Habeas due process

Debra Wilson won in Stevenson v. State, No. 96,082 (Kan. App. Feb. 9, 2007)(unpublished), reversing a denial of Mr. Stevenson's 1507 motion. The district court had granted the state's motion to dismiss the motion as untimely. The COA held that the district court violated Mr. Stevenson's right to due process in the habeas proceeding:

The record on appeal suggests that Stevenson may not have received notice of the hearing scheduled by the district court. More importantly, however, the record is crystal clear that the district court did conduct a hearing at which the State was represented by an attorney but that the movant was neither present nor represented by counsel. Therefore, the State was permitted to argue for the imposition of the 1-year limitation, but Stevenson was denied the opportunity to argue for an extension of the time limitation "to prevent a manifest injustice." K.S.A. 60-1507(f)(2). The district court effected the absence of a voice to represent Stevenson's interests, presenting a textbook example of a procedural due process violation.

This COA rejects the state's attempt to find that the record clearly established that the motion was untimely and did not consider the merits (or lack thereof) of the motion as relevant. The point is that, if the district court has a hearing and the state appears, the defendant must appear, either in person or by appointed counsel.

[The state did not file a petition for review and the mandate issued on March 15, 2007]