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NOT DESIGNATED FOR PUBLICATION

No. 122,930

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ARTHUR A. POUNCIL JR.,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed August 27, 2021. 

Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before ATCHESON, P.J., HILL and CLINE, JJ.

PER CURIAM: Arthur A. Pouncil Jr. filed a third motion under K.S.A. 60-1507, 

which the district court summarily denied as untimely and successive. Since the court

correctly determined Pouncil did not demonstrate manifest injustice (which would extend 

his filing deadline) or exceptional circumstances (which would permit assertion of claims 

that have or could have been raised previously), we affirm.
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FACTS

A jury convicted Pouncil of two counts of rape of a child in 1996. This court 

affirmed his convictions and sentences. State v. Pouncil, No. 76,876, unpublished opinion 

filed August 14, 1998 (Kan. App.). Pouncil filed his first K.S.A. 60-1507 motion in 1999, 

raising claims of trial error, ineffective assistance of trial counsel, and ineffective 

assistance of appellate counsel. The district court denied his motion, and this court 

affirmed the denial. Pouncil v. State, No. 83,565, unpublished opinion filed July 14, 2000 

(Kan. App.). Pouncil's appellate counsel then filed an untimely petition for review, which 

the Kansas Supreme Court did not consider because it was out of time. 

In 2005, Pouncil petitioned for habeas corpus relief in federal court, asserting trial 

errors, ineffective assistance of trial counsel, and ineffective assistance of appellate 

counsel, among other claims. The district court denied his petition, and the Tenth Circuit 

Court of Appeals dismissed his appeal of that denial. Pouncil v. Nelson, No. 04-2259, 

2005 WL 375939 (10th Cir. 2005) (unpublished opinion). The following year, Pouncil 

filed another K.S.A. 60-1507 motion, raising essentially the same claims he raised in his 

federal petition. The district court denied his motion, and this court affirmed the district 

court's decision. Pouncil v. State, No. 98,276, 2008 WL 2251221 (Kan. App. 2008)

(unpublished opinion).

In 2016, Pouncil filed the 60-1507 motion which is before us today. In it, he raised 

essentially the same claims he raised in his second 1507 motion as well as his federal 

petition. The district court summarily denied Pouncil's third 1507 motion as untimely and 

successive. Pouncil argues he was entitled to an evidentiary hearing because he satisfied 

both statutory exceptions which allow consideration of his motion. We are unpersuaded 

by Pouncil's arguments.
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ANALYSIS

An evidentiary hearing on a K.S.A. 60-1507 motion is not required if the motion,

files, and records of the case conclusively show the movant has no right to relief. K.S.A. 

2020 Supp. 60-1507(b). The burden is on the movant to allege facts sufficient to warrant 

a hearing on the motion. Doolin v. State, 24 Kan. App. 2d 500, 501, 947 P.2d 454 (1997) 

(citing State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 [1994]).

When a district court summarily dismisses a K.S.A. 60-1507 motion, like it did 

here, we conduct a de novo review to determine whether the motion, files, and records of 

the case conclusively establish the movant has no right to relief. Beauclair v. State, 308 

Kan. 284, 293, 419 P.3d 1180 (2018). 

Pouncil's motion was untimely

Pouncil acknowledges his third 60-1507 motion was filed well beyond the oneyear time limit for such motions. K.S.A. 2020 Supp. 60-1507(f)(1). Under K.S.A. 2020 

Supp. 60-1507(f)(2), this deadline can be extended "only to prevent a manifest injustice."

In determining the existence of a manifest injustice, "courts are limited to considering (1) 

a movant's reasons for the failure to timely file the motion and (2) a movant's claims of 

actual innocence." Hayes v. State, 307 Kan. 9, 14, 404 P.3d 676 (2017); see K.S.A. 2020 

Supp. 60-1507(f)(2)(A). "[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." K.S.A. 2020 Supp. 60-1507(f)(2)(A). If a movant's motion is untimely and the 

movant does not establish manifest injustice, "the district court must dismiss the motion 

as untimely filed." K.S.A. 2020 Supp. 60-1507(f)(3). 

Pouncil offers no reason for his failure to timely file his third motion. Instead, he 

simply argues he demonstrated a manifest injustice because the issues he raised in his 
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first 60-1507 motion were barred from any further review due to appellate counsel's 

failure to timely file a petition for review. The problem with Pouncil's argument is this 

court has already considered and rejected the very same arguments he now raises for a 

third time. In Pouncil, 2008 WL 2251221, at *4, which addressed Pouncil's second 

K.S.A. 60-1507 motion, "Pouncil alleged that counsel appointed to represent him in the 

appeal of his first 60-1507 proceeding was ineffective for failing to file a timely petition 

for review of this court's decision in Pouncil v. State, No. 83,565." There, a panel of this 

court found that this allegation of ineffective assistance of counsel did not amount to a 

manifest injustice when—because the one-year time limit was enacted in 2003—Pouncil 

had nearly four years to bring his claim after the petition for review was denied and failed 

to do so. Specifically, the court held:

"Because Pouncil was informed of his counsel's failure to file a timely petition 

for review in Pouncil v. State, No. 83,565, on or near August 25, 2000, he had nearly 4 

years in which to file his second 60-1507 motion to claim ineffective assistance of 

appellate counsel in his first 60-1507 proceeding before the limitations period of K.S.A. 

60-1507(f)(1) would operate to bar his clam. Pouncil has failed to provide a reasonable 

explanation for failing to bring this ineffective assistance of counsel claim before July 1, 

2004. Therefore, the claim is barred by operation of K.S.A 60-1507. [Citation omitted.]" 

2008 WL 2251221, at *7.

Since a panel of this court has already determined that Pouncil's claim of 

ineffective assistance of counsel did not demonstrate a reasonable explanation for the 

untimely filing of his motion, that ruling applies equally here. Cain v. Jacox, 302 Kan. 

431, 434-35, 354 P.3d 1196 (2015) (doctrine of res judicata will bar successive claim). 

Once again, Pouncil has failed to explain why he could not raise his claim of ineffective 

assistance of appellate counsel within one year after the final determination of his first 

60-1507 motion. We see no error in the district court's reasoning for dismissing Pouncil's 

third 1507 motion as untimely.
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Pouncil also alleges he presented a claim of factual, not legal, innocence to the 

district court, which would alternatively justify extending the one-year deadline. 

However, the only mention Pouncil makes to his actual innocence is that his trial counsel

was ineffective for failing to procure an expert witness regarding his erectile dysfunction, 

to counter the State's medical expert witness. Pouncil does not claim this alleged medical 

condition constituted "new evidence," nor does he demonstrate it is more likely than not 

that no reasonable juror would have convicted him in light of this evidence, as required 

under K.S.A. 2020 Supp. 60-1507(f)(2)(A). Last, Pouncil has already made a claim of 

ineffective assistance of counsel for failure to provide a defense expert to counter the 

State's expert, which this court rejected when considering Pouncil's first 60-1507 motion. 

See Pouncil, 2008 WL 2251221. Pouncil has not explained how the argument he now 

raises is any different or more persuasive than the argument he raised in his first 1507 

motion.

Because Pouncil has not provided either a reasonable explanation for filing his 

motion 12 years late or a colorable claim of actual innocence, he has not met the statutory 

requirements to extend his filing deadline. The district court properly denied Pouncil's 

motion as untimely.

Pouncil's motion was successive

The district court also denied Pouncil's motion under K.S.A. 60-1507(c), which 

bars successive motions for similar relief. Under K.S.A. 2020 Supp. 60-1507(c), claims 

that could have been or were raised in prior 60-1507 motions or successive motions are 

barred and may be denied. "The rationale for the limitations on the availability of 

postconviction relief under K.S.A. 60-1507 is the necessity for some degree of finality in 

the criminal appeal process in order to prevent endless piecemeal litigation in the state 

and federal courts." Toney v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122 (2008). 

Therefore, "only under rare conditions will a trial court be required to entertain 
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arguments on a matter that could have been raised on direct appeal or in a previous 

K.S.A. 60-1507 motion." 39 Kan. App. 2d at 948.

Pouncil claims the district court erred because his appellate counsel's failure to 

timely file his petition for review, which barred his issues from any further review, was 

an exceptional circumstance which justifies review of his claim. Exceptional 

circumstances are "unusual events or intervening changes in the law" that excuse a 

movant's failure to raise the issue in the direct criminal proceedings or in a prior 60-1507 

motion. State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 (2007). Here, this court has 

already reviewed and rejected the very event which Pouncil claims is an exceptional 

circumstance, that is, his appellate counsel's failure to timely file a petition for review.

See Pouncil, 2008 WL 2251221. Further, Pouncil already raised issues of trial error and 

ineffective assistance of trial counsel in his first 1507 motion. If any of the claims he now 

raises were not addressed in his first 1507 motion, he offers no reason why they could not 

have been.

Pouncil either has asserted or could have asserted all the claims he now raises, and 

he offers no exceptional circumstance which justifies review. The district court properly 

denied Pouncil's current K.S.A. 60-1507 motion as successive under K.S.A. 60-1507(c). 

The district court did not err when it summarily dismissed Pouncil's August 2016 

K.S.A. 60-1507 motion, since the motion, files, and records of the case conclusively 

show he has no right to relief. K.S.A. 2020 Supp. 60-1507(b).

Affirmed.