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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,666 MELVIN HOLMES, Appellant, v. STATE OF KANSAS, Appellee.

SYLLABUS BY THE COURT 1. When reviewing the district court's decision on a K.S.A. 60-1507 motion after the district court conducts a preliminary hearing, an appellate court applies a findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law.

2. 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. If a movant satisfies that burden, the court is required to grant a hearing unless the motion is second or successive and seeks similar relief.

3. For a criminal defendant to be successful in asserting that he or she was denied effective assistance of appellate counsel, it must be shown that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an
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objective standard of reasonableness and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.

4. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

5. The responsibility for providing a record on appeal sufficient to support a party's argument belongs to that party.

6. When considering claims of ineffective assistance of counsel, strategic choices made after counsel's thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 14, 2009. Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed June 10, 2011. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with directions.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.

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Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

NUSS, C.J.: This case arises out of the district court's denial of Melvin Holmes' motion for postconviction relief under K.S.A. 60-1507 without conducting an evidentiary hearing on his claims of ineffective assistance of appellate counsel. The Court of Appeals affirmed. We granted Holmes' petition for review; our jurisdiction is under K.S.A. 203018(b).

We hold the district court erred in denying Holmes' 60-1507 motion without conducting an evidentiary hearing. Consequently, we reverse the decisions of the Court of Appeals and district court and remand to the district court for an evidentiary hearing.

FACTS In 1999, a jury convicted Melvin Holmes of first-degree murder of his girlfriend and criminal possession of a firearm. He received a hard 40 sentence, but this court reversed and remanded for a new trial because of prosecutorial misconduct at trial. State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001) (Holmes I).

In 2002, a second jury convicted Holmes of the same offenses, rejecting the lesser included offenses of first-degree murder for which they were also instructed: intentional second-degree murder, unintentional second-degree murder, voluntary manslaughter, and involuntary manslaughter. He again received a hard 40 sentence. We affirmed his convictions but vacated the sentence and remanded for resentencing because of insufficient evidence of aggravating circumstances to support the hard 40 sentence. State v. Holmes, 278 Kan. 603, 102 P.3d 406 (2004) (Holmes II).
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On remand, the district court imposed a hard 25 sentence, which we affirmed in State v. Holmes, No. 95,085, 2006 WL 3056732 (Kan. 2006) (unpublished opinion).

On October 26, 2007, Holmes filed a 203-page pro se motion for postconviction relief under K.S.A. 60-1507. The motion raised several issues, including: (1) prosecutorial misconduct; (2) ineffective assistance of appellate counsel during the direct appeal challenging his convictions in 2004 (Holmes II); (3) judicial misconduct during trial; (4) an issue regarding jury selection; and (5) a claim of innocence.

After a preliminary, but nonevidentiary, hearing attended by counsel for Holmes and the State, the district court denied Holmes' 60-1507 motion. The judge stated:

"Court agrees with the State. The Court finds the motions, files, and record conclusively show the movant is not entitled to relief requested. Case will be dismissed for the grounds set forth in the State's response. The Court will adopt as its opinion the response of the State. That will be the order of the Court."

Holmes appealed. While his 60-1507 motion had raised several issues, he only appealed the effectiveness of his appellate counsel in Holmes II. More specifically, Holmes contended appellate counsel had failed to: (1) raise the issue of ineffective trial counsel; (2) include a videotape and accompanying transcript in the appellate record ; and (3) file a reply brief or motion for reconsideration.

The Court of Appeals panel affirmed the district court's decision denying Holmes an evidentiary hearing. Holmes v. State, No. 100,666, 2009 WL 2501114 (2009) (unpublished opinion) (Holmes III). We granted Holmes' petition for review that requested our examination of only points one and two presented to the Court of Appeals.

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More facts will be added as necessary to the analysis.

ANALYSIS Issue: The district court erred in denying Holmes' 60-1507 motion without conducting an evidentiary hearing. Holmes challenges the district court's failure to hold an evidentiary hearing, while the State responds that two of his three allegations of ineffective assistance of appellate counsel are without merit, and the third was resolved in Holmes II.

Standard of Review Holmes contends that the district court summarily denied his 60-1507 motion. However, he then correctly cites the standard for reviewing a preliminary hearing on a 60-1507 motion as was conducted here. "An appellate court must give deference to any factual findings made by the district court as a result of the [preliminary] hearing" and "it must apply a findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. [Citation omitted.]" Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). We agree with the application of that standard here.

Discussion We begin our review by acknowledging that "'"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."' [Citations omitted.] If a movant satisfies that burden, the court is required to grant a hearing, unless the motion is
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'second' or 'successive' and seeks similar relief." Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010).

For Holmes to be successful in asserting that he was denied effective assistance of appellate counsel in Holmes II, he must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness and (2) Holmes was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. Baker v. State, 243 Kan. 1, Syl.

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