Opinion
Case No. 98-3363-DES.
April 25, 2001.
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Petitioner initially raised three issues within his petition for writ of habeas corpus. Petitioner, however, sought dismissal of the first issue (denial of due process in earlier state postconviction proceeding), which dismissal was granted on September 21, 1999 (Doc. 11). The issues remaining in this action are (1) whether petitioner was denied his Sixth Amendment right to effective assistance of counsel and (2) whether petitioner was denied a fair trial, as guaranteed by the Fourteenth Amendment, as a result of prosecutorial misconduct.
Respondent was directed to file a preliminary answer and return limited to the issues of petitioner's exhaustion of state court remedies and whether petitioner has procedurally defaulted in presenting his claims to the state courts (Doc. 4). Respondent has filed a limited Answer and Return (Doc. 5). In addition to the petition, the following documents have been filed by petitioner in support of his claim for relief: Affidavit of Petitioner (Doc. 3); Supplement by Petitioner (Doc. 6); Petitioner's Traverse with Second Affidavit (Doc. 18); Petitioner's Supplemental Memorandum (Doc. 10); Third Affidavit of Petitioner (Doc. 15); and a document entitled "Petitioner's Request for Judicial Notice" (Doc. 17).
Based upon a complete review of the record, the court issues this report and recommendation:
Procedural History
On December 18, 1971, the Money Galore Pawn Shop in Wichita, Kansas was robbed of approximately $400, and the pawn shop attendant was shot twice, once in the chest, and once in the head, and killed. Both petitioner and a minor, Phillip Trissal, were charged with the robbery and murder. Trissal had entered the pawn shop and, in the course of the robbery, shot and killed the victim. Petitioner remained in a vehicle outside the pawn shop. (Doc. 6, Tab H: Appellant Br. in Case No. 97-78623-A at 3). At petitioner's trial, the jury was instructed on felony murder and aiding and abetting (see Doc. 6, Tab Q, instructions 8 and 11). The state theorized that petitioner had conspired with Trissal to commit the robbery.
Petitioner's present position is that he did not join in any intent to commit a robbery. His motion to reduce sentence, however, did admit an intent to commit the robbery (see Doc. 6, Tab N).
A Sedgwick County jury convicted petitioner of first degree murder, aggravated robbery, and unlawful possession of a firearm. He was sentenced on April 27, 1972 to life imprisonment and a consecutive term of 3 to 10 years. Case No. 71CR7915. Petitioner did not appeal his conviction.
On June 12, 1973, petitioner filed a motion for reduction in sentence. He asserted that misrepresentation of counsel was a factor in the harsh sentence he received. The Court denied the motion, finding it had no jurisdiction to modify the sentence because the motion had not been timely filed. (Doc. 6, Tab N).
Case No. 83C3428: Petitioner filed his first postconviction motion pursuant to K.S.A. 60-1507 in Sedgwick County, Kansas on December 15, 1983. Petitioner challenged his conviction on the grounds that [1] he did not defend himself at trial to protect Phillip Trissal, his younger codefendant, [2] physical evidence was presented against him at trial for which he does not remember being served a warrant, [3] he does not remember being read Miranda warnings nor waiving them, [4] witnesses were not called for his defense, and [5] trial counsel was incompetent because he failed to advise the court that petitioner was "nuts." On February 6, 1984, the District Court denied the motion stating that the claim that petitioner offered no defense to protect Trissal was successive and thus an abuse of the remedy provided by K.S.A. 60-1507; and additionally concluding that "questions of guilt or innocence are not justiciable issues under K.S.A. 60-1507." The court generally stated that a 1507 motion could not be used as an alternative to an appeal. The court rejected the warrantless search and Miranda violation arguments on the basis that both issues should have been presented at trial and the failure to do so waived those arguments. As to plaintiff's claim that no witnesses were called in his defense, the court states that whether to call witnesses is within the province of defense counsel after consulting with the client. The petitioner's final argument, that counsel was incompetent for failing to question petitioner's competency, was found to be unpersuasive because the trial record reflected that the issue was raised and the court found petitioner competent to stand trial. (Doc. 6, Tab A). Although petitioner filed an appeal, he voluntarily dismissed the appeal (see Doc. 18, at 5).
Case No. 84C44: Petitioner filed a second 60-1507 postconviction motion on January 6, 1984, in Sedgwick County. He asserted that [1] extenuating and mitigating circumstances showed that he did not want to defend himself in order to protect a friend, [2] no search warrant was ever given for items presented against him at trial and [3] he did not recall being given Miranda warnings nor did he waive them. The court denied the motion on February 6, 1984, on grounds similar to the order denying relief in the first postconviction proceeding. (Doc. 6, Tab B). Although petitioner filed an appeal, he voluntarily dismissed the appeal on the advice of court-appointed counsel (Doc. 1, pp. 4-5) and the appeal was dismissed April 17, 1984.
Case No. 89HC074: Petitioner's third filing, a motion for state habeas relief, was dismissed on August 23, 1989, by Leavenworth County District Court for failure to exhaust available administrative remedies.
Case No. 90C991: Petitioner then filed another 60-1507 motion in Sedgwick County on March 26, 1990. He claimed ineffective assistance of counsel on the grounds that his attorney [1] did not question petitioner to determine if his confession had been voluntary, [2] failed to request a Jackson v. Denno hearing to determine if seized evidence was admissible at trial, and [3] failed to argue that there was no probable cause. The district court denied the motion on May 16, 1990, as an abuse of remedy. (Doc. 6, Tab D). The Kansas Court of Appeals affirmed the District Court's decision on April 26, 1991. Hume v. State, No. 65, 346 (Kan.Ct.App. April 26, 1991). The court, relying upon Lee v. State, 207 Kan. 185 (1971) and K.S.A. 60-1507, found no error in the denial of petitioner's successive motion. The court found this 1507 motion, his third, was justifiably denied pursuant to the successive motions rule, K.S.A. 60-1507(c). The court rejected petitioner's argument that his lay status and ignorance of the law constituted exceptional circumstances. Petitioner did not seek review by the Kansas Supreme Court.
Petitioner then filed two state habeas petitions, one in Cowley County (Case No. 91C75) and another in Leavenworth County (Case No. 9105HC0031). Both were dismissed. Neither dismissal was appealed.
Case No. 91C2453: Petitioner filed another 60-1507 motion in Sedgwick County on August 23, 1991. This motion claimed ineffective assistance of counsel and prosecutorial misconduct. The ineffective assistance of counsel claim asserted that counsel did not [1] advise the petitioner that his decision not to present a defense was not intelligently made and "contradicted the purposes of counsel," [2] communicate the need to present mitigating circumstances, [3] investigate facts to form a defense, [4] seek advice or guidance from an experienced attorney, [5] make an opening or closing statement or cross-examine witnesses, [6] ascertain the accuracy of the presentence investigation report, [7] advise the court that the Journal Entry in 71CR7915 should reflect that petitioner aided and abetted rather than committed a murder, or [8] file motions [a] contesting the voluntariness of the consent to enter the home, [b] challenging probable cause for arrest, [c] requesting a Jackson v. Denno hearing, [d] challenging the admissibility of evidence seized from petitioner's home and car, [e] challenging competency of Phillip Trissal as a witness, [f] requesting a change of venue, [g] requesting postponement of the trial, [h] challenging accuracy of competency report, [i] challenging accuracy of the presentence investigation report, and [j] requesting a hearing to modify sentence. The claim of prosecutorial misconduct asserted that the prosecutor withheld information that a psychiatric report was to be completed for Trissal. The court dismissed the motion on November 12, 1991, as an abuse of remedy. (Doc. 6, Tab F). Petitioner did not appeal.
Case No. 95C695: The petitioner filed once more prior to the current filing. He filed a 60-1507 postconviction motion in Sedgwick County on March 9, 1995. The petitioner's ineffective assistance of counsel claim asserted [1] his attorney did not pursue a viable insanity defense, [2] no motion was made to determine the legality of the arrest, [3] no motion was made to determine if evidence was properly seized, [4] no motion was made to determine the competency of Trissal as a witness, [5] no Jackson v. Denno motion was made to determine the voluntariness of the petitioner's confession, and [6] no appeal from the original conviction was ever made. The motion was denied on June 11, 1996, for abuse of remedy. (Doc. 6, Tab G). The Kansas Court of Appeals affirmed the decision. Hume v. State, No. 78,623 (Kan.Ct.App. July 17, 1998). (See attachment to Doc. 5). The Kansas Supreme Court denied a petition for review on September 14, 1998.
Case No. 95C695 is the only postconviction proceeding which petitioner fully exhausted by seeking review by the Kansas Supreme Court.
Procedural Default Analysis
All claims raised by petitioner herein were raised either in his last state postconviction proceeding (Case No. 95C695) or in Case No. 83C3428 or Case No. 91C2453. In Case No. 95C695, the state court refused to consider the merits of these claims due to the state procedural bar of abuse of remedy.Additionally, none of the claims raised in Case No. 83C3428 or Case No. 91C2453 were presented for review by the Kansas Supreme Court and, thus, have not been fully exhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must 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."). Because the time for petitioning the Kansas Supreme Court for review of these issues has long since past, these claims are subject to an anticipatory procedural default. See Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) ("[I]f the court to which petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.") (relying on Coleman v. Thompson, 501 U.S. 722 (1991)). Thus, petitioner's failure to timely present the claims raised in 83C3428 and 91C2453 to the Kansas Supreme Court results in a procedural default of these claims as well. O'Sullivan, 526 U.S. at 848.
A party may petition the Supreme Court for review within thirty days after the date of the Court of Appeals decision. K.S.A. 20-3018(b).
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. See Coleman v. Thompson, 501 U.S. 722, 749 (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. See 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." See, e.g., Johnson v. Murphy, 486 U.S. 578, 587 (1988); see also Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
The state court decisions dismissing petitioner's successive motions for postconviction relief clearly rested upon the state procedural bar of "abuse of remedy." See Sup. Ct. R. 183 and K.S.A. 60-1507(c). While federal law employs comparable rules (see, e.g., 28 U.S.C. § 2244(b)), abuse of remedy is a state doctrine, independent of federal law.
Abuse of remedy is a regularly accepted and applied doctrine in Kansas. See, e.g., Brooks v. State, 25 Kan. App. 2d 466 (1998); Dunlap v. State, 221 Kan. 268 (1977); Walker v. State, 216 Kan. 1 (1975). Kansas courts uniformly find an abuse of remedy when successive petitions are filed under K.S.A. 60-1507 unless "exceptional circumstances" exist. See, e.g., Brooks at 468; Dunlap at 270; Weser v. State, 224 Kan. 272, 274 (1978). Petitioner's claimed ignorance of the law was insufficient to establish exceptional circumstances. Hume v. State, No. 65, 346 (Kan.Ct.App. April 26, 1991).
Petitioner argues the abuse of remedy doctrine, as applied to his circumstances, precluded him from any postconviction relief. Basically, petitioner claims that the court which first addressed his motion for postconviction relief pursuant to K.S.A. 60-1507 erred in construing his motion for reduction of sentence as an earlier 1507 application. While a petitioner may challenge the state procedural bar as inadequate if the effect of the state procedural bar is to unfairly preclude a remedy, this is not such a case.
Case No. 83C3428.
See English v. Cody, 146 F.3d 1257, 1261 (10th Cir. 1998) (recognizing "the constitutional imperative that this court disregard a state procedural bar for the review of ineffective assistance claims unless the state procedure in question adequately protects a criminal defendant's ability to vindicate his or her constitutional right to the effective assistance of counsel").
Petitioner argues the district court's order in Case No. 83C3428 could be construed as concluding that an untimely motion to reduce sentence (which was denied for lack of jurisdiction) served as a prior 1507 application. While certain language in the order could be so construed, the order also specifically addressed the ineffective assistance of counsel claims and found them meritless. More importantly (and regardless of the state court's reference to "abuse of remedy"), the district court's ruling was not appealed. An unappealed ruling of a state district court is no indication that the state proceedings are inadequate for the presentation of a criminal defendant's constitutional claims.
Finding the state court's application of the abuse of remedy doctrine to be both independent and adequate, petitioner must establish both cause and prejudice or a fundamental miscarriage of justice in order to excuse the procedural bar and pursue his defaulted claims in this action.
While petitioner did not specifically address "cause and prejudice" in the pleadings filed in this action (see Doc. 18 at 14), references to his purported "exceptional circumstances" to avoid the state's abuse of remedy doctrine have been considered. Should petitioner have any other evidence of cause and prejudice, it must be presented to the District Court by objections to this Report and Recommendation.
Cause and Prejudice Analysis: Cause may be established by showing "that some objective factor external to the defense impeded . . . efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). The discovery of new evidence, a change in the law, or some type of interference by state officials are examples of the type of external factors which may constitute "cause." Id. Neither petitioner's pro se status nor his educational background will satisfy the cause prong of the cause and prejudice test. Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991).
Petitioner claims his attorney caused the procedural default by failing to advise him of his right to appeal. This specific ineffective assistance of counsel claim was found to be procedurally barred in Hume v. State, No. 78,623 (Kan.Ct.App. July 17, 1998). The Supreme Court in Edwards v. Carpenter, 529 U.S. 446, 451 (2000) held that before "ineffective assistance of counsel" may be advanced as cause for the procedural default of another claim, counsel's ineffectiveness must have been presented to the state courts in accordance with state law. If the ineffective assistance of counsel claim was not heard by the state court because of a state procedural rule, petitioner must demonstrate cause and prejudice with respect to that claim before it may be considered as cause to excuse the procedural bar of any other claim. Id., at 453. As petitioner offers no "cause" for not raising this issue in his first motion for postconviction relief, the alleged ineffectiveness of counsel in not filing a direct appeal offers no relief to the state procedural bar.
Petitioner also claims he was unaware that his younger codefendant Phillip Trissal was to undergo a psychiatric evaluation (apparently in connection with Trissal's sentencing) until sometime in 1990. (See Doc. 6, Tab H: Appellant Br. in Case No. 97-78623 at 20). While the belated discovery could provide cause for not raising this issue until the filing in Case No. 91C2453, petitioner additionally defaulted by not appealing the district court's dismissal of the claim. No "cause" for failing to appeal the decision in Case No. 91C2453 is presented.
Newspaper articles on March 29, 1972, however, also reported this information. (See Appendix J attached to Appellant Br. in Case No. 97-78623).
The record fails to establish "cause" to excuse the state procedural bar.
A review of the numerous attachments within Doc. 6 suggests petitioner simply made choices which he now regrets. He indicates he initially chose to offer no defense at his criminal trial because he perceived the death penalty preferable to imprisonment (Tab B: 1507 motion at bate-stamped p. 30) and he accepted his guilt. (Tab B: 1507 motion at bate-stamped p. 26).
Miscarriage of Justice Analysis: The miscarriage of justice exception applies only if petitioner makes a threshold showing of actual innocence, that is, by showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
While petitioner now baldly asserts that he had no knowledge that Phillip Trissal intended to rob the pawn shop, he previously made assertions to the contrary. (See Doc. 6, Tab N). Additionally, Trissal apparently testified that petitioner gave him a cocked gun and told him to commit the crimes. (Doc. 6, Tab H: Appellant Br. in Case No. 97-78623-A at 4).
According to petitioner, the trial transcript is no longer available.
Finding no support for either the "cause and prejudice" or "miscarriage of justice" exceptions to the state procedural bar, petitioner's claims are not subject to review by this court.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed and all relief 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 timely file objections may constitute a waiver of a party's right to appeal. Thomas v. Arn, 474 U.S. 140 (1985) and 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.