Opinion
Civil Action No. 03-3235-GTV.
December 9, 2004
MEMORANDUM AND ORDER
Petitioner Willie J. Simkins, a prisoner at the Lansing Correctional Facility in Lansing, Kansas, has filed a petition pro se for writ of habeas corpus (Doc. 1). Petitioner was convicted in state court of aggravated indecent liberties with a child and aggravated intimidation of a witness, and seeks a writ pursuant to 28 U.S.C. § 2254. The court has reviewed Petitioner's arguments and the record, and determines that habeas relief is not warranted in this case. For the following reasons, the petition is denied.
I. Procedural History
In February 1999, Petitioner was charged in the Saline County, Kansas District Court with two counts of aggravated indecent liberties with a child in violation of Kan. Stat. Ann. § 21-3504(a)(1), and with one count of criminal sodomy in violation of Kan. Stat. Ann. § 21-3505(a)(2). In April 1999, Petitioner was charged with an additional count of aggravated indecent liberties with a child and with one count of aggravated intimidation of a witness in violation of Kan. Stat. Ann. § 21-3833(a)(4). On September 14, 1999, Petitioner was tried and convicted by a jury on one count of aggravated indecent liberties with a child, which was the count relating to the first time Petitioner had sexual intercourse with the victim, and with aggravated intimidation of a witness. Petitioner was sentenced on December 2, 1999, to eighty-five months imprisonment.
Petitioner appealed, challenging the sufficiency of the evidence to sustain his convictions. The Kansas Court of Appeals affirmed his convictions in an unpublished opinion on May 4, 2001. The Kansas Supreme Court denied Petitioner further review on July 12, 2001.
On August 3, 2001, Petitioner filed a motion for post-conviction relief pursuant to Kan. Stat. Ann. § 60-1507. The state district court denied Petitioner's motion, and the Kansas Court of Appeals affirmed that decision on November 8, 2002. Petition did not file a petition for review in the Kansas Supreme Court.
On May 23, 2003, Petitioner filed the instant request for federal habeas relief. Petitioner asserted in his petition that he was entitled to habeas relief on four grounds: (1) the State's evidence was insufficient to support his convictions; (2) he was denied his Sixth Amendment right to effective assistance of counsel when his counsel failed to secure the presence of alibi witnesses; (3) judicial and juror misconduct arose from an ex parte communication; and (4) errors in the jury selection process occurred when several jurors were passed for cause. On June 30, 2004, Judge Crow of this court granted Petitioner's motions to amend his petition (Docs. 7, 8 and 9) to add claims challenging the state court's jurisdiction, errors in several of the state court's rulings, and additional grounds for challenging the effectiveness of his counsel (Doc. 14). Judge Crow's order also determined that Petitioner had only exhausted his sufficiency of evidence claim; all of Petitioner's other claims for relief, as amended, were not fully exhausted. Therefore, Judge Crow ordered Petitioner to show cause why his unexhausted claims should not be deemed procedurally defaulted. On July 27, 2004, Judge Crow concluded that Petitioner had failed to show cause for his procedurally defaulted claims and ordered Respondent to show why Petitioner's petition should not be granted on his sole remaining claim alleging insufficiency of the evidence (Doc. 16). Petitioner's case was reassigned to this court on September 15, 2004 (Doc. 22).
II. Standard of Review
Because Petitioner's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the court's review of Petitioner's claims is governed by the provisions of the Act. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). Under the Act, a court may only grant a writ when one of two circumstances is present: (1) 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," 28 U.S.C. § 2254(d)(1); or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). The court presumes state court factual findings to be correct absent clear and convincing evidence to the contrary. Id. § 2254(e)(1).
A state court decision is contrary to clearly established law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
This court's review of state court decisions is limited; the Supreme Court has admonished 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). In a habeas action, a federal court may not review a state court decision for errors of state law. Id. (citations omitted).
III. Factual Background
The following facts are taken from the trial record and are viewed in a light most favorable to the prosecution.
Petitioner and the victim, J.B., were close friends since J.B. was a small child. At the time of the events in this case, Petitioner was thirty-one years old and J.B. was fifteen years old.
In August 1998, J.B., her mother, and her younger sister moved into Petitioner's residence in Salina, Kansas. J.B. and her family moved out of Petitioner's residence in early December 1998.
In July 1998, prior to moving in with Petitioner, J.B. testified that she had sexual intercourse with Petitioner for the first time. J.B. stated that Petitioner initiated the sexual contact one evening while the two were watching television in Petitioner's basement. During the period J.B. lived at Petitioner's home, she testified that she had sexual intercourse with him on at least two more occasions in his bedroom and that she performed oral sex on him.
On December 30, 1998, Investigator Augustine, an officer of the Salina police department, interviewed J.B. At first, J.B. denied ever having sexual contact with Petitioner. Later on in the interview, Investigator Augustine told J.B. that he did not feel that she was being honest with him. J.B. then responded that she would be truthful and informed Investigator Augustine that she had sexual contact with Petitioner on three different occasions: one act of sexual intercourse in the summer of 1998 before J.B. and her family moved in with Petitioner; one act of sexual intercourse between September and November 1998; and one act of oral sex in early December 1998. J.B. indicated to Investigator Augustine that she consented to all of the sexual acts. Petitioner was subsequently arrested.
Between January 1999 and March 1999, Petitioner and J.B. stayed in contact while Petitioner was awaiting trial in jail. Petitioner and J.B. sent several letters to each other, communicated on the telephone when J.B. accepted collect calls from Petitioner in jail, and talked to each other when J.B. visited Petitioner in jail. J.B. testified at trial that on one of her visits to see Petitioner the two discussed the charges against him and that Petitioner told her to change her story because he did not want to spend his life in jail.
IV. Discussion
Petitioner argues that the evidence produced at trial was insufficient to support his convictions for both aggravated indecent liberties with a child and aggravated intimidation of a witness.
In reviewing the sufficiency of the evidence presented against a state prisoner, the court must inquire "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Romano v. Gibson, 239 F.3d 1156, 1164 (10th Cir. 2001) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "The court may not weigh conflicting evidence nor consider the credibility of witnesses." Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). The court "must `accept the jury's resolution of the evidence as long as it is within the bounds of reason.'" Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993) (citations omitted).
The Tenth Circuit has not resolved whether a challenge to the sufficiency of the evidence presents a question of law or fact.Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002). If the question is a legal one, it is examined under the "contrary to" or "unreasonable application of . . . federal law" standard of 28 U.S.C. § 2254(d)(1). Id. If it is a factual one, it is examined under the "unreasonable determination of the facts" § 2254(d)(2) standard. Id. at 1220-21. It is unnecessary to decide which standard applies here, as the court determines that Petitioner's claims do not have merit under either standard. See id. at 1221.
A. Aggravated Indecent Liberties With a Child
Petitioner was found guilty of one count of aggravated indecent liberties with a child for having sexual intercourse with J.B. sometime between June 1998 and July 1998 in Saline County, Kansas. The jury found Petitioner not guilty of the other two counts of aggravated indecent liberties with a child. Those two counts alleged that Petitioner had sexual intercourse with J.B. sometime between September 1, 1998, and November 1, 1998, and sometime between June 1998 and December 1998.
The State of Kansas had to prove beyond a reasonable doubt that Petitioner had "[s]exual intercourse with a child who is [fourteen] or more years of age but less than [sixteen] years of age" to be convicted of aggravated indecent liberties with a child. Kan. Stat. Ann. § 21-3504(a)(1).
Petitioner first argues that J.B.'s testimony at trial contradicted her testimony at the preliminary hearing in April 1999 and her statement in the police report Investigator Augustine filed in December 1998. Specifically, Petitioner contends that at the preliminary hearing J.B. could not remember what she had told Investigator Augustine and that she could not remember many of the dates and details regarding the alleged sexual acts. He notes that at trial J.B. testified that she did not remember what happened during the first alleged incident. He also contends that J.B. only confessed to Investigator Augustine that something transpired after he badgered her and refused to let her go home until she admitted that she had sexual intercourse with Petitioner. He suggests that J.B. only admitted that she had sexual intercourse with Petitioner after she became tired and wanted Investigator Augustine to leave her alone.
At trial, J.B. did state initially that she did not remember what happened the first time she had sexual intercourse with Petitioner. The prosecutor then asked her what she did remember. J.B. responded that sometime in the middle of July she was watching television in the basement with Petitioner when he initiated sexual contact with her. They ended up having sexual intercourse in a bed. Investigator Augustine's testimony based on his interview with J.B. is consistent with J.B.'s testimony. J.B. told Investigator Augustine that the first time she had sexual intercourse with Petitioner was about a one month before she moved into his home. The two were watching television in Petitioner's basement and ended up having sexual intercourse in Petitioner's bed. J.B. did testify at trial that nobody was at home the first time they had sex. As Petitioner's attorney pointed out at trial, this conflicted with J.B.'s testimony at the preliminary hearing in which she testified that other people were upstairs during the first act of intercourse.
Plaintiff also argues that the state failed to produce any DNA tests from the alleged crime scenes, and thus, no physical evidence existed to show that he had intercourse with J.B. The court observes that Petitioner's counsel pointed out the lack of corroborating physical evidence during his cross-examination of Investigator Augustine. The jury had the opportunity to weigh this fact in reaching a decision and concluded that the evidence supported the charge that Petitioner had sexual intercourse with J.B. in July 1998.
The court determines that the state provided sufficient evidence for a rational jury to convict Petitioner for the act of sexual intercourse that occurred in July 1998. As the Kansas Court of Appeals noted on Petitioner's direct appeal, J.B.'s testimony at trial concerning the July 1998 sexual encounter contained adequate detail and was materially consistent with Investigator Augustine's December 1998 report. J.B.'s memory regarding the later sexual contacts with Petitioner, in contrast, was somewhat vague and lacked details regarding the dates, times, and locations of the incidents. Moreover, it appears that J.B. was reluctant to talk to Investigator Augustine at the beginning of the interview because she did not want to get Petitioner in trouble. The record, however, lacks any evidence that Investigator Augustine badgered her or forced her to say something she did not believe. It was the province of the jury to weigh the evidence and assess the credibility of the testimony provided by J.B., Investigator Augustine, and Petitioner. While the jury apparently concluded that the evidence regarding the later sexual incidents was insufficient to convict Petitioner, the jury was also convinced, beyond a reasonable doubt, that Petitioner had sexual intercourse with J.B. in July 1998. Viewing the evidence in the light most favorable to the prosecution, the court concludes that this decision was within the bounds of reason. Accordingly, habeas relief is denied as to this claim.
B. Aggravated Intimidation of a Witness
Petitioner was also found guilty of aggravated intimidation of a witness. To convict Petitioner, the State of Kansas had to prove that Petitioner knowingly or maliciously prevented or dissuaded, or attempted to prevent or dissuade, J.B. from testifying at his criminal trial. Kan. Stat. Ann. § 21-3832(a)(1); Kan. Stat. Ann. § 21-3833(a)(4). Petitioner argues that the evidence at trial was not sufficient to convict him of this charge because no letters were introduced into evidence proving that Petitioner told J.B. to change her story.
At trial, J.B. testified that one time when she visited Petitioner in jail he asked her "not to say anything and to change [her] story if [police officers] did ask [her] anything" because he "didn't want to spend the rest of his life in jail." Investigator Augustine also testified at trial that he talked to J.B. in the witness waiting room before the preliminary hearing. He testified that J.B. said that she was scared to testify because of the letters she had received from Petitioner and that Petitioner wanted her to forget what to say in court.
The trial record further indicates that Petitioner sent J.B. at least twenty-eight letters between January 1999 and March 1999. J.B. also sent Petitioner several letters, but she did not began to write responsive letters to Petitioner until he had already sent three letters to her. In the one letter that was introduced into evidence, J.B. wrote to Petitioner that she loved him and that she would marry him. J.B. testified that she stated that she would marry Petitioner because he had proposed to her during one of her visits to jail. The Kansas Court of Appeals noted on Petitioner's direct appeal that this evidence demonstrated Petitioner's attempt from jail to exploit his relationship with J.B. and that a jury could reasonably infer that Petitioner was intentionally trying to dissuade J.B. from testifying at his trial.
The court concludes that the evidence presented at Petitioner's trial was sufficient to convict him of aggravated intimidation of a witness. Again, the jury was entitled to weigh the testimony of J.B., Investigator Augustine, and Petitioner, and evaluate the credibility of their statements. The jury's conclusion that Petitioner attempted to dissuade J.B. from testifying at his trial was reasonable based on the evidence before them. Accordingly, habeas relief is denied as to this claim.
IT IS, THEREFORE, BY THE COURT ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is denied.
Copies of this order shall be transmitted to pro se Petitioner and counsel of record.