Opinion
Case No. 03-3217-RDR.
November 8, 2004
MEMORANDUM AND ORDER
This matter is presently before the court upon petitioner's pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
On April 22, 2004 petitioner filed a motion to stay proceedings. He sought a stay so he could pursue additional remedies in state court. As pointed out by the respondent, petitioner made no effort to identify what issues he intends to raise in state court. Moreover, petitioner fails to show that these issues would be timely. Finally, there is no indication that petitioner has ever made any efforts in state court since the filing of this motion. The court is not persuaded that a stay is appropriate under all of these circumstances. Accordingly, this motion shall be denied. The court shall proceed to consider the petitioner's motion under § 2254.
Petitioner was charged in Kansas state court with premeditated first degree murder in violation of K.S.A. 21-3401(a), attempted first degree murder in violation of K.S.A. 21-3301 and 21-3401(a) or, in the alternative, aggravated battery in violation of K.S.A. 21-3414(a)(1)(A), and criminal possession of a firearm in violation of K.S.A. 21-4204(a)(4). On August 29, 2000, after a bench trial, petitioner was convicted of first degree murder, attempted first degree murder and criminal possession of a firearm.
The defendant's convictions were affirmed by the Kansas Supreme Court on appeal on April 19, 2002. State of Kansas v. Clemons, 273 Kan. 328, 45 P.3d 384 (2002). Petitioner filed the instant petition on May 12, 2003.
In this petition, petitioner raises two issues, both of which he raised on direct appeal. He contends (1) there was insufficient evidence of premeditation to support his convictions for first degree murder and attempted first degree murder; and (2) he was denied his right to a jury trial because his waiver was not knowing and voluntary.
I.
The undisputed facts show that on June 29, 1999 the petitioner shot both Satin Huffman and Arthur McPherson. The shooting of McPherson caused his death. The exact details of how and why this occurred are not entirely clear. Nevertheless, a review of the testimony offered by the witnesses at trial, including the petitioner and two other participants in the events of that day, generally reveals the following.
During the morning of June 29, 1999 petitioner and Tony Davis set out to walk a short distance to a smoke shop, which is located in a small strip mall at the intersection of 9th and Grove streets in Wichita, Kansas. Each of them possessed a firearm. The strip mall contained a smoke shop, a liquor store, a barber shop and a candy store. En route, petitioner and Davis encountered Huffman and McPherson. The two groups began arguing with each other as they walked to the smoke shop. Most of the talking occurred between petitioner and Huffman.
Petitioner and Huffman had known each other since the second or third grade, and they had a history of some problems. Petitioner said that he had been a skinny kid and Huffman had always been a big guy.
There was a belief by petitioner, Davis and Huffman that a fight was going to occur. McPherson took off his shirt in anticipation of the fight. Davis, Huffman and McPherson went into the smoke shop without the defendant. The arguing continued once everyone left the smoke shop. Petitioner pulled a gun and shot Huffman at close range in the head and hip. Huffman fell and lay on the ground near the barber shop. McPherson began running from the scene. Petitioner chased McPherson and shot him twice, once in the left back and once in the back of his left arm. McPherson's body was found on the other side of the street, approximately 50 to 75 yards from the strip mall. None of the witnesses at the scene observed Huffman or McPherson with a weapon. Petitioner and Davis ran from the scene. Law enforcement officers that arrived at the scene failed to find any weapons on either Huffman or McPherson.
II.
A writ of habeas corpus may not 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," or, "was based on an unreasonable determination of the facts in light of the evidence presented at trial." 28 U.S.C. § 2254(d)(1) (2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
The Supreme Court has stated that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in our cases" or if the state court "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 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 decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The law limits the authority of the court to hold an evidentiary hearing upon petitioner's application for relief:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
III.
Insufficient Evidence of Premeditation
The petitioner contends there was insufficient evidence on premeditation to support his convictions for murder and attempted murder. He asserts that (1) the use of a deadly weapon does not by itself support an inference of premeditation; (2) he was provoked by the victims of the shooting; (3) there was a lack of evidence that his conduct before the shootings demonstrated a desire to kill Huffman and McPherson; and (4) his flight from the scene is not evidence of premeditation. The respondent contends that the petitioner is not entitled to habeas relief on this issue.
In examining petitioner's sufficiency of the evidence claims, the appropriate inquiry 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."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).
The Tenth Circuit has not resolved whether the court should review a sufficiency of the evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1). Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002). Under either standard, petitioner's claims fail.
The Kansas Supreme Court determined that the evidence was sufficient to support the petitioner's convictions for murder and attempted first degree murder. Clemons, 45 P.3d at 390-91. The Court stated:
The evidence of premeditation in a first-degree murder case need not be direct and often is established by circumstantial evidence. A conviction of even the gravest offense may be sustained by circumstantial evidence. Premeditation cannot be inferred from the use of a deadly weapon alone; it may be inferred where other circumstances also exist. State v. Murillo, 269 Kan. 281, Syl. ¶ 2, 7 P.3d 264 (2000). A factfinder likely would consider Clemons' remaining outside the smoke shop while Huffman and McPherson went inside to be a telling circumstance. Clemons testified that it was not unusual for people in that area to be armed; thus, he might have suspected that Huffman and McPherson were armed. He had the opportunity to leave and avoid further conflict, but he did not. Other circumstances the court has identified that may give rise to the inference of premeditation include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The jury has a right to infer premeditation from the established circumstances if the inference is a reasonable one. Murillo, 269 Kan. 281, Syl. ¶ 2, 7 P.3d 264. In this case, Clemons used a handgun when he thought a gun was being pulled on him. Before the shooting, there was general arguing and taunting. No threats or declarations by Clemons were reported. He shot Huffman first and then fled from the scene after chasing and shooting McPherson. Although a closer call than the killing of McPherson, viewed in a light most favorable to the prosecution, a rational factfinder could have found the defendant guilty of attempted first-degree murder of Huffman.Id.
Viewing the evidence in the light most favorable to the prosecution, the court concludes that a rational trier of fact could find that the petitioner committed attempted first degree murder and premeditated first degree murder. Petitioner's convictions are neither "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), nor were they "based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). Accordingly, the court shall deny relief on this issue.
IV.
Waiver of Jury Trial
The petitioner contends that his waiver of jury trial was not knowing or voluntary. The respondent suggests that the record is to the contrary.
The facts surrounding this issue are as follows. Petitioner was scheduled to go to trial on August 7, 2000. The panel of jurors was present in the courtroom. A hearing outside the presence of the jury was held with petitioner, who was representing himself at that time; petitioner's stand-by counsel, Ken Clark; and the prosecutor. The following colloquy occurred:
THE COURT: Mr. Clark advises me that Mr. Clemons says he wishes to waive jury. Is that correct, Mr. Clemons?
THE DEFENDANT: Yes.
THE COURT: And that's your decision?
THE DEFENDANT: Yeah, it's my decision.
THE COURT: Okay, understand that, if you give up the right to a jury, you won't be allowed to change your mind and have a jury at some future time.
THE DEFENDANT: Yes.
THE COURT: Okay. Is the State ready to proceed with testimony if we take a waiver of jury and —
THE PROSECUTOR: I'm not ready to proceed.
THE COURT: Judge Owens wants us to go ahead and try it this afternoon or tomorrow.
THE PROSECUTOR: I'm not ready to proceed this afternoon. I don't have any witnesses.
THE COURT: In the morning?
THE PROSECUTOR: Coming in this afternoon. I could do it in the morning.
THE COURT: Okay.
THE PROSECUTOR: If that's what Judge Owens wants.
THE COURT: Okay.
MR. CLARK: If they're ready to proceed immediately, do you still wanna waive a jury?
THE DEFENDANT: Nah, I need some time. I ain't ready.
THE PROSECUTOR: I don't have any objection to some time, if he needs three more weeks for nonjury trial, Judge.
THE COURT: All right. Is that why you wanna waive jury, is to have some time to get ready?
THE DEFENDANT: I'm — yeah. I'm just not ready.
THE COURT: Okay. All right. Do you wish to continue to represent yourself, or you wanna have Mr. Clark get ready to represent you in your trial?
THE DEFENDANT: I'm trying to get some kind of counsel. I can't represent myself.
THE COURT: Well, I know you've been through that long, long and lengthy session with Judge Owens. But you understand, if you give up your right to a jury trial this afternoon, you will not be allowed to change your mind and have a jury trial when you think you're ready or when the three weeks is up and put it back on the jury trial docket. I'll guarantee you that's not gonna happen. You understand that, sir?
THE DEFENDANT: Yes.
THE COURT: Okay. All right. Is it your decision to give up your right to a jury trial?
THE DEFENDANT: Yes.
THE COURT: You've discussed it with Mr. Clark?
THE DEFENDANT: Yes.
THE COURT: Okay. And no one — has anyone made any promises to get you to give up your right to a jury trial?
THE DEFENDANT: No.
THE COURT: They threatened you with anything?
THE DEFENDANT: No.
THE COURT: Okay. I'll accept the waiver of jury trial. Case will be taken off the court's jury trial docket. Be set for bench trial. Three weeks.
The Kansas Supreme Court determined that the petitioner had knowingly and voluntarily waived his right to a jury trial. Clemons, 45 P.3d at 393. The Court found, based upon the totality of the circumstances, that the petitioner understood his right to a jury trial and then properly waived it. Id.
A defendant may waive any constitutional right. See Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). The waiver, however, must be knowing, voluntary and intelligent. Johnson v. Zerbst, 304, U.S. 458, 464 (1938). When these conditions are properly fulfilled, the relinquishment of constitutional rights is permissible.
The court believes the circumstances demonstrate that the petitioner's waiver of jury trial was knowing and voluntary. The petitioner waived his right after questioning by the court and after consultation with his stand-by counsel. There is nothing in the record to demonstrate that the petitioner was confused or failed to understand what he was doing.
V.
In sum, the court shall deny petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
IT IS THEREFORE ORDERED that petitioner's motion to stay proceedings (Doc. # 18) be hereby denied.
IT IS FURTHER ORDERED that petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. # 1) be hereby denied.
IT IS SO ORDERED.