Opinion
Case No. 01-3309-DES
July 11, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Ellsworth Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On August 12, 1998, petitioner was convicted through a bench trial of three counts of robbery and one count of aggravated assault. On June 9, 2000, petitioner's convictions were affirmed on direct appeal. State v. Graham, 6 P.3d 928 (Kan.Ct.App. 2000). The Kansas Supreme Court denied the petition for review on September 26, 2000. State v. Graham, NO. 99-82819 AS, 2000 Kan. LEXIS 734 (Kan. 2000).
Petitioner then filed for post conviction relief pursuant to K.S.A. 60-1507. The district judge denied relief on May 10, 2001. Graham v. Kansas, 01C-098 (Sedgwick Co. Dist. Ct. 2001). Petitioner did not appeal from this decision.
Petitioner commenced this action on July 25, 2001, raising the following grounds for relief: (1) abuse of discretion in sentencing, (2) insufficient evidence of aggravated assault and (3) prosecutorial misconduct.
Respondent has filed an answer and return (Doc. 4) and petitioner has filed a traverse thereto (Doc. 6). FACTUAL BACKGROUND The facts were summarized by the Kansas Supreme Court as follows:
On February 17, 1998, Graham entered a north Wichita convenience store and asked the clerk for change. When the clerk opened the cash register, Graham reached into the drawer and took a $20 bill. The clerk jammed her finger in the drawer when she tried to close it. The clerk testified that Graham pushed her hand when he was taking the money.
The next day, Graham went to another convenience store and again asked the clerk for change. When the clerk opened the cash drawer, Graham jumped onto the counter, pushed the clerk away, and took approximately $40 from the drawer.
Several days later, Graham went to a third convenience store and gave the clerk 45 cents so that he could fill a gas can. After pumping only 35 cents worth of gas into the can, Graham returned to the store. Thinking that Graham wanted a refund, the clerk opened the cash drawer. Graham then lunged over the counter, made physical contact with the clerk, and grabbed $20 from the register. As Graham was leaving the store, he fell down by the door, and the clerk approached him. Graham walked away with the gas can while the clerk trailed several feet behind. At some point, Graham turned around and said, "I'm going to throw gasoline on you." The clerk felt threatened because he believed gasoline could harm him. As the clerk turned to tell incoming customers that the store was closed, Graham ran away.
Graham was initially charged with three counts of robbery. The State later added a charge of aggravated assault with a deadly weapon — gasoline. At his bench trial, Graham testified that he took the money in all three incidents but denied using force. The trial court found Graham guilty as charged.
Graham, 6 P.3d at 930.
STANDARD OF REVIEW
Because Mr. Graham's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
GROUND ONE — ABUSE OF DISCRETION AT SENTENCING
As his first ground for relief, petitioner alleges that the sentencing judge abused his discretion by relying on a fact not in evidence to deny him sentencing departure. At sentencing, the trial judge stated the following: "you got some gasoline and threatened a guy with throwing gas on him and lighting him on fire. That could be much more than you're actually charged with here actually. So you've already received some breaks." (Rec. Vol. 4, p. 7). The sentencing judge then denied petitioner's motion for downward departure. Petitioner contends there was no testimony that he threatened to set anyone on fire or that he possessed the ability to do so.
The Kansas Court of Appeals concluded that they lacked jurisdiction to consider the issue:
In his final argument, Graham contends that the trial court abused its discretion by utilizing a fact not in evidence to deny him a sentencing departure. Graham argues that the trial court misunderstood the facts, as evidenced by the trial court's statement that Graham "threatened a guy with throwing gas on him and lighting him on fire." Graham insists that the evidence does not support the trial court's statement that he threatened to light the clerk on fire. Graham contends that he was unjustifiably prejudiced by the trial court's misunderstanding of the facts, and thus denied an opportunity for a sentence departure.
Graham does not challenge the severity level of the offenses with which he was charged nor does he challenge his criminal history score. He also does not dispute that the trial court imposed the presumptive sentence.
When a presumptive sentence is imposed for a crime and there is no claim of error with regard to crime severity level or criminal history, the appellate courts have no jurisdiction to consider the sentence on appeal. State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994). The fact that a motion for departure was denied does not make a presumptive sentence appealable. State v. Myers, 20 Kan. App. 2d 401, Syl. ¶ 2, 888 P.2d 866 (1995).
For crimes committed before July 1, 1995, the appellate courts can review a presumptive sentence if the defendant alleges that the sentence was the result of partiality, prejudice, oppression, or corrupt motive. K.S.A. 1994 Supp. 214721(e); State v. Windom, 23 Kan. App. 2d 429, 431, 932 P.2d 1019, rev. denied 262 Kan. 969 (1997). This exception, however, is not applicable in the present case because Graham's crimes occurred in 1998. As a result, this court lacks jurisdiction to consider a presumptive sentence. See K.S.A. 21-4721(c)(1) and (e)(1).
Graham, 6 P.2d at 932 933.
Habeas review is not available for state court sentencing determinations which fall within the statutory range. Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984). The only cognizable grounds for state sentencing challenges are: (1) the trial court lacked jurisdiction to impose the sentence or (2) a constitutional error made the sentence fundamentally unfair. Bean v. United States, 679 F.2d 683, 685 (7th Cir. 1982).
Petitioner alleges that he has a due process right to have his sentence based upon accurate knowledge and information. See United States ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984) (citing United States v. Tucker, 404 U.S. 443, 447 (1972). In order to have a sentence set aside because it was based upon false information, petitioner must show that the information was (1) inaccurate and that (2) the sentencing judge relied on the information in passing sentence. Id. In addition, the misinformation must be of a "constitutional magnitude." Tucker, 404 U.S at 447.
Any misinformation relied upon by the sentencing judge in this case was not of a constitutional magnitude. The victim testified that he feared bodily harm and petitioner did threaten to douse the victim with gasoline. Even assuming that the sentencing court made a mistake in concluding that petitioner also threatened to set the victim on fire, it was an excusable one: "fair prosecutors and conscientious judges sometimes are misinformed or draw inferences from conflicting evidence with which we would not agree." Townsend v. Burke, 334 U.S. 736, 741 (1948); see also, United States ex rel. Marcial v. Fay, 267 F.2d 507, 511 (2nd Cir. 1959) (sentencing judge mistakenly thought robbery was committed with a weapon and this may have been the "wrong solution of [the] conflict" but "it was at most an error of fact").
Relief should be denied as to ground one.
GROUND TWO — SUFFICIENCY OF THE EVIDENCE
Petitioner alleges there was insufficient evidence upon which to support his conviction for aggravated assault. Petitioner contends his threatened use of gasoline only amounts to simple assault.
The Kansas Court of Appeals denied this claim as follows:
Graham also contends that his aggravated assault conviction is not supported by sufficient evidence. Graham was convicted of aggravated assault for threatening to throw gasoline on one of the convenience store clerks. Aggravated assault is defined, in part, as intentionally placing another person in reasonable apprehension of immediate bodily harm committed with a deadly weapon. K.S.A. 21-3410(a). On appeal, Graham argues that the gasoline was improperly characterized as a deadly weapon.
The law in Kansas is clear that an object can constitute a "dangerous weapon" even if it is absolutely harmless. Our Supreme Court has adopted a subjective analysis for determining whether an assault was committed with a deadly weapon. In State v. Deutscher, 225 Kan. 265, 589 P.2d 620 (1979), the defendant was convicted of aggravated assault on a law enforcement officer. The evidence supported the defendant's claim that he pointed an unloaded gun at the officer. The court held that "an unloaded revolver which is pointed in such a manner as to communicate to the person threatened an apparent ability to fire a shot and thus do bodily harm is a deadly weapon within the meaning expressed by the legislature in the assault statutes." 225 Kan. at 270 71, 589 P.2d 620. See State v. Colbert, 244 Kan. 422, 425 26, 769 P.2d 1168 (1989) (holding that a defective, inoperative gun was a dangerous weapon because the defendant intended that the victim believe the gun could inflict bodily harm and because the victim believed it could inflict bodily harm); State v. Childers, 16 Kan. App. 2d 605, 613, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992) (holding that under the subjective test a water pistol constituted a dangerous weapon).
The instant case is the first in Kansas to address whether gasoline constitutes a dangerous weapon. Cases from other jurisdictions using the objective test, however, have found that gasoline when used in a particular manner constitutes a dangerous weapon. See State v. Hales, 344 N.C. 419, 426, 474 S.E.2d 328 (1996) ("The evidence clearly support [ed] a finding that the gasoline and fire were used in combination as a deadly weapon."); State v. Cockerham, 129 N.C. App. 221, 226, 497 S.E.2d 831 (1998) ("[G]asoline doused on [the clerk], although never ignited, can also be considered a `dangerous weapon' because a reasonable inference could be drawn that defendant planned to ignite that gasoline with the matches found on the floor of the store."); Rice v. State, 771 S.W.2d 599, 600 (Tex.App. 1989) ("The evidence was clearly sufficient to show that the flammable liquid, the gasoline, was in the manner of its use, a deadly weapon.").
Here, under a subjective analysis, gasoline constitutes a dangerous weapon. The evidence shows that Graham threatened to use gasoline in a manner that communicated an apparent ability to inflict bodily harm. See Deutscher, 225 Kan. at 270 71, 589 P.2d 620. Moreover, the clerk reasonably believed bodily injury could occur if Graham threw gasoline on him. The clerk testified that he was threatened by Graham's statement, because he thought gasoline could cause eye damage, skin cancer, and other types of bodily harm. As a result, sufficient evidence supports the trial court's finding that under the subjective analysis gasoline constituted a deadly weapon.
Graham, 6 P.3d at 931-932.
A federal court may grant habeas relief only if it determines that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. There is a presumption that "the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992). The federal court does not weigh the evidence, and "must accept the jury's resolution of the evidence as long as it is within the bounds of reason." Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993). "To be sufficient, the evidence supporting the conviction must be substantial; that is, it must do more than raise a mere suspicion of guilt." Id.
There is conflicting Tenth Circuit authority as to whether a challenge to the sufficiency of the evidence presents a question of law or a question of fact. Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002). Rather than choose between the two standards, the court has chosen to examine petitioner's claim under both. See id. at 1221 ("it is possible to avoid deciding what standard of review applies when the petitioner's claims are clearly meritless under either standard"). Employing a dual analysis is especially appropriate in this case because petitioner's claim mixes issues of law with issues of fact. See Hillie v. Maggio, 712 F.2d 182, 185 (5th Cir. 1983) (a sufficiency of the evidence claim challenging whether a harmless object was a "dangerous weapon" presented a mixed question of fact and law). Mixed questions of law and fact are viewed under the standards set forth in 28 U.S.C. § 2254(d). Gonzales v. McKune, 247 F.3d 1066, 1072 (10th Cir. 2001).
As a question of law, the issue is whether the Kansas Court of Appeals' decision was contrary to or an unreasonable application of the "rational factfinder" standard articulated in Jackson. See Fields, 277 F.3d at 1221; 28 U.S.C. § 2254(d)(1). As a question of fact, petitioner must show by clear and convincing evidence that the state court determination was an unreasonable determination of fact. Fields, 277 F.3d at 1221; 28 U.S.C. § 2254(d)(2)(e)(1). Petitioner's claim fails under either standard.
Petitioner was being pursued from the scene of a robbery when he made the threat to douse his pursuer with gasoline. It is common knowledge that gasoline is highly combustible. In this context, it is reasonable to conclude that there is also an implied threat to set the gasoline on fire. Furthermore, the victim testified that the threat caused him to fear bodily harm.
In reviewing a sufficiency of the evidence claim, the substantive elements of the criminal offense are determined by state law. Jackson, 443 U.S. at 324, n. 16. Under Kansas law, whether something is considered a "deadly weapon" is viewed from the subjective belief of the victim. Because this victim feared bodily harm, it was reasonable for the Kansas Court of Appeals to conclude that gasoline was a deadly weapon. See Reed v. Butler, 866 F.2d 128 (5th Cir. 1989) (upholding a conviction where a toy pistol was considered a "dangerous weapon" because state law allowed inherently harmless objects to be considered as such and because the victim subjectively believed the weapon was dangerous). To the extent petitioner challenges the Kansas Court of Appeals' interpretation of the state statute defining a dangerous or deadly weapon, his claim is based upon a question of state law that is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Hillie, 712 F.2d at 185(in reviewing a sufficiency of the evidence claim challenging whether the evidence was sufficient to find that an umbrella handle concealed to resemble a gun was a "dangerous weapon", the court noted their "reluctance to second guess the Louisiana judiciary on what is at best a mixed question of fact and Louisiana law").
Based on the evidence presented at trial, a rational factfinder could have found petitioner guilty of aggravated assault and, alternatively, petitioner has not shown by clear and convincing evidence that the victim did not subjectively believe gasoline was a dangerous weapon. Relief should be denied as to ground two.
GROUND THREE — PROSECUTORIAL MISCONDUCT
Petitioner alleges that the prosecutor, through impermissible leading questions, entered into the record false information which lead the sentencing judge to believe that he threatened to set the store clerk on fire. Petitioner admits that this ground has not been exhausted, but he states that he has included it to help the court understand ground one. Respondents contend petitioner has procedurally defaulted this claim.
Although petitioner raised this claim before the district court in his post conviction motion pursuant to K.S.A. 60 1507, he did not appeal the district court's decision to the Kansas Court of Appeals. Because the time for appealing this order has long since passed, petitioner's claim is subject to anticipatory procedural default. See Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) ("[I]f the court to which petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.") (relying on Coleman v. Thompson, 501 U.S. 722 (1991)).
The procedural default doctrine precludes federal habeas review of a federal claim that a state court would decline to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. See Coleman v. Thompson, 501 U.S. 722, 749 (1991). Petitioner has alleged neither cause, prejudice, nor manifest injustice. Therefore, to the extent ground three is considered a separate claim, relief should be denied on ground three.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this report and recommendation terminates the referral of this case to the undersigned.