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describing "weight of evidence against petitioner" as "overwhelming" where "jury heard graphic testimony from two different victims regarding two separate instances of sodomy and sexual battery perpetrated by petitioner"
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Case No. 01-3406-DES.
April 18, 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 El Dorado Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
Due to the voluminous nature of post-conviction pleadings and other motions filed by petitioner, this procedural history only includes those pleadings relevant to the grounds asserted in the present petition.
On December 1, 1993, petitioner was convicted in consolidated cases of two counts of aggravated criminal sodomy, two counts of aggravated sexual battery, two counts of aggravated weapons violation, and one count of aggravated battery. On October 27, 1995, petitioner's conviction was affirmed on direct appeal. State v. Denney, 905 P.2d 657 (Kan. 1995). While petitioner's direct appeal was pending, he filed a motion to vacate the judgment based upon an alleged defect in the complaint/information. This motion was summarily denied by the Kansas Supreme Court on November 7, 1995. State v. Denney, No. 94-72139-S (Kan. 1995).
Petitioner also filed a motion for a new trial based upon newly discovered evidence which was denied by the district court. This decision was affirmed on appeal on November 19, 1999. State v. Denney, 990 P.2d 171 (Table) (Kan.Ct.App. 1999). Petitioner then filed a motion pursuant to K.S.A. § 60-1507 which was denied by the district court. This decision was affirmed on appeal on May 19, 2000. Denney v. State, 4 P.3d 1186 (Table) (Kan.Ct.App. 2000). Petitioner then filed several other motions which the Kansas Court of Appeals construed, where appropriate, as additional motions pursuant to K.S.A. § 60-1507. State v. Denney, 26 P.3d 729 (Kan.Ct.App. 2001). These motions were denied by the district court and this decision was affirmed on appeal on June 29, 2001. Id.
Petitioner filed the present petition on October 2, 2001, raising the following grounds for relief: (1) the absence of an arraignment in Case No. 93-CR-1268, (2) the absence of the prosecutor's signature on the complaint, (3) failure of the complaint to plead an essential element of the crime, (4) instructional error, (5) denial of compulsory process, (6) insufficient evidence, (7) ineffective assistance of trial counsel, (8) conviction obtained through false evidence and perjured testimony, and (9) conspiracy to convict petitioner through the use of false evidence and perjured testimony.
Respondent has filed an answer and return (Doc. 13) and petitioner has filed a traverse thereto (Doc. 15).
FACTUAL BACKGROUND
The facts surrounding petitioner's claims were summarized by the Kansas Supreme Court as follows:
The evidence in both cases was extensive and uncontroverted by Denney. We will briefly summarize the testimony.
Case No. 93 CR 1268
The victim, A.L., testified that on July 16, 1993, she went to see Denney, a former boyfriend, to collect a $95 debt. A.L. interrupted a conversation between Denney and a female, who immediately left. Denney accused A.L. of ruining his chance for a sexual encounter.
A.L. went with Denney to his apartment after he indicated he would repay the indebtedness. But, when they entered the apartment, Denney informed A.L. he did not have the money. Denney made several unsuccessful sexual advances toward A.L., and when she tried to leave, Denney refused to allow her to do so and started beating her on the head with a closed fist. A.L. fell and Denney choked her until she blacked out.
When A.L. regained consciousness, Denney had placed a belt around her neck, which he used to pull her to the floor face down. He then proceeded to remove her clothes, rubbed his penis with Vaseline, and penetrated her anus with his penis. Denney continued to beat her on the head and stated he was going to kill her.
Denney sodomized A.L. a second time after moving her to the couch. He then walked to the kitchen, where he grabbed a knife and placed it at her throat while she was allowed to go to the bathroom.
After leaving the bathroom, Denney kept A.L. at knifepoint and continued to threaten her, her family, and her friends. Denney attempted intercourse with A.L., but discontinued doing so because she was unable to breathe.
Denney allowed A.L. to put her shorts back on and said he was going take her to the hospital. Denney continued to hold the knife to A.L.'s throat while pushing her to the floor so she could attempt to find her keys. A.L. was successful in distracting Denney, managed to unlock the apartment door, and ran screaming from the apartment.
Denney ran after A.L. and continued to beat her. A neighbor, Theresa Williams, intervened, and Denney fled. Williams called the police and paramedics, and A.L. was taken to the hospital. She had multiple bruises on her face, her eyes were swollen shut, her nose was broken, and she had abrasions and scrapes on her body. The rape kit revealed no evidence of seminal material, although testimony indicated this was not necessarily indicative of whether penetration occurred.
Evidence recovered by police from Denney's apartment corroborated A.L.'s statement, although a knife fitting the sheath found on the floor and the victim's cash were never recovered. Bloodstains found on the couch cushions and A.L.'s clothing were of a type that a police chemist testified could have come from A.L.
At trial, Dr. William May, the emergency room physician who attended A.L., testified that the genital examination revealed no trauma. He also testified as to A.L.'s facial injuries revealed in photographs taken after the incident.
Case No. 93 CR 1343
The victim in this case, P.D., is Denney's sister-in-law. She testified Denney had lived with her and her husband for several months in 1992 but moved out after she ordered her husband to make him leave. Approximately a week later, in October 1992, Denney returned to the house around 2:00 a.m., when P.D.'s husband was at work and she was home with her children.
After Denney was admitted, he went to the kitchen, obtained a steak knife, told P.D. he "wanted" her, and pushed her onto the bed while holding the steak knife to her throat. After undressing her, he touched her vagina with his penis, and she threw him off her. As P.D. was lying face down, Denney placed his penis inside her anus. After sodomizing P.D., Denney ejaculated on the bedroom floor.
P.D. told her husband about the attack but refrained from filing a complaint with the police after being begged not to do so by Denney's mother. P.D.'s husband drowned in June 1993, and P.D. was contacted by the police after A.L. informed them that Denney had previously confessed to his sister that he had obtained a knife and sodomized P.D.
Denney's parole officer testified Denney was released from prison in 1992 after being incarcerated for felony convictions of rape and aggravated burglary. The trial court admitted a certified journal entry of the convictions into evidence.
The jury convicted Denney on all charges. He was sentenced to a controlling term of 36 years to life in 93 CR 1343 and a term of 228 months in 93 CR 1268, to run consecutively.
State v. Denney, 905 P.2d 657 (Kan. 1995).
STANDARD OF REVIEW
Because Mr. Denney'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 — ABSENCE OF AN ARRAIGNMENT IN CASE NO. 93-CR-1268
Petitioner alleges that he was never formally arraigned in Case No. 93-CR-1268. Petitioner alleges the lack of arraignment prejudiced him because had he been arraigned, the errors in the complaint and information would have been discovered. (Doc. 15). Instead of outlining for the court what these alleged errors are, petitioner merely refers the court to the rest of his petition. The Kansas Court of Appeals found that petitioner waived formal arraignment:
As a second issue, Denney contends he was not formally arraigned in case 93CR1268. A portion of a transcript attached to Denney's amended motion show the trial court held the preliminary hearing for case 93-CR-1343 and bound Denney over for trial. Denney waived arraignment. The State's motion to add two additional charges to the complaint in 93-CR-1268 was granted. As a result, Denney's counsel advised he was not prepared to proceed with arraignment and requested a continuance. He also argued the motion to consolidate could not be heard until after Denney had been arraigned on the new charges. The trial court agreed and continued the arraignment and motion to consolidate until later that afternoon. The transcript of hearing on the motion to consolidate contains no discussion regarding arraignment. The record does not contain a separate transcript for an arraignment in case 93-CR-1268.
The district court clerk's appearance docket for case 93-CR-1268 states "Deft arraigned" on August 20, 1993. The journal entry for the hearing on that date indicates Denney waived formal arraignment and entered a plea of not guilty; the trial court set the case for a pre-trial conference and jury trial.
A defendant effectively waives arraignment if he or she goes to trial without objection and submits the question of guilt to the jury; in such cases, the omission of arraignment in no way taints a defendant's conviction. State v. Huber, 10 Kan. App. 2d 560, 562, 704 P.2d 1004 (1985). Denney contends that he objected to the lack of arraignment, yet he does not cite to the record for support of this assertion. An appellant carries the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. Without such a record, this court presumes that the trial court's actions were proper. State v. Valdez, 266 Kan. 774, 792, 977 P.2d 242 (1999).
State v. Denney, 26 P.3d 729 (Table) (Kan.Ct.App. 2001).
Even if this court were to assume that petitioner was never arraigned in Case No. 93-CR-1268, his claim would fail. In order to gain relief on this ground, petitioner must show that he was somehow prejudiced by the absence of an arraignment. Tapia v. Tansy, 926 F.2d 1554, 1558 (10th. Cir. 1977). The purpose of arraignment is to inform the defendant of the charges against him so that he can prepare an adequate defense. U.S. v. Correa-Ventura, 6 F.3d 1070, 1073 (5th Cir. 1993). However, the lack of a formal arraignment will not result in the reversal of a conviction as long as the defendant is made aware of the charges against him by other means. U.S. v. Reynolds, 781 F.2d 135, 136, n. 2 (8th Cir. 1986). On the day petitioner was to be arraigned in Case No. 93-CR-1268, the motion to consolidate was heard. The transcript of this hearing demonstrates that petitioner was fully aware of the charges against him in Case No. 93-CR-1268.
Petitioner has failed to establish that the state court's determination is contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Relief should be denied as to ground one.
GROUND TWO — ABSENCE OF PROSECUTOR'S SIGNATURE ON THE COMPLAINT
In his second ground for relief, petitioner alleges the complaint was jurisdictionally defective because it lacked the signature of the prosecutor. The Kansas Court of Appeals determined that although the complaint was not signed by the judge or prosecutor, it was signed by the complaining witness. Denney, 26 P.3d 729. Under Kansas law, the complaint must be signed only "by some person with knowledge of the facts." K.S.A § 22-3201(b). Because the signature of the prosecutor was not required, the Kansas Court of Appeals found no error. Denney, 26 P.3d 729.
Petitioner's claim is premised only on alleged violations of state law. Violations of state law are not cognizable in a federal habeas action. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). In addition, any due process attack on the technical validity of the complaint became unreviewable when petitioner was convicted by the jury. Brooks v. Tansy, 952 F.2d 409, at *3 (Table) (10th Cir. 1992); see also United States v. Mechanik, 475 U.S. 66, 73 (1986) ("jury's verdict rendered harmless any conceivable error in the charging decision").
Petitioner has failed to establish that the state court's determination is contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Relief should be denied as to ground two.
GROUND THREE — ABSENCE OF ELEMENT OF CONSENT IN COMPLAINT
Petitioner alleges the complaint in Case No. 93-CR-1343 was jurisdictionally defective because it eliminated the lack of consent as an element of aggravated criminal sodomy. Petitioner raised this issue in a motion before the Kansas Supreme Court while his direct appeal was pending and the motion was summarily denied. State v. Denney, No. 94-72139-S, Order denying motion to vacate judgment for fataly [sic] defective complaint/information, (Kan. 1995). Petitioner again attempted to raise the issue in a petition for writ of habeas corpus, but the Kansas Court of Appeals refused to revisit the issue. Denney v. State, 4 P.3d 1186 (Table) (Kan.App. 2000).
The complaint at issue charges the following:
"unlawfully, willfully, unlawfully, willfully [sic], engage in anal copulation or did penetrate the anal opening by a body part or object, to wit: penis, with Pamela Denney, when the said Pamela Denney was overcome by force or fear; . . . contrary to K.S.A. 21-3506(c)(1)."
In denying his pro se petition for habeas corpus, the district court reasoned that "overcome by force or fear" implied the lack of consent. Denney v. State, Case No. 96 C 1224, Order Denying Defendant's Pro Se Petition for Writ of Habeas Corpus, (Sedgwick County Dist. Ct., 1998). This court agrees. "Overcome by force or fear" indicates that the victim did not willingly participate in the act of sodomy. In addition, as stated in ground two, any due process attack on the technical validity of the complaint became unreviewable when petitioner was convicted by the jury. Brooks, 952 F.2d 409, at *3; see also Mechanik, 475 U.S. at 73 ("jury's verdict rendered harmless any conceivable error in the charging decision").
Petitioner has failed to establish that the state court's determination is contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Relief should be denied as to ground three.
GROUND FOUR — ABSENCE OF LIMITING INSTRUCTION ON THE USE OF PRIOR CRIMES EVIDENCE
In order to prove the two charges of aggravated weapons violation, a crime that requires proof of possession of a prohibited weapon within five years of conviction or imprisonment for a felony, the state introduced evidence regarding petitioner's prior convictions for rape and aggravated burglary. In order to prevent the inference that petitioner had the propensity to commit crimes, petitioner's counsel requested that the following limiting instruction be given:
Evidence has been admitted tending to prove that the Defendant has been convicted of crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the previous conviction.
Denney, 905 P.2d at 660. The trial court refused to give the instruction. On direct appeal, the Kansas Supreme Court found error in the failure to give a limiting instruction. Id. at 662. However, under the circumstances, the Kansas Supreme Court found the error harmless:
Where the evidence of guilt is of such a direct and overwhelming nature that it can be said that the challenged error could not have affected the result of the trial, it is harmless beyond a reasonable doubt and reversal is not required.
We need not again recite the uncontroverted testimony of each victim. The evidence in this case was overwhelming. The insignificant inconsistencies in the victims' testimony paled by comparison to the clarity and comprehensiveness of the evidence of each element of each crime. In addition, the prior crimes evidence was utilized only to satisfy the elements of the weapons charge and was referred to only briefly as being necessary for that purpose. Further, because Denney did not testify, his credibility was never an issue during the trial.
We hold the trial court's failure to give the requested instruction is harmless error beyond a reasonable doubt under the facts and circumstances of this case. In so holding, however, we caution trial judges that a limiting instruction should be given when requested by the defendant in every case where prior crimes evidence is admissible for one purpose but not for another, as is mandated by K.S.A. 60-406.
Id. at 663.
A habeas corpus proceeding cannot be used to set aside a state conviction on the basis of instructional error "unless the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the constitutional sense." Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir. 1979), cert. denied, 444 U.S. 1047 (1980). The effect of the instructional error is to be viewed "in the context of the instructions as a whole and the trial record." Tillman v. Cook, 25 F. Supp.2d 1245, 1304 (D.Utah 1998), citing Cupp v. Naughten, 414 U.S. 141, 147 (1973).
The reference to petitioner's prior conviction occurred when Brent Hamm, petitioner's parole officer, testified that petitioner had prior felony convictions for rape and aggravated burglary. (Trial Transcript, Vol. I, p. 197). Although the prosecution moved for the admission of evidence regarding the facts surrounding the prior rape conviction, the trial court denied this motion. Id. at p. 9. Therefore, only the existence of the prior convictions was admitted before the jury.
Although it is undisputed that the trial court should have given a limiting instruction, this court agrees the error was harmless given the overwhelming weight of evidence against petitioner. See Christian v. Housewright, 721 F.2d 240, 242 (8th Cir. 1983) (the failure to include a limiting instruction on the use of prior crimes evidence was harmless error "in view of the strength of the case against appellant"). The jury heard graphic testimony from two different victims regarding two separate instances of sodomy and sexual battery perpetrated by petitioner. It is likely that the cumulative effect of this testimony had a stronger impact on the jury than a passing reference to a prior rape conviction. Although the use of such evidence without a limiting instruction should be universally condemned, this error did not render the trial fundamentally unfair. See Cupp, 414 U.S. at 146-147 (a petitioner must show "not merely that the instruction is undesirable, erroneous, or even 'universally condemned,'" but rather that "the ailing instruction by itself so infected the entire trial the resulting conviction violates due process").
Petitioner has failed to establish that the state court's determination on ground four is contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Relief should be denied as to ground four.
GROUND FIVE — DENIAL OF COMPULSORY PROCESS
Petitioner contends that he was denied compulsory process when the trial judge failed to utilize his authority to compel the attendance at trial of two subpoenaed witnesses, Officer Daniel East and Detective O'Mara. Although petitioner raised this issue before the Court of Appeals in a motion to supplement his appellant brief, (Doc. 15, Exh. C), he did not raise this issue in his petition for review to the Kansas Supreme Court. State v. Denney, No. 98-80823-AS, petition for review.
In his petition for review, petitioner argued that trial counsel was ineffective for failing to use the compulsory process to compel the attendance of two witnesses. This was not a fair presentation of the present claim for the purposes of exhaustion. See Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997) (the presentation of a claim to the state courts must allow them an opportunity to apply the controlling legal principles to the facts of the claim).
Before proceeding in a federal action, a petitioner must present the issues in the state courts in a posture allowing full and fair consideration. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Smith v. Atkins, 678 F.2d 883, 885 (10th Cir. 1982). The exhaustion requirement is not satisfied unless all the claims asserted in the habeas petition have been presented for state court review by "invoking one complete round of the State's established appellate review process." Id.
Because the time for petitioning the Kansas Supreme Court for review of this issue has long since passed, this claim is subject to an 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. Instead, petitioner argues that the exhaustion doctrine does not require him to raise this issue on discretionary appeal to the Kansas Supreme Court, citing McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998). Petitioner's reliance upon McGurk is misplaced. McGurk cited Dolny v. Erickson, 32 F.3d 381, 384 (8th Cir. 1994), for the proposition that a discretionary appeal to the state's highest court was not necessary in order to successfully exhaust a claim for federal habeas review. McGurk, 163 F.3d at 473, n. 2. However, petitioner is advised that this holding of Dolny was abrogated by the Supreme Court's decision in O'Sullivan. 526 U.S. at 845. O'Sullivan requires that a petition for discretionary review be filed in the highest state court before a claim is considered fully exhausted. Id.
Petitioner has failed to show cause for his procedural default. Therefore, relief should be denied as to ground five.
GROUND SIX — INSUFFICIENT EVIDENCE
Petitioner alleges that his convictions are not supported by sufficient evidence because several pieces of evidence are not corroborated by anyone other than the prosecutrix. On appeal from the denial of his K.S.A. § 60-1507 petition, the Kansas Court of Appeals noted that this issue should have been raised in petitioner's direct appeal. Denney, 4 P.3d 1186. They also noted that in addressing the effect of the absence of a limiting instruction regarding petitioner's prior convictions, the Kansas Supreme Court found the evidence of petitioner's guilt to be overwhelming. Id. Therefore, they refused to reconsider the issue. Id.
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 unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default, however, does not bar consideration of a federal claim on habeas review unless the state procedural rule is both independent and adequate. The state procedural rule is independent if the last state court that rendered a judgment in the case clearly and expressly stated that its decision rested upon a state procedural bar. Church v. Sullivan, 942 F.2d 1501, 1506 (10th Cir. 1991) (relying upon Harris v. Reed, 489 U.S. 255 (1989)). The state procedural bar is adequate if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
The Kansas courts have routinely refused to entertain questions of guilt or innocence in a § 60-1507 motion. See, e.g., Potts v. State, 520 P.2d 1259 (Kan. 1974); Davis v. State, 504 P.2d 617 (Kan. 1972). The state procedural bar relied upon by the state court was both independent and adequate.
As cause for his procedural default, petitioner alleges appellate counsel was ineffective for failing to raise the sufficiency of evidence claim on direct appeal. However, petitioner's claim of ineffective assistance of appellate counsel must first be presented to the state courts as an independent claim before it can be used to establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 452 (2000), citing Murray v. Carrier, 477 U.S. 478, at 489 (1986). Petitioner has not done so. Therefore, petitioner cannot use his ineffective assistance of appellate counsel claim to establish cause for his procedural default. Relief should be denied as to ground six.
GROUND SEVEN — INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner has alleged that his trial counsel was ineffective under several different theories. Respondents allege that some of these theories are procedurally barred and, therefore, are inappropriate for federal habeas review. However, rather than address these theories in the context of procedural default, the court finds that it would be a more efficient use of judicial resources to dispose of these issues upon their merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
Petitioner alleges his trial counsel was ineffective for: (a) failing to seek out the essential elements to substantiate each crime as charged, (b) failing to use the discovery process, (c) failing to use the compulsory process to compel the testimony of two subpoenaed witnesses, (d) failing to properly question Dr. May, (e) failing to properly question Police Chemist Mary Ayers, and (f) failing to properly question Teresa Williams.
The Sixth Amendment guarantees the right of a criminal defendant to effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To establish an ineffective assistance of counsel claim, petitioner must (1) "show that counsel's performance was deficient," and also (2) "that the deficient performance prejudiced [his] defense." Strickland, 466 U.S. at 687. In order to satisfy the first prong, petitioner must show that his counsel's conduct did not fall within the wide range of competence demanded of an attorney in a criminal case. See United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). The second prong, often called the "prejudice prong," is met when the petitioner proves that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." See Strickland, 466 U.S. at 695 (defining reasonable probability as a probability that is sufficient to undermine the confidence in the outcome of the trial).
In addition to establishing the oft-quoted two prong test, Strickland also established general guidelines for reviewing ineffective assistance claims. Judicial scrutiny of counsel's performance should be done in a "highly deferential" manner that "eliminate[s] the distorting effects of hindsight," and starts with the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688-89; see also Moore v. United States, 950 F.2d 656, 660 (10th Cir. 1991).
Failure to seek out the essential element of consent: Petitioner's first allegation of ineffectiveness alleges that counsel "failed to seek out the essential elements to substantiate each crime as charged." (Doc. 1, p. 20). Petitioner refers the court to ground three to support this claim. As stated in this court's resolution of ground three, the complaint sufficiently alleged the lack of consent by noting that the victim was "overcome by force or fear." Because there was no error in the sufficiency of the complaint, trial counsel was not ineffective for failing to object to it.
Failure to use the discovery process: Petitioner alleges that his trial counsel was ineffective because he filed to file any pretrial motions for discovery, including a motion for exculpatory evidence. Petitioner does not state what information should have been discovered, nor does he indicate what exculpatory information the government failed to disclose. Even assuming that petitioner's counsel was deficient for failing to file any discovery motions, petitioner has failed to show what prejudice this omission caused him and therefore, his claim must fail. See Parsons v. Galetka, 57 F. Supp.2d 1151, 1174 (D.Utah 1999) (ineffective assistance claim regarding the failure to file formal discovery motions denied where petitioner failed to show what helpful information the motion would have produced).
Failure to use the compulsory process: Petitioner next alleges that although counsel properly subpoenaed Officer Daniel East and Detective O'Mara, he failed to use the compulsory process to compel their attendance at trial. However, once again, petitioner has failed to allege how this failure prejudiced his case. Therefore, his claim must fail under the prejudice prong of Strickland. 466 U.S. at 695.
Failure to properly question Dr. May and Dr. Ayers: Petitioner alleges that trial counsel failed to properly question Dr. May regarding penetration or trauma to the anal tract of A.L. Petitioner also alleges that counsel failed to question Dr. May and Dr. Ayers regarding the presence of Vaseline upon the person of A.L. because A.L. testified that petitioner had used Vaseline during the crime. The Kansas Supreme Court resolved the claims regarding Dr. May as follows:
A careful review of Dr. May's trial testimony reveals that the trial counsel sufficiently examined him concerning trauma to A.L.'s anal tract. Dr. May's evidence was clear and as helpful to Denney as possible. If expanded, the possibility of elaborating on the apparent injuries A.L. received was not only possible but likely. Additionally, any failure to inquire of the doctor about the presence or absence of petroleum jelly is not ineffective assistance as the answer would readily have been inferred from his testimony.
Denney, 905 P.2d at 447-448. This court agrees with this reasoning. After reading trial counsel's examination of Dr. May, it is apparent that trial counsel was trying to, and did establish, that there was no genital trauma to A.L. while at the same time avoiding any reference to anal trauma, thereby avoiding a potentially unfavorable answer. (Trial Transcript, Vol. I, pp. 199-201, 204-206). As for Dr. Ayers, she did testify that no seminal fluid was found on A.L. (Trial Transcript, Vol. I, p. 114). Additionally, petitioner does not contest the state court's observation that the absence of petroleum jelly was readily inferred from the testimony at trial. Petitioner has failed to show that his counsel's performance was deficient or that, but for this alleged deficiency, the outcome of the trial would have been any different.
Failure to properly question Teresa Williams: Petitioner alleges that trial counsel was ineffective for failing to properly question Ms. Williams as to whether she was "absolutely positive" that petitioner was wearing slacks at the crime scene. Petitioner apparently believes this testimony was crucial because police officers testified that petitioner was found wearing shorts with the victim's blood on them.
This court fails to see how this question could have changed the outcome of the trial. Petitioner was not arrested at the scene of the crime, he was arrested sometime later. (Trial Transcript, Vol. I, p. 124). It is entirely plausible that petitioner changed clothes between the time of the crime and the time of his arrest. In addition, petitioner could also have transferred blood to his shorts while changing clothes. Furthermore, Ms. Williams may have merely reaffirmed her testimony if asked petitioner's proposed question. Relief should be denied under this theory of ineffective assistance of counsel.
Because petitioner has failed to show that his counsel was ineffective, relief should be denied as to ground seven.
GROUNDS EIGHT AND NINE — CONVICTION OBTAINED THROUGH THE USE OF FALSE EVIDENCE AND PERJURED TESTIMONY AND A CONSPIRACY TO DO SO BETWEEN THE PROSECUTOR AND DEFENSE COUNSEL
In ground eight, petitioner alleges that his conviction was obtained through the use of several pieces of evidence that were illegally planted and not obtained through the use of a search warrant. Petitioner also alleges several pieces of A.L.'s trial testimony is false and that the prosecutor falsely argued that both victims were sodomized at knife point. In ground nine, petitioner next alleges that the prosecuting attorney and his own defense counsel conspired to permit perjured testimony and false evidence in order to obtain his conviction.
The Kansas Court of Appeals refused to entertain petitioner's claims because he failed to provide a factual basis for his assertions. Denney, 4 P.3d 1186. Petitioner asks this court to compare the records of Officer Daniel East and Detective O'Mara with the trial testimony of A.L. In petitioner's motion for a new trial based upon newly discovered evidence, the Kansas Court of Appeals compared this evidence and concluded that these discrepancies were fully explored at trial and that Detective O'Mara's report would have been inadmissible as hearsay. Denney, 990 P.2d 171.
The Kansas Court of Appeals disposed of ground nine as follows:
Petitioner finally claims the prosecutor and his defense counsel conspired to hide exculpatory evidence and to suborn perjury. Petitioner has raised a variation of this claim in his prior appeals, and in each instance his contentions were without merit. In the direct appeal, our Supreme Court characterized the inconsistencies in the victims' testimony as insignificant. See 258 Kan. at 445. In the appeal following the first motion for a new trial, No. 76,911, our Supreme Court concluded petitioner's claims regarding exculpatory evidence were conclusory and unsubstantiated. In the appeal following the second motion for a new trial, No. 80, 823, this court concluded petitioner's trial counsel had fully explored any discrepancies in the victim's testimony.
Given that the appellate courts of this state have repeatedly found no merit to petitioner's allegations of exculpatory evidence or perjured testimony, and because his allegations in this case also are conclusory, the district court did not err in denying the 1507 motion without a hearing. See Jackson, 255 Kan. at 463.
Id.
Petitioner has failed to show that these factual findings are contrary to or an unreasonable application of federal law. Petitioner has provided nothing but bald assertions and conclusory allegations to counter the state court's findings. These allegations are insufficient to entitle petitioner to an evidentiary hearing, let alone habeas relief. Hatch v. State, 58 F.3d 1447, 1471 (10th Cir. 1995). In addition, the court notes that several of petitioner's claims are based upon violations of the Fourth Amendment. Fourth Amendment claims are not ordinarily cognizable in a habeas corpus proceeding. Stone v. Powell, 428 U.S. 465, 482 (1976).
Because petitioner has failed to show that the state court's factual findings are incorrect or that the state court's decision was an unreasonable application of federal law, relief should be denied under grounds eight and nine. 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.