Anderson v. State
CourtCourt of Appeals of Kansas
Date FiledNovember 6, 2026
Docket128871
StatusUnpublished
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Full Opinion
NOT DESIGNATED FOR PUBLICATION
No. 128,871
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JERRY ALLAN ANDERSON JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Submitted without oral argument. Opinion
filed November 6, 2026. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney,
and Kris W. Kobach, attorney general, for appellee.
Before WARNER, C.J., MALONE and HILL, JJ.
PER CURIAM: Jerry Allan Anderson Jr. appeals the district court's denial of his
K.S.A. 60-1507 motion. In 2018, a jury of 12 women found Anderson guilty of
aggravated robbery, and he was sentenced to 216 months' imprisonment. In his motion,
Anderson raised several ineffective assistance claims against his trial and appellate
counsel. On appeal, Anderson contends the district court should have granted him an
evidentiary hearing on one claim: whether his trial counsel was ineffective for failing to
raise a gender-based challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986). But a fair reading of Anderson's motion and the record shows
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that he did not raise the claim in district court that he now contends requires an
evidentiary hearing. Because a K.S.A. 60-1507 movant cannot generally raise new
ineffective assistance of counsel theories for the first time on appeal, Anderson is not
entitled to the relief he seeks. For this reason, we affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, Anderson robbed a woman at gunpoint at a Loan Max Title Loans. He
was convicted of aggravated robbery following a jury trial. Anderson's jury consisted of
12 white women. The district court sentenced Anderson to 216 months' imprisonment
and ordered him to pay $23,690.23 in restitution.
Anderson filed a direct appeal, in which he argued: (1) The district court erred in
denying his motion to arrest judgment because his statutory right to a speedy trial was
violated; (2) the district court abused its discretion in denying his motion for a new trial
in light of new evidence; and (3) the district court erred in finding the State did not
commit a violation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), by failing to turn over exculpatory evidence. This court affirmed Anderson's
conviction. State v. Anderson, No. 121,574, 2021 WL 3823657, at *10 (Kan. App. 2021)
(unpublished opinion). The mandate was issued December 16, 2021.
On December 14, 2022, Anderson filed a pro se K.S.A. 60-1507 motion, in which
he raised several claims of ineffective assistance of counsel against both his trial and
appellate counsel as well as a claim of trial court error. He argued his trial counsel was
ineffective for (1) failing to challenge his arrest at his parole officer's office; (2) forcing
him to have a jury trial instead of a bench trial; (3) failing to raise "the issue of no black
jurors being on the panel, and [the] jury being made up of white women"; (4) failing to
object to his parole officer testifying as a "'State Worker'"; (5) failing to move for a
mistrial; and (6) failing to object to the trial court's response to a jury question during
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deliberations. He argued his appellate counsel was ineffective for failing to move to stay
the appeal when portions of the record were missing and for failing to raise an
insufficient evidence argument. Finally, he alleged the district court abused its discretion
by failing to declare a mistrial when the jury was deadlocked. The district court appointed
counsel to represent Anderson in his motion.
The State moved to dismiss, although the copy of the State's dismissal motion in
the record is illegible. Anderson's counsel responded to the State's motion to dismiss. In
the response, Anderson clarified his claim that his trial counsel was ineffective for failing
to challenge the issue of no black jurors being on the jury panel:
"11. The Petitioner also claims ineffective assistance of counsel for failing to object to
the lack of diversity on the jury. Counsel for the State equates this to a Batson issue.
Counsel [for the State] argues this is a Batson issue because the prosecutor removed two
males from the jury panel. The Petition makes no reference to male jurors. Rather it
alleges a lack of people of color on the panel.
....
"14. There could be no Batson violation because there were no African Americans on the
panel. . . . You cannot object to striking a black person off the jury when there are no
black people in the courtroom other than the Defendant.
"15. Rather the lack of black people in the jury pool is a violation of Mr. Anderson's
Sixth Amendment right to a fair and impartial jury.
....
"18. The issue of a Sixth Amendment violation is sufficient to grant Mr. Anderson an
evidentiary hearing. The addition of jurors from Mr. Anderson's community would likely
have resulted in a different outcome. It was ineffective assistance of counsel not to raise
the Sixth Amendment violation [of] no black people in the jury pool."
After receiving the State's motion to dismiss and Anderson's response, the district
court held a preliminary hearing and dismissed most of Anderson's claims—including
any claims about the makeup of the jury panel—but it granted an evidentiary hearing on
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his claim that his trial counsel was ineffective for forcing him to have a jury trial instead
of a bench trial. Notably, in the district court's written order, it summarized Anderson's
claim that his trial counsel was ineffective for "[f]ailing to raise the lack of black persons
on the jury panel"—without mention of gender. In summarily denying the claim, the
district court found that Anderson's claim against his counsel for failing to challenge the
jury panel fell "within the category of discretion allowed to trial counsel" and that
Anderson's "assertion that a different . . . action by trial counsel would have resulted in a
different outcome is mere speculation and insufficient to support requiring an evidentiary
hearing."
The district court held an evidentiary hearing on the remaining claim that
Anderson's counsel was ineffective for forcing him to have a jury trial instead of a bench
trial. After hearing testimony from Anderson and his trial counsel, the district court
denied Anderson relief, finding he had failed to establish deficient performance.
Anderson timely appealed the district court's judgment.
ANALYSIS
On appeal, Anderson contends the district court should have granted him an
evidentiary hearing on one claim: "that his trial counsel provided ineffective assistance
by failing to challenge the prosecution's peremptory strikes based on gender." Anderson
does not renew the other claims raised in his K.S.A. 60-1507 motion in district court,
including the claim for which the district court held an evidentiary hearing. An issue not
briefed is waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).
The State asserts that Anderson is making an argument on appeal that he did not
make in district court. In any event, the State contends the district court properly denied
Anderson an evidentiary hearing on the claim.
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Kansas courts have long recognized that a district court has three options when
considering a K.S.A. 60-1507 motion:
"'(1) The court may determine that the motion, files, and case records
conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2)
the court may determine from the motion, files, and records that a potentially substantial
issue exists, in which case a preliminary hearing may be held. If the court then
determines there is no substantial issue, the court may deny the motion; or (3) the court
may determine from the motion, files, records, or preliminary hearing that a substantial
issue is presented requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300
Kan. 875, 881, 335 P.3d 1162 (2014).
The district court denied Anderson's ineffective assistance of counsel claim as it
related to the makeup of the jury panel following a preliminary hearing. When the district
court denies a motion (or claim) following a preliminary hearing based only on the
motion, files, and record, this court exercises de novo review. 300 Kan. at 881.
We will first address the State's contention that Anderson's "argument [has]
changed on appeal" and that "[t]here was no claim in the original K.S.A. 60-1507 petition
that the prosecutor had purposefully struck potential jurors based on their gender." This
point is important because generally, a party cannot raise new ineffective assistance of
counsel theories for the first time in an appeal of the denial of a K.S.A. 60-1507 motion.
Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009).
In his K.S.A. 60-1507 motion, Anderson provided the following argument about
his trial counsel's ineffectiveness as it related to the guarantees provided in Batson:
"Petitioner submits to the court that his Trial Counsel was ineffective by not
raising the issue of no black jurors being on the panel, and in his entire (12) twelve
person jury being made up of white women. This is a clear Batson violation as well as an
equal protection violation. At one point Mr. Anderson told counsel that he wanted some
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males on his panel, no matter the race, just a gender mix. This is important because the
victim, Mrs. Frank is a white woman, the jury was all women, as well as a woman judge,
which more likely than not all played a role in the case."
Courts are to interpret pro se pleadings based on their contents and not solely on
their title or labels. State v. Redding, 310 Kan. 15, 18, 444 P.3d 989 (2019). But there are
limits to a court's duty to liberally construe pro se pleadings, and a court does not have to
divine every conceivable interpretation of a motion. 310 Kan. at 18. In his motion,
Anderson asserted that his trial counsel "was ineffective by not raising the issue of no
black jurors being on the panel." It also referenced the fact that his entire jury was made
up of white women and that Anderson "wanted some males on his panel, no matter the
race, just a gender mix." There was no additional argument in the motion based on
Batson, but liberally construed, it could be interpreted, in part, as an ineffective assistance
claim for counsel's failure to raise a gender-based challenge under Batson.
The State moved to dismiss Anderson's motion. Anderson's counsel responded and
clarified that the ineffective assistance claim was not based on counsel's failure to raise a
gender-based Batson challenge. The response asserted that although the State was
equating Anderson's claim to a Batson issue, he was really claiming a Sixth Amendment
violation because there were no black people on the jury panel. The response clarified
that "[i]t was ineffective assistance of counsel not to raise the Sixth Amendment violation
[of having] no black people in the jury pool." Anderson argued that he was entitled to
receive an evidentiary hearing on this claim. And that is how the district court interpreted
the argument. In its written order, the district court summarily denied the claim that
Anderson's counsel was ineffective for "[f]ailing to raise the lack of black persons on the
jury panel." The district court did not mention any claim for counsel's failure to raise a
gender-based Batson challenge, and Anderson did not object to the adequacy of the
district court's findings. See Supreme Court Rule 165 (2026 Kan. S. Ct. R. at 232).
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Now on appeal, Anderson is asserting he should receive an evidentiary hearing on
his claim that counsel was ineffective "by failing to challenge the prosecution's
peremptory strikes based on gender." This is not the claim Anderson made in district
court, as clarified in his response to the motion to dismiss, and it is not the claim the
district court ruled on in denying Anderson's motion. Anderson's brief on appeal makes a
gender-based Batson argument based on the State's use of peremptory strikes in removing
males from the jury. But the claim Anderson asked the district court to address had
nothing to do with the State's use of peremptory strikes to remove males from the jury.
Anderson's narrowly defined claim in district court was that "[i]t was ineffective
assistance of counsel not to raise the Sixth Amendment violation [of having] no black
people in the jury pool." While his pro se motion referenced both race and gender,
Anderson's habeas counsel focused solely on the racial composition of the jury pool, not
his trial counsel's failure to challenge the State's peremptory strikes based on gender.
Anderson's argument on appeal is that the district court erred by not granting him
an evidentiary hearing on a claim that he did not actually raise in district court. Generally,
issues not raised before the district court cannot be raised on appeal. State v. Gatewood,
321 Kan. 564, 574, 582 P.3d 534 (2026). And more specifically, a party cannot generally
raise new ineffective assistance of counsel theories in an appeal of the denial of a K.S.A.
60-1507 motion. Trotter, 288 Kan. at 127. For this reason, Anderson cannot receive the
relief he now seeks on appeal. Based on the record submitted for our review, we conclude
the district court did not err in denying Anderson's K.S.A. 60-1507 motion.
Affirmed.
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