What's it take to get a hearing?

Michael Whalen won in Swenson v. State, No. 94,207 (Kan. July 27, 2007), reversing summary dismissal of Mr. Swenson's K.S.A. 60-1507 motion in Sedgwick County. One issue involved potential IAC for failure of appellate counsel to file a petition for review, which was decided favorably and consistently with my previous blog entry (here). I thought another notable part of the Swenson decision was a claim regarding trial counsel failure to investigate a potential witness. The district court and COA had held that Mr. Swenson had failed to attach affidavits from the potential witness and as such had "failed to establish that his counsel was ineffective in this regard."

We see a lot of these type of 1507 rulings: "Conclusory allegations insufficient to require an evidentiary hearing. Summary dismissal." The problem is that such ruling essentially require a movant to prove his or her case to get a hearing, which is sort of putting the cart before the horse. The KSC rejected this rationale:

Swenson argues the Court of Appeals inappropriately imposed a burden on him to provide an affidavit from his mother with his petition. We agree.

Granted, a movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record. However, in stating the evidentiary basis, the K.S.A. 60-1507 motion must merely "set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief." Consistent with this statement . . . the form approved by this court for K.S.A. 60-1507 motions, in effect at the time Swenson filed his motion, required: "State concisely all grounds on which you base your allegation that you are being held in custody unlawfully" and "[s]tate concisely and in the same order the facts which support each of the grounds set out . . . and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts." Supreme Court Rule 183. Thus, the rule does not require affidavits. Rather, this court has held it is error to deny a K.S.A. 60-1507 motion without a hearing where the motion alleges facts which do not appear in the original record but which, if true, would entitle the movant to relief, and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence.

Under the rule and statute a hearing and appointment of counsel are supposed to be the norm, not the exception. Some of this language should help movants get those hearings.