Opinion
Civil Action No. 03-3006-GTV.
July 19, 2004
MEMORANDUM AND ORDER
Petitioner Orval Nathan Ray, a prisoner at the El Dorado Correctional Facility in El Dorado, Kansas, has filed a petition pro se for writ of habeas corpus (Doc. 1). Petitioner was convicted in state court of kidnapping, robbery, conspiracy to commit robbery, and aggravated burglary, and seeks a writ pursuant to 28 U.S.C. § 2254. Petitioner claims that he is entitled to habeas relief based upon the following: insufficient evidence to support his kidnapping, robbery, and conspiracy to commit robbery convictions; the trial court's failure to sever his trial from his co-defendant; violation of his Sixth Amendment right to effective assistance of counsel; violation of his Fifth Amendment right against self-incrimination; violation of his Fourteenth Amendment due process rights; the state trial court's admission of evidence of his prior crimes; and cumulative error. The court has reviewed Petitioner's arguments and the record, and determines that habeas relief is not warranted in this case. For the following reasons, the petition is denied.
I. Procedural History
In April 1997, Petitioner was charged in the District Court of Cowley County, Kansas with one count of conspiracy to commit aggravated robbery in violation of Kan. Stat. Ann. § 21-3302 and Kan. Stat. Ann. § 21-3427, one count of aggravated burglary in violation of Kan. Stat. Ann. § 21-3716, one count of kidnapping in violation of Kan. Stat. Ann. § 21-3420, one count of aggravated robbery in violation of Kan. Stat. Ann. § 21-3427, and one count of criminal possession of a firearm in violation of Kan. Stat. Ann. § 21-4204(a)(2). Petitioner was tried and convicted by a jury on all counts except for criminal possession of a firearm on June 20, 1997.Petitioner appealed, and on January 14, 2000, the Kansas Court of Appeals affirmed his convictions in part and reversed them in part. Specifically, the Kansas Court of Appeals held that the evidence was not sufficient to sustain Petitioner's convictions for conspiracy to commit aggravated robbery and aggravated robbery. The court remanded the case for entry of verdicts for the lesser included offenses of conspiracy to commit robbery and robbery. The court affirmed the rest of Petitioner's convictions. The Kansas Supreme Court denied Petitioner further review on March 22, 2000.
On August 30, 2000, Petitioner filed a motion for post-conviction relief pursuant to Kan. Stat. Ann. § 60-1507. The state district court denied Petitioner's motion, and the Kansas Court of Appeals affirmed that decision on October 4, 2002. On October 16, 2002, Petitioner filed a pro se motion for rehearing that was denied on November 5, 2002. Petitioner's appointed counsel filed a notice of appeal from the decision of the Kansas Court of Appeals on November 12. Then on November 15, Petitioner's appointed counsel sought to file a petition for review out of time. The Kansas Supreme Court denied the motion on November 20, 2002. Petitioner filed the instant request for federal habeas relief on January 6, 2003.
II. Standard of Review
Because Petitioner's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the court's review of Petitioner's claims is governed by the provisions of the Act. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). Under the Act, a court may only grant a writ when one of two circumstances is present: (1) 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 (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). The court presumes state court factual findings to be correct absent clear and convincing evidence to the contrary. Id. § 2254(e)(1).
A state court decision is contrary to clearly established law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
This court's review of state court decisions is limited; the Supreme Court has admonished that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In a habeas action, a federal court may not review a state court decision for errors of state law. Id. (citations omitted).
III. Factual Background
On November 25, 1996, police officers from the Arkansas City Police Department discovered Petitioner and Frank Wilkins inside Sheldon's Pawn Shop after closing hours. After the police officers apprehended Petitioner and Frank Wilkins, Bill Sheldon, the store's owner, arrived and made a comment to the effect of "just go ahead and shoot them."
Officers placed Petitioner and Frank Wilkins in the felony holding tank at the Cowley County jail. In the presence of other inmates, Petitioner and Frank Wilkins discussed their plans to rob Bill Sheldon's home as soon as they were released. The two men were upset with Bill Sheldon's comment and had learned that he kept money, firearms and other valuables in his home.
On the morning of December 16, 1996, a man knocked on the door of Bill and Jo Ann Sheldon's home. Jo Ann answered, and she was alone. Following a brief conversation, the man forced his way inside. He directed Jo Ann to lie face down and proceeded to tape her wrists and ankles together. The man left Jo Ann on the floor while he searched the home. He eventually returned, and ordered Jo Ann to get up. He untaped her wrists and ankles and escorted her to the back bedroom where a safe was located. The man demanded that Jo Ann tell him the combination to the safe. Jo Ann responded that the combination was on a piece of paper in the dining room. As a result, the man followed Jo Ann to dining room, she retrieved the combination, and the two returned to the bedroom.
Jo Ann offered to open the safe after the man could not open it with the combination. He again untaped her wrists and ankles and placed her in front of the safe. Jo Ann informed the man that she could not open it without her glasses, so the man yelled to another man named "James" to bring the glasses to her. After Jo Ann opened the safe, she was again directed to lie face down. While the first man searched the safe, Jo Ann heard the other man make several "grunting" noises. Eventually, Jo Ann was tied up with duct tape and a telephone cord, and the two men escaped with several firearms, approximately $8,000 in cash, jewelry, and other personal items.
Later that afternoon, Petitioner and Frank Wilkins went to a used car dealership in Wichita, Kansas to test drive automobiles. Frank Wilkins purchased a car with $1,805.30 in cash. A week later, Petitioner purchased a car from the same dealer for $3,300 in cash. On December 23, a Deputy United States Marshal stopped Frank Wilkins while driving his car. During the stop, Petitioner drove by in his car with Frances Wilkins, the sister of Frank Wilkins. The deputy marshal instructed Petitioner to stop, but he increased his speed. Law enforcement officers caught Petitioner and he was arrested. In the trunk of Petitioner's vehicle, officers found Frances Wilkins's purse. The purse contained jewelry identified by Bill and Jo Ann Sheldon as items taken from their safe in the robbery.
IV. Petitioner's Grounds for Relief A. Sufficiency of Evidence
Petitioner maintains that the evidence presented at trial was insufficient to support his convictions for kidnapping, robbery, and conspiracy to commit robbery.
In reviewing the sufficiency of the evidence presented against a state prisoner, the court must inquire "`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.'" Romano v. Gibson, 239 F.3d 1156, 1164 (10th Cir. 2001) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The court "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) (citations omitted).
The Tenth Circuit has not resolved whether a challenge to the sufficiency of the evidence presents a question of law or fact.Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002). If the question is a legal one, it is examined under the "contrary to" or "unreasonable application of . . . federal law" standard of 28 U.S.C. § 2254(d)(1). Id. If it is a factual one, it is examined under the "unreasonable determination of the facts" § 2254(d)(2) standard. Id. at 1220-21. It is unnecessary to decide which standard applies here, as the court determines that Petitioner's claim is meritless under either standard. See id. at 1221.
i. Kidnapping
First, Petitioner argues that the State presented insufficient evidence at trial to support his kidnapping conviction because the taking or confining of Jo Ann Sheldon was slight, inconsequential, and merely incidental to the crime of robbery.
Kansas law defines kidnapping as follows:
Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage;
(b) to facilitate flight or the commission of any crime;
(c) to inflict bodily injury or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function.
Kan. Stat. Ann. § 21-3420. The statute "requires no particular distance of removal, nor any particular time or place of confinement." State v. Burden, 69 P.3d 1120, 1127 (Kan. 2003). "Under [the] statute it is the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping." Id.
Petitioner was convicted under subsection (b) of Kan. Stat. Ann. § 21-3420. "The leading case on what is required to be proven to establish the facilitation of the commission of any crime provision of K.S.A. 21-3420(b) is State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976)." State v. Richmond, 827 P.2d 743, 745 (Kan. 1992). In State v. Buggs, the Kansas Supreme Court held that:
if a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.547 P.2d 720, 731 (Kan. 1976).
Petitioner attacks the Kansas Court of Appeals' conclusion that Jo Ann Sheldon's kidnapping facilitated the commission of the robbery. In particular, he asserts that the Kansas Court of Appeals' reliance on State v. Richmond, 904 P.2d 974 (Kan. 1992) is misplaced because the circumstances of his case are distinguishable.
In State v. Richmond, the Kansas Supreme Court affirmed the defendant's aggravated kidnapping conviction, finding that the defendant's taking and confinement of the victim was not merely incidental to the crimes of rape, robbery, and burglary. Id. at 979. The defendant in Richmond attacked the victim in the bedroom of her home. Id. at 977. After hitting her in the face multiple times, he demanded that she give him her money. Id. She retrieved her purse from the living room and handed over the money inside to him. Id. Then, the defendant wanted to know where her husband kept his money, so she took the defendant to the bedroom and showed him her husband's bank. Id. At some point, the defendant sexually assaulted the victim in the bedroom. Id. Afterwards, he ordered her to stay in the bedroom closet while he continued to search the home for money and valuables. Id.
The Kansas Supreme Court held that "[b]y enlisting the assistance of [the victim] in finding and retrieving money, the robbery was made substantially easier" for the defendant. Id. at 978. Furthermore, the court ruled that the defendant sufficiently confined the victim under Kan. Stat. Ann. § 21-3420 by ordering her to stay in the closet, even though the defendant was not locked or tied in the closet. Id. at 979. The court determined that she stayed in the closet out of a "well-founded fear" for her safety. Id. Finally, the court observed that ordering the victim into the closet made the robbery easier, allowing the defendant to search the victim's home without risking that she would escape or call for help. Id.
On Petitioner's direct appeal, the Kansas Court of Appeals found the circumstances in Richmond comparable to Petitioner's case:
Although Jo Ann Sheldon was not confined in an enclosed space such as a closet, she was confined by duct tape and a telephone cord. The robbers bound Jo Ann and led her from the living room to the dining room so she could open the safe for them, making the taking of the valuables in the safe easier for them. The confinement of Jo Ann allowed the robbers to search for money and valuables without giving Jo Ann the opportunity to see them and without risking her escape. Tying up Jo Ann and making her lie down in a corner of the bedroom disabled Jo Ann to the extent that the robbers could flee without risk that [she] would call for help before their escape. Clearly, this case is analogous to Richmond. The evidence of confinement is sufficient to meet the criteria for kidnapping.
Petitioner maintains that Richmond is distinguishable because he did not put Jo Ann Sheldon in a closet or sexually or physically abuse her. He also states that he never used a weapon against her. Instead, he emphasizes that the victim's wrists and ankles were taped only to prevent her from interfering with the course of the robbery. Finally, he asserts that his case is analogous to State v. Fisher, 891 P.2d 1065 (Kan. 1995). InFisher, the Kansas Supreme Court reversed a defendant's convictions for aggravated kidnapping and kidnapping. Id. at 1073. The court ruled that the movement of two restaurant employees from the cash register to the back office in order to obtain the key to a safe "was merely for the purpose of convenience, not to make the crime [of robbery] substantially easier of commission." Id.
While Petitioner shapes his arguments as a constitutional violation arising from the insufficiency of the evidence, his contentions focus on the Kansas Court of Appeals' interpretation of state law: whether the kidnapping facilitated the commission of the robbery under Kan. Stat. Ann. § 21-3420. As stated before, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68. Construing Petitioner's arguments liberally, the court will address the issues under the limited review provided for challenges to the sufficiency of the evidence.
The Tenth Circuit has observed that "Kansas case law exemplifies the difficulty in differentiating between a taking or confining that `facilitates' the commission of another crime versus conduct that is merely incidental to the commission of another crime." Upchurch v. Bruce, 333 F.3d 1158, 1165-67 (10th Cir. 2003) (discussing cases applying the Buggs test). As inUpchurch, however, this court is persuaded that a rational trier of fact could have found Petitioner guilty of kidnapping beyond a reasonable doubt. Morever, the court rejects Petitioner's contention that the Kansas Court of Appeals unreasonably applied the facts of his case to Richmond. The fact that Petitioner did not place the victim in a closet or assault her does not distinguish the case from Richmond. Furthermore, the court is not convinced that Fisher controls Petitioner's case. The defendant in Fisher did not bind or hide the victims in any way. Here, Petitioner admits that the victim's ankles and wrists were bound to prevent her from interfering with the robbery. This concession supports the conclusion that Petitioner's actions facilitated the commission of the robbery.
In sum, the court concurs with the Kansas Court of Appeals' analysis and concludes that a rational fact finder could have found Jo Ann Sheldon's confinement constituted a kidnapping under Kansas law. The Kansas Court of Appeals decision was not an unreasonable determination of the facts nor an unreasonable application of the standards for determining sufficiency of the evidence. Petitioner is not entitled to habeas relief as to this issue.
ii. Robbery
Second, Petitioner contends that there was insufficient evidence introduced at trial to prove that he was present at the robbery. Besides the evidence that Petitioner and Frank Wilkins discussed the robbery weeks before its occurrence, Petitioner contends that the State offered very little to suggest that he was involved in the crimes. He concedes that the State introduced items found in his possession that were taken from the Sheldon residence, but believes an "equally plausible hypothesis" is that he purchased those items from Frank Wilkins.The court concludes that a rational trier of fact could have found the essential elements of robbery proven beyond a reasonable doubt. To prove that Petitioner was present at the robbery, the State largely relied on circumstantial evidence. At trial, Jo Ann Sheldon testified that two men robbed her home. Ms. Sheldon stated that although she never saw the second man, she heard the first man shout to another man named "James" several times. She also testified that the second man brought her glasses to her so that she could open up the bedroom safe. This testimony, coupled with the jailhouse conversations concerning Petitioner and Frank Wilkins's intentions to rob the Sheldon home and the fact that Petitioner and Frank Wilkins were found shortly after the crime with large amounts of cash, personal belongings from the Sheldon home, and newly purchased automobiles provided sufficient evidence to convict Petitioner of robbery. Accordingly, Petitioner is denied habeas relief as to this issue.
iii. Conspiracy to Commit Robbery
Third, Petitioner asserts that the State introduced insufficient evidence to support his conviction for conspiracy to commit aggravated robbery. Initially, the court observes that Petitioner's argument is somewhat misplaced. On his direct appeal, the Kansas Court of Appeals held that the evidence was insufficient to sustain the conspiracy to commit aggravated robbery charge, but sufficient to sustain the crime of conspiracy to commit robbery. Therefore, the court will construe Petitioner's argument as challenging the sufficiency of evidence for the conspiracy to commit robbery conviction.
Petitioner primarily claims that the State did not present sufficient evidence to prove that he had an agreement with Frank Wilkins to commit robbery. He states that the testimony from Sidney Bryant and Darrell Maruska, the two inmates incarcerated with him, did not provide proof of an actual conspiracy. Rather, he argues that the conversations about the planned robbery required the jury to stack inference upon inference; that he and Frank Wilkins committed the robbery, and second, that they had an agreement to commit robbery.
Petitioner also argues that there was no proof of an overt act in furtherance of the conspiracy because the State did not prove that he participated in the actual robbery. The court will not consider this argument because it concluded above that sufficient evidence existed to prove Petitioner was present at the robbery.
The Kansas Court of Appeals rejected Petitioner's argument. Although noting that the evidence against Petitioner was mostly circumstantial, the Kansas Court of Appeals concluded that sufficient facts, not inferences, supported Petitioner's conviction for conspiracy to commit robbery. Specifically, the Kansas Court of Appeals cited the discussions Petitioner and Frank Wilkins had with other inmates regarding their intentions to rob the Sheldon home, the fact that two men robbed the Sheldon home, and shortly thereafter, Petitioner and Frank Wilkins were found with items taken from the robbery. The trial record supports this conclusion. Viewing the evidence in the light most favorable to the prosecution, the court determines that a rational trier of fact could conclude that the elements of conspiracy to commit robbery were proven beyond a reasonable doubt.
B. Denial of Severance
Fourth, Petitioner maintains that the trial court failed to sever his trial from his co-defendant, Frank Wilkins. He claims that he was prejudiced because the evidence against Frank Wilkins was greater than the evidence against him. Specifically, Petitioner points to hearsay statements made by Frank Wilkins and circumstantial evidence relating to Frank Wilkins's involvement in the robbery that he argues were "inapplicable" to him.
"Whether the trial court erred in denying severance is generally a question of state law that is not cognizable on federal habeas appeal, . . . for a criminal defendant has no constitutional right to severance unless there is a strong showing of prejudice caused by the joint trial." Cummings v. Evans, 161 F.3d 610, 619 (10th Cir. 1998) (citing United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993); Bond v. Oklahoma, 546 F.2d 1369, 1377 (10th Cir. 1976)). "To make such a showing, the defendant must necessarily disclose sufficient information to enable the court to make a finding of prejudice."Id.
Petitioner first argues that he was prejudiced by statements Frank Wilkins made to another inmate concerning the planned robbery after Petitioner had already been released from jail. The Kansas Court of Appeals dismissed Petitioner's argument, finding that this was not the only evidence that the State introduced regarding the planned robbery. Sidney Bryant, an inmate in the felony tank with Petitioner and Frank Wilkins, testified at Petitioner's trial. Mr. Bryant stated that he participated in conversations with Petitioner and Frank Wilkins, with all three men present, regarding Petitioner and Frank Wilkins's intentions to rob the Sheldon home. The court is persuaded by the Kansas Court of Appeals' analysis and concludes that Petitioner's argument is without merit.
Petitioner next argues that the evidence admitted about Frank Wilkins's car purchase shortly after the robbery prejudiced him because he was not alleged to have been in possession of proceeds from the robbery until over a week later. The Kansas Court of Appeals rejected this argument "because the evidence involved no hearsay and was relevant to establish the financial link between the total amount of cash held by the defendants shortly after the robbery and the total amount taken in the robbery." Again, the court concurs with the Kansas Court of Appeals on this issue.
The court determines that Petitioner has failed to establish a strong showing of prejudice to entitle him to habeas relief. Although Petitioner asserts that the evidence against Frank Wilkins was greater than the evidence against him, the court, after reviewing the record, agrees with the Kansas Court of Appeals that the evidence against both defendants was similar.
C. Ineffective Assistance of Counsel
Fifth, Petitioner claims that his Sixth Amendment right to effective trial counsel was violated because his attorney failed to object: (1) to the admission of Petitioner's financial affidavit requesting appointment of counsel; (2) to evidence regarding Petitioner's prior felony convictions; and (3) to testimony involving personal items found in the trunk of Petitioner's car. In response, Respondents claim that Petitioner's arguments are procedurally defaulted because the Kansas Supreme Court denied review of his untimely § 60-1507 motion.
"The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to the petitioner's noncompliance with state procedural rules." Mathis v. Bruce, No. 01-3048-KHV, 2004 WL 303559, at *4 (D. Kan. Feb. 10, 2004) (citing Coleman v. Thompson, 501 U.S. 722, 749 (1991)). "It is well established that federal habeas review of claims defaulted in state court pursuant to an independent and adequate state procedural rule is barred `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.'" Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999) (quotingColeman, 501 U.S. at 750). "A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Klein v. Neal, 45 F.3d 1395, 1398-99 (10th Cir. 1995)). "As a general rule, . . . in order to be adequate, a state rule of procedural default must be applied evenhandedly in the vast majority of cases." Id. (citing Maes v. Thomas, 46 F.3d 979, 985-86 (10th Cir. 1995)).
"The Kansas Supreme Court's refusal to entertain [a] petitioner's claims because he did not file a timely petition for review is an independent and adequate state ground." Brown v. Nelson, No. 99-3159-DES, 2001 WL 681268, at *2 (D. Kan. June 8, 2001) (citing Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993)); see Taylor v. Nelson, No. 01-3236-DES, 2001 WL 950820, at *1 (D. Kan. July 31, 2001) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) ("A petitioner's failure to timely seek review by the state's highest appellate court results in a procedural default of any claims not presented to such court.")). In this case, the Kansas Supreme Court denied Petitioner's motion to file a petition for review out of time. Petitioner's claims are therefore procedurally defaulted unless he can demonstrate cause for his default or that a fundamental miscarriage of justice will result if the court does not address his claims.
Petitioner concedes that his claims were not timely presented to the Kansas Supreme Court, but argues that his appellate counsel's ineffectiveness — the failure to timely file the petition for review — caused the default. An attorney's ineffectiveness, however, "will constitute cause only if it is an independent constitutional violation." Coleman, 501 U.S. at 755. Because Petitioner does not have a constitutional right to counsel in state post-conviction proceedings, "any attorney error that led to the default of [his] claims in state court cannot constitute cause to excuse the default in federal habeas." Id. at 757. The court concludes that the failure of Petitioner's attorney to file a timely petition for review is not a sufficient cause to overcome the procedural default. Finally, the record does not substantiate Petitioner's conclusory claim of actual innocence, and thus, the court determines that Petitioner has failed to establish that the miscarriage of justice exception applies. See Schlup v. Delo, 513 U.S. 298, 321 (1995).
D. Fifth Amendment Right Against Self-Incrimination
Sixth, Petitioner claims that the trial court violated his Fifth Amendment right against self-incrimination by admitting his financial affidavit requesting appointment of counsel. Respondents again assert that this argument is procedurally barred because the Kansas Supreme Court denied review of Petitioner's untimely § 60-1507 motion. The court agrees. For the reasons stated before, the court concludes that this claim is procedurally defaulted for purposes of federal habeas review.
E. Fourteenth Amendment Due Process Claim
Seventh, Petitioner contends that the trial court violated his Fourteenth Amendment due process rights by allowing the State to introduce the complaint and journal entry of judgment from his prior felony conviction, instead of permitting him to stipulate that he had a prior felony conviction for purposes of the felon in possession of a firearm charge.
On Petitioner's direct appeal, the Kansas Court of Appeals held that even though Petitioner raised the issue at his pretrial hearing, he failed to timely object to this evidence at trial, and thus it was not preserved for appeal. See State v. Peckham, 875 P.2d 257, 270 (Kan. 1994) ("When an unfavorable ruling on an evidentiary question prior to trial is received, a party must make a timely objection to such evidence when introduced at trial in order to preserve the issue for appeal."). Petitioner's failure to contemporaneously object to this issue at trial was the basis for the Kansas Court of Appeals' refusal to reach the merits of Petitioner's challenge. Furthermore, other decisions from this district recognize that the Kansas contemporaneous objection rule is firmly established and regularly followed by Kansas state courts. See Saenz v. State, No. 02-3119-CM, 2003 WL 22102140, at *5 (D. Kan. July 16, 2003); Loggins v. Hannigan, No. 99-3102, 2001 U.S. Dist. LEXIS 25259, at *14-16 (D. Kan. Sept. 11, 2001); Hunt v. Lee, 19 F. Supp.2d 1212, 1214-15 (D. Kan. 1998). The court rules that the Kansas Court of Appeals' decision was based upon an independent and adequate state procedural rule. Petitioner fails to offer an argument demonstrating cause or a resulting miscarriage of justice for this procedural default, and the record contains no such showing. Accordingly, the court holds that this claim is procedurally defaulted for purposes of federal habeas review.
F. Admission of Prior Crimes
Eighth, Petitioner argues that the trial court erred by admitting evidence concerning the burglary he was arrested for at Sheldon's Pawn Shop. As with Petitioner's due process claim, the Kansas Court of Appeals, on direct appeal, refused to entertain this argument because Petitioner did not make a timely objection at trial. For the same reasons set forth above, the court concludes that Petitioner's claim is procedurally defaulted.
G. Cumulative Error
Finally, Petitioner claims that the cumulative effect of the errors raised in his petition deprived him of an unfair trial.
"Cumulative error is present when the `cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.'" Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003) (citations omitted). "`A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.'"Id. (citation omitted). A court "may only consider actual errors in determining whether the defendant's right to a fair trial was violated." Id. (citations omitted). Moreover, claims that are procedurally defaulted may not be included as a part of the cumulative error analysis. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992).
Petitioner's cumulative error claim fails for two reasons. First, the court will not consider Petitioner's claims based on ineffective assistance of counsel, self-incrimination, due process, or the admission of prior crimes because these claims are procedurally defaulted. Second, the court has already considered and rejected Petitioner's claims based on insufficient evidence and the failure to sever his trial. Petitioner does not have any errors to cumulate, and therefore, he is not entitled to relief on this basis.
IT IS, THEREFORE, BY THE COURT ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is denied.
The case is closed.
Copies of this order shall be transmitted to pro se Petitioner and counsel of record.
IT IS SO ORDERED.