Opinion
Case No. 99-3157-DES.
January 2, 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 is a prisoner confined at the Lansing Correctional Facility.
PROCEDURAL HISTORY On January 11, 1993, petitioner was convicted of aggravated battery, aggravated kidnaping, rape, aggravated sexual battery, aggravated robbery, and aggravated burglary. On February 9, 1996, petitioner's conviction was affirmed on direct appeal. State v. Foster, 910 P.2d 848 (Kan. 1996). On April 4, 1997, petitioner filed a motion pursuant to K.S.A. § 60-1507. This motion was denied by the District Court of Sedgwick County on May 23, 1997 and this decision was affirmed on appeal on November 6, 1998. Foster v. State, No. 79,285 (Kan.App. 1998) (unpublished opinion).
Petitioner commenced this action on May 5, 1999, raising the following grounds for relief: (1) the trial court erred by failing to conduct an evidentiary hearing on his § 60-1507 motion, (2) ineffective assistance of trial counsel, and (3) sufficiency of evidence.
Respondent has filed an answer and return (Doc. 16) and petitioner has filed a traverse (Doc. 25). FACTUAL BACKGROUND The following facts, as found by the Kansas Supreme Court are supported by the record and are presumed to be correct:
See 28 U.S.C.A. § 2254(e)(1) (stating factual findings made by the State court are presumed to be correct and the applicant shall have the burden of rebutting this presumption by clear and convincing evidence).
Just after midnight in early February 1992 in Wichita, D.M. arrived at her house. As she put the key in her front door lock, she turned and saw a person at the bottom of her steps. The person came at her and threw her onto her stomach. He began beating her on the back of the head with a hard object that felt like a gun. D.M. was able to get a glimpse of her assailant. His face was covered with a mask, such as a race-car driver might wear, and he was wearing large safety glasses. He also had on a big army-type jacket and was carrying a gun and what looked to be a small club.
During the ensuing struggle her assailant began choking her, and she lost consciousness. When she regained consciousness, she had fallen off the porch. The assailant picked her up, threw her back onto the porch, and began hitting her. He then used her keys to unlock her front door and then pushed her into the house.
Once inside the house, D.M. struggled with the assailant and tried to get away, but he pushed her to the ground and tied her hands behind her back. As D.M. was lying on the floor, she saw the assailant take some 3-inch cloth tape from a bag that he was carrying. She testified that the tape looked like the kind commonly used at Boeing, where she worked. The assailant began wrapping the tape around D.M.'s eyes, but the tape would not stick because of the amount of blood on her head. Eventually, the assailant wrapped her head in the tape.
The assailant rolled D.M. onto her back, cut her shirt and bra off, and began fondling her breasts. He pulled off her boots and jeans and placed his mouth on her vagina. Finally, he placed her face-down on the couch and engaged in vaginal intercourse.
D.M. was able to testify that her assailant was short and somewhat fat. She based this description upon her position during the rape and on the fact that the assailant placed her legs around his middle. This general description fit the defendant. Following the rape, the assailant squirted some kind of liquid into D.M.'s vagina. He then poured some liquid over her body. In his confession, the defendant stated that he squirted peroxide into and around her vagina. The assailant left the house, taking her purse.
D.M. managed to free herself. She stumbled over to a neighbor's house. The neighbor testified that D.M. came to his house, that she was badly wounded, and that there was a strong skunk-like odor around her. An ambulance and the police were summoned. D.M. was taken to the hospital, and the wounds to her head required 21 sutures. A rape kit was also performed. According to Dr. Harold Stopp, the examining physician, the rape kit disclosed non-motile sperm in D.M.'s vagina.
While in the hospital, D.M. began to suspect that one of her co-workers might be the man who attacked her because the assailant was wearing safety goggles of the type used at Boeing and had the same kind of tape as that used at Boeing. Further, she felt the assailant was someone she knew because he had not spoken to her, indicating that he was afraid she might recognize his voice. Specifically, D.M. began to suspect the defendant, who worked with her at Boeing, because he had the same short, fat build as her assailant.
D.M. was released from the hospital after 3 days. The next day, the defendant came by D.M.'s house to see her. He told her that he had heard about the attack and had come over to check on her health. D.M. thought this was unusual because she had not been to work, nor had she told any of her acquaintances at work, except her supervisor, about the incident. When she questioned the defendant as to how he found out about the incident, the defendant indicated that one of the inspectors at work had told him.
According to D.M., the defendant asked a number of unusual questions. He inquired as to the jagged cuts on the back of her head and asked when she would be getting her stitches out. Until that time, D.M. did not know the cuts on the back of her head were jagged. She had told no one that she had to have stitches, and the stitches were covered by her hair. The defendant also asked questions about the boots D.M. was wearing the night of the rape. The defendant knew that these boots had been taken by police in a search for evidence. Also, D.M. noted that the defendant seemed nervous during the visit.
D.M. stated that she sometimes worked next to the defendant and described the defendant as "weird." She also stated that the defendant was not very intelligent but likes to act as though he is. She noted that the defendant would get upset with her whenever she mentioned letting her former husband come over to see her children.
After the incident, D.M.'s former husband began staying at D.M.'s house to protect her and look after their two children. Two weeks after the incident, when returning to her home at approximately 1 a.m. with her former husband, D.M. noticed the defendant's truck parked around the corner from her home. Her former husband saw an unidentified person run from D.M.'s driveway and gave chase. D.M. drove her truck to where the defendant's truck was parked, in case the unidentified person was the defendant and he tried to get back to his vehicle. D.M.'s former husband was unable to identify the person running from her driveway.
The defendant was interviewed by Detective Thomas Lee of the Sedgwick County Sheriff's Office. Lee stated that he read the defendant his rights and that the defendant indicated that he had already contacted an attorney but agreed to talk with Lee. According to Lee, the defendant denied any involvement in the attack on D.M. When asked why his truck was later at D.M.'s residence, the defendant advised Lee that the truck had been stolen. The defendant provided hair and blood samples and also gave permission for a search of his home. Detective Lee advised the defendant to stay away from D.M.
Within a few days of this first interview, the defendant returned to D.M.'s home, but D.M. refused to let him in. Detective Chris Moore testified that when D.M. reported that the defendant had come to her home, he called in the defendant to talk to him. When asked why he had gone to D.M.'s house even though he had been instructed to stay away, the defendant answered that he did not remember any such instructions. The defendant also stated that he had received a threatening phone call from a female stating, "[Y]ou want to burn in hell you bastard, for what you did to me, and you better start apologizing." According to Moore, the defendant then admitted to raping D.M.
Moore stated that the defendant told him that he was under a lot of pressure at work. According to Moore, the defendant stated that D.M. was always talking at work about her sexual escapades and that she had talked of using sex as a means to get her way. Moore stated that the defendant admitted raping D.M. and then squirting peroxide into her vagina to try to destroy any evidence. The defendant then gave a detailed videotaped confession admitting his involvement.
At trial, William Allen Hamm, DNA analyzer for the KBI, testified on behalf of the State. In the internal and external samples taken from D.M.'s pubic area, he found that the DNA was similar to and matched the banding pattern of the sample submitted by the defendant. He testified that there was a match between the top band and the second band with the defendant's known sample in both instances. According to Hamm, the probability of another person in the Caucasian population having the same banding pattern was 1 in 100,000.
During cross-examination, Hamm admitted that there was a variation in the numerical values between the standard for defendant and the samples but testified that they were within the "match criteria." Hamm stated that he was not aware of the FBI having any published study on American Indian populations and had no data on Pawnee Indians. The defendant's brother later testified that the defendant is one-eighth Pawnee Indian.
The videotape of the defendant's deposition viewed by the jury is contained in the record on appeal. A viewing of the videotape reveals that the defendant's version of events on the evening is remarkably similar to the testimony of the victim. The similarity occurs in the sequence of events, the actions taken against the victim by the assailant, and in the details concerning the position of the parties during the actual rape. The defendant claimed that he related only information learned from the detective prior to giving his confession and from the victim during his conversations with her after the rape. The victim denied that she discussed any of the details of that evening with the defendant, and Detective Moore denied discussing any of these details with the defendant before his confession. The confession provides clear evidence of its voluntary nature and fails to disclose any evidence that the confession was coerced.
The defendant called five witnesses who had known him for a number of years and in some instances for all his life. Each of these witnesses testified that the defendant had a reputation for nonviolence, and one witness testified that she had never known the defendant to even have been in a fight. The defendant took the stand and described the pressure he was under at the time of his videotaped confession. He testified that the detective told him that he could help the defendant if the defendant would just admit that he committed the crime. Detective Moore refuted the defendant's claim. The defendant also stated that the detective told him his confession would make D.M. feel better and like him more. The defendant also stated that he did not own a green jacket that D.M. testified her assailant wore and that he did not throw away any evidence, did not have skunk scent, and did not commit the crime. State v. Foster, 910 P.2d 848, 851-52 (Kan. 1996).
STANDARD OF REVIEW
Because Mr. Foster'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 — FAILURE TO CONDUCT AN EVIDENTIARY HEARING
Petitioner contends the trial court committed error by summarily denying his claims of ineffective assistance of counsel under K.S.A. § 60-1507 without first conducting an evidentiary hearing. Respondent contends this ground does not provide a basis for federal habeas relief. (Doc. 16).
Under the Constitution, there is no requirement that states provide a post-conviction review process. Pennsylvania v. Finley, 481 U.S. 551, 557. Because petitioner's first ground for relief focuses only on the process afforded him in his Kansas post-conviction proceeding and not on the conviction which led to his incarceration, he has failed to state a claim cognizable in a federal habeas proceeding. Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998). Therefore, petitioner is not entitled to relief on ground one.
GROUND TWO — INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner alleges that his trial counsel was ineffective for: (a) failure to obtain duplicate DNA testing to challenge the opinions of the State's DNA expert, (b) failure to timely request authority to obtain independent samples for DNA testing, (c) misrepresenting to petitioner that his request for DNA testing was denied by the court, (d) failure to produce evidence to establish that petitioner's confession was not voluntary, and (e) failure to submit the videotaped confession to a forensic psychiatrist in order to determine whether the confession was voluntary.
Respondent contends petitioner's claims are all based upon tactical and strategic decisions exclusively within counsel's province as an attorney. (Doc. 16).
In affirming the denial of petitioner's K.S.A. § 60-1507 motion, the Kansas Court of Appeals stated the following:
Prior to Foster's criminal trial, a suppression hearing was held, and the trial court found that the videotaped confession was admissible. Foster maintains that evidence he was suggestible, immature, and easily manipulated should have been presented at the suppression hearing and that witnesses should have been called at trial to testify that his demeanor on the videotape was not his usual demeanor. He argues that this would have led to the conclusion that the confession was not voluntary and was the result of law enforcement tactics.
A copy of the videotape is not in the record on appeal but was part of the record in Foster's direct criminal appeal, State v. Foster, 259 Kan. 198, 202, 910 P.2d 848 (1996). In his direct criminal appeal, Foster alleged that the information in his confession was provided by the detective who took the statement and the victim. The court reviewed the videotape and found that the confession "provides clear evidence of its voluntary nature and fails to disclose any evidence that the confession was coerced." 259 Kan. at 203. This is determinative of the claims that Foster makes in this appeal with regard to his confession.
The remainder of Foster's arguments focus on the DNA evidence in his case. A witness for the State testified that DNA in semen taken from the victim matched Foster's DNA. In his K.S.A. 60-1507 motion, Foster contends that his attorney should have called an expert witness to refute the State's DNA expert and should have obtained independent testing of the DNA sample.
Foster retained counsel for his criminal trial and changed attorneys in October or early November of 1992. Some of Foster's arguments appear to apply to the attorney who represented him prior to trial. The attorney who ultimately handled the trial did contact DNA witnesses and filed a motion for independent DNA testing on November 13, 1992. At a hearing on November 20, 1992, the attorney stated that the testing would take 4 to 6 weeks and asked for a continuance of the trial date, which was in a little over a week. The court granted the motion for DNA testing but denied the request for a continuance.
For reasons that are not clear from the record, the trial did not begin until January 1, 1993. It is not known whether anything else was done by defense counsel with respect to DNA testing during that time period. At trial, foster's attorney vigorously cross-examined the State's witness, challenging the DNA testing procedures and the probability percentages used. Foster did not put on his own DNA witness. During closing argument, Foster's attorney maintained that the DNA test was unreliable.
Foster questions the manner in which the DNA evidence implicating him was dealt with at trial. In defending a criminal case, all strategic and tactical decisions are the exclusive providence of the lawyer after consultation with his client. The nature of trial preparation the defense relied upon and decisions as to what witnesses to call rest with the attorney. State v. Ward, 227 Kan. 663, 666 608 P.2d 1351 (1980). Independent DNA testing was clearly considered by Foster's attorney, and the determination was made to handle the DNA test results through cross-examination and argument to the jury. This was a matter for trial counsel to decide. The tactical decisions made do not constitute error and do not support Foster's claims that he was denied effective representation of counsel.
Foster also states that his attorney was ineffective because the attorney misinformed him about the court's DNA ruling. Any such erroneous statement to Foster did not affect the results of the trial and is not a basis for finding ineffective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-67, 694 P.2d 468 (1985).
Foster v. State, No. 79,285 (Kan.App. 1998) (unpublished opinion). 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 Obtain Independent DNA Testing. This court agrees with the Kansas Court of Appeals that trial counsel's decision to challenge the state's DNA evidence through cross-examination rather than independent testing was a sound tactical decision. Although independent DNA testing may have helped petitioner, it could have also harmed him. Satcher v. Pruett, 126 F.3d 561, 573 (4th Cir. 1997). By introducing his own DNA testimony, defense counsel "might have signaled implicit approval of the usefulness of DNA testing, thereby undermining the argument made at trial that DNA testing is inherently unreliable." Id. Thus, petitioner fails to meet the first prong and, in any event, petitioner fails to demonstrate that independent DNA testing would have strengthened his case. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("Speculation about what an expert could have said is not enough to establish prejudice."). Thus, petitioner also fails to satisfy the prejudice prong.
In addition, even if petitioner's assertion that trial counsel erroneously told him that the request for independent DNA testing was denied is true, this error would not have effected the result of the trial. Thus, petitioner's claim fails the prejudice prong of Strickland. 466 U.S. at 695.
Failure to present additional evidence regarding the voluntariness of the confession. Petitioner contends witnesses were available that could have established that petitioner was "emotionally immature, easily exploitable and manipulated by other people with a limited capacity to protect himself." (Doc. 25). Petitioner has attached two evaluations from psychologists which were conducted prior to his trial. (Doc. 25, attachments). Both psychologists concurred that petitioner "is emotionally immature and would be easily exploitable or manipulated by other people." Id. However, in later argument regarding whether petitioner waived the psychologist-patient privilege by filing a notice of intent to rely on the insanity defense, defense counsel noted:
"I have had long discussions with people in my office, and other things, about what putting those psychiatrists or psychologists on the witness stand, what areas that would open up and whether to do that or not. I had specific decisions I made in that regard."
(R. Vol. VI, p. 703). It is clear to the court that counsel's decision to refrain from putting psychologists on the stand was a tactical one.
In addition, it is unlikely that petitioner's confession would have been found involuntary even if the testimony of the psychologists would have been presented. In U.S. v. Huynh, 60 F.3d 1386, 1387 (9th Cir. 1995), a psychiatrist testified that the defendant's childhood experiences had "impressed upon her a survival instinct to `do whatever she was instructed to do' by persons in authority, and that her arrest induced such a state of panic that her Miranda waiver and confession were `not a product of her free choice.'" However, the focus of the Fifth Amendment is on police overreaching, "not on `free choice' in any broader sense of the word." Id. at 1388, citing Colorado v. Connelly, 479 U.S. 157, 170. Because the Fifth Amendment does not "protect a defendant from his own compulsions or internally-applied pressures which are not the product of police action", the psychological testimony would not have changed the outcome of the suppression hearing. United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993). Thus, petitioner also fails to satisfy the prejudice prong of Strickland with respect to this instance of alleged ineffective assistance of counsel. 466 U.S. at 695. Because petitioner has failed to show that his trial counsel was ineffective, relief is denied under ground two.
There is no evidence of police overreaching in this case. The extent of "coercion" in this case was characterized by petitioner at trial as follows: "He said that, I can help you if you just admit that you done it. He said, you know you done it, just say you done it, it will make you feel a lot better, get it off your mind, that to admit you done it would make Diane [the victim] feel a lot better, because you like her and you're worried about her so much about what happened to her. He said it would be a lot better, she will like you more if you admit you done it." (R. Vol. IV, p. 682).
GROUND THREE — SUFFICIENCY OF THE EVIDENCE
Ground three of the petition alleges there was insufficient evidence to convict petitioner of aggravated battery, aggravated kidnaping, rape, aggravated sexual battery, and aggravated robbery. Petitioner's argument on this issue hinges upon the court finding that trial counsel was ineffective for failing to obtain independent DNA evidence and for failing to use psychological testimony to invalidate petitioner's confession. (Doc. 25). Respondent contends petitioner has procedurally defaulted this ground by failing to raise this issue on direct appeal. Although raised in his K.S.A. § 60-1507 motion, the Kansas Court of Appeals refused to review petitioner's sufficiency of the evidence claim because it is not a proper claim for review under K.S.A. § 60-1507.Foster v. State, No. 79,285 (Kan.App. 1998) (unpublished opinion).
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.
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 contends the issue was raised because his K.S.A. § 60-1507 motion contained the following statement:
All of the grounds raised by movant in paragraph 10 have not been presented previously to any court, state or federal, but should have been addressed either prior to trial, during pretrial motions, during the trial or posttrial motion or on appeal, and thereafter, constitute ineffective assistance of counsel, either trial counsel or appellate counsel.
Doc. 25, p. 15.
In order to satisfy the exhaustion requirement, an issue must be fairly presented to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). A claim has been fairly presented if the substance of the claim was raised in state court. Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997). The broad assertion contained in petitioner's § 60-1507 motion is not a substantive presentation of an ineffective assistance of appellate counsel claim. Therefore, petitioner cannot use his ineffective assistance of appellate counsel claim to establish cause for his procedural default. Relief must be denied as to ground three. RECOMMENDATION IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this report and recommendation terminates the referral of this case to the undersigned.