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NOT DESIGNATED FOR PUBLICATION

No. 120,942

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JARROD SEMBELLO HARRIS,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed March 27, 

2020. Affirmed.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

PER CURIAM: Jarrod Sembello Harris appeals the district court's summary denial 

of his K.S.A. 60-1507 motion. The district court ruled that Harris' motion was untimely 

and that he failed to establish manifest injustice to overcome the one-year time limitation 

of K.S.A. 60-1507(f). Upon our review we find no error and, therefore, affirm the district 

court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Harris pled guilty to attempted aggravated indecent liberties with a child 

in violation of K.S.A. 2006 Supp. 21-3301 and K.S.A. 2006 Supp. 21-3504. He was 

sentenced to prison and ordered to register as a sex offender under the Kansas Offender 

Reporting Act (KORA).

In 2011, after completing his prison sentence, Harris committed several new 

criminal offenses and, in keeping with a global plea agreement, pled guilty in four 

individual criminal cases. The district court initially granted Harris probation but 

subsequently revoked his probation after multiple violations. The district court ordered 

Harris to serve a prison sentence, but mistakenly failed to indicate that no postrelease 

period was to be served in keeping with K.S.A. 2010 Supp. 22-3716(e). As a result of 

their error, Harris was assigned a parole officer and served the 24-month postrelease 

term. The error was not corrected until 2017.

Prior to Harris' release from his prison sentence, he completed a form to comply 

with KORA requirements. Relevant to this appeal, Harris indicated on the form that upon 

his release from prison he would be residing in Olathe. But after Harris' release in 2013, 

and while serving the postrelease term, his parole officer discovered and reported that, in 

fact, Harris was living in a duplex in Overland Park.

This KORA violation resulted in a new criminal case, and Harris subsequently 

pled guilty to failing to report a change of address in violation of K.S.A. 2013 Supp. 22-

4903. On January 8, 2014, Harris received a durational departure to 16 months in prison. 

He did not appeal his conviction or sentence.

On May 24, 2018, Harris filed a K.S.A. 60-1507 motion alleging ineffective 

assistance of counsel because his attorney failed to realize that he was not required to 
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serve a postrelease term when the district court revoked his probation. As a result of this 

error, Harris was assigned a parole officer who discovered that Harris violated the KORA 

registration requirement which led to his latest conviction.

The district court summarily denied Harris' K.S.A. 60-1507 motion because it was 

untimely. As calculated by the district court, the time to file the motion began to run on 

January 22, 2014, and expired on January 22, 2015—Harris did not file the motion until 

May 24, 2018. Moreover, the district court found that Harris failed to establish manifest 

injustice to overcome the one-year time limitation. Alternatively, the district court 

considered the merits of Harris' ineffective assistance of counsel claims and summarily 

rejected them.

ANALYSIS

Our standard of review provides: When the district court summarily dismisses a 

K.S.A. 60-1507 motion, an appellate court conducts 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. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).

Under K.S.A. 2019 Supp. 60-1507(f)(1), a prisoner demanding relief must file the 

motion within one year of either:

"(A) The final order of the last appellate court in this state to exercise jurisdiction 

on a direct appeal or the termination of such appellate jurisdiction; or

"(B) the denial of a petition for writ of certiorari to the United States supreme 

court or issuance of such court's final order following granting such petition."

A defendant who files a K.S.A. 60-1507 motion outside the one-year time 

limitation in K.S.A. 2019 Supp. 60-1507(f) and fails to affirmatively assert manifest 

injustice is procedurally barred from maintaining the action. State v. Trotter, 296 Kan. 
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898, 905, 295 P.3d 1039 (2013). Courts should reserve the manifest injustice exception 

for only rare and extraordinary cases. Beauclair, 308 Kan. at 302.

Pursuant to K.S.A. 2019 Supp. 60-1507(f)(2)(A), when determining whether a 

movant has shown manifest injustice, courts are "limited to determining why the prisoner 

failed to file the motion within the one-year time limitation or whether the prisoner makes 

a colorable claim of actual innocence." To avoid the summary denial of a motion brought 

under K.S.A. 60-1507, the movant must support a claim with an evidentiary basis, which 

requires more than a bald assertion of actual innocence. A claim is "'colorable' if there is 

'sufficient doubt' about [a movant's] guilt 'to undermine confidence' in his [or her] 

conviction 'without the assurance' that the conviction 'was untainted by constitutional 

error.'" 308 Kan. at 303. The Legislature defined actual innocence to mean that the 

prisoner must "show it is more likely than not that no reasonable juror would have 

convicted the prisoner in light of new evidence." K.S.A. 2019 Supp. 60-1507(f)(2)(A).

Harris acknowledges that his motion was untimely but contends the district court 

erred in denying the motion because he provided multiple reasons to explain the delay in 

filing the motion and he asserted a colorable claim of actual innocence. We will consider 

the arguments in order.

REASONS FOR FAILING TO FILE A TIMELY MOTION

Harris did not file his K.S.A. 60-1507 motion until three years after appellate 

jurisdiction terminated. Harris acknowledged that his motion was untimely but provided 

the following explanation for his delay in filing the motion:

"The movant not having [an] adequate legal team to research all the different 

issue[s] or question of law, that the movant would have to research. There is no possible 

way that trial court can hold the movant to the same standard as a professional attorney at 

law, that has paralegal teams and different lawyer[s] to help with research. The movant 
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has a learning disability in school, which are on record from his school years. Also the 

movant['s] availability to law material is limited due to being incarcerated."

Harris' motion counsel filed a supplemental pleading to his K.S.A. 60-1507 

motion. In it, Harris asserted that from 2014 to 2016 he had been moved to and from 

multiple prisons which also made it difficult to discover the postrelease supervision error.

It is well settled that ignorance of the law does not constitute manifest injustice. 

"A prisoner's lack of legal knowledge, training, and familiarity with the rules of 

procedure fails to meet that standard." Martinez v. State, No. 120,488, 2019 WL 

6798971, at *3 (Kan. App. 2019) (unpublished opinion), petition for rev. filed January 3, 

2020. Moreover, "a pro se K.S.A. 60-1507 petitioner is 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." Guillory v. State, 285 Kan. 

223, 229, 170 P.3d 403 (2007).

Similarly, lack of access to a law library does not constitute grounds for a finding 

of manifest injustice: "In one case, the movant emphasized his limited legal knowledge 

and access to a law library as well as 'his numerous transfers during his incarceration,' but 

our court determined that these conditions did not rise to the level of manifest injustice." 

Conley v. State, No. 111,777, 2015 WL 7434746, at *4 (Kan. App. 2015) (unpublished 

opinion) (quoting Williams v. State, No. 101,359, 2010 WL 174011, at *1 (Kan. App. 

2010) [unpublished opinion]). In this case, Harris stated his ability to access legal 

materials was limited because he was incarcerated, but he did not assert that he did not 

have access or even limited access to a law library inside the prison. This is an 

insufficient basis to establish manifest injustice under Conley.

Additionally, while Harris' supplement to the motion stated that he had been 

moved from multiple prisons, it also stated that he had been residing in the same prison 
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since July 2016. Harris provides no explanation as to why he waited an additional two 

years to file his K.S.A. 60-1507 motion—until May 24, 2018. Even after the postrelease 

supervision error was corrected in 2017, Harris still could have filed this motion but did 

not do so until 2018.

Finally, Harris stated that he has a learning disability which is documented in his 

school records, but he did not specify the nature or extent of the learning disability or 

explain how it impaired his ability to file a timely motion. The school records are not 

described in his motion and they are not included in the record on appeal. See Sherwood 

v. State, 310 Kan. 93, 101, 444 P.3d 966 (2019) (finding the movant did not provide 

persuasive reasons for the delay by arguing that "the delay was caused by [movant's] 

learning disability; his inability to obtain legal assistance; and his inability to obtain 

record documents to support the motion"). On this record, Harris' reason is insufficient to 

establish manifest injustice.

In summary, we find that Harris has failed to assert persuasive reasons to explain 

why he did not file his K.S.A. 60-1507 motion in a timely manner.

COLORABLE CLAIM OF ACTUAL INNOCENCE

K.S.A. 2019 Supp. 60-1507 provides that a movant may also establish manifest 

injustice by presenting a colorable claim of actual innocence. As noted earlier, a movant 

must support such a claim with an evidentiary basis, which requires more than a bald 

assertion of actual innocence. A claim is "'colorable' if there is 'sufficient doubt' about [a 

movant's] guilt 'to undermine confidence' in his [or her] conviction 'without the 

assurance' that the conviction 'was untainted by constitutional error.'" Beauclair, 308 

Kan. at 303.
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Harris' motion alleges that his attorney who represented him in 2011 was 

ineffective for failing to realize that the 24-month postrelease supervision term was 

improperly imposed and failed to investigate whether the failure to register charge was 

true. However, the crux of Harris' argument is that because his postrelease supervision 

was improper, he should not have been assigned a parole officer. And, without an 

assigned parole officer, Harris claims his KORA violation would not have been have 

discovered.

Importantly, Harris does not assert in his K.S.A. 60-1507 motion that he is 

innocent of the crime of failing to register properly, only that he provided the Olathe 

address on the KORA registration form. Moreover, Harris' motion did not deny that he 

had been living in Overland Park. These factual inadequacies were duly noted by the 

district court which found that Harris "presented no evidence to establish he was actually 

living at . . . West 116th Street, Olathe, Johnson County, Kansas, the address he placed 

on his KORA registration certificate. . . . Mr. Harris has not, therefore, established actual 

innocence."

Harris also asserts that he made incriminating statements regarding his address to 

his parole officer without having been advised of Miranda warnings. Harris argues his

statements should have been suppressed which would have frustrated the State's 

prosecution. But this is not a claim of actual innocence, only an assertion that the State 

would have had difficulty proving he committed the crime. See State v. Davis, No. 

119,471, 2019 WL 2710179, at *3 (Kan. App. 2019) (unpublished opinion) ("While [the 

movant] claims 'actual innocence' he at no point suggests he did not commit the charged 

crimes or offer any new evidence to support such a claim. He merely argues issues with 

the State's evidence, which is not actual innocence."), rev. denied 310 Kan. ___ 

(December 18, 2019).
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Moreover, assuming Harris' incriminating statements were suppressed, the State 

presented other evidence of Harris' failure to report that he was living in Overland Park at 

the preliminary hearing. The State presented a copy of Harris' rental lease for an 

apartment at the Overland Park address and the landlord of the Overland Park duplex 

testified that Harris signed a lease in 2012 to reside there. The records custodian for the 

Johnson County Sheriff's Office also confirmed that the KORA records indicated that 

Harris did not change his address from the Olathe address to the Overland Park address.

Finally, any claim that Harris is actually innocent is disproved by his guilty plea. 

At the plea hearing, Harris pled guilty to the charge and admitted there was a fair and 

accurate factual basis to support his conviction for violating KORA.

For all these reasons, we find that Harris has failed to show a colorable claim of 

actual innocence.

Because Harris has not met either prong of the manifest injustice standard, we 

hold that he is procedurally barred from raising his ineffective assistance of counsel 

claims. Although the district court alternatively considered and denied the merits of 

Harris' claims, we decline to review them given our finding of a procedural bar. In 

conclusion, the district court did not err in summarily denying the K.S.A. 60-1507 motion 

because Harris failed to show how consideration of the untimely motion was necessary to 

avoid a manifest injustice.

Affirmed.