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NOT DESIGNATED FOR PUBLICATION

No. 121,522

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KELVIN HENRY GIBSON,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; JENNIFER ORTH MYERS, judge. Opinion filed July 31, 

2020. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

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

Schmidt, attorney general, for appellee.

Before BUSER, P.J., HILL and WARNER, JJ.

PER CURIAM: Kelvin Henry Gibson appeals from the district court's summary 

denial of his second motion for habeas corpus relief under K.S.A. 2019 Supp. 60-1507. 

Gibson contends he received ineffective assistance from his prior counsel who 

represented him in the first K.S.A. 60-1507 proceeding. Upon our review, we find no 

error and, therefore, affirm the district court.
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FACTUAL AND PROCEDURAL BACKGROUND

In 2010, Gibson was convicted of first-degree murder and aggravated robbery. 

The district court sentenced Gibson to a hard 20 life sentence consecutive to a 61-month 

prison term. The Kansas Supreme Court affirmed Gibson's convictions on appeal. State v. 

Gibson, 299 Kan. 207, 322 P.3d 389 (2014).

On April 15, 2015, Gibson filed his first K.S.A. 60-1507 motion. He claimed the 

trial court had failed to make specific findings of fact in denying his motion to suppress 

and this lack of findings precluded appellate review. After the district court summarily 

denied the motion, we affirmed the district court's ruling. Gibson v. State, No. 115,960, 

2017 WL 948301, at *1-2 (Kan. App. 2017) (unpublished opinion).

On January 10, 2018, Gibson filed his second K.S.A. 60-1507 motion. In the 

motion, Gibson alleged that police officers had violated his rights under the Fourth 

Amendment to the United States Constitution and that the prosecutor had presented 

perjured testimony at trial. Gibson also raised various claims of ineffective assistance of 

counsel, including a claim that his prior K.S.A. 60-1507 counsel, Philip R. Sedgwick, had 

failed to raise the current issues in his first motion and had instead relitigated issues 

already decided by the Kansas Supreme Court. Gibson later amended his motion to 

include another claim of ineffective assistance of counsel against Sedgwick for failing to 

petition the Supreme Court for review of our decision affirming the district court's denial 

of his first K.S.A. 60-1507 motion.

On May 4, 2018, Gibson filed a motion for additions to the record, asking the 

district court to supplement the record with a document in support of a new ineffective 

assistance of counsel claim. Attached to the motion was a letter, dated April 24, 2018, 

addressed to Gibson from the Kansas Office of the Disciplinary Administrator. The letter 

stated:
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"The investigation into your complaint against Philip Sedgwick has been 

completed. The investigative materials have been submitted to the Review Committee of 

the Kansas Board for Discipline of Attorneys. That committee has determined that 

probable cause exists to believe that Mr. Sedgwick has violated the Kansas Rules of 

Professional Conduct.

"The Review Committee has directed this office to institute formal charges 

against Mr. Sedgwick. The Disciplinary Administrator's Office will draft a formal 

complaint that will be filed in this matter and a date will be set for a hearing. It may be 

necessary for you to be present and testify at the hearing and you will be notified as 

quickly as possible as to the date of the hearing."

On August 10, 2018, Gibson requested a status update on his K.S.A. 60-1507

motion. The district court replied that Gibson's motion would "remain open pending the 

results of your disciplinary complaint against one of your former attorneys. The results of 

that hearing may have a bearing on the decision this court will submit."

The State moved to dismiss Gibson's second K.S.A. 60-1507 motion as untimely 

and successive. In response, Gibson asserted that the dismissal of his motion would result 

in manifest injustice because Sedgwick had been disciplined by the Disciplinary 

Administrator's Office: "The Disciplinary board said he was wrong. He gave every dime 

of the money back paid to him to do this motion. Because he was ineffective and he knew 

and so did the Disciplinary Administrator. . . . [I] hired Mr. Sedgwick and he messed up."

On March 7, 2019, the district court entered an order summarily denying Gibson's 

motion as untimely, successive, and otherwise without merit. As for Gibson's ineffective 

assistance of counsel claim based on Sedgwick's disciplinary complaint, the district court 

determined it lacked a sufficient factual basis in the record. Noting that a violation of a 

rule of professional conduct does not necessarily constitute ineffective assistance of 

counsel as a matter of law, the district court found that other than the letter from the 
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Disciplinary Administrator's office, there was "no further information in the file as to 

what rules were violated or the outcome of the complaint."

Gibson filed a timely appeal. The district court later denied Gibson's motion to 

alter or amend its ruling.

ANALYSIS

On appeal, Gibson contends the district court erred by summarily denying his 

second K.S.A. 60-1507 motion without conducting a preliminary hearing. Gibson argues 

that the district court had an obligation to conduct a preliminary hearing because 

Sedgwick's disciplinary complaint raised substantial issues of fact about whether he had 

provided ineffective assistance during Gibson's first K.S.A. 60-1507 proceeding. Given 

that the other arguments asserted in Gibson's motion were not briefed on appeal, we 

consider those arguments waived. See In re Marriage of Williams, 307 Kan. 960, 977, 

417 P.3d 1033 (2018) (issues not briefed are deemed waived or abandoned).

A district court has three options when presented with a K.S.A. 60-1507 motion: 

It can summarily dismiss the motion if the "motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief," hold a preliminary hearing 

and deny the motion if there are no substantial issues presented, or conduct a full 

evidentiary hearing on the issues. K.S.A. 2019 Supp. 60-1507(b); Sola-Morales v. State, 

300 Kan. 875, 881, 335 P.3d 1162 (2014).

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a 

movant bears the burden of establishing entitlement to an evidentiary hearing. To meet 

this burden, a movant's contentions must be more than conclusory, and either the movant 

must set forth an evidentiary basis to support those contentions or the basis must be 

evident from the record. When, as here, the district court summarily denies a K.S.A. 60-
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1507 motion, we conduct 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. 300 

Kan. at 881.

To obtain relief under K.S.A. 60-1507, a movant must establish by a 

preponderance of the evidence that (1) the judgment was rendered without jurisdiction, 

(2) the sentence imposed was not authorized by law or is otherwise open to collateral 

attack, or (3) 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. 2019 Supp. 

60-1507(b); see also Kansas Supreme Court Rule 183(g) (2020 Kan. S. Ct. R. 223) 

(movant has burden of establishing grounds for relief).

A movant's ability to seek habeas relief under K.S.A. 2019 Supp. 60-1507 is 

limited by some procedural hurdles. For example, a movant only has one year from the 

date the mandate was issued in his or her direct appeal to file the motion. K.S.A. 2019 

Supp. 60-1507(f)(1)(A). In this case, the mandate in Gibson's direct appeal was issued on 

May 13, 2014. Gibson filed this second K.S.A. 60-1507 motion in January 2018, well 

beyond the one-year time limit. Of note, the one-year time limit "may be extended by the 

court only to prevent a manifest injustice." K.S.A. 2019 Supp. 60-1507(f)(2). For 

purposes of determining the existence of manifest injustice, the district court is only 

allowed to consider (1) a movant's reasons for not filing the motion within the one-year 

time limit and (2) whether the movant makes a colorable claim of actual innocence. 

K.S.A. 2019 Supp. 60-1507(f)(2)(A).

Here, Gibson did not mention, let alone make, a showing of manifest injustice in 

his second K.S.A. 60-1507 motion. The first time he argued manifest injustice was in 

response to the State's motion to dismiss, when he claimed the dismissal of his motion 

would result in manifest injustice because of the disciplinary action taken against 
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Sedgwick. In his brief, Gibson notes that the disciplinary proceeding occurred after the 

one-year time limit for filing a K.S.A. 60-1507 motion.

Gibson has a second procedural hurdle to overcome. Generally, in a K.S.A. 60-

1507 proceeding, the movant is presumed to have listed all grounds for relief in the 

original motion. State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). K.S.A. 2019 

Supp. 60-1507(c) provides that the district court "shall not be required to entertain a 

second or successive motion for similar relief on behalf of the same prisoner." Our 

Supreme Court has interpreted this statute to mean the district court may dismiss a 

successive motion unless exceptional circumstances justify its consideration. Beauclair v. 

State, 308 Kan. 284, 304, 419 P.3d 1180 (2018). "Exceptional circumstances are unusual 

events or intervening changes in the law that prevented the defendant from raising the 

issue in a preceding [K.S.A.] 60-1507 motion." State v. Mitchell, 284 Kan. 374, 379, 162 

P.3d 18 (2007).

Here, because Gibson previously filed a K.S.A. 60-1507 motion for similar relief, 

he must show exceptional circumstances to prevent the dismissal of his motion. For the 

first time on appeal, Gibson asserts that the disciplinary proceeding against Sedgwick 

constitutes an exceptional circumstance justifying consideration of his ineffective 

assistance of counsel claim. See Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 

(2009) (ineffective assistance of counsel can amount to exceptional circumstances).

Upon our review, we are persuaded that Gibson's justification for his untimely and 

successive filing of the second K.S.A. 60-1507 motion does not entitle him to relief. This 

is because the premise of the second motion—that Sedgwick provided ineffective 

assistance of counsel to Gibson given the probable cause finding that Sedgwick had 

violated the Kansas Rules of Professional Conduct (KRPC)—is conclusory and lacks any 

evidentiary or factual basis to support the contention.
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To prevail on a claim of ineffective assistance of counsel, a movant must establish 

(1) counsel's performance was deficient under the totality of the circumstances and (2) 

prejudice, i.e., a reasonable probability that but for counsel's deficient performance, the 

outcome of the proceeding would have been different. State v. Sprague, 303 Kan. 418, 

426, 362 P.3d 828 (2015).

The record does not show, and Gibson does not allege, how Sedgwick's 

performance in the first K.S.A. 60-1507 proceeding was deficient under the totality of the 

circumstances or how Gibson was prejudiced as a result. The record contains only a letter 

from the Disciplinary Administrator's office stating there was probable cause to believe 

that Sedgwick violated the Kansas Rules of Professional Conduct and that a formal 

complaint would be filed. But Kansas courts have long held that a violation of the rules 

of professional conduct does not necessarily equate to ineffective assistance of counsel:

"[U]nprofessional conduct by defense counsel which violates a disciplinary rule 

contained in the Code of Professional Responsibility does not constitute ineffective and 

inadequate counsel as a matter of law. It is simply one factor to be considered as a part of 

the totality of the circumstances in making a judicial determination as to whether an 

accused has been provided representation by effective counsel." State v. Wallace, 258

Kan. 639, 646, 908 P.2d 1267 (1995).

See Wilson v. State, 40 Kan. App. 2d 170, 179-81, 192 P.3d 1121 (2008); KRPC Rule

226, Scope [20] (2020 Kan. S. Ct. R. 287) ("Violation of a Rule should not itself give rise 

to a cause of action against a lawyer nor should it create any presumption in such any

case that a legal duty has been breached.").

Other than the Disciplinary Administrator's letter, the record contains no factual 

basis to support Gibson's ineffective assistance of counsel claim. For example, the record 

does not include Gibson's complaint to the Disciplinary Administrator or otherwise 

describe Gibson's allegations against Sedgwick. Nor does the record contain the 
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Disciplinary Administrator's formal complaint or the rules Sedgwick was alleged to have 

violated. While Gibson argued in his response to the State's motion to dismiss that "[t]he 

Disciplinary board said [Sedgwick] was wrong" and that Sedgwick "gave every dime of 

the money back paid to him to do this motion," the results of any disciplinary proceeding 

are not found in the record on appeal. Moreover, the record establishes no nexus or 

connection between the disciplinary complaint and Sedgwick's performance as Gibson's 

counsel in the underlying criminal case. See Holt v. State, 290 Kan. 491, 496, 232 P.3d 

848 (2010) (mere conclusory allegations without evidentiary basis will not support 

ineffective assistance of counsel claim).

Gibson candidly acknowledges that the record is lacking a factual basis for his 

assertions of ineffectiveness: "What is obvious from the Disciplinary Administrator's 

letter is that the Disciplinary Administrator does not indicate what 'rules' of Professional 

Conduct had been violated by Mr. Sedgwick, and whether or not they relate to Mr. 

Sedgwick's representation of Mr. Gibson in his first K.S.A. 60-1507 action." But Gibson 

suggests this deficiency in the record creates a substantial issue of fact about whether

Sedgwick's conduct relating to the disciplinary proceeding affected his performance 

while representing Gibson. As a result, Gibson contends that the district court had an 

obligation to appoint counsel and conduct a preliminary hearing instead of summarily 

denying his motion. We disagree.

Contrary to Gibson's argument, the incomplete record before us does not create a 

substantial issue of fact that required the district court to hold a hearing in order to search 

for a factual basis in support of Gibson's ineffective assistance of counsel claim. It is 

well-settled law that to avoid summary denial of a K.S.A. 60-1507 motion, a movant has 

the burden to make more than conclusory contentions and must state an evidentiary basis 

in support of those claims or some evidentiary support must appear in the record. See 

Sola-Morales, 300 Kan. at 881. Gibson fails to carry that burden here. See Guillory v. 

State, 285 Kan. 223, 229, 170 P.3d 403 (2007) ("[A] pro se K.S.A. 60-1507 [movant] is 
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in the same position as all other pro se civil litigants and is required to be aware of and 

follow the rules of procedure that apply to all civil litigants, pro se or represented by 

counsel.").

Because Gibson's ineffective assistance of counsel claim is conclusory, and 

without any apparent factual or evidentiary basis in the record, he has failed to show the 

manifest injustice or exceptional circumstances necessary to justify consideration of his 

untimely and successive K.S.A. 60-1507 motion. See K.S.A. 2019 Supp. 60-1507(f); 

Beauclair, 308 Kan. at 304. Accordingly, the district court did not err in summarily 

denying Gibson's second K.S.A. 60-1507 motion.

Affirmed.