Opinion
99-3156-DES
July 6, 2001
PROCEDURAL HISTORY
In 1987, petitioner was convicted in Geary County of possession of methamphetamine, possession of marijuana and possession of cocaine. His convictions were affirmed in State v. Graham, 244 Kan. 194 (1989).
On January 11, 1995, petitioner filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Graham v. Hannigan, 1995 WL 40076 (D.Kan. 1995). The facts and procedural history relevant to that petition were found by the court to be substantially as follows:
Junction City police officer James Nixon, aware a bench warrant had been issued for petitioner's arrest, arrested petitioner for driving a vehicle with a suspended license in Junction City, Kansas, on November 6, 1986. The car was registered to Alan Marks. Nixon found cocaine, methamphetamines and marijuana on petitioner's person and in the vehicle driven by him. Petitioner raises no issue concerning the legality of the stop, arrest or search.
. . . .
Nixon and two other witnesses testified for the state's case-in-chief concerning the arrest. A motion hearing pursuant to K.S.A. 60-455 had been held on March 2, 1987, regarding the admissibility of two previous convictions for possession of narcotics. The court ruled them admissible and a stipulation as to the convictions was admitted at trial.
The state attempted to admit inculpatory statements made by the defendant/petitioner to police during questioning on an unrelated case. The court found that the state failed to prove voluntariness as guided by dictates of Miranda v. Arizona, 384 U.S. 436 (1966). At the hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964), the court ruled the statements inadmissible for the case-in-chief.
The petitioner testified on his own behalf that drugs found in the clothing and vehicle did not belong to him . . . .
The state offered as rebuttal the testimony of his prior defense attorney, David R. Platt. Platt testified petitioner used essentially the same defense in a preliminary hearing conducted in a prior narcotics case. (The case eventually culminated in a finding of guilt by a plea.) Another hearing was conducted regarding the rebuttal admissibility of his previously excluded statements to police. The court allowed use of part of the proffered statement as proper rebuttal evidence. The court ruled that despite a Miranda violation, that a portion of the statement was sufficiently reliable for us. Officer A.B. Farrow testified to the effect that petitioner told him he knew Nixon would eventually catch him with drugs.
[T]he jury [found] petitioner guilty of possession of methamphetamine, possession of marijuana and possession of cocaine.
On direct appeal to the Kansas Supreme Court, petitioner raised the following contentions: (1) abuse of discretion because of an incomplete definition of "possession"; (2) erroneous admission of two prior convictions; (3) abuse of discretion to allow rebuttal testimony; (4) insufficiency of the evidence; and (5) erroneously allowing Farrow to testify concerning statements made by petitioner. The Kansas Supreme Court affirmed the trial court's ruling and later denied a rehearing on March 27, 1989. State of Kansas v. Ronald Graham, 244 Kan. 194 (1989).
Petitioner filed a motion pursuant to K.S.A. 60-1507 August 23, 1990. Petitioner made three contentions: (1) ineffective assistance of counsel for refusing to allow him to testify in surrebuttal and for informing him that the Arkansas conviction could not be used to enhance his sentence; (2) ineffective assistance of counsel for failure to investigate the alleged dismissal of case No. CR-85-48 of the state of Arkansas (prior narcotics guilty plea used to enhance petitioner's conviction in present case; and (3) that the Arkansas conviction was void, so it could not be used to enhance his sentence. After an evidentiary hearing, the court denied the K.S.A. 60-1507 motion.
Graham appealed the denial of the K.S.A. 60-1507 motion to the Court of Appeals of the State of Kansas. Finding no error, the Appeals Court of the State of Kansas affirmed the district court's decision. Ronald Graham v. State of Kansas, unpublished opinion No. 66,061, 1-6. The Kansas Supreme Court denied Graham's petition for review on January 28, 1992.
1995 WL 40076 at *1-2.
The claims raised within the first § 2254 petition were reviewed on the merits and denied. Specifically, this court (1) rejected petitioner's challenge to jury instructions; (2) rejected petitioner's challenge pursuant to the Fifth and Fourteenth Amendments that the admission and rebuttal testimony concerning his statement given to officer Farrow while petitioner was in a detention facility was erroneously admitted; (3) rejected petitioner's claim that counsel was ineffective in persuading petitioner not to testify, for failing to investigate and/or contest the state's use of Arkansas narcotics conviction based on an uncounseled guilty plea, or for failing to prevent his Arkansas conviction from being used as an element raising his charge to a class A felony; and (4) rejected the claim that any use of the Arkansas conviction violated the mandates of Gideon v. Wainright, 372 U.S. 335 (1963). Disposition of these issues was affirmed. Graham v. Hannigan, 53 F.3d 342 (10th Cir. 1995) (table).
On January 26, 1996, petitioner filed his second 60-1507 action in Geary County District Court, alleging ineffective assistance of counsel. An evidentiary hearing was held and petitioner's trial counsel testified concerning his representation of petitioner. Based upon counsel's testimony, the state District Court concluded that counsel's representation constituted ineffective assistance of counsel because counsel (1) failed to present issues surrounding the petitioner's uncounseled guilty plea and (2) failed to request a hearing or make continuing objections concerning the voluntariness of the custodial statement petitioner made to officer Farrow. The court granted petitioner a new trial. See Graham v. State, 263 Kan. 742, 750-752 (1998) (reciting factual findings and legal conclusions of the district judge). The state appealed.
The state district court concluded that petitioner's trial counsel did not testify at the first 1507 hearing because counsel appointed for the initial 1507 proceedings was ineffective in failing to have the necessary witnesses present to testify.
The Kansas Supreme Court reviewed the ineffective assistance of counsel claim pursuant to the standards of Strickland v. Washington, 466 U.S. 668 (1984). The Kansas Supreme Court reversed the district court's finding that trial counsel had been ineffective concerning admission of the statements to officer Farrow and concluded the officer's testimony was proper rebuttal testimony. Graham, 263 Kan. at 756. With respect to the admission of petitioner's uncounseled Arkansas conviction, the Kansas Supreme Court concluded that counsel's conduct did constitute deficient performance but did not prejudice the defense so as to deprive petitioner of a fair trial. Conversely, the Supreme Court found this failure potentially prejudicial to the sentence imposed and remanded the case to the District Court to determine whether admission of the prior Arkansas conviction was improperly considered to enhance petitioner's sentence. Id., 263 Kan. at 756-758.
On May 4, 1998 petitioner was resentenced. His sentence was suspended and he was placed on probation for one year.
On May 4, 1999, petitioner filed the subject petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising the following claims: (1) ineffective assistance of counsel for failure to raise the issue of the voluntariness of the statement made to officer Farrow and introduced by the state in rebuttal and (2) ineffective assistance of counsel for failure to challenge admission of the uncounseled Arkansas conviction at trial and sentencing. The respondent has filed a motion to dismiss the petition as successive (Doc. 8) and petitioner opposes the motion (Doc. 9).
DISCUSSION
The issue presented is whether the petition filed in this action should be treated as a second or successive petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Stated very simply, AEDPA precludes the filing of a new claim within a second or successive habeas petition unless the petitioner first obtains the necessary authorization from an appropriate federal Court of Appeals. 28 U.S.C. § 2244(b)(3)(A). AEDPA also provides for dismissal of any claim which was presented in a previous § 2254 petition. 28 U.S.C. § 2244(b)(1).
Because AEDPA does not define the term "second or successive habeas corpus application," the courts have reviewed the question under the "'abuse of the writ' standard in effect before AEDPA was enacted." Reeves v. Little, 120 F.3d 1136, 1138 (10th Cir. 1997); see also Felker v. Turpin, 518 U.S. 651, 664 (1996) ("the new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice 'abuse of the writ.'"). The abuse of the writ doctrine requires dismissal of a petition which "'abusively' asserts new ground unjustifiably omitted from a prior petition." Watkins v. Champion, 39 F.3d 273, 275 (10th Cir. 1994).
Petitioner claims that because he could obtain review of the second state habeas proceedings only after the state court allowed and considered the claims raised in his second 1507 application, the claims should not be considered successive. Federal courts do not serve as a reviewing court for state appellate court decisions. While the state court is certainly free to consider a successive 1507 application, their decision to do so does not dictate federal court review.
While there are cases which support petitioner's general argument that a petition is not successive if it seeks review of issues arising out of a resentencing, petitioner does not challenge the one-year probation he received upon his resentencing. Rather, petitioner raises issues attacking his original conviction.
See Espisito v. United States, 135 F.3d 111 (2nd Cir. 1997).
Galtieri v. United States, 128 F.3d 33 (2nd Cir. 1997), involved circumstances similar to those presented here. Galtieri filed a § 2255 petition to vacate his sentence. As a result, the trial court reduced the term of Galtieri's supervised release from a life time term to a five-year term. Because Galtieri's first 2255 petition was successful and resulted in a modification of his sentence, Galtieri argued the second 2255 petition which sought to vacate the amended sentence should be considered a first 2255 petition with respect to the amended sentence regardless of the accompanying challenge to the underlying conviction. The court rejected this all-encompassing approach:
That approach, however, would permit every defendant who succeeds in having any component of his sentence modified to bring a renewed challenge to his conviction and to the unamended components of his original sentence, raising grounds that were either available for presentation on the first petition or even specifically rejected on that petition. Congress, in enacting § 105 and 106(b) to sharply restrict repetitive habeas petitions, could not have wanted such an indulgent result.
We therefore conclude that whenever a first 2255 petition succeeds in having a sentence amended, a subsequent 2255 petition will be regarded as a 'first' petition only to the extent that it seeks to vacate the new, amended component of the sentence, and will be regarded as a 'second' petition to the extent that it challenges the underlying conviction or seeks to vacate any component of the original sentence that was not amended.128 F.3d at 37-38. As discussed below, both of the claims presented herein challenge petitioner's underlying conviction and, as such, the petition is successive.
In this § 2254 petition, petitioner claims his trial counsel was ineffective for failing to raise the voluntariness of his statement to officer Farrow. The admissibility of this statement to officer Farrow was also an issue in petitioner's first § 2254 petition, although it was raised not as an ineffective assistance of counsel claim, but as a violation of petitioner's constitutional rights under the Fifth and Fourteenth Amendments. This specific ineffective assistance of trial counsel claim could have been raised within his initial § 2254 petition along with his other claims of ineffective counsel.
Petitioner's second claim presented within this § 2254 petition is that counsel was ineffective for failing to raise the issue of the uncounseled Arkansas conviction. This precise issue was presented in petitioner's first § 2254 petition as follows: "petitioner next contends trial counsel was ineffective for failing to investigate and/or contest the state's use of an Arkansas narcotics conviction based on an uncounseled guilty plea." (1995 WL 40076 at *6). Petitioner is not challenging the sentence imposed upon remand but, rather, his underlying conviction.
Because this is a successive application for habeas corpus relief, and because petitioner has not sought the necessary authorization from the United States Court of Appeals for the Tenth Circuit before commencing this action, this matter should be transferred to the Court of Appeals for authorization to proceed.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be transferred to the United States Court of Appeals for the Tenth Circuit for authorization to pursue a successive application for habeas corpus relief.
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 objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
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).
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.