

Regarding the newly discovered evidence claim, the court noted that McKinney 

presented no evidence that Detective Golubski played any role in his case. McKinney 

appeals.
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DISCUSSION

McKinney argues the district court erred by summarily denying his K.S.A. 60-

1507 motion. He contends that when a petitioner makes a plausible evidentiary argument 

of a colorable claim of actual innocence, Kansas Supreme Court precedent requires the 

court to hold an evidentiary hearing. 

A district court has three options when reviewing a habeas motion. The court may 

order an evidentiary hearing if its review of the motions, files, and case records indicates 

a substantial issue actually exists. It may order a preliminary hearing and assign the 

movant counsel if a potentially substantial issue exists. Or it may summarily deny the

motion if the review conclusively shows the movant is not entitled to relief. Hayes v. 

State, 307 Kan. 9, 12, 404 P.3d 676 (2017); see K.S.A. 2019 Supp. 60-1507(b). The 

movant bears the burden of proving that the motion requires an evidentiary hearing. Holt 

v. State, 290 Kan. 491, Syl. ¶ 3, 232 P.3d 848 (2010).

Appellate courts review a summary denial de novo. 290 Kan. 491, Syl. ¶ 2. When 

evaluating the district court's decision, an appellate court performs the same review as the 

district court—determining whether the movant is conclusively entitled to no relief based 

on the motions, files, and case records. 290 Kan. 491, Syl. ¶ 2.

McKinney's motion faces several procedural obstacles before a court can review 

his substantive arguments. First, a K.S.A. 60-1507 motion must generally be brought 

within one year of the final judgment in a person's direct appeal. K.S.A. 2019 Supp. 60-

1507(f)(1). A court may excuse an untimely motion to prevent manifest injustice, such as 

when a defendant makes a colorable claim of actual innocence. K.S.A. 2019 Supp. 60-

1507(f)(2)(A). Absent a manifest injustice finding, the court must dismiss an untimely 

motion. K.S.A. 2019 Supp. 60-1507(f)(3). 
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Second, this is not McKinney's first motion under K.S.A. 60-1507. When a 

defendant files a K.S.A. 60-1507 motion, courts presume the movant has listed all 

grounds upon which he or she will rely. Toney v. State, 39 Kan. App. 2d 944, 948, 187 

P.3d 122, rev. denied 287 Kan. 769 (2008). A court is "not . . . required to entertain a 

second or successive motion for similar relief." K.S.A. 2019 Supp. 60-1507(c). This rule

against successive motions is meant to promote finality and to avoid piecemeal litigation. 

39 Kan. App. 2d at 948. But courts may address a successive motion when exceptional 

circumstances warrant that review—including when "unusual events or intervening 

changes in the law . . . prevented the defendant from raising the issue in a preceding 60-

1507 motion." Holt, 290 Kan. 491, Syl. ¶ 4. McKinney has previously filed two habeas 

actions, one in federal court and the other in state court, and so he bears the burden of 

demonstrating exceptional circumstances that warrant review of his current motion.

Finally, courts are loath to reconsider issues that have already been litigated. Here, 

McKinney raised his uncle's recantation in his posttrial motion for a new trial and direct 

appeal, his federal habeas petition, and his first K.S.A. 60-1507 motion. In each of those 

cases, the respective courts noted that the district court had found that Betts' trial 

testimony, and not his posttrial explanation, was credible—a finding the Kansas Supreme 

Court affirmed. Normally, the principle of issue preclusion may prevent relitigation of 

settled questions. See Rice v. State, 37 Kan. App. 2d 456, 462, 154 P.3d 537 (noting the 

application of issue preclusion in K.S.A. 60-1507 motions and federal habeas actions), 

rev. denied 284 Kan. 946 (2007). Cf. Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 14, 136 P.3d 

390 (2006) (applying principle of res judicata to a K.S.A. 60-1507 motion).

But when a defendant makes a plausible argument of his or her actual innocence—

that is, that new evidence has come to light and that it is more likely than not that no 

reasonable juror would convict the movant in light of the new evidence—the one-year 

time limitation in Kansas' habeas statute does not apply. See K.S.A. 2019 Supp. 60-

1507(f)(2)(A); Beauclair v. State, 308 Kan. 284, 299-300, 419 P.3d 1180 (2018). And the 
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rules against successive motions and previously litigated issues do not prevent a court's 

consideration of newly discovered evidence that was not available when a question was 

previously litigated. See Bogguess v. State, 306 Kan. 574, 580, 395 P.3d 447 (2017)

(preclusive principles only apply when the current question either was or could have been 

raised previously). Thus, our analysis of these procedural hurdles in this case collapses

into one gatekeeping question: Has McKinney raised a substantial claim, based on 

evidence not previously available, that could lead a "'reasonable juror [to] have 

reasonable doubt'" about his guilt? Beauclair, 308 Kan. at 301 (quoting House v. Bell, 

547 U.S. 518, 538, 126 S. Ct. 2064, 165 L. Ed. 2d 1 [2006]).

McKinney asserts that the district court should have held an evidentiary hearing on 

his claims regarding Detective Golubski's role in his case. The State argues that the 

district court determined more than two decades ago that Betts' attempt to recant his 

testimony was not credible, and this court is bound by that determination. The State 

points out that McKinney's questions regarding Detective Golubski's role go to why Betts 

recanted his testimony, but those questions do not undermine the district court's previous

credibility assessment. 

We disagree with the State's assessment. McKinney's motion asserts that he was 

previously unaware that one of the detectives involved in his case was related to both the 

victim and one of two key witnesses for the State. He argues that this witness, Spencer, 

testified as to information that he would have otherwise not had at his disposal unless it 

had been provided to him by law enforcement, including the type of gun used at the 

murder scene. This argument has not previously been considered by the courts. 

McKinney further points out that Betts has consistently indicated since the trial that he 

was pressured into changing his original account of events by "the detectives" who 

worked on the case. And he recently learned that Detective Golubski had employed 

methods of procuring a conviction through false testimony in another case in the 1990s. 

Again, this information was not available to McKinney when he previously sought a new 
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trial and other postconviction relief. Thus, the district court erred when it denied 

McKinney's motion on preclusive and successive grounds.

The district court also concluded McKinney did not "provide support for the belief 

that [Detective Golubski] participated in the underlying investigation." But McKinney's 

statements that the detective was involved with his case are borne out by the trial 

transcript, where another officer testified that Detective Golubski had joined Detective 

Smith in interviewing witnesses and working on the case. And the district court's other 

statements in its order, indicating that Detective Golubski has since retired from the 

police department and has not been charged in association with the McIntyre 

proceedings, go to the weight of the evidence McKinney has brought to the court's 

attention—a matter that should be considered in light of all the evidence presented, not 

summarily decided without a hearing. 

For these reasons, the district court erred when it concluded "the motions and the 

files and records of the case conclusively show[ed]" that McKinney was not entitled to 

relief. See K.S.A. 2019 Supp. 60-1507(b). McKinney has raised a substantial claim 

regarding the proceedings that gave rise to his conviction with regard to the relationship 

of the detective to the victim and witness in the case, as well as his role in procuring 

Betts' testimony. Accord Beauclair, 308 Kan. at 303-04. We therefore reverse the court's 

summary denial of those claims and remand the case for an evidentiary hearing under 

K.S.A. 2019 Supp. 60-1507(b).

Reversed and remanded with directions.