Opinion
CIVIL ACTION No. 01-3048-KHV
February 10, 2004
MEMORANDUM AND ORDER
Pursuant to 28 U.S.C. § 2254, Keith D. Mathis seeks a writ of habeas corpus based on ineffective assistance of counsel, denial of his right to counseland violation of his due process right to present his theory of defense. For reasons stated below, the Court denies the petition.
I. Procedural Background
On February 16, 1996, the Sedgwick County District Attorney charged Mathis with one count of rape in violation of K.S. A. § 21-3502.See Record, Vol. I, p. 21 in Kansas v. Mathis, Case No. 96 CR 0301 in the District Court of Sedgwick County, Kansas. On May 16, 1996, a jury found Mathis guilty, id. at 43, and on August 19, 1996 the court sentenced Mathis to 260 months in prison.Id. at 81.
Mathis appealed his conviction, arguing that (1) trial counsel was ineffective because he did not thoroughly investigate witnesses and bring up inconsistencies between police reports and trial testimony; (2) the trial court violated his Sixth Amendment right to counsel by appointing trial counsel to argue the ineffective assistance claim in post-trial proceedings; (3) the trial court violated his constitutional right to be present at all stages of his trial when it responded to a jury question in his absence; and (4) the trial court committed clear error when it did not instruct the jury on ignorance or mistake of fact. See Brief of Appellant in Kansas v. Mathis, Case No. 77,511 in the Court of Appeals of the State of Kansas.
On July 31, 1998, the Kansas Court of Appeals affirmed, finding that (1) Mathis had not shown that trial counsel's performance fell below an objective standard of reasonableness or, if it did, that the outcome would have been different; (2) the trial court did not err in ruling on Mathis' ineffective assistance claim without appointing new counsel in post-trial proceedings; (3) the trial court did not commit prejudicial error in Mathis' absence by answering the question whether "Mathis had to be aware that the victim was not consenting," and (4) the trial court did not commit plain error when it failed to instruct the jury on ignorance or mistake of fact. See Memorandum Opinion Case No. 77,511. On September 1, 1998, Mathis asked the Kansas Supreme Court to let him file a petition for review out of time. The Supreme Court denied the motion.
On September 7, 1999, Mathis filed a motion for post-conviction relief under K.S.A. § 60-1507, asserting the issues which he had raised on direct appeal. On November 27, 1999, the district court found that Mathis had raised these issues on direct appeal and denied relief under Kansas Supreme Court Rule 183(c)(3). On December 8, 2000, the Kansas Court of Appeals affirmed under Kansas Supreme Court Rule 7.042(d). See Memorandum Opinion dated December 8, 2000 inMathis v. Kansas, Case No. 84,826. The Kansas Supreme Court denied review.
Defendant combined the jury question and jury instruction claims into one issue — whether the court violated his due process right "to present his theory of the case."
Kansas Supreme Court Rule 183(c)(3) provides in part that "a proceeding under K.S.A § 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.
Kansas Supreme Court Rule 7.042(d) provides that "in any case in which the court determines after argument or submission on the briefs that no reversible error of law appears and . . .(d) the opinion or findings of fact and conclusions of law of the trial court adequately explain the decision;. . . the court may affirm by an opinion citing this rule. . . ."
On February 12, 2001, Mathis filed a petition for writ of habeas corpus in this Court, asserting essentially the arguments that he raised on direct appeal and in his state motion for post-conviction relief. He also claims that appellate counsel rendered ineffective assistance in failing to timely seek review of his direct appeal in the Kansas Supreme Court.
II. Evidence At Trial
The state court held a four-day criminal jury trial beginning May 13, 1996. The victim, J.R., testified that she and Mathis had a friendly relationship as fellow employees at her aunt's restaurant. At the time of trial J.R. was 17 years old and Mathis was 31. J.R. testified that after work on Sunday, February 11, 1996, she agreed to meet Mathis and her cousin, who also worked at the restaurant, at a bar. When J.R. arrived, Mathis bought her a drink. After a short time, the cousin left and J.R. and Mathis had a few more drinks. J.R.'s pager rang several times, and she drove to a QuikTrip to call her mother, then returned to the bar parking lot. Mathis went with J.R., and he kissed her in the parking lot. They then decided to drive around to talk before J.R. went to her boyfriend's house. Before they left the parking lot, Mathis went to his car and brought back what J.R. thought was a coat. He threw it in the back seat of J.R.'s car.
J.R. drove into the country and turned onto a dirt road, intending to turn around to head back to town. At that point, Mathis threw the gearshift into neutral. J.R. slammed on the brakes and stopped the car. J.R. was upset and asked Mathis what he was doing. Mathis ignored her questions, grabbed her around the neck and back, forcefully kissed her and grabbed her breasts. Mathis ignored her protest that he was hurting her. J.R. found it hard to breathe because of the pressure of his hand against her throat. Mathis pulled her across the console, almost on top of him. J.R. testified that she was scared and "in shock." Mathis pulled her out of the car, from the passenger side, grabbed the blanket (which she thought was a coat) and led her away from the car. Mathis then pulled her to the ground, removed their clothes, and tried to penetrate her vagina withhis penis. J.R. scooted away from Mathis three times before he raped her. J.R. then pushed him off to the side. J.R. testified that she felt as if she was in a nightmare; she was saying things in her mind but words would not come out of her mouth. She was shocked because she had trusted Mathis.
When J.R. started to get dressed, she realized that she had lost her pager. J.R. found the pager in the car and she and Mathis got in the car and drove back into town. When they arrived, J.R. returned Mathis to the bar parking lot, then drove to her boyfriend's house. When she got there, her boyfriend inquired why she was late and asked about her neck. When she asked what he meant, he took her into the bathroom and showed her that her neck was red. Mark, the boyfriend, suggested that it might be a hickey. J.R. replied, "let's just say that Keith had kissed me forcefully." Trial Transcript, Vol 2. at 62. J.R. then went home.
The next day at school, J.R. told two friends — Melissa Blackorby and Janaya Byers — that she had been raped the night before. At their suggestion, J.R. spoke to two counselors who persuaded her to call her parents and make a police report. J.R. reported the rape to police and had a physical examination. Two officers interviewed J.R. Officer Naldoza soon realized that the rape had occurred on county territory so he called the sheriff's office, and Steve Nelson took over as investigating detective. Nelson recorded his interview with J.R. and made a written report. Nelson testified that his report was essentially consistent with J.R.'s testimony at trial.
Blackorby and Byers testified at trial.
Sharon Barton, a Sexual Assault Nurse Examiner, testified that she examined J.R. on February 12, 1996, the day after the alleged assault. She testified that the examination revealed bruising on J.R.'s neck, breasts, upper thigh, right knee and lower leg, and a reddened area on the left knee. A colposcope examination revealed vaginal injuries including one large tear and abrasions consistent with forced blunt penetration. Trial Transcript, Vol. III, 18-69. Barton testified that J.R.'s injuries were the most significant genital injuries she had seen in five years.
At trial, several co-workers essentially corroborated J.R.'s testimony that her relationship with Mathis had appeared to be one of friendship. One co-worker testified that Mathis had told him that he wanted to have sex with J.R. See Trial Transcript, Vol. II, at 124. Another co-worker testified that a week or two before the rape, Mathis told him that he was going to take J.R. to a bar, have a few drinks and "get in her pants." Transcript, Vol III, at 8. When the co-worker objected that J.R. was too young, that she was a child, Mathis said, "[i]f she's bleeding, I'm breeding." Transcript, Vol III, at 8-9. This co-worker also testified that after the incident, Mathis told him that J.R. had climbed in his lap and pulled her shirt off, and that he couldn't get an erection and it didn't go any farther. Id. at 10. Later that day, however, Mathis told the co-worker that J.R. resisted but he "got what he wanted." Id.
Against the advice of counsel, Mathis testified at trial. Mathis denied that he raped J.R. He testified that they shared a mutual kiss at the QuikTrip parking lot. He testified that back in the bar parking lot, they shared another kiss, that J.R. placed his hand on her breast, and that he responded by fondling her breast and kissing her. He testified that J.R. then climbed over the console on top of him, and that they continued to kiss and fondle one another. He testified that he felt uncomfortable because people were coming and going in the parking lot, so he suggested that they drive around. He asked J.R. if she had a blanket and when she said that she did not, he got a blanket from his car and took it back to her car. J.R. then drove out in the country, turned onto a dirt road and turned off the car and lights. Mathis denied putting the car into neutral.
According to Mathis, he grabbed the blanket and they both got out of the car. They walked to a vacant field, where he spread the blanket, they kissed and he helped J.R. remove her clothes. He claimed that he removed his clothes but kept his boxer shorts on because he was embarrassed that he did not have an erection. They laid down on the ground, where he removed his boxer shorts. After some fondling J.R. got up to urinate and put her pants on. Mathis put his pants on and looked for money that had fallen out of his pockets. Mathis testified, as did J.R, about trying to find the money and pager. Mathis reminded J.R. that her underwear was still in the field and when she appeared disinterested, he picked them up with the blanket and threw them in the back of the car. They then drove back to the bar while they talked about plans for the following day.
Mathis testified that he never attempted to have intercourse with J.R. When asked to explain the bruises on her legs, he suggested that J.R. might have been bruised when she climbed over the console in the parking lot. When asked whether he had tried to penetrate her vaginally with his fingers, he stated that he did not think so, but that he "rubbed on her jeans" in the crotch.
Mathis' counsel cross-examined J.R., and pointed out inconsistencies between her preliminary testimony, the police interviews, and her trial testimony. Most of the inconsistencies, however, appeared to be details such as exact words spoken and the precise sequence of events.
III. Legal Standards
A state prisoner cannot petition for federal habeas corpus relief "unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(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. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). "The exhaustion requirement is satisfied ifthe highest court exercises discretion not to review the case." Id.
Kansas law provides certiorari review by the Kansas Supreme Court.See K.S.A. § 20-3018(b). Mathis did not timely seek discretionary review within 30 days of the Kansas Court of Appeals decision on direct appeal. After defense counsel realized that he had not timely filed the application, he filed a motion for leave to file out of time which the Kansas Supreme Court summarily denied. Mathis then filed a petition for state habeas corpus relief under K.S.A., § 60-1507, asserting the claims that he had raised on direct appeal. The state trial court dismissed the petition, relying on Kansas Supreme Court Rule 183(c)(3), which provides that Section 1507 is not a substitute for a second appeal. See Order Denying Relief Pursuant To K.S.A. § 60-1507 , Eighteenth Judicial District Court, Sedgwick County, Kansas, Case No. 99-C 2697 (Jan. 27, 2000) (citing State v. Neer, 247 Kan. 137, Syl. ¶ 3, 795 P.2d 362 (1990). The Kansas Court of Appeals dismissed Mathis' appeal without opinion under Kansas Rule 7.042(d), and the Kansas Supreme Court denied his petition for review. Mathis's claims have never been timely presented on their merits to the highest state court. See Brinkman v. Stewart, 37 Fed. Appx. 364, 2002 WL 343392 (10th Cir. 2002); citingDever, 36 F.3d at 1534. The state thus argues that Mathis has procedurally defaulted these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to petitioner's noncompliance with state procedural rules unless the petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson 501 U.S. 722, 749 (1991). InColeman the Supreme Court held that if "the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, petitioner's claims are procedurally defaulted for purposes of federal habeas regardless of the decision of the last state court to which petitioner actually presented his claims." 501 U.S. at 735 n. 1: see also Dulin v. Cook, 957 F.2d 758, 759(10th Cir. 1992) (petitioner's failure to properly present claims in state court constitutes procedural default for purposes of federal habeas review). Here, Mathis' failure to seek timely review of his direct appeal by the Kansas Supreme Court constituted failure to exhaust available state remedies. Therefore, because a return to state court would be futile at this point, his claims are procedurally defaulted for purposes of federal habeas corpus review. See Watson v. New Mexico, 45 F.3d 385, 387 (10th Cir. 1995).
Generally, federal habeas corpus review of defaulted issues is precluded "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Moreover, although ineffective assistance on appeal might constitute cause, Mathis did not claim ineffective assistance of appellate counsel in the state courts. An ineffective assistance claim which supplies cause for other procedurally defaulted claims can be procedurally defaulted in its own right. That is the case here. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Thus, this Court could proceed to determine whether Mathis has established cause and prejudice with respect to his claims that counsel rendered ineffective assistance because he did not (a) timely file a petition for review in Mathis' direct appeal or (b) assert in the state habeas petition his own ineffectiveness in failing to do so.
Under Coleman, the cause prong is satisfied by showing actual ineffective assistance of counsel, which under Strickland requires a showing (a) that counsel was deficient, i.e. not fimctioning as "counsel" as guaranteed by the Sixth Amendment and (b) that defendant suffered prejudice, i.e. that counsel's errors deprived defendant of a fair trial. Even if Mathis can show that appellate counsel was deficient, he must also show prejudice — a reasonable probability that but for error the result would be different. He must show that underlying issues would have been successful, so the Court must look at the merits of the issues Mathis raised in the trial court.
In the final analysis, however, the Court finds itself in a procedural morass through which it need not proceed. Under Section 2254 the Court may deny a habeas corpus petition on the merits without addressing the procedural default issues. Therefore the Court looks to legal standards for habeas review.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2255 (incorporating 28 U.S.C. § 2244), governs the Court's review. See Paxton v. Ward, 199 F.3d 1197, 1204 (10th Cir. 1999) (AEDPA applies to habeas petitions filed after April 24, 1996 regardless of date of criminal trial ibrming basis of conviction). Under Section 2254, as amended by AEDPA, the Court may not issue a writ of habeas corpus with respect to any claim which the state court adjudicated on the merits unless that adjudication resulted in a decision:
(1) . . . that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . 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)(1)-(2). The Court may issue a writ of habeas corpus under the "contrary to" clause only if (1) the state court arrived at a conclusion opposite to that reached by the United States Supreme Court on a question of law, or (2) the state court decided a case differently than the Supreme Court on a set of materially indistinguishable facts.Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, the Court may grant habeas relief if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a prisoner's case." Id. at 407-08. The Court may not issue a writ simply because it concludes in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly; the application must have been objectively unreasonable. Id. at 409-11.
IV. Analysis
Mathis raises three issues in his habeas petition: (1) that trial counsel was ineffective in failing to thoroughly investigate witnesses and to bring up inconsistencies between police reports and trial testimony; (2) that the trial court violated his Sixth Amendment due process right to counsel by refusing to appoint new counsel to argue that trial counsel had rendered ineffective assistance; (3) that the trial court violated his due process rights (a) to present his theory of defense to the jury (by refusing to instruct the jury on ignorance or mistake of fact) and (b) to be present at all critical stages of the trial (by answering outside Mathis' presence the jury question whether he had to be aware of resistance by J.R.).
A. Ineffective Assistance Of Trial Counsel
Mathis first maintains that trial counsel was ineffective because he did not thoroughly investigate the case and call and adequately cross-examine certain witnesses. On direct appeal, the Kansas Court of Appeals determined that trial counsel was not deficient underStrickland, stating as follows:
We have carefully reviewed the specific parts of the record Mathis claims support his ineffective assistance of counsel claim, and we conclude that Mathis has failed to show that his trial counsel fell below an objective standard of reasonableness or that the outcome would have been different.
Mathis' assertions are, in many respects, subject to more than one interpretation, but nothing indicates that trial counsel was ineffective. Mathis' basic defense was that he engaged in sexual activity with the victim, but not intercourse, because he was impotent. The jury simply either did not believe him or did believe the victim, or both.
We conclude that the trial court did not abuse its discretion in not appointing counsel other than his trial counsel to represent him at the hearing on the pro se motion.See Memorandum Opinion dated July 31, 1998 at 5, Case No. 96-77511-A.
The Kansas Court of Appeals decided the merits of Mathis' claim under the correct legalstandard. This Court must therefore determine whether its disposition was an unreasonable application of the law.See Upchurch v. Bruce, 333 F.3d 1158, 1164 (10th Cir. 2003).
Although the Kansas Court of Appeals did not discuss all of the information that Mathis asserts counsel should have pursued, it set forth the correct legal standard and its discussion constituted a decision "on the merits" for purposes of AEDPA. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) (adjudication on merits exists absent evidence that state court did not consider and reach merits of petitioner's claims). Thus, the Court must defer to the state court result even if the state court did not expressly state the reasoning for its decision. Id.; see also Hawkins v. Mullin, 291 F.3d 658, 674 (10th Cir. 2002).
The Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984), governs a claim of ineffective assistance of counsel in violation of the Sixth Amendment. See Williams, 529 U.S. at 390-91 (Strickland qualifies as clearly established federal law under AEDPA even though test by necessity requires case-by-case examination of evidence); see also Upchurch, 333 F.3d at 1162-64. Under Strickland, Mathis must satisfy two prongs in order to show ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland, 466 U.S. at 687. To establish the first element-deficient performance — Mathis must show that counsel's representation fell below an objective standard of reasonableness.Id. at 688. To establish the second element — prejudice — Mathis must show a reasonable probability that but for counsel errors, the result of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
An attorney has a duty to conduct a reasonable investigation, and failure to do so may fall outside of the range of reasonable professional assistance. See, e.g., Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir. 1994). When an ineffective assistance claim centers on a failure to investigate, "[t]he focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result" United States exrel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987). Ordinarily, such information would be presented through the testimony of the potential witnesses. Id. If the witnesses do not testify, the petitioner must explain why and "demonstrate, with some precision, the content of the testimony they would have given at trial."Lawrence, 900 F.2d at 130.
Here, Mathis asserts that trial counsel did not adequately investigate because he did not question Officer Nelson's notation that J.R. told the counselor that she and a cook at her aunt's restaurant "left QuikTrip, done sexual things got out of hand." Mathis asserts that trial counsel should have interviewed the counselor. Such an interview might have further explained J.R.'s conversation with the counselor. The fact that J.R. said that things got out of hand does not suggest, however, that such an interview would have uncovered exculpatory information.
Mathis also complains that trial counsel did not cross-examine Officer Nelson, or J.R.'s friend Blackorby, about Nelson's notes of his interview with Blackorby. Those notes indicate that J.R. told Blackorby that she had been raped and that she hurt all over her body. Mathis relies heavily on the notation at the end of Nelson's notes: "Told it was Kevin." In his briefs, Mathis identifies Kevin as J.R.'s boyfriend. In fact, however, J.R.'s boyfriend at that time was Mark. The most likely explanation of the notation is that Nelson intended to write "Keith" but inadvertently wrote "Kevin." No one by the name of "Kevin" was otherwise connected with the case in any evidence before the court. Furthermore, Blackorby and Nelson clearly testified that J.R. told them that Mathis had raped her. Therefore this one note does not suggest unreasonable performance by defense counsel. Even now, Mathis provides no information about what evidence would have been offered if defense counsel had confronted Blackorby and Nelson with the notation about "Kevin."
While the Court agrees that these two areas of cross-examination might have led to minimally relevant evidence, Mathis does not identify what that evidence might have been or explain why he does not present it now. Although the reasoning of the Kansas Court of Appeals is terse, its finding that trial counsel's failure to investigate did not constitute ineffective assistance is not objectively unreasonable.
Even if the representation fell below the prevailing norm, which it did not, Mathis must also prove that his representation prejudiced his defense. The purpose of the Sixth Amendment guarantee of counsel is to insure that defendants have the assistance necessary to justify reliance on the outcome of the proceeding. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal trial if the error had no effect on the judgment.Strickland, 466 U.S. at 691-92. Thus, Mathis must show a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. Mathis has not met his burden of showing that the jury's verdict had a reasonable probability of being different absent trial counsel's failure to investigate.
B. Refusal To Appoint New Post-Trial Attorney To Argue Ineffective Assistance Of Trial Counsel
Mathis asserts that the trial court violated his right to due process and effective assistance of counsel by refusing to appoint new counsel on his post-trial motion. On direct appeal the Kansas Court of Appeals addressed this issue in detail, first noting that the decision to discharge a court-appointed counsel and permit new counsel to enter an appearance is within the sound discretion of the trial court.See Memorandum Opinion dated July 31, 1998 at 2, Case No. 96-77511-A (citing State v. Cromwell, 253 Kan. 495, 499, 856 P.2d 1299 (1993)). The Court of Appeals set forth the facts and analysis as follows:
Mathis' trial counsel filed a motion for a new trial and for a judgment of acquittal after the jury verdict. Mathis then retained a new attorney, who entered an appearance and moved for a new trial. The night before the motions were to be argued, Mathis' new attorney, Robert Alien, died. Thereupon, the court granted a continuance.
Mathis then filed a pro se motion to have counsel appointed for him to pursue his claim of ineffective assistance of counsel. Mathis also filed pro se motions for a new trial and judgment of acquittal.
The trial court reappointed Mathis' trial counsel to represent him The court then gave Mathis the choice of either proceeding withhis trial counsel or representing himself pro se. Mathis' trial counsel subsequently argued all of the contentions raised in the motion for new trial, except for the claim of ineffective assistance of counsel, which Math is then argued pro se. The trial court denied the motions, specifically finding on the claim of ineffective assistance of counsel that there was no indication the trial counsel had been ineffective.
A motion for new trial that is filed within 10 days of trial is a stage of the criminal proceedings where the right to counsel applies. K.S.A. 22-3501: State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980). However, where the post-trial motion is not filed within the 10-day period, the trial court has discretion whether to appoint counsel and hold a hearing. State v. Kingslev, 252 Kan. 761, 766, 851 P.2d 370 (1993).
Here, the jury's verdict was entered onMay 16, 1996. Mathis filed his amended pro se motionfor new trial in August 1996. Mathis contends his pro se motion was merely an amendment to the original motion which became necessary after the death of his newly retained counsel. However, Mathis does not cite any Kansas authority where an amended post-trial motion relates back to the filing date of the original motion for purposes of K.S.A. 22-3501 and the appointment of counsel.
Mathis' pro se motion was not filed in a timely manner. However, Mathis asserts two contentions which allegedly establish the ineffectiveness of his counsel's representation on appeal. Consequently, before this court may conclude that Mathis does not have an absolute right to counsel in this case, it must be determined whether Mathis' motion contains a "realistic basis" for obtaining a new trial through his alleged denial of effective assistance of counsel.See Memorandum Opinion dated July 31.1998 at 2-4, Case No. 96-77511-A (citing Cromwell, 253 Kan. at 499, 856 P.2d 1299. The Kansas Court of Appeals then analyzed Mathis' claims for ineffective assistance of trial counsel and as noted above, it found no ineffective assistance. Based on that determination, it concluded that the trial court had not abused its discretion in appointing trial counsel to represent Mathis at the hearing on his pro se motion for a new trial. Based on this Court's analysis of Mathis' ineffective trial counsel argument, the Court finds that the Court of Appeals did not unreasonably apply the law to the facts of the case.
C. Due Process Right To Present Theory Of Defense To The Jury
Mathis asserts that the trial court violated his right to present his theory of defense when it (1) refused to instruct the jury that if it found that defendant mistakenly believed the victim had consented, it must find consent and (2) answered a jury question without his input or presence.
Mathis argues that he was entitled to a "mistake of fact" instruction because his theory of defense was that J.R. consented. As the Kansas Court of Appeals pointed out, however, his testimony was not that J.R. consented but that he never had sexual intercourse with J.R. Based on the evidence, the Kansas Court of Appeals found no substantial likelihood of a different verdict if the instruction had been given. This finding is not contrary to or an unreasonable application of clearly established federal law. In fact, his argument borders on frivolous — Mathis is arguing that the victim consented to something which he testified he could not and did not do.
Mathis also asserts that the trial court violated his due process right to present his theory of the case when it answered a jury question outside his presence. During deliberations, the jury asked whether-under the instruction on criminal intent — Mathis had to be aware that the victim was not consenting. The trial court met with defense counsel and government counsel and formulated a response which both sides approved: that the elements instruction on the crime of rape set forth the claims that the state was required to prove. The court wrote the answer on the jury question and returned it to the jury. The Kansas Court of Appeals found that this was not prejudicial error. It noted that the Sixth Amendment guarantees a criminal defendant the right to be present at all critical stages of his trial and that under K.S.A. § 22-3405, once jury deliberation begins, unless defendant is voluntarily absent, any questions from the jury must be answered in open court in the presence of defendant and his counsel. The Kansas Court of Appeals also noted that failure to follow the statutory procedure is not necessarily prejudicial error, however, and that the determinative question is whether the answer to the question was prejudicial error. Memorandum Opinion Case No. 96-77511-A at 6. The Court noted that the trial court's response gave the jury adequate guidance on the instructions on the crime of rape. Further, because Mathis' presence was not essential to a fair and just determination of the jury question about criminal intent, it found that his absence did not constitute prejudicial error.
The right of the accused to be present during all critical stages of the trial is basic and fundamental. Rushen v. Spain, 464 U.S. 114, 117 (1983). The Supreme Court has held that a jury question is tantamount to a request for further jury instructions, a critical stage at which defendant has the right to be present. Rogers v. United States, 422 U.S. 35, 39 (1975). The right is both constitutional and statutory. The constitutional right, which is the right to be present at every "critical stage" of the trial, is based in the Fifth Amendment due process clause and the Sixth Amendment confrontation clause. See La Crosse v. Kernan, 244 F.3d 702, 707-08 (9th Cir. 2001). Under the Constitution, defendant's presence "is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."United States v. Gagnon, 470 U.S. 522, 526 (1985).
The Supreme Court has recognized that "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). It must be shown, however, that defendant's presence "would have been useful in ensuring a more reliable determination." Id. at 747. Although Mathis characterizes the issue as whether he was present when the jury was instructed, the meeting at which the judge formulated the answer to the question was akin to an in-chambers meeting to discuss a jury question. See Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001) (jury question resolved in proceeding akin to bench conference without defendant present; no constitutional violation). The Supreme Court has not determined whether delivery of a supplementary jury instruction constitutes a "critical stage" which requires defendant's presence. See United States v. Rosales-Rodriguez, 289 F.3d 1106, 1110 (9th Cir. 2002) (delivery of supplemental jury instruction is critical stage for which defendant's presence or that of counsel is constitutionally required). The Kansas Court of Appeals presumed that it is a critical stage, but found that the constitutional violation was not prejudicial. This Court must determine whether that determination was unreasonable.
Where a trial court error of "constitutional magnitude" had little likelihood of changing the results of the trial, defendant is not entitled to a new trial. In this case, the trial court correctly referred the jury to the instruction on the elements of rape and instructed the jury to read that instruction with the instruction on criminal intent. Mathis' input on this legal issue would not have changed the outcome. Further, the answer was delivered to the jury on paper and not in open court. The Kansas Court of Appeals found that Mathis' absence when the trial judge formulated the answer to the jury question was not prejudicial error. Cf. Rosales-Rodriguez, 289 F.3d at 1110 (finding harmless error beyond reasonable doubt). Its decision was not contrary to, or an unreasonable application of, clearly established federal law determined by the United States Supreme Court.
For the reasons discussed above, the Court concludes that Mathis' habeas petition does not establish any instance where the state proceedings "resulted in a decision that 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 "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," id. § (d)(2). Mathis presents no other grounds upon which habeas relief is warranted.
IT IS THEREFORE ORDERED that Mathis' habeas petition be and hereby is DENIED.