Opinion
Case No. 97-3097-DES
February 22, 2001
MEMORANDUM AND ORDER
This matter comes before the court on review of Magistrate Judge Walter's Report and Recommendation (Doc. 25) on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner has filed objections to the Report and Recommendation (Doc. 28), arguing Magistrate Judge Walter incorrectly found the majority of his claims to be procedurally barred. Additionally, petitioner asserts Magistrate Judge Walter's incorporated faulty reasoning when addressing the merits of his surviving claims. For the following reasons, the court accepts and adopts the findings and conclusions of the Report and Recommendation.
I. BACKGROUND
The Report and Recommendation ("RR") summarized the facts of this case as follows:
In March of 1990, the Shawnee Police Department was contacted by Social Rehabilitation Services about a possible sex abuse case involving JH, petitioner's son. JH's paternal grandmother had reported the abuse to SRS. Petitioner was arraigned under the original complaint on February 12, 1992. The State amended the complaint on May 8, 1992, to charge the petitioner with aggravated incest and he was arraigned again on June 10, 1992. The trial commenced and a guilty verdict was returned on November 16, 1992. See Hilgert v. State, Appeal No. 73,804, at 9, Kansas Court of Appeals (unpublished opinion, Dec. 22, 1995). Petitioner's trial counsel filed a motion for new trial, which was denied. Prior to sentencing, petitioner filed a motion to discharge his trial counsel arguing ineffective assistance of counsel and conflict of interest. The trial court appointed new counsel, who then filed a second motion for new trial based on the ineffective assistance of counsel claim. The trial court conducted a limited hearing but did not allow the petitioner to present evidence. The court denied the motion holding that petitioner failed to demonstrate that his mother's actions prejudiced him or interfered with his right to effective assistance of counsel. See State v. Hilgert, Appeal No. 71,038, at 4-6, Kansas Court of Appeals (unpublished opinion, Apr. 7, 1995). Petitioner was eventually sentenced to 2-5 years in prison.
Direct Appeal: Petitioner appealed his conviction to the Kansas Court of Appeals claiming: (1) the district court erred when it failed to comply with the requirement of K.S.A. § 22-3420 and did not give supplemental instructions to the jury in open court; and (2) the district court denied the petitioner his constitutional right to due process of law when it refused to allow petitioner to present evidence regarding his trial counsel's conflict of interest at petitioner's hearing for a new trial. The court of appeals affirmed his conviction. State v. Hilgert, No. 71,038. The Kansas Supreme Court denied review.
Collateral Proceedings: While petitioner's direct appeal was pending, he filed a motion for post-conviction relief pursuant to K.S.A. § 60-1507. The issues raised by petitioner were as follows:
* Whether the petitioner was afforded proper allocution at either of his sentencing hearings;
* Whether the petitioner was denied counsel due to a lack of attorney/client confidentiality;
* Whether petitioner's prosecution must have been by grand jury indictment;
* Whether the prosecution, alternatively, required an information;
* Whether the Assistant District Attorney had standing to bring a criminal complaint against him;
* Whether K.S.A. § 22-2905(1) is unconstitutionally vague;
* Whether the State's amended and second amended complaint are invalid;
* Whether petitioner had been convicted on the crime charged;
* Whether the petitioner was tried within the statutory 180-day period provided in the Kansas Speedy Trial Act;
* Whether the complaint was drawn from the language of the statute and charged a violation of a statute;
* Whether the elements contained in the charge were proved; and
* Whether the petitioner received ineffective assistance of counsel.
Appellant's Opening Brief, No. 73,804 (attached to Doc. 22) at 3-8.
All of the claims were summarily denied except the claims regarding ineffective assistance of counsel, which included the conflict of interest and lack of confidentiality claims. The district court held a hearing regarding the claims against counsel and ultimately denied relief.
The petitioner appealed the adverse rulings on each of the issued identified above except for issue 12 (ineffective assistance of counsel). The court of appeals affirmed the district court's denial of the 60-1507 motion. Hilgert v. State, No. 73,804. The Kansas Supreme Court denied review. (RR at 1-4).
II. PETITIONER'S FEDERAL HABEAS CLAIMS
The instant petition field pursuant to 28 U.S.C. § 2254 raises the following claims:
* Petitioner was denied attorney/client confidentiality;
* Petitioner's prosecution should have begun by a grand jury indictment;
* Criminal prosecutions which are not commenced by grand jury indictment must be prosecuted by information;
* The Assistant District Attorney did not have standing to bring the complaint;
* Kan. Stat. Ann. § 22-2905(1) is unconstitutionally vague;
* The amended and second complaints are invalid;
* Petitioner was not convicted of the crime charged;
* Petitioner was denied his statutory right to speedy trial;
* Petitioner was denied a fair trial due to "coaching" of the State's star witness;
* The complaint was not drawn on the language of the statute;
* Not all elements contained in the charge were proved;
* Petitioner received ineffective assistance of counsel; and
* Petitioner's trial counsel was under a conflict of interest.
The RR recommends denial of relief on all grounds.
III. STANDARD OF REVIEW
The standard for district court review of a magistrate judge's report and recommendation is contained in 28 U.S.C. § 636, which provides as follows:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.28 U.S.C. § 636(b)(1)(C). As stated in the Code, the district court must make a de novo determination regarding the portions of the report and recommendation to which objections have been filed. Id.
Under 28 U.S.C. § 2254, a federal court is precluded from granting habeas relief on any claim adjudicated by a state court, unless the state court's proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that 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)(2). See Williams v. Taylor, 529 U.S. 362, 405-13 (2000) (construing the review standard in 28 U.S.C. § 2254).
A state court's decision is "contrary to" an established federal law if the state court reaches a different result than the Supreme Court would when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent" or if the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases." Williams, 529 U.S. at 405.
Additionally, the Supreme Court has clearly dictated that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas actions do not provide relief for errors of state law. See id. (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Because petitioner levies objections in the totality to the RR, this court will make a de novo review of the RR applying the above standards.
IV. DISCUSSION A. Procedurally Defaulted Claims
Magistrate Judge Walter found the majority of petitioner's claims to be procedurally barred. The procedural bar arises from the "independent and adequate" state ground doctrine. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). "The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. In the federal habeas context, the "state judgment rests on independent and adequate state procedural grounds." Id. at 730 (citing Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977); Ulster County Court v. Allen, 442 U.S. 140, 148 (1979)). To determine whether the state procedural ground was "independent," the federal habeas court must determine that the last state court's decision clearly and expressly stated that its ruling rested upon a state procedural bar. See Church v. Sullivan, 942 F.2d 1501, 1506 (10th Cir. 1991) (citing Harris v. Reed, 489 U.S. 255 (1989)). To be considered "adequate," the state procedural rule implicated must be one, which is "strictly and regularly followed" by the state court. See Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
The procedural default doctrine does contain an exception. If the petitioner shows both "cause" for his state-court default and "prejudice" therefrom, the federal court may consider the claims' merits. See Coleman, 501 U.S. at 750.
There is a second exception, which is not in issue in this case. A federal habeas court may reach the merits of a state-defaulted federal claim when the petitioner demonstrates failure to consider the claim would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
Magistrate Judge Walter found claims two, three, four, five, six, seven, and ten to be procedurally barred. (RR at 8-11). As to claims two and three, the Kansas Court of Appeals held, pursuant to Kan. Stat. Ann. § 22-3208(3), that petitioner waived these claims by failing to raise them prior to trial. The court agrees with Magistrate Judge Walter that although the Kansas Court of Appeals discussed the merits of these claims, they were rejected expressly because petitioner failed to comply with the procedural rule.
Magistrate Judge Walter also found claim twelve to be barred, but the court will consider this claim in a subsequent discussion.
As to claim four, the Kansas Court of Appeals once again briefly touched on the merits of this claim, but the court expressly ruled that any defect with the Assistant District Attorney bringing the complaint should have been brought prior to trial. Petitioner's failure, therefore, operated as a waiver.
As to claim five, the Kansas Court of Appeals ruled the petitioner's failure to raise the issue on direct appeal constituted a waiver. The court again agrees with Magistrate Judge Walter that the Kansas Court of Appeals expressly denied this claim because of procedural violations.
As to claims six, seven, and ten, the Kansas Court of Appeals ruled petitioner had waived these interrelated claims. The court finds, once again, that although the Kansas Court of Appeals briefly discussed the claims' merits, the court did so merely as an alternative holding. The Kansas Court of Appeals expressly noted that petitioner's actions constituted a waiver.
The "cause" petitioner offers for his state-default of these claims is ineffective assistance of counsel, i.e, petitioner's various counsel failed to properly present these arguments. The claim of ineffective assistance of counsel is, in fact, claim number twelve brought in the § 2254 petition. While an ineffective assistance of counsel claim may be a sufficient "cause" to excuse a defaulted claim, see Murray v. Carrier, 477 U.S. 478, 488-89 (1986), petitioner's claim of ineffective assistance of counsel is itself procedurally defaulted because of the exhaustion requirement.
The exhaustion requirement, as codified in the federal habeas statute, see 28 U.S.C. § 2254(b), (c), requires a petitioner to have fully exhausted the state avenues of relief before presenting a claim to the federal habeas court. "The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). In a recent case, the Supreme Court stated that to satisfy the exhaustion requirement, a petitioner is required to give "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Although petitioner brought his ineffective assistance of counsel claim before the trial court in his state post-conviction attack, he omitted this claim when he appealed the lower court's adverse ruling. Therefore, the state appellate courts had no opportunity to address or resolve this constitutional issue, and the time for such appeal has long since passed. In Coleman, the Supreme Court held that if "the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, petitioner's claims are procedurally defaulted for purposes of federal habeas. . . ." 501 U.S. at 735 n. 1. See also Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) (holding that a petitioner's failure to properly present his claims in state court for exhaustion purposes constitutes "procedural default for the purposes of federal habeas review").
Therefore, the court finds itself with a petitioner attempting to use a procedurally defaulted claim as the "cause" for other individually procedurally defaulted claims. Fortunately, the Supreme Court recently had the opportunity to clarify the proper analysis for this situation. The Court held that the procedurally defaulted ineffective assistance of counsel claim can serve as "cause" only if the petitioner can demonstrate the "cause" and "prejudice" criteria for the defaulted counsel claim. See Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000). Petitioner's proffered "cause" for not presenting his ineffective assistance of counsel claim to the Kansas Court of Appeals is that the fifty-page limit on appellate briefs prevented him from including his claim.
The court agrees with Magistrate Judge Walter that a reasonable page limitation on appellate briefs is insufficient to show "cause." In order to satisfy the "cause" element, petitioner would have to show that "`some objective factor external to the defense'" impeded his ability to present his claim. See Dulin, 957 F.2d at 760 (quoting McCleskey v. Zant, 499 U.S. 467 (1991)). In the present case, petitioner admits to being fully aware of the page restriction, and he admits it was his conscious choice to eliminate the ineffective assistance of counsel claim. Such appellate strategy is hardly an external factor, and as such it is insufficient to show "cause." See Weeks v. Angelone, 4 F. Supp.2d 497, 516-17 (E.D.Va. 1998) (finding a fifty-page appellate brief restriction insufficient to demonstrate "cause" for a procedurally defaulted claim). Therefore, upon review, the court also finds claims two, three, four, five, six, seven, ten, and twelve procedurally barred.
The "cause" and "prejudice" standard applies to pro se prisoners just as it applies to prisoners represented by counsel. See Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir. 1991).
To the issue of strategic appellate brief writing, the Supreme Court noted:
There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. . . . A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, "go for the jugular," — in a verbal mound made up of strong and weak contentions.Jones v. Barnes, 463 U.S. 745, 752-53 (1983) (internal citations omitted).
B. Claims Analyzed on the Merits 1. Claims One and Thirteen
Both claims one and thirteen involve the relationship between petitioner, his trial counsel, and his mother. Apparently, petitioner's mother, Ms. Crabtree, hired and financed petitioner's trial counsel. Claim one alleges that Ms. Crabtree was present at most, if not all, of petitioner's meetings with his counsel. Petitioner asserts that her presence had a "chilling effect" on his decision to be absolutely candid or forthcoming with his attorney. The Kansas Court of Appeals reached the merits of this claim and interpreted the allegations as actually representing a modified ineffective assistance of counsel claim. Therefore, the Kansas Court of Appeals addressed the merits pursuant to Chamberlain v. State, 694 P.2d 468 (Kan. 1985) (adopting the holdings of Strickland v. Washington, 466 U.S. 668 (1984)). Under the two-prong analysis of Strickland, a petitioner must demonstrate that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced the defense so as to deprive the petitioner a fair trial. See 466 U.S. at 687. The Kansas Court of Appeals concluded that because petitioner presented no factual allegations demonstrating how he was not forthcoming or how his mother's presence actually altered his relationship with his counsel, he failed to demonstrate any prejudice. In his objections to Magistrate Judge Walter's recommendation, petitioner once again alleges that his mother's presence somehow negatively affected his attorney/client relationship. However, the same failure of factual evidence identified by the Kansas Court of Appeals and Magistrate Judge Walter still fatally hamstrings petitioner's assertion. In light of petitioner's complete failure to demonstrate prejudice, the court agrees with Magistrate Judge Walter and finds that the Kansas Court of Appeals correctly applied the Strickland analysis. As to claim thirteen, petitioner alleges the relationship between his mother and his attorney created a genuine conflict of interest. When considering a conflict of interest claim within the ineffective assistance of counsel context, the traditional Strickland analysis is modified. In this situation, where petitioner did not object to the alleged conflict at trial, petitioner must show (1) an actual conflict of interest between himself and his counsel and (2) the conflict adversely affected his counsel's performance. See United States v. Alvarez, 137 F.3d 1249, 1251 (10th Cir. 1998). See also Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980) (holding if a defendant can show that the conflict adversely affected his representation, prejudice is presumed). Petitioner carries the burden of producing specific instances to support his allegation of an actual conflict. See Alvarez, 137 F.3d at 1251; United States v. Martin, 965 F.2d 839 (10th Cir. 1992). Petitioner may not rely on a hypothetical conflict, nor may petitioner merely allege facts that could result in a conflict. See Cuyler, 446 U.S. at 350 ("We hold that the possibility of conflict is insufficient to impugn a criminal conviction. . . . [A] defendant must establish that an actual conflict of interest adversely affected his lawyer's performance."). The Tenth Circuit has defined an actual conflict of interest in the following manner: "An actual conflict of interest results if counsel was forced to make choices advancing other interests to the detriment of his client." Alvarez, 137 F.3d at 1252 (citing Stoia v. United States, 22 F.3d 766, 771 (7th Cir. 1994)).
At most, petitioner has alleged a possible conflict. The alleged conflict exists because Ms. Crabtree, while financing petitioner's representation, was primarily concerned with preserving her visitation rights with petitioner's son. To prevail, petitioner "`must point to specific instances in the record which suggest an impairment or compromise of his interests for the benefit'" of his mother's. Alvarez, 137 F.3d at 1252 (quoting Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987)). The court has carefully reviewed the record, including the transcript of the hearing the trial court held on this matter, and finds no instance where petitioner's counsel's performance was stymied by Ms. Crabtree's interest. At the trial court's hearing, petitioner's replacement counsel was deliberate in arguing that the facts only supported the appearance of a conflict. (Tr. at 71 attached to Doc. 23). The record simply does not support the allegation that counsel chose a particular trial strategy to advance Ms. Crabtree's interest. In fact, when questioned if Ms. Crabtree could have done more to help in his representation, including while testifying as a prosecutorial witness, petitioner replied "I don't think that she could have done anything else." (Tr. at 20 attached to Doc. 23). Therefore, because petitioner can not demonstrate an actual conflict of interest, the court finds, as did Magistrate Judge Walter, that the state court applied the appropriate standards in denying petitioner's claim.
2. Claim Eight
Petitioner alleges he was denied his right to a speedy trial. As it appears in his § 2254 petition and attached memorandum, the claim only asserts a violation of state law. In particular, petitioner asserts Kansas' speedy trial statute was misapplied. See Kan. Stat. Ann. § 22-3402(2). Petitioner, however, has not properly presented a viable claim, for a federal habeas court will not "reexamine state court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 63 (1991). See Hemby v. Hannigan, 117 F. Supp.2d 1057, 1059 (D.Kan. 2000) (denying federal habeas review for a violation of Kansas' speedy trial statute). The court agrees with Magistrate Judge Walter and finds it appropriate to deny relief.
The petition claims: "Mr. Hilgert was denied his statutory right to a speedy trial." (Doc. 1) (emphasis added).
In his objections to the RR, petitioner attempts to overcome this hurdle by arguing a violation of his right to a speedy trial as secured by the United States Constitution. While the court is dubious that his claim is even meritorious under the federal standard, see Barker v. Wingo, 407 U.S. 514 (1972), the court will not consider the merits of this additional claim. "`[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrate Act.'" Rocha v. Price, 51 F.3d 286 (10th Cir. 1995) (table) (quoting Greenhow v. Secretary of Health Human Servs., 863 F.2d 633, 638 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992), cert. denied, 507 U.S. 978 (1993)).
3. Claim Nine
Petitioner claims that prior to testifying against him, petitioner's son underwent coaching by certain persons. Petitioner alleges that this coaching denied him a fair trial. Contrary to petitioner's assertion, this claim was not presented to the state courts on either direct or collateral review. The court need not, however, conclusively find that this claim was not exhausted, because the court may deny relief on the merits notwithstanding petitioner's failure to exhaust the claim. See 28 U.S.C. § 2254 (b)(2); Rogers v. Gibson, 173 F.3d 1278, 1287 n. 7 (10th Cir. 1999) (noting that a petitioner's unexhausted claims may be denied on the merits).
The only evidence of witness coaching petitioner offers is his son's numerous contacts with mental health professionals and relatives. Petitioner would have the court participate in fanciful speculation in supposing that merely because a young victim of alleged sexual abuse undergoes treatment that he is automatically being coached into testifying against the accused perpetrator. In fact, in his objections to the RR, petitioner appears to agree with Magistrate Judge Walter that he has presented no evidence remotely demonstrating evidence worthy of supporting this claim. (Doc. 28 at 31). The court agrees with Magistrate Judge Walter that petitioner has only shown the possibility of coaching. In light of this failure of evidence, the court denies this claim on the merits.
4. Claim Eleven
Petitioner alleges that not all of the essential elements of his charge were proved because the trial court failed to properly instruct the jury. It appears the charging document used by the State alleged petitioner committed sodomy "unlawfully, knowingly, willfully, and feloniously." Petitioner asserts that the jury instructions should have reflected what was in essence a specific intent element due to the use of such terms in the charging document. In his objections, petitioner argues that if prosecutors use "prejudicial terms" in the charging document, then they carry the burden of proving such terms at trial. (Doc. 28 at 45).
Petitioner carries a heavy burden, for "`[h]abeas proceedings may not be used to set aside a state conviction on the basis of erroneous jury instructions 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.'" Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir. 1990) (quoting Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir. 1979), cert. denied, 444 U.S. 1047 (1980)). The court agrees with the Kansas Court of Appeals in finding that the jury instructions directly tracked the elements of the charged offense. Because every element necessary to constitute the crime was proved beyond a reasonable doubt, the requirements of due process were satisfied. See In re Winship, 397 U.S. 358, 364 (1970). Petitioner's argument that the additional terms indicating intent were required is without merit, for superfluous language contained within a charging document need not be proven at trial. See Bargas v. Burns, 179 F.3d 1207, 1216 n. 6 (9th Cir. 1999) ("Petitioner is also incorrect that the state was required to prove a specific intent because in the charging information the state accused petitioner of "willfully, unlawfully, and feloniously" committing sexual assault. We have repeatedly held that language that describes elements beyond what is required under statute is surplusage and need not be proved at trial.") (internal citation omitted); United States v. Wells, 127 F.3d 739, 743 (8th Cir. 1997) ("Since superfluous allegations are not part of the charged offense and may be disregarded, the government is not required to prove those allegations in order to obtain a conviction.") (citing United States v. Rosenthal, 9 F.3d 1016, 1023 (2d Cir. 1993)).
The statute provides that aggravated incest includes sodomy with a person who is "under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: Child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece." Kan. Stat. Ann. § 21-3603(2). The instructions to the jury included the following:
To establish this charge, each of the following claims must be proved: 1. That the defendant engaged in sodomy with [the victim], who defendant knew was related to the defendant as his biological child; and 2. That [the victim] was under 18 years of age; and 3. That this occurred between September, 1989 and March, 1990, in Johnson County, Kansas.
(Doc. 2 at 46).
III. CONCLUSION
Having determined all of petitioner's objections lack merit, the court finds that Magistrate Judge Walter correctly decided all material issues concerning petitioner's request for habeas relief. Therefore, the court will adopt Magistrate Judge Walter's recommendations.
IT IS THEREFORE BY THE COURT ORDERED that the Report and Recommendation (Doc. 25) is accepted and adopted. Petitioner's habeas corpus petition is dismissed and all relief is denied.