Opinion
Case No. 02-3349-JTM.
November 5, 2004
MEMORANDUM AND ORDER
This matter comes before the court on petitioner's writ of habeas corpus (Dkt. No. 1). Petitioner also asks the court to decide the following: 1) Motion to Strike Respondents' Answer and Return (Dkt. No. 27); 2) Motion to Produce Relevant Portions of the Record (Dkt. No. 30); 3) Motion for Evidentiary Hearings (Dkt. No. 29); and 4) Motion for Summary Judgment (Dkt. No. 31). The court denies all of petitioner's motions, except the motion to produce documents which the court finds moot.
I. FACTUAL BACKGROUND
On October 23, 1995, two-year-old Cain Baker died at Stormont-Vail Hospital from internal bleeding caused by blunt trauma. A jury convicted Glenn A. Heath, Jr., the live-in boyfriend of Cain's mother, of first-degree felony murder and abuse of a child. Heath testified at trial and denied striking or otherwise hurting the child.
On October 21, 1995, petitioner made a 911 call to the Topeka Fire Department because Cain was not breathing and without a pulse. Firefighter Christopher Cervantez testified that upon his arrival he observed Cain lying on the couch in the living room with petitioner standing next to Cain. No others were in the room. Cervantez noted that Cain was unresponsive, his pulse was slow, weak and thready, and his respiration was weak and shallow. When asked what had happened to the child and about the bruises on the child, petitioner told Cervantez that Cain had been feeling ill with flu-like symptoms. Petitioner said he had laid Cain down approximately ten minutes before Cervantez arrived. When petitioner went to check on Cain and found that he had vomited and was not breathing, he picked Cain up and shook him to get him breathing again. Petitioner then took Cain to the bathroom to clean him up. Cervantez noticed bruises on Cain's face, below the left eye and to the right of the right eye. Cervantez asked petitioner how Cain received those bruises. Petitioner informed him that on the way to taking Cain to the bathroom to clean him up, he had bumped Cain's head against the wall.
Cain was transported to Stormont-Vail by Medevac. At the hospital, Dr. James Hamilton, a pediatric neurologist, was called in to consult Dr. F.E. Patrick, a pediatrician, in Cain's treatment. Cain was not breathing on his own. He was very pale and his pupils were dilated. From his pale appearance and collapsed veins, Dr. Hamilton knew that Cain had suffered a serious loss of blood. In addition, his blood temperature was very low. From these indicators, Dr. Hamilton estimated that Cain had received the fatal injury approximately four to eighteen hours earlier.
The doctors discovered a quarter-sized bruise on Cain's abdomen. The combination of the bruise and the bloating of his abdomen indicated to the experts that Cain had sustained a blunt trauma injury and had extensive internal bleeding. Upon taking Cain into surgery, doctors found a hole in the mesentery — the thin membrane that holds the intestines in place and protects them. Dr. Hamilton indicated that the amount of damage done to Cain's abdomen was equivalent to Cain having fallen off a two-story building onto the leg of a chair, or other blunt object. Cain had lost about half of the blood in his body into his abdominal cavity. The loss of blood from the rest of his body and concentration in his abdomen was causing all of the visible symptoms, including vomiting, difficulty breathing, loss of body temperature, and loss of consciousness. Doctors performed two surgeries but were unsuccessful in bringing Cain's body temperature back up. Cain succumbed to his injuries and died on Monday, October 23, 1995, without ever regaining consciousness.
Corporal Scott Conklin of the Topeka Police Department was dispatched to the hospital to investigate a potential child abuse case. Conklin looked Cain over, and it was pointed out by the treating nurse that Cain had numerous bruises. Conklin then spoke briefly with petitioner and Rhonda Pardekooper, Cain's mother and petitioner's girlfriend. Pardekooper stated that she had worked from 11 a.m. to 8 p.m. on Friday, October 20. She saw Cain briefly and spoke with him when petitioner came to pick her up from work. On Saturday morning, Pardekooper said she did not see Cain before she left for work at 7 a.m. Cain was still sleeping. She stated that Cain was in good health as far as she knew when she saw him the previous night.
In talking with Conklin, petitioner related that he got up about 8:30 a.m. on Saturday, October 21, and gave Cain some cereal. Cain began throwing up while eating. Cain threw up two more times, once while in the bath where petitioner was cleaning him up, and again while being dried off. Petitioner called Pardekooper to let her know that Cain was throwing up, and she told him to call Ask-A-Nurse. Petitioner stated that Cain told him that he was tired, at which time petitioner gave Cain some Tylenol and some old amoxicillin and put him to bed. Approximately 20 to 30 minutes later, petitioner checked on Cain and found him lying in vomit, not breathing and unable to wake up. At that point, petitioner called 911. Petitioner stated that, other than the vomiting, Cain did not have any signs of being sick. Conklin asked for and received written permission from both petitioner and Pardekooper to search their apartment. Conklin testified that he retrieved from the child's room a rocking chair and footstool, both of which were overturned.
On the afternoon of Saturday, October 21, Detective Randy Mills from the Topeka Police Department was contacted in reference to this case. Mills spoke with Drs. Patrick and Hamilton who indicated that Cain had received a blunt force injury of such severity that he could not have inflicted it on himself unless he fell out of a second story window. Mills contacted Pardekooper and petitioner at the hospital, and explained to them that he needed to talk to them, preferably at the police station. Detective Mills offered to drive petitioner and Pardekooper to the station. At the station, Mills interviewed Pardekooper first while petitioner waited in the lobby.
Pardekooper told Mills that she had the day off work on Thursday the 19th, and that she spent the day with Cain. She did not notice anything unusual, other than Cain having diarrhea a couple of times. On Friday, Cain stayed with a babysitter while Pardekooper and petitioner were at work. Petitioner picked Cain up at the babysitter's house on Friday evening, and took care of him for a couple of hours while Pardekooper was at work. Cain and petitioner picked up Pardekooper after work. The three went home, and Cain was put to bed. On Saturday the 21st, Pardekooper told Mills that she received a number of phone calls from petitioner saying that Cain was throwing up. He was asking her what to do. She received one last phone call from petitioner after he called 911.
Detective Mills next spoke with petitioner. Petitioner told Mills that on Saturday morning he and Cain took Pardekooper to work. Pardekooper, however, had stated that Cain was left sleeping while petitioner took her to work. When he got back to the apartment, petitioner fixed Cain some cereal and juice. Cain started eating a little bit, and then he threw up. Petitioner cleaned up the mess, and Cain got sick and threw up a second time. Petitioner took Cain into the bathroom to clean him up, accidently bumping Cain's head on the sink. After he cleaned Cain up, he said he put Cain into bed. Petitioner fixed himself something to eat and checked on Cain about twenty minutes later only to find him whining and whimpering quite a bit. Petitioner stated that he took Cain's temperature and that it read 99.9 degrees. Cain eventually stopped breathing and petitioner called 911.
After petitioner completed his story, Mills said he did not believe him and that it was in Cain's best interest that they get to the truth. Petitioner told Mills that he would tell him the truth. During the second telling of his story, petitioner stated that Cain had gotten sick while eating cereal, and twice he had cleaned it up. Cain was dirty, so he took him into the bathroom and cleaned Cain up there. As Cain left the bathroom, Cain got sick again and threw up. Petitioner said he got frustrated and shoved Cain in the back with both hands. Cain went across his own bedroom and fell on a small rocking chair that was in the room. After hearing this version of events, Mills brought Detective Caviness into the room and read petitioner his Miranda rights. Petitioner waived his Miranda rights and provided a statement reiterating what was said earlier on videotape.
After the interviews, the detectives brought Pardekooper into the interrogation room at petitioner's request. Petitioner apologized for getting frustrated. Pardekooper cut him off and told him they should have gotten an attorney. At 7:35 p.m., the police arrested petitioner based upon his conversation with Mills.
An autopsy was performed which showed, among other things, about twenty-seven separate bruises, of various ages, on Cain's body. The coroner, Dr. George Thomas, determined that Cain had two fractured ribs, which he believed had been broken before the medical procedures were performed. The injury to Cain's abdomen was in the midline, above the naval, and caused a perforating laceration of the mesentery. According to Dr. Thomas, the blunt trauma to Cain's abdomen would have caused internal bleeding, and the blood loss would have caused shock, and eventually death. The penetrating injury to the abdomen was inflicted with sufficient force that it resulted in injuries of the type caused by a car wreck. The actual cause of death was hemoperitoneum, which is blood in the abdominal cavity, due to a laceration in the mesentery caused by blunt trauma to the abdomen. Dr. Thomas enumerated approximately 33 bruises, scars and injuries that he documented during Cain's autopsy. This documentation, along with his knowledge of Cain's history of medical care and inconsistencies of injury versus the history provided by the petitioner, led Dr. Thomas to conclude that Cain suffered from battered child syndrome.
II. PROCEDURAL HISTORY
On May 16, 1996, a jury convicted petitioner Glen A. Heath, Jr., of first degree felony murder and abuse of a child in the beating of Cain Baker, the child of petitioner's then-girlfriend Rhonda Pardekooper. The District Court of Shawnee County, Kansas, sentenced petitioner to a mandatory life sentence on the count of felony murder and to a consecutive term of 68 months on the count of abuse of a child. On direct appeal to the Kansas Supreme Court, petitioner raised the following issues: 1) his convictions of both felony murder and the underlying felony of abuse of a child constituted double jeopardy and violated his due process rights; 2) the trial court erred in failing to instruct the jury on the lesser included offenses of involuntary manslaughter, child endangerment, and battery; 3) the trial court erred in allowing the county coroner to testify regarding battered child syndrome; 4) the trial court erred in admitting evidence of prior abuse of Cain; 5) petitioner is entitled to a new trial based upon prosecutorial misconduct; 6) the trial court erred in failing to remove two potential jurors from the panel for cause; 7) the trial court erred in permitting Cain's mother to be present during the trial; 8) the trial court erred in failing to suppress the defendant's statements to detectives; 9) the trial court erred in imposing a departure sentence for abuse of a child and running such sentence consecutive to the sentence for first-degree felony murder; and 10) the cumulative trial errors denied petitioner a fair trial. The Kansas Supreme Court affirmed in part and reversed in part petitioner's conviction. The court found that the offense of child abuse merged with the offense of felony murder. State v. Heath, 264 Kan. 557, 957 P.2d 449 (Kan. 1998). Thus, to avoid violation of the constitutional prohibition against double jeopardy, the court reversed petitioner's conviction for child abuse. Id. at 592, 957 P.2d at 473. On all other issues, the court found either no additional errors occurred or no prejudice was established. Id. at 592, 957 P.2d at 473. Thus, the court ruled petitioner's right to fair trial was not impaired. Id. at 592, 957 P.2d at 473.
On May 7, 1999, petitioner filed for post-conviction relief pursuant to K.S.A. 60-1507 in District Court of Shawnee County, Kansas. Petitioner alleged that prosecutorial misconduct and ineffective assistance of counsel violated his right to a fair trial. District Judge Eric Rosen denied the request for relief on October 20, 1999. On August 9, 2000, petitioner filed a second post-conviction motion pursuant to K.S.A. 60-1507 in District Court of Shawnee County, Kansas. Petitioner again argued ineffective assistance of counsel and prosecutorial misconduct, and judge Eric Rosen again denied petitioner's request for relief on November 13, 2000. On March 28, 2001, the Kansas Court of Appeals consolidated petitioner's post-conviction appeals for review before the appellate courts. On May 24, 2002, the Kansas Court of Appeals affirmed the district court's denial of post-conviction relief. Heath v. State, 47 P.3d 430 (Kan.App. May 24, 2002). Petitioner then moved for a collateral appeal with the Kansas Supreme Court but was denied review on September 25, 2002.
Having exhausted his remedies in state court, petitioner filed this writ of habeas corpus in the U.S. District Court, District of Kansas, pursuant to 28 U.S.C. § 2254 on October 15, 2002. Petitioner raised the same arguments he had raised on direct appeal to the Kansas Supreme Court with the exception of issue nine which had already been reversed. Additionally, petitioner argued the District Court of Shawnee County, Kansas, had erred in its denial of his two K.S.A. 60-1507 motions and claimed: 1) prosecutorial misconduct; 2) erroneous admission of evidence resulting in structural error; 3) erroneous jury instructions; and 4) ineffective assistance of counsel.
III. POST-WRIT MOTIONS
A. Striking Respondents' Answer and Production of Record
As a preliminary matter, the court will review the post-writ motions filed by the petitioner. First, petitioner in his Motion to Strike (Dkt. No. 27) argues that the respondents' answer and return was a "sham" and "false." The court finds no grounds for striking the answer and therefore denies petitioner's motion.
The court finds petitioner's Motion to Produce Relevant Portions of the Record (Dkt. No. 30) moot. Respondents state that they provided the requested records in compliance with the court order of February 4, 2003. Thus, the court finds petitioner's request moot.
B. Evidentiary Hearing
The court finds petitioner's Motion for Evidentiary Hearings (Dkt. No. 29) also without merit. For petitions filed after the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), the court requires compliance with 28 U.S.C. § 2254(e)(2), which provides:
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.
Consequently, a petitioner must clear the initial hurdle of § 2254(e)(2) before an analysis into whether evidentiary hearings are necessary. See, e.g., Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). If the petitioner has failed to develop a factual basis for the claim, then the court must deny evidentiary hearing. Id. See also 28 U.S.C. § 2254(e)(2). However, if there is a developed factual basis for a claim, then the court may consider whether a hearing is appropriate. Miller, 161 F.3d at 1253. For an evidentiary hearing in a federal habeas action, the petitioner must make allegations which, if proved, would entitle him to relief. Medina v. Barnes, 71 F.3d 363, 367 (10th Cir. 1995). In determining whether a hearing is appropriate where a state court has denied such a hearing, the court will look to the standards set forth in 28 U.S.C. § 2254(d)(1). See Miller, 161 F.3d at 1253. The court looks at whether the conviction was "contrary to" or an "unreasonable application" of existing federal law or the Constitution.Miller, 161 F.3d at 1253.
Applied here, petitioner has developed the factual basis of a claim in state court proceedings and was denied evidentiary hearing by the state court. As a result, the court inquires as to whether the evidentiary hearing is appropriate. Having thoroughly reviewed the allegations, the court does not find either the "contrary to" or "unreasonable application" standard met. Thus, the court denies petitioner's request for evidentiary hearing.
C. Summary Judgment
Finally, for the reasons stated herein for the denial of the writ of habeas corpus, the court denies petitioner's Motion for Summary Judgment (Dkt. No. 31). Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A review of the record indicates that summary judgment in favor of the petitioner is not appropriate. Although petitioner makes a case for various types of abuses, these do not rise to the standard required to grant the petition for writ of habeas corpus. Thus, the court denies petitioner's motion.
IV. STANDARD OF REVIEW FOR FEDERAL WRIT OF HABEAS
For petitions filed after April 24, 1996, the court applies the federal habeas statute as amended by the AEDPA. See Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003). The Act places new constraints on federal review of petitions for writ of habeas corpus. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Where a state court has adjudicated a petitioner's claims on the merits, the application for federal habeas will be granted only if the petitioner establishes one of the following: 1) the state court 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 2) that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). In other words, under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law or decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts.See Williams, 529 U.S. at 412-13. Under the "unreasonable application" clause, a federal court may grant the writ if the state court unreasonably applied the governing legal principle to the facts of the petitioner's case. Williams, 529 U.S. at 413. The court must determine whether the application was objectively unreasonable. Id. at 409, 120 S.Ct. at 1521.
The court presumes the state court made the correct factual determinations, and petitioner bears the burden of rebutting this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002); Martinez, 330 F.3d at 1262. This presumption does not extend to legal determinations or to mixed questions of law and fact. Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000). If the state court employed the wrong legal standard in deciding the merits of the federal issue, the court will not apply a deferential standard of review. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003).
Since petitioner proceeds pro se, the court construes his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991).
V. ANALYSIS OF GROUNDS FOR WRIT OF HABEAS
A. Double Jeopardy
Petitioner first argues that he cannot be convicted of both felony murder and the underlying felony of abuse of a child because these convictions together violate double jeopardy and his right to due process. On direct appeal, the Kansas Supreme Court agreed and reversed his conviction on double jeopardy grounds. Accordingly, petitioner's consecutive sentence for child abuse was vacated. Thus, the court finds petitioner's first allegation moot.
B. Lesser Included Offenses
Petitioner argues that the trial court erred in failing to instruct the jury on involuntary manslaughter, child endangerment, and simple battery as lesser included offenses of felony murder and child abuse. The Tenth Circuit holds that a state court's failure to instruct on lesser included offenses in a non-capital case does not entitle the petitioner to habeas relief. See Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993), cert. denied, 510 U.S. 1120, 114 S.Ct. 1074, 127 L.Ed.2d 392 (1994). The court will intervene only when the errors have the effect of rendering a trial so fundamentally unfair as to deny petitioner a fair trial. Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995) citing Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir. 1990), cert. denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 402 (1990). Petitioner bears a great burden because he must demonstrate that the erroneous instruction was so prejudicial it will support a collateral attack on the constitutional validity of the state court's judgment. See Lujan v. Tansy, 2 F.3d at 1035; Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977). The court is less likely to find an omission or incomplete instruction prejudicial than a misstatement of the law. Henderson, 431 U.S. 155, 94 S.Ct. at 404.
Based on the this circuit's precedent, this court cannot require that an instruction for lesser included offenses be given where the petitioner was charged for a non-capital offense. The Kansas Supreme Court did not find instructions on lesser-included offenses necessary. See State v. Heath, 264 Kan. 557, 572, 957 P.2d 449, 461 (1998). Since petitioner has not met his burden of showing that the errors amounted to a fundamentally unfair trial, the court will not disturb the trial court decision.
C. Battered Child Syndrome
Petitioner contends that the trial court erred in its refusal to hold a Frye hearing for the battered child syndrome evidence. On direct appeal to the Kansas Supreme Court, he argued that: 1) the witness was not a qualified expert; 2) the testimony was not necessarily helpful to the jury; 3) the testimony invaded the fact-finding province of the jury.
Determining the admissibility of evidence is generally left to the province of the state court as a state evidentiary matter.Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). A federal court will intervene only where such evidentiary rulings rendered the trial so fundamentally unfair that it constituted a denial of a federal constitutional right. Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001);Humphreys v. Gibson, 261 F.3d 1016, 1022 (10th Cir. 2001). InEstelle, the Supreme Court reviewed whether admitting evidence of battered child syndrome violated due process. Estelle, 502 U.S. at 69, 112 S.Ct. 475, 116 L.Ed.2d 385. Although the evidence had not been directly linked to the petitioner, the Court found that evidence of prior injuries was relevant to the question of intent with which the person who caused the injuries acted. Id. at 69, 112 S.Ct. 475, 116 L.Ed.2d 385. The evidence helped eliminate the possibility of accident as the cause for injury. Id. at 69, 112 S.Ct. 475, 116 L.Ed.2d 385. Even though the defendant had not raised the argument that the death was accidental, the court found the prosecution was free to prove the essential elements of an offense as it deemed appropriate. Id. at 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385. Since the evidence was probative, the Supreme Court held that there was no violation of due process rights with the admission of this evidence. Id. at 69, 112 S.Ct. 475, 116 L.Ed.2d 385.
The court finds Estelle particularly responsive to petitioner's arguments against admitting evidence of battered child syndrome. As the record establishes, the Kansas Supreme Court held that battered child syndrome had gained acceptance as reliable, and did not require a Frye hearing. State v. Heath, 264 Kan. at 577-78. While this may have been the first time Kansas courts have addressed this issue, it is not the only court to come to this conclusion. See United States v. Boise, 916 F.2d 497, 503-04 (9th Cir. 1990). Since the state court affirmed the trial court's approach to battered child syndrome, this court will not disturb the state evidentiary finding. As in Estelle, the evidentiary ruling in this case did not deny petitioner a fair trial, and the court finds no federal or constitutional grounds to intervene with state proceedings.
D. Prosecutorial Misconduct
Petitioner argues four grounds for prosecutorial misconduct, including: 1) inquiries into prior instances of abuse; 2) inquiries into statements of Cain; 3) inquiries to elicit testimony about petitioner's bad temper; and 4) remarks in closing arguments that petitioner had caused old injuries on Cain's body.
Since federal review is limited to the narrow issue of due process, the court looks to the fairness of the trial rather than the culpability of the prosecutor. Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000) (citing Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)); see also Jones v. Gibson, 206 F.3d 946, 958-959 (10th Cir. 2000). Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Even if the court condemns the prosecutor's statements, a due process violation will not arise unless the petitioner shows conduct so glaring as to deem the entire proceeding unfair. See Darden, 477 U.S. at 181. Relief will be granted where the misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. at 81 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). For post-AEDPA writs, the federal court must give heightened deference to the state's determination of petitioner's claims of misconduct. See Macias v. Makowski, 291 F.3d 447, 453-54 (6th Cir. 2002). The court focuses its attention not on whether the state court reached the right outcome but rather whether the state court unreasonably applied established federal law. Id.
Applying this standard, petitioner must satisfy a heavy burden. Federal review of the record indicates that the prosecutorial misconduct was not of the type that the trial court could not remedy. Petitioner's allegations as to prior abuse are merely a reiteration of his arguments as to the introduction of the evidence on battered child syndrome. This court has already concluded that this evidence could be introduced based on the Supreme Court's ruling in Estelle, 502 U.S. at 62, 112 S.Ct. 475, 116 L.Ed.2d 385. As to the remaining three allegations of misconduct, the court finds that defense's objection and trial court's actions were sufficient to curb any prejudice to the defendant. The court finds no prejudicial error as to alleged violations of the motions in limine. Petitioner's assertion that the numerous statements created misconduct such that this court must intervene was discounted by the Kansas Supreme Court. This court does not find a need to disturb the state court rulings.
E. Refusal to Strike Jurors for Cause
Petitioner alleges that the trial court erred in failing to remove for cause two potential jurors, Paul Honaker and Sylvia Farmer. As petitioner notes, the Supreme Court has held that the right to peremptory strikes is not a constitutional right but is simply one means to achieve the constitutionally required end of an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 88 108 S.Ct. 2273, 2278 101 L.Ed.2d 80 (1988).
Petitioner claims that he was deprived of the ability to remove two jurors by using his peremptory challenges. He argues that Kansas law specifies the number of peremptory strikes which a defendant enjoys, and thus the trial court violated his statutory right. See K.S.A. 22-3412. Merely because defendant had to use his peremptory challenges to achieve an impartial jury does not amount to a violation of the Sixth Amendment. This court finds no prejudicial error and no federal or constitutional violation. Thus, the court will not disturb the trial court ruling.
F. Failure to Sequester Rhonda Pardekooper
Petitioner argues that the trial court erred in refusing to sequester Rhonda Pardekooper, the mother of Cain Baker. He alleges a violation of his Sixth and Fourteenth Amendment rights as well as his statutory right under K.S.A. 22-2903. This court will not review the violation of state law because of the federal limits of habeas review. See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). As to the constitutional violation, the court notes that petitioner has not shown that Pardekooper's presence in the courtroom prejudiced his trial. See State v. Heath, 264 Kan. 557, 590, 957 P.2d 449, 471-472 (Kan. 1998). The Kansas Supreme Court found that Pardekooper's testimony was consistent with her earlier statements to the police and Detective Mills. This court agrees and finds no violations warranting federal intervention.
G. Failure to Suppress Defendant's Statements
Petitioner claims that Detective Mills' failure to Mirandize him should have led the trial court to suppress these statements. The Supreme Court has held that the prosecutor may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. However, where a person gives a statement without Miranda warnings and then voluntarily repeats the same statement after Miranda warnings, the second statement is deemed admissible, despite possible Miranda violations. Oregon v. Elstad, 470 U.S. 298, 298, 105 S.Ct. 1285, 1287, 84 L.Ed.2d 222 (1985). Admissibility of the second statement turns solely on whether it was knowingly and voluntarily made. See Elstad, 470 U.S. at 309, 105 S.Ct. at 1293, 84 L.Ed.2d 222.
Based on these cases, the trial court could admit petitioner's statements whether or not petitioner was found to be in custody. The Kansas Supreme Court analyzed the facts to conclude that petitioner was not in custody. He voluntarily went with Detective Mills to the police station and was not under arrest during the questioning. After Detective Mills told petitioner that he did not believe his first version of events, petitioner admitted he had pushed Cain out of frustration, causing the child to hit a rocking chair. At this time, Detective Mills advised petitioner of his Miranda rights. Petitioner waived these rights and retold his story. Under these circumstances, even if the court determined petitioner to be in custody, Elstad permits the court to admit the second statements since they were made knowingly and voluntarily. Therefore, the court finds no error in the trial court ruling.
H. Denial of Petitioner's K.S.A. 60-1507 Motions
Petitioner alleges that the trial court erred in denying his K.S.A. 60-1507 motions. Petitioner claims: 1) prosecutorial misconduct; 2) structural error from erroneous admission of evidence; 3) erroneous jury instructions; 4) misstatement of applicable law; and 5) ineffective assistance of counsel.
Petitioner's first two claims reiterate arguments he has already made, so the court will not repeat its analysis here.See supra Section III.C, D (discussing admissibility of evidence of prior abuse and battered child syndrome).
Petitioner's next two claims are not reviewable. Procedural default will bar federal habeas review of an unexhausted claim.Harris v. Champion, 48 F.3d 1127, 1131 n. 3 (10th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). Allegations of improper jury instructions and misstatements of applicable law should be brought on direct appeal in state court for the claims to be considered now by the federal court. See, e.g., Johnson v. State, 271 Kan. 534, 24 P.3d 92 (Kan. 2001). When such a claim has not been properly brought, a federal court may only review petitioner's defaulted claim if he can: 1) show cause for his default and actual prejudice as a result of the alleged violation of federal law; or 2) demonstrate that the court's failure to consider the claim will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 488-89, 496, 106 S.Ct. 2639, 2645-46, 2649, 91 L.Ed.2d 397 (1986). Therefore, even if the pleadings were liberally construed, this court cannot review petitioner's third and fourth claims because they were not brought on direct appeal. Further, petitioner has not shown that any exceptional circumstances apply to this case as Murray requires. Thus, the court will not disturb the state proceedings.
As for petitioner's final ground, an ineffective assistance of counsel claim requires petitioner to show: 1) that his counsel's performance fell below an objective standard of reasonableness; and 2) that the deficient performance prejudiced his case.Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674 (1984). Under AEDPA, the court generally defers to the decision of the state court and intervene only when the state court's determination involves "unreasonable application" of clearly established federal law. Paine v. Massie, 339 F.3d 1194, 1198 (10th Cir. 2003); Upchurch v. Bruce, 333 F.3d 1158, 1164 (10th Cir. 2003). This court finds the state court adequately reviewed counsel's role based on the standard set by Strickland. The court does not find grounds for disturbing the prior ruling.
I. Cumulative Error
Petitioner finally alleges that the cumulative effect of the alleged errors in this case denied him the right to a fair trial. In this circuit, where two or more harmless errors result in potential prejudice to a defendant, the court may find cumulative error. Miller v. Mullin, 354 F.3d 1288 (10th Cir. 2004); Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003). Here, the Kansas Supreme Court found no individual errors, apart from the wrongful conviction for abuse of a child. Heath, 264 Kan. at 591, 957 P.2d at 472-473. The state court found no error that established prejudice. Id. Thus, finding no unreasonable application of federal law, this court finds that there is no ground to reverse the state court ruling.
IV. CONCLUSION
Having reviewed the record and the petitioner's individual claims, the court finds that there are no grounds for reversing the rulings of the state court or granting petitioner's motion for summary judgment. Petitioner's allegations merely reiterate his core argument that he was prejudiced by the inclusion of evidence of prior abuse of Cain Baker. Since the Kansas Supreme Court already reversed petitioner's conviction for abuse of a child, this court can find no grounds for prejudicial error. The court finds no reasons to intervene in the rulings of the state that do not create an error as to the application of federal law or the Constitution. Thus, the court denies petitioner's writ of habeas corpus.
IT IS ACCORDINGLY ORDERED this 5th day of November, 2004, that the court denies petitioner's Writ of Habeas Corpus (Dkt. No. 1). The court denies petitioner's Motion to Strike Respondents' Answer, Motion for Evidentiary Hearing, and Motion for Summary Judgment (Dkt. Nos. 27, 29, 31). The court finds petitioner's Motion to Produce moot (Dkt. No. 30).