Dickerson v. State

NOT DESIGNATED FOR PUBLICATION No. 128,967 IN THE COURT OF APPEALS OF THE STATE OF KANSAS ROBERT LEE DICKERSON, Appellant, v. STATE OF KANSAS, Appellee. MEMORANDUM OPINION Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Submitted without oral argument. Opinion filed November 13, 2026. Affirmed. Kristen B. Patty, of Wichita, for appellant. Kayla L. Roehler, deputy district attorney, Mark A. Dupree Sr., district attorney, and Kris W. Kobach, attorney general, for appellee. BEFORE COBLE, P.J., BRUNS AND ISHERWOOD, JJ. PER CURIAM: Robert Lee Dickerson appeals from the Wyandotte County District Court's summary denial of his second K.S.A. 60-1507 motion. In that motion, he claimed that several of his attorneys were ineffective in their assistance to him, starting most recently with counsel appointed to assist him during the appeal of his first K.S.A. 60- 1507 motion and working back through his 1507 counsel before the district court, to his direct appeal counsel, and then to his trial counsel. Dickerson argues all the attorneys in this chain were ineffective in their representation related to a single jury instruction given at trial. The district court summarily denied Dickerson's present and second motion as 1 successive, untimely, and—alternatively—meritless. Dickerson appeals, arguing the district court improperly denied his K.S.A. 60-1507 motion. After review, we affirm the district court's summary denial of the motion on its merits. FACTUAL AND PROCEDURAL BACKGROUND In 2015, a jury convicted Dickerson of aggravated indecent liberties with a child. State v. Dickerson, No. 116,628, 2018 WL 5851444, at *1-3 (Kan. App. 2018) (unpublished opinion). The underlying facts supporting his conviction were well- established in his direct appeal, and full recitation of these facts is unnecessary to our discussion here. See 2018 WL 5851444, at *1-3. As a result of his conviction, the district court sentenced Dickerson to 216 months' imprisonment. In 2020, Dickerson filed a K.S.A. 60-1507 motion. In that motion, he argued his first trial attorney was ineffective for: (1) failing to raise a speedy trial violation claim; and (2) failing to call witnesses for the preliminary hearing. He also argued that his second trial attorney was ineffective for: (1) failing to make a motion for arrest of judgment; (2) not challenging the sufficiency of the charging document; (3) creating a breakdown in attorney-client communications; (4) failing to adequately consult with him; (5) failing to hire an expert; (6) being verbally abusive to him; (7) failing to present an alibi witness; (8) not raising a speedy trial violation claim; and (9) failing to attack eyewitness credibility at trial. Dickerson was subsequently appointed counsel, and in 2021, that attorney filed an amended K.S.A. 60-1507 motion. That amended motion argued his trial counsel was ineffective for: (1) failing to hire an expert to rebut the testimony at trial regarding the victim's forensic interview; (2) failing to obtain Facebook records; (3) failing to adequately prepare for trial, including reviewing and sharing police reports and digital photographs; and (4) failing to obtain phone records. 2  The district court held a preliminary hearing on Dickerson's first K.S.A. 60-1507 motion. During the hearing, Dickerson's counsel stated that he and Dickerson had worked together through meetings and written correspondence to help narrow down the issues for hearing, and that Dickerson would be proceeding on only the amended motion filed by the attorney. The district court asked Dickerson if his counsel's representation that he wished to proceed on the amended motion was correct, and Dickerson agreed that was his intention. The district court held a bifurcated evidentiary hearing on the amended motion, which concluded in May 2022. Ultimately, the district court denied his K.S.A. 60-1507 motion. Although the court found that trial counsel provided deficient assistance to Dickerson by not reviewing the redacted version of the recorded Sunflower House interview before it was admitted, Dickerson was not prejudiced by the video's admission because the complained-of statement therein was not K.S.A. 60-455 evidence. The district court found no deficient performance by trial counsel on the other three grounds asserted by Dickerson. Dickerson appealed the denial of this K.S.A. 60-1507 motion, and our court affirmed the district court's ruling. See Dickerson v. State, No. 125,615, 2023 WL 4990936, at *1 (Kan. App. 2023) (unpublished opinion). In April 2024, just after the mandate was filed in that appeal, Dickerson filed a second pro se K.S.A. 60-1507 motion. His arguments in that motion were all based on a specific jury instruction given at trial—jury instruction No. 5. That instruction read: "The defendant is charged in count 1 with aggravated indecent liberties with a child. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: "1. The defendant intentionally had sexual intercourse with [the victim]. 3  "2. At the time of intercourse, [the victim] was 14 or 15 years old. The State need not prove the defendant knew the child's age. "3. This act occurred on or between the 1st day of March, 2014, and the 31st day of May, 2014, in Wyandotte County, Kansas. "As used in this instruction, 'sexual intercourse' means any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse. "The State must prove that the defendant committed the crime of aggravated indecent liberties with a child intentionally. "A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State." Specifically, Dickerson raised four arguments. First, he argued that his trial counsel was ineffective in representing him by not objecting to jury instruction No. 5 because it did not follow the statutory language of the offense as reflected in the charging document language, and the instruction misstated the mental culpability element. Second, Dickerson argued that his appellate counsel in his direct appeal was ineffective in representing him because he did not raise the purported errors in jury instruction No. 5. Third, he argued that his first K.S.A. 60-1507 counsel before the district court was ineffective in representing him because he failed to raise the jury instruction issue in his first K.S.A. 60-1507 motion. Finally, Dickerson argued that his first K.S.A. 60-1507 appellate counsel was ineffective for failing to request a Van Cleave hearing regarding jury instruction No. 5. See State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986) (appellate court has discretion to remand ineffective assistance of counsel allegations, upon sufficient showing, to develop an evidentiary record). On June 26, 2024, the district court summarily denied Dickerson's second K.S.A. 60-1507 motion, finding it was successive and untimely. The district court concluded that none of the claimed reasons for the delay in filing excused the untimely motion. The court determined that Dickerson had previously raised the issue of a defective complaint 4 in his first K.S.A. 60-1507 motion, and he failed to make any showing that he was not aware of the jury instruction issue despite previously raising a similar issue, so there was no showing of exceptional circumstances excusing the motion's successiveness. The district court then explained that even if the motion were not untimely or successive, it lacked merit because the manner in which Dickerson was charged did not require the element that the act be done "'with the intent to arouse or to satisfy the sexual desires of either the child, the offender or both,'" nor was the instruction's culpable mental state an error. Ultimately, the district court concluded that because the argument was meritless, none of Dickerson's prior attorneys were deficient for failing to raise this issue. Dickerson now timely appeals. Additional facts will be introduced in the analysis, as necessary. DISCUSSION OF DICKERSON'S APPELLATE CHALLENGE We address a single issue on appeal—that is, whether the district court erred by summarily denying Dickerson's second K.S.A. 60-1507 motion. On appeal, Dickerson argues that the district court erred in denying his K.S.A. 60- 1507 motion without granting an evidentiary hearing. Specifically, he argues that if jury instruction No. 5 is erroneous then his motion is neither untimely nor successive, and remand is necessary for an evidentiary hearing. We compare Dickerson's argument to a Russian doll: each layer of error nests within the next. At the root, he argues that his trial counsel was ineffective for failing to challenge jury instruction No. 5 at trial and that his direct appeal counsel was likewise ineffective for not raising that issue on appeal. Yet in his first K.S.A. 60-1507 motion, this issue was not raised by either his 60-1507 counsel before the district court nor on appeal. So, now, he adds to the nesting of ineffective assistance of counsel claims—he argues his K.S.A. 60-1507 appellate counsel was ineffective for failing to argue that his K.S.A. 60-1507 district court counsel was 5 ineffective for failing to argue that his direct appeal counsel was ineffective for failing to argue that his trial counsel was ineffective for not challenging jury instruction No. 5. He uses these four layers of alleged ineffectiveness to rebut any issues with his motion's timeliness or successiveness. In response, the State argues that Dickerson invited any error when he told the district court that he wanted to proceed on the amended K.S.A. 60-1507 motion filed by his attorney. The State also argues the district court properly summarily denied Dickerson's K.S.A. 60-1507 motion because the motion is successive, he is arguing a defective complaint rather than a jury instruction issue, and, even if he is arguing a jury instruction error, that his motion is meritless. Standard of Review A district court has three options when faced with 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.' [Citations omitted.]" State v. Adams, 311 Kan. 569, 577-78, 465 P.3d 176 (2020). The appropriate standard of review is dependent upon which of these options a district court applied to the motion before it. 311 Kan. at 578. When the district court summarily denies a K.S.A. 60-1507 motion, as it did here, the appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant truly was not entitled to any relief. State v. 6 Roberts, 310 Kan. 5, 12, 444 P.3d 982 (2019). A movant has the burden to prove that an evidentiary hearing is warranted by making more than conclusory contentions in their motion and demonstrating that an evidentiary basis exists or is available in the record. Noyce v. State, 310 Kan. 394, 398, 447 P.3d 355 (2019). To receive relief under K.S.A. 60-1507, the movant must establish by a preponderance of the evidence either: (1) "the judgment was rendered without jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to collateral attack"; or (3) "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." K.S.A. 60-1507(b) (grounds for relief); Supreme Court Rule 183(g) (2026 Kan. S. Ct. R. at 242) (preponderance burden). Dickerson's arguments fall under the third category. We address each of the district court's findings in turn. Timeliness A movant has one year from the date that their conviction becomes final to file a K.S.A. 60-1507 motion. K.S.A. 60-1507(f)(1). This time limitation may be extended by the district court only when the movant successfully establishes that a failure to grant an extension will subject the offender to manifest injustice. K.S.A. 60-1507(f)(2). If a movant files their motion outside the one-year time limitation but fails to assert manifest injustice, they are procedurally barred from moving forward with their claim. State v. Trotter, 296 Kan. 898, Syl. ¶ 3, 295 P.3d 1039 (2013). K.S.A. 60-1507(f)(2) offers guidance in discerning the potential for manifest injustice to occur and provides that courts are "limited to determining why the prisoner failed to file the motion within the one-year time limitation or whether the prisoner makes 7 a colorable claim of actual innocence." K.S.A. 60-1507(f)(2)(A). In those instances where the court makes a manifest injustice finding, it is required to state its legal and factual bases in writing and serve a copy of the same on both parties. K.S.A. 60- 1507(f)(2)(B). When an analysis of the motion, files, and records of the case reveals that the time limitation was exceeded and a dismissal of the motion will not result in manifest injustice, courts are required to dismiss the motion as untimely filed. K.S.A. 60- 1507(f)(3). In his motion, Dickerson asserted that he failed to file the present motion within the one-year time limitation due to the ineffective assistance of his counsel at multiple stages—trial, direct appeal, his first K.S.A. 60-1507 motion, and his first K.S.A. 60-1507 appeal. On review, we find Dickerson's motion was timely filed, in part. A movant's second K.S.A. 60-1507 is timely when the movant claims ineffective assistance of prior K.S.A. 60-1507 counsel and files the motion within one year of the mandate resolving the first K.S.A. 60-1507 motion. See Rowell v. State, 60 Kan. App. 2d 235, 238, 490 P.3d 78 (2021) ("[T]he clock [starts] for his second 60-1507 motion within one year of the mandate issued in his first 60-1507 case, making it timely."). Here, the mandate resolving Dickerson's first K.S.A. 60-1507 motion was filed on April 16, 2024. He filed his second K.S.A. 60-1507 motion just one week later—well within one year of the filing of the mandate. Substantively, in this second K.S.A. 60-1507 motion, Dickerson argues that his first K.S.A. 60-1507 motion counsel and his first K.S.A. 60-1507 appellate counsel were ineffective for not raising the ineffectiveness of other counsels' failures to raise the jury instruction argument. Accordingly, the portion of Dickerson's motion that relates to his first K.S.A. 60-1507 counsels' performance is timely. Although the district court reached a different conclusion, as discussed below we agree with the district court's ultimate dismissal of the motion on its merits, so we continue to analyze Dickerson's motion. 8  Successiveness A movant is not entitled to file successive K.S.A. 60-1507 motions. See K.S.A. 60-1507(c) ("The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."). When an inmate files a second or successive motion, he or she must show exceptional circumstances to avoid the motion being dismissed as an abuse of remedy. Littlejohn v. State, 310 Kan. 439, Syl., 447 P.3d 375 (2019). Exceptional circumstances are unusual events or intervening changes in the law that prevented the movant from reasonably being able to raise the issue in the first postconviction motion. State v. Mitchell, 315 Kan. 156, 160, 505 P.3d 739 (2022). A claim of ineffective assistance of counsel may constitute an exceptional circumstance. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009); Mitchell, 315 Kan. at 161. Claims of ineffectiveness related only to trial or direct appeal counsel naturally occur before a movant's first K.S.A. 60-1507 motion, so the ineffectiveness of those attorneys cannot be considered an intervening circumstance to excuse the failure to raise the issue in a movant's first K.S.A. 60-1507 motion. See 315 Kan. at 162. But the alleged ineffectiveness of counsel handling a K.S.A. 60-1507 motion can be considered an exceptional circumstance excusing a successive motion. See Rowland, 289 Kan. at 1087. Logically, one cannot raise ineffective assistance of K.S.A. 60-1507 counsel in the litigation of that same motion. So, such a claim in a subsequent motion is not one that could have or should have been raised in the movant's first motion. Similar to our analysis and conclusion regarding timeliness, we find Dickerson's motion was—at least in part—not successive. Again, although we disagree with the district court's conclusion on successiveness, at least in part, we continue to examine the merits of the motion. 9 The district court properly denied Dickerson's motion without an evidentiary hearing because the challenged jury instruction was not erroneous. Yet even though we disagree with the district court's findings on timeliness and successiveness, the district court did not err in denying Dickerson's motion because the substance at the heart of his argument—alleged errors with jury instruction No. 5—is meritless. As a result, we affirm the district court's summary denial of Dickerson's second K.S.A. 60-1507 motion. "There is no constitutional right to effective assistance of counsel in an action pursuant to K.S.A. 60-1507." Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009). Nevertheless, "Kansas does under some circumstances 'provide a statutory right to counsel on collateral attack.'" Mundy v. State, 307 Kan. 280, 295, 408 P.3d 965 (2018) (quoting Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 [2004]). K.S.A. 22-4506(b) provides a conditional, statutory right to counsel, stating that if the district court "finds that the [60-1507] petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant [has been determined indigent], the court shall appoint counsel." Once "counsel is appointed by the court in postconviction matters, the appointment should not be a useless formality." Brown, 278 Kan. at 484. The extent of a movant's statutory right to be provided with effective assistance of counsel in a K.S.A. 60-1507 proceeding is a legal question to be reviewed de novo. Stewart v. State, 310 Kan. 39, 43, 444 P.3d 955 (2019). To successfully establish that one's K.S.A. 60-1507 attorney, once appointed, violated his or her duty to provide effective assistance of counsel, the movant must establish the same elements that one would have to prove in order to show his or her trial 10 counsel was ineffective under the constitutional standard established by the Sixth Amendment to the United States Constitution. Mundy, 307 Kan. at 296. This means that Dickerson must show "'(1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived defendant of a fair trial.'" Robertson, 288 Kan. at 225 (quoting Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 [2006]); see Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "To establish deficient performance under the first prong, the defendant must show that defense counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, reconstruct the circumstances surrounding the challenged conduct, and evaluate the conduct from counsel's perspective at the time. A court considering a claim of ineffective assistance of counsel must strongly presume that defense counsel's conduct fell within the wide range of reasonable professional assistance; that is, the defendant must overcome the strong presumption that, under the circumstances, counsel's action might be considered sound trial strategy. "Under the second prong, the defendant must show that defense counsel's deficient performance was prejudicial. To establish prejudice, the defendant must show with reasonable probability that the deficient performance affected the outcome of the proceedings, based on the totality of the evidence. A court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence before the judge or jury. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations omitted.]" State v. James, 319 Kan. 178, 184-85, 553 P.3d 308 (2024). Dickerson's claim of ineffective assistance of counsel must fail because he does not establish that his attorney's performance at the heart of his nested argument—his trial 11 counsel—was deficient. Stated differently, Dickerson's first K.S.A. 60-1507 counsel and appellate counsel were not ineffective for failing to raise a claim that the chain of his attorneys was ineffective because the first link of that chain did not fall below an objective level of reasonableness as jury instruction No. 5 was not erroneous. One link fails, so every allegation of ineffective representation thereafter fails too. The State argues, alternatively, that this error was invited and that the argument is truly a defective complaint argument, so it is successive, but we opt not to address this claim. Instead, we dive straight to the heart of Dickerson's attempt to argue error to avoid any potential additional arguments on this issue. Dickerson contends that the mens rea in jury instruction No. 5 did not match the mens rea stated in the amended information. His claims of ineffectiveness are derived from this claimed error: his trial attorney was ineffective for failing to object to the instruction; his direct appeal attorney was ineffective for failing to challenge the instruction on appeal; his appointed K.S.A. 60-1507 counsel before the district court was ineffective for not including the argument and other counsels' ineffectiveness in his first K.S.A. 60-1507 motion; and his appellate counsel for his first K.S.A. 60-1507 motion was ineffective for not requesting a Van Cleave hearing to establish a record regarding counsels' ineffectiveness. The amended information for the aggravated indecent liberties with a child charge alleged: "[O]n or between the 1st day of April, 2014 and the 31st day of May, 2014 said defendant, Robert Lee Dickerson did unlawfully engage in sexual intercourse (digital penetration) with a child, to wit: [the victim] (DOB: xx-xx-1998) who was 14 or more years of age, but less than 16 years of age, done with intent to arouse or satisfy the sexual desires of the child, the offender or both, in violation of K.S.A. 21-5506(b)." 12  When assessing the soundness of jury instructions, an appellate court follows a three-step process: "(1) determine whether the appellate court can or should review the issue, in other words, whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) consider the merits of the claim to determine whether error occurred below; and (3) assess whether the error requires reversal—in other words, whether the error can be deemed harmless." State v. Hollins, 320 Kan. 240, 242, 564 P.3d 778 (2025). Jury instruction No. 5 stated, "The State must prove that the defendant committed the crime of aggravated indecent liberties with a child intentionally. A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State." Dickerson first argues that jury instruction No. 5 having the culpable mental state of "intentional" was error because the information listed the culpable mental state as "unlawful." He complains that he was "convicted under a higher culpable mental element than what was charged, affecting his ability to defend against it during trial." Moving straight to the second step, we find this argument lacks merit. K.S.A. 21- 5506(b)(1)—the aggravated indecent liberties with a child statute under which Dickerson was convicted—does not include a culpable mental state. Rather, the statute reads that aggravated indecent liberties with a child is "[s]exual intercourse with a child who is 14 or more years of age but less than 16 years of age." K.S.A. 21-5506(b)(1). There is no mental state prescribed by the statute. When "the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." K.S.A. 21-5202(d). Here, there is no language in K.S.A. 21-5506(b)(1) that dispenses with any mental state element, so "'intent,' 'knowledge' or 'recklessness' suffices to establish criminal responsibility." K.S.A. 21-5202(e) ("If the definition of a crime does not prescribe a culpable mental 13 state, but one is nevertheless required under subsection [d], 'intent,' 'knowledge' or 'recklessness' suffices to establish criminal responsibility."). The highest of these three culpable mental states is "intent," or "intentionally." K.S.A. 21-5202(b), (e). "A person acts 'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result." K.S.A. 21-5202(h). Dickerson complains that he was convicted under a higher degree of culpability than that charged, but "[p]roof of a higher degree of culpability than that charged constitutes proof of the culpability charged." K.S.A. 21-5202(c). Beyond that, "unlawfully" or "unlawful" is not a culpable mental state in Kansas, so he was not convicted under a higher culpable mental state than what he was charged with. See K.S.A. 21-5202(a). Here, the State chose the highest level of culpability in the instruction— intentionally—even though it could have proved Dickerson acted knowingly or recklessly, per the mandate in K.S.A. 21-5202(e). There is no error in jury instruction No. 5. As a result, Dickerson's argument on this point is meritless, so the chain of alleged ineffective assistance of counsel is broken. The district court did not err in summarily denying Dickerson's K.S.A. 60-1507 motion on this point. Jury instruction No. 5 also stated, "The defendant intentionally had sexual intercourse with [the victim]. . . . At the time of intercourse, [the victim] was 14 or 15 years old." Dickerson next argues that counsel was ineffective for failing to object to jury instruction No. 5 because it did not include the statutory language found in K.S.A. 21- 5506(b)(2)—that the act was "done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both"— which was contained in 14 the information. But here the language of the jury instruction mirrors K.S.A. 21- 5506(b)(1)—"[s]exual intercourse with a child who is 14 or more years of age but less than 16 years of age"—which was also contained in the information. See State v. Thomas, 313 Kan. 660, 663, 488 P.3d 517 (2021) (holding when jury instruction mirrors statute it is legally appropriate); PIK Crim. 4th 55.120. But even if we assume that a failure to include K.S.A. 21-5506(b)(2)'s language that the act was "done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both" was an error, any error was harmless. Assuming trial counsel had properly preserved this issue, an appellate court would review the error of the missing language to assess whether the error was harmless under the federal constitutional harmless error standard, which is whether there was no reasonable possibility that the error contributed to the verdict. State v. Holley, 313 Kan. 249, 256-57, 485 P.3d 614 (2021). Given the evidence presented at trial, there was no reasonable possibility that the error contributed to the verdict. The evidence presented at trial revealed that Dickerson asked the victim to kiss him and when she declined to do so, he pushed her into the bathroom and started kissing her on the mouth. He unzipped and unbuckled her pants and pulled them down to her knees. He then put his fingers inside the victim's vagina. While Dickerson had his fingers in the victim's vagina, he continued to kiss her. Eventually, he said to the victim that he was not done with her and took her to the bedroom. He laid her on the bed, pulled her pants all the way off and opened her vagina and started licking her. It is clear from the testimony of the victim that the sexual intercourse was done with the intent to arouse or satisfy the desires of the offender, the child or both, so there was no reasonable possibility that the assumed error contributed to the verdict. Any jury instruction error was harmless. As a result, Dickerson's trial attorney was not ineffective for failing to object to the jury instruction because Dickerson cannot show 15 he was prejudiced by the failure to object, and the subsequent chain of his attorneys was likewise not ineffective. Dickerson's substantive challenges to jury instruction No. 5 fail, and so the district court did not err in denying Dickerson's K.S.A. 60-1507 motion without first holding an evidentiary hearing. The motion, files, and records of the case conclusively establish that Dickerson truly was not entitled to any relief. See Roberts, 310 Kan. at 12. Dickerson failed to carry the burden to prove that an evidentiary hearing was warranted. See Noyce, 310 Kan. at 398. Accordingly, the district court's summary denial of Dickerson's motion is affirmed. Affirmed. 16