Opinion
Case No. 03-3476-WEB.
October 5, 2004
MEMORANDUM AND ORDER
Pursuant to 28 U.S.C. § 2254, petitioner Rodney Boyd seeks review of his conviction in Kansas state court. Petitioner asserts four claims. He argues his counsel was ineffective on two grounds and that an evidentiary exclusion twice denied him due process and a fair trial. Petitioner properly exhausted his state remedies by raising these issues to the Kansas Supreme Court in a petition for collateral review. See Supplemental Appellant Brief (No. 01-87822-A). "The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
STANDARD OF REVIEW
The Court's standard of review is set out in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which "circumscribes a federal habeas court's review of a state-court decision." Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144, 154 (2003). Where a state court has adjudicated a claim on the merits, the Court may not grant a writ of habeas corpus unless the adjudication:
(1) resulted in a decision that was contrary to, or involves an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
Under § 2254(d)(1), "the only question that matters," is "whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 155 L.Ed.2d at 155. In other words, if § 2254(d)(1) applies the Court need not conduct a de novo review of the state court decision. Id.
Clearly established Federal law means, "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. Determining what the Supreme Court has clearly established is usually "straightforward." Id. First, a state court's decision is contrary to such law "if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914, 926 (2002). Second, the state court's application of clearly established Federal law is unreasonable "if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case." Id. The application must be unreasonable, not just incorrect. Id.
Section 2254(e)(1) requires this Court to presume the state court's factual determinations are correct; furthermore, the prisoner bears the burden to rebut the presumption by clear and convincing evidence. § 2254(e)(1).
APPLICATION
A. Petitioner's right to Due Process and a Fair Trial Not Violated
The Kansas Court of Appeals (KCA) held that petitioner's own testimony as well as that of two witnesses who proffered evidence of a prior sexual relationship was inadmissible. Petitioner argues that this violated his 6th Amendment right to a fair trial and his 14th Amendment right to due process. The first step in a § 2254 petition is to determine the standard of review. If the state-court decided the case on the merits the deferential AEDPA standard applies. § 2254(d). A state court holding is on the merits if it was decided on substantive rather than procedural grounds. Cook v. Mckune, 323 F.3d 825, 831 (10th Cir. 2003), Hawkins v. Mullin, 291 F.3d 658, 677 (10th Cir. 2002).
The KCA held that the evidence was substantively inadmissible under Kansas case law but failed to specifically cite Supreme Court case law; however, this does not preclude deferential review under AEDPA. See Miller v. Mullin, 254 F.3d 1288, 1292-1293 (2004). A state court holding "does not require citation of our [Supreme Court] cases — indeed it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradict them." Early v. Packer, 537 U.S. 3, 8 (2003) quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000).
Since the KCA decision was on the merits, petitioner can obtain relief if he can show that the state law used or the resulting application was contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court. See § 2254(d)(1).
A(1). Consent
First this Court must analyze the Kansas Rape Shield Statute and the relevant case law. "The Supreme Court has held legitimate state interests behind a rape shield statute such as giving rape victims heightened protection against `surprise, harassment and unnecessary invasions of privacy' may allow the exclusion of relevant evidence if the state's interest in excluding the evidence outweigh the defendant's interest in having the evidence admitted." Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997) quoting Michigan v. Lucas, 500 U.S. 145, 150-152 (1991). The Court also stated "restrictions on a criminal defendant's right to confront adverse witnesses and to present evidence `may not be arbitrary or disproportionate to the purposes for which they serve.'" Lucas, 500 U.S. at 151 quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987).
The KCA began its analysis with the Rape Shield Statute, which states evidence of a rape victims previous sexual conduct is generally inadmissible. See K.S.A. 21-3525. The KCA then applied case law to determine if petitioner's proffered evidence met any of the established relevancy factors to justify admission of the evidence. See State v. Perez, 995 P.2d 372 (1999). Perez states eight factors are relevant to determine if the prior sexual history of the victim is admissible:
1. Evidence of prior sexual conduct by the complainant with the defendant.
2. To rebut medical evidence on proof of the origin of semen, venereal disease or pregnancy.
3. Distinctive sexual patterns so closely resembling the defendant's version of the alleged encounter as to tend to prove consent on the questioned occasion.
4. Evidence of prior sexual conduct by the complainant with others, known to the defendant, tending to prove that he believed the complainant was consenting to his sexual advances.
5. Evidence of sexual conduct tending to prove complainants's motive to fabricate the charge.
6. Evidence tending to rebut proof by the prosecution regarding the complainant conduct.
7. Evidence of sexual conduct offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged.
8. Whether the prior sexual conduct and the charged act of the defendant are proximate in time.Id. at 377.
An evaluation of the Kansas Rape Shield and Perez shows that neither of the two rules are contrary to clearly established federal law as determined by the U.S. Supreme Court. Under Lucas, the Kansas Rape Shield passes constitutional muster as there are legitimate state interests in the exclusion of evidence of prior sexual history. The Kansas interest in the Rape Shield is twofold: "first, to protect a victim of rape or other specified forms of sexual abuse from the trauma and unnecessary embarrassment resulting from irrelevant evidence of a victim's prior sexual activity and, second, to encourage victims to report and prosecute sexual crimes." State v. Arrington, 251 Kan. 747, 749-750 (1992). Perez lists factors for state courts to evaluate a defendant's interests in the admission of this same evidence. Perez prevents the state from excluding all evidence of prior sexual history all the time while also setting out a reasonable standard to determine the relevancy of such evidence. This ensures that decisions that prevent a defendant from introducing this evidence is not done in an arbitrary manner. This is not contrary to or an unreasonable application of Supreme Court precedent.
This Court must next evaluate the state decision to exclude the evidence against the deferential standard set out in § 2254 (d)(1). "In determining whether the exclusion of testimony violated a defendant's Sixth Amendment right to compulsory process and a fair trial and the Fourteenth Amendment right to due process, we must determine whether the defendant was denied a "fundamentally fair" trial; therefore, looking at the record as a whole we inquire as to whether the evidence was of such exculpatory nature that its exclusion affected the trial's outcome." Richmond, 122 F.3d at 874; United States v. Valenzuela-Bernal, 458 U.S. 858, 868 (1982). In this Court's opinion, the speculative nature of this evidence would not have affected the outcome of the trial even if it had been admitted.
The proffered testimony by Williams, Manuel and the petitioner is speculative and tenuous. The Kansas hearing on collateral review revealed that Williams had no personal knowledge of any sexual relationship between the petitioner and the victim. She had merely seen the victim do petitioner's hair on one occasion and assumed that they were having a sexual relationship. Transcript of K.S.A. 60-1507 hearing at 24. Manuel testified at the same hearing and stated that he dropped petitioner off several times at the victim's apartment at night and picked him up the next morning. Id. at 18. He stated that he and petitioner would talk about women and that's why he believes petitioner had a sexual relationship with the victim. Id. at 18-19. Petitioner testified that he had a sexual relationship with the victim for almost two years. Id. at 8.
Petitioner argues that this testimony is relevant because it bolsters his defense of consent. This argument is flawed as a prior sexual relationship does not establish consent on this particular occasion. See also State v. Walker, 252 Kan. 279, 285 (1993) ([P]rior sexual activity, even with the accused, does not of itself imply consent to the act complained of). If believed, it would show an on again and off again sexual relationship which does not help the jury decide if the victim consented on the night of the rape.
When looking at the record as a whole, the evidence is consistent with the victim's version of the story. The jury found as more credible the victim's testimony regarding the rape, the subsequent fight (which the daughter corroborated), her departure from her house around two in the morning with her children and her hysterical behavior at her brother's house following the rape. It is unlikely that petitioner's hollow assertions of a prior sexual relationship would have persuaded the jury to disregard the victim's testimony.
Moreover, the proffered testimony is speculative. Seeing the victim fix petitioner's hair and dropping off petitioner at the victim's apartment complex is not enough to show a prior sexual history. Petitioner's own statement of an on again off again sexual relationship with no factual support is also of marginal relevance.
The proffered testimony was not of such an exculpatory nature that its exclusion by Kansas was contrary to or an unreasonable application of established Federal law as determined by the U.S. Supreme Court. Therefore, the trial court's decision to exclude the evidence was not so fundamentally unfair as to deprive petitioner of his rights to a fair trial and due process under the 6th and 14th Amendments.
A(2). Specific intent element of burglary
Petitioner also claims that Kansas violated his right to fair trial and due process by precluding him from introducing evidence of a prior sexual relationship to disprove the specific intent element of burglary. Petitioner fails to show how the exclusion of this evidence was contrary to or an unreasonable application of federal law as required by § 2254(d).
The Court must first determine if the rules the KCA used are contrary to or an unreasonable application of Federal law as determined by the U.S. Supreme Court. The Kansas Rape Shield statute has already been discussed. The KCA evaluated the proffered evidence to determine if it would be relevant to show that petitioner believed he had consent to enter the home based on a prior sexual relationship. See In re Nichols, 580 P.2d 1370 (1978) (holding prior sexual history admissible to show a specific pattern of entry which would disprove the specific intent element of burglary). This was not an arbitrary determination as the KCA used state precedent as guidance for the type of specific sexual patterns that will permit a defendant to introduce evidence of prior sexual history.
The Court must next evaluate the state court decision to determine if it was contrary to or an unreasonable application of established Federal law as determined by the U.S. Supreme Court. Petitioner must show that he was denied a "fundamentally fair" trial. The Court must look to the record as a whole as to whether the evidence was of such exculpatory nature that its exclusion affected the trial's outcome. Richmond, 122 F.3d at 874; Valenzuela-Bernal, 458 U.S. at 868.
The speculative nature of the two witnesses' testimony has been previously discussed; moreover, the petitioner did not proffer any evidence showing a specific pattern of entry into the victim's apartment. The KCA distinguished petitioner's case from Nichols on this ground. Additionally, petitioner was permitted to tell his version regarding his consensual entry into the victim's apartment. The record also states petitioner had to ask where the victim lived because according to him, she had moved since their last sexual encounter a month prior to the rape. This casts doubt on his claim of a continuous sexual relationship.
This exclusion of testimony did not violate petitioner's Sixth Amendment right to a fair trial or the Fourteenth Amendment right to due process. See Valenzuela-Bernal, 458 U.S. at 868. In this Court's opinion, the speculative nature of this evidence would not have affected the outcome of the trial even if it had been admitted. This Court holds that the KCA rule in Nichols and the result in this case was not contrary to or an unreasonable application of established Federal law as determined by the Supreme Court.
B. Effective Assistance of Counsel Not Violated
Petitioner does not suggest that the state court's decision was based on an unreasonable determination of the facts; therefore, this Court must determine if the KCA's holding denying petitioner's ineffective assistance of counsel claim was an unreasonable application of Federal law as determined by the U.S. Supreme Court. See § 2254(d)(1). "[W]e must first determine what constitutes `clearly established federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 70. "[T]he Strickland test provides sufficient guidance for virtually all ineffective assistance of counsel claims . . ." Williams v. Taylor, 529 U.S. 362, 391 (2000), See also Strickland v. Washington, 466 U.S. 668 (1984). Because the state court correctly identified Strickland as the governing legal rule, the Court inquires whether the state court applied that test in an objectively reasonable manner. Spears v. Mullin, 343 F.3d 1215, 1248 (10th Cir. 2003); See also Bell v. Cone, 535 U.S. at 694.
B(1). Counsel's alleged failure to investigate witnesses procedural failings
Petitioner claims his 6th Amendment right to effective counsel was violated because counsel failed to investigate two witnesses who could have provided information about the victim's alleged sexual history and that the failure to obtain affidavits from these witnesses prevented petitioner from introducing this evidence. The KCA disagreed on appeal stating "although Mitchell made errors under the rape shield statute, the trial court correctly ruled that Manuel, Williams, and Boyd's testimonies were inadmissable. Therefore, Boyd was not prejudiced by Mitchell's errors . . .". Boyd v. State, No. 87,822 (Kan.Ct.App., June 27, 2003) (Unpublished Opinion).
The KCA's opinion was an objectively reasonable application of Strickland. To establish a claim of ineffective assistance of counsel, petitioner must show that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his case (ie. but for his counsel's errors, the proceeding would have been different.) Strickland, 466 U.S. at 687-688.
The evidence at the state collateral review hearing showed that counsel proffered evidence of a prior sexual relationship at the pre-trial motion. The proffer was deficient as there were no affidavits from the three witnesses; however, the court gave counsel until trial to remedy the deficiency but ruled that the evidence was inadmissible on the merits. Transcript of Pre-trial Motion at 27, Transcript of Jury Trial Vol. 1 of 3 at 20. Counsel assigned an investigator to interview the potential witnesses. Transcript of K.S.A. 60-1507 hearing at 21. The information gathered from the interviews was just as speculative as that which was proffered at the pre-trial hearing. Id. Petitioner's spurious assertion that his counsel was ineffective for failing to adequately investigate witnesses is contrary to the record.
In his Traverse, petitioner argues that the Kansas courts misapplied Strickland because he was prejudiced by his counsel's failure to obtain affidavits from the two witnesses. He states that Strickland controls the first prong regarding deficient performance but the second prong is not met because the proffered evidence should have been admitted because it would have affected the outcome of the trial. Petitioner's argument hinges on a finding that the Kansas courts erred in holding the proffered evidence inadmissible. This Court has already stated that Kansas did not err by holding the proffered evidence inadmissible because the decision was not contrary to the standard in § 2254(d)(1).
Counsel may have been deficient by failing to obtain the affidavits; however, petitioner was not prejudiced by counsel's procedural shortcomings because the testimony was irrelevant and speculative and the Kansas Rape Shield would have prevented its admission anyway. Applying the standard set out in § 2254(d)(1), this Court will not disturb the Kansas holding as it is not an unreasonable application of Strickland. B(2). Prior sexual relationship admissible to disprove an element of burglary
Petitioner asserts that his counsel was ineffective for failing to argue at the pre-trial motion that the evidence of a prior sexual relationship with the victim was admissible independent of the Rape Shield Statute to disprove an element of burglary. Counsel's failure to make an objection on this specific issue precluded appellate review. See Boyd v. State, No. 78,875 at 11, (Kan.Ct.App., March 26, 1999) (Unpublished Opinion). On collateral review, the KCA applied Strickland and ruled that although counsel made errors, petitioner was not prejudiced by counsel's errors.
Petitioner's fails to show that the KCA unreasonably applied Strickland. Even if counsel was deficient for not objecting at the trial level to preserve the issue on appeal, the KCA ruled on collateral review that the evidence was irrelevant to show a pattern of entry into the victim's apartment. This Court found no constitutional error in the KCA decision to exclude this evidence. Therefore, even if petitioner's counsel had objected to the trial court's ruling, it would not have changed the outcome of petitioner's case as the evidence would have been inadmissible on the merits. Cf. Boag. v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1984) (Failure to raise a meritless argument does not constitute ineffective assistance). The KCA's finding that petitioner was not prejudiced by counsel's failure to object on this basis was an objectively reasonable application of Strickland. Boyd v. State, No. 87,822 (Kan.Ct.App., June 27, 2003).
IT IS THEREFORE ORDERED that the petition for relief under 28 U.S.C. § 2254 (Doc. 1) is DENIED;
IT IS FURTHER ORDERED that a Certificate of Appealability under 28 U.S.C. § 2253 is DENIED.
SO ORDERED.