Opinion
Case No. 02-3310-RDR.
November 18, 2004
MEMORANDUM AND ORDER
Petitioner is incarcerated upon a state court conviction. This case is now before the court upon petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner proceeds pro se.
I. Habeas standards
A writ of habeas corpus may not be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or, "was based on an unreasonable determination of the facts in light of the evidence presented at trial." 28 U.S.C. § 2254(d)(1) (2). State court factual findings, including credibility findings, are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Smith v. Gibson, 197 F.3d 454, 459 (10th Cir. 1999) cert. denied, 531 U.S. 839 (2000); Baldwin v. Johnson, 152 F.3d 1304, 1317 (11th Cir. 1998) cert. denied, 526 U.S. 1047 (1999); Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997) cert. denied, 525 U.S. 852 (1998).
The Supreme Court has stated that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in our cases" or if the state court "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The law limits the authority of the court to hold an evidentiary hearing upon petitioner's application for relief:
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.28 U.S.C. § 2254(e)(2).
II. Case history
On February 5, 1998 petitioner was convicted by a jury in the Kansas State District Court of Saline County of one count of aggravated criminal sodomy and one count of sexual battery. Petitioner's convictions were affirmed by the Kansas Court of Appeals and review was denied by the Kansas Supreme Court.
On March 2, 2000 petitioner filed a motion attacking his sentence under K.S.A. 60-1507. In the motion, he asserted that he was denied the effective assistance of counsel and that he was denied a fair trial because of the improper conduct of the trial judge. The motion was denied after an evidentiary hearing. The denial of relief under K.S.A. 60-1507 was affirmed by the Kansas Court of Appeals and review was denied by the Kansas Supreme Court. Exhaustion of remedies is not an issue in this case.
The testimony and evidence at petitioner's criminal trial established that the alleged victim, R.W., was a 20-year-old woman who had been living in a duplex with petitioner for several weeks on July 7, 1997. They were sharing expenses up to that time and did not have a romantic relationship. R.W. had been in and out during the night of July 7. She returned to the duplex about 12:30 a.m. on July 8, 1997, changed clothes and went out again. She returned at approximately 3:00 a.m. Petitioner was at the duplex the entire evening and night. Petitioner was drinking, watching movies, and talking over the telephone with his ex-wife. R.W. also had some alcohol during the night and had taken pain medication for an injured ankle.
R.W. testified that she went to bed and to sleep not long after she had returned to the duplex for the final time. She said that at approximately 4:23 a.m. she awoke when she found petitioner in the bed kissing her and fondling her breasts. R.W. stated that she pushed petitioner away and screamed, "No." She stated that petitioner left the bedroom, but soon returned, apologized and tried to climb into bed. R.W. testified that she again told petitioner to leave and that he did. According to R.W., some minutes later petitioner returned again to the bedroom. He was naked. He forced himself on top of R.W. and after considerable struggle forced his penis into her mouth. Then, he moved it back and forth until he ejaculated. R.W. said that eventually she pleaded with petitioner to let her go to the bathroom because she felt like she was going to vomit. Petitioner permitted R.W. to do this. After spending some time in the bathroom, R.W. said she saw an opportunity to run from the house and took it. She ran barefooted to the residence of some friends a few blocks away and they called 911.
Petitioner testified that R.W. had been upset on the night of July 7 because of a legal problem. He said that he spoke with her about her problem and offered to drive her the next morning to McPherson to help her. He said that she had been drinking and using the pain medication and that she seemed "giggly and giddy" when she returned to the duplex at 3:00 a.m. Petitioner testified that R.W. approached him in the hallway of the duplex, thanked him for his help, and kissed him. According to the petitioner, the kissing became more passionate and they moved to the bedroom where she performed oral sex. This stopped when R.W. became sick. She went to the bathroom. Petitioner testified that R.W. became hysterical and said that she had been raped when she was younger and that petitioner had raped her. Then she ran from the house. Petitioner said he was concerned about her and about himself, so he called 911. Petitioner claimed that the sexual activity was consensual.
Witnesses testified that R.W. was upset when she spoke about the alleged crime on the morning of July 8, 1997. Photographs were admitted and testimony was received to establish that R.W. had red marks and incipient bruising on her breasts and other parts of her body. Petitioner disputed that there were marks on R.W.'s body and further argued that any marks which did exist were not consistent with forcible sexual activity. Petitioner also argued that he had no scratches or marks on his body which might be consistent with a physical struggle or forcible encounter.
III. Legal standards governing ineffective assistance claims
Ineffective assistance of counsel claims are governed by the standards in Strickland v. Washington, 466 U.S. 668 (1984). "A petitioner must show both that counsel's performance was deficient and that the deficient performance prejudiced the petitioner's defense." Wiggins v. Smith, 539 U.S. 510, 521 (2003). "Deficient performance" is proven by demonstrating that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. "Prejudice" is proven by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Supreme Court has stated:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, that the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Strickland v. Washington, 466 U.S. 668, 689 (1984) (interior citations and quotations omitted).
IV. Arguments for relief
Petitioner alleges that his trial counsel was ineffective because he failed to make an objection or develop a record regarding a juror who petitioner claims was sleeping during his trial. Petitioner asserts that his counsel was advised about the sleeping juror by his mother who was attending the trial, but that his counsel did not make an objection or otherwise develop the record regarding this issue.
Petitioner did not raise this issue in his post-trial motion prior to sentencing. At the 60-1507 hearing, the testimony varied. Petitioner's mother testified that she saw one juror sleep one time for no longer than a minute during the first day of the trial when the State was presenting its case. Petitioner's current wife, who was his girlfriend at the time of the trial, testified that a juror looked like he was sleeping every time she looked at him. She said she noticed the juror sleeping during the testimony of a KBI agent, the petitioner, and petitioner's ex-wife. Petitioner's trial counsel testified that he did not observe a juror sleeping and that no one mentioned the matter to him during the trial or before the deadline for filing post-trial motions. Petitioner testified that he saw a juror sleeping and being nudged awake one time. He also stated he may have noticed the same juror sleeping on one or two other occasions. The trial judge testified that he recalled seeing a juror sleeping, but that it was for only a brief period of time. Petitioner has not established ineffective assistance of counsel with regard to the alleged sleeping juror for two reasons. First, petitioner has not established that it was incompetent or professionally deficient for his trial counsel to fail to notice a juror sleeping for a brief period in the trial. The state court appeared to credit the testimony of petitioner's trial counsel that he was not made aware of a juror sleeping until the deadline for post-trial motions had passed. We do not find a good reason to alter that factual finding. Second, even if his trial counsel had noticed or been given timely notice of the sleeping juror, petitioner has not established a reasonable probability that an objection by his trial counsel would have produced a different result in the trial. There is nothing in the record to demonstrate that the juror would have been dismissed if an appropriate objection would have been made during the trial. Nor is there any evidence from the juror who allegedly slept that he missed a significant part of the trial. The record contains only the conflicting accounts of the judge, defense attorney, petitioner and spectators at the trial. There is no clear and convincing reason to reject the state court's disposition of the facts surrounding this issue. Nor is there a sufficient reason to reach a different legal conclusion. Therefore, we reject petitioner's first argument for relief.
Petitioner's second argument for relief is that his trial counsel provided ineffective representation because he did not adequately investigate and ultimately call Anthony and Maureen Woods as witnesses during the trial. Anthony and Maureen Woods lived in the other half of petitioner's duplex on the night in question. According to petitioner, the Woods' bedroom was separated by a "thin wall" from the bedroom where the alleged crime occurred in this matter. Petitioner's trial counsel had an investigator interview Anthony and Maureen Woods prior to the trial. Anthony Woods told the investigator that he did not hear any "yells for help or he might have done something." Maureen Woods told the investigator that:
"around 2 A.M. July 8, 1997 she was awakened by what sounded like something pounding on her bedroom wall. She could hear someone on the other side saying, `quit, stop that,' and at the same time could hear pounding and thumping. She said the noises she heard were loud enough to wake her."
The investigator reported that the Woods thought it was "just another fight which was not unusual to them."
The Tenth Circuit has held: "Generally, the decision whether to call a witness rests within the sound discretion of trial counsel." Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.) cert. denied, 525 U.S. 950 (1998). When considering a claim of a failure to investigate, "[t]he focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result." United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987). Usually, this information is presented through the post-trial testimony of the potential witnesses. Id. If the potential witnesses do not testify, the petitioner should explain why or give some demonstration of the content of the testimony they would have given if called at trial. Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990).
We do not believe petitioner has demonstrated that his trial counsel was deficient in investigating and failing to call the Woods as witnesses. Petitioner did not call Anthony or Maureen Woods as a witness in the 60-1507 hearing. He has not explained with any precision what their testimony would be beyond the statements they made to the investigator used by petitioner's trial counsel. While petitioner has asserted that the statements to the investigator were consistent with his version of what happened, it could easily, perhaps more easily, be argued otherwise. The key issue in this trial was consent. The fact that Maureen Woods heard pounding and thumping loud enough to awaken her in the middle of the night and that she heard someone say "quit, stop that", could well be construed as corroborating the prosecution's case. We do not believe petitioner has demonstrated that his trial counsel was deficient in investigating or failing to call Maureen and Anthony Woods as witnesses or that their testimony would have probably produced a different result. Therefore, we reject petitioner's second argument for relief.
Finally, petitioner asks for relief on the grounds that the trial judge used facial expressions, gestures, body language and voice inflection to petitioner's disadvantage during the trial. Petitioner's trial counsel testified that he was not aware of any judicial misconduct of this type during the trial and that petitioner and his supporters did not complain to him about the trial judge until some time after the sentencing hearing. The trial judge testified that he did not recall doing anything to express displeasure with petitioner's case. The record contains contrary testimony by petitioner as well as petitioner's mother, wife and brother. It is undisputed that the trial judge made no remark which in its substance is alleged to have influenced the jury against the petitioner. Furthermore, he instructed the jury that: "I have not meant to indicate any opinion as to what your verdict should be by any ruling that I have made or anything that I have said or done."
To sustain an allegation of bias by the trial judge as a ground for habeas relief, a petitioner must "factually demonstrate that during the trial the judge assumed an attitude which went further than an expression of his personal opinion and impressed the jury as more than an impartial observer." Brinlee v. Crisp, 608 F.2d 839, 852-53 (10th Cir. 1979)cert. denied, 444 U.S. 1047 (1980). "Unless they amount to constitutional violations, prejudicial comments and conduct by a judge in a criminal trial are not proper subjects for collateral attack on a conviction."Id. at 853.
Upon careful review of the record, the court is convinced that petitioner has failed to demonstrate a constitutional violation by the trial judge or that his trial counsel was constitutionally ineffective for failing to object to the conduct of the trial judge.
V. Conclusion
In conclusion, for the above-stated reasons, the court shall deny the petition for relief under 28 U.S.C. § 2254.