Opinion
Case No. 99-3182-DES
February 20, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Lansing Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On March 15, 1988, petitioner was convicted of aggravated robbery and first degree felony murder under a theory of aiding and abetting. On December 8, 1989, petitioner's conviction was affirmed on direct appeal. State v. Taylor, 784 P.2d 365, 1989 Kan. LEXIS 193 (Kan. 1989) (unpublished opinion). On September 4, 1990, petitioner filed a motion for state habeas relief pursuant to K.S.A. § 60-1507. This motion was denied by the District Court of Sedgwick County on May 10, 1991 and this decision was affirmed on appeal on December 11, 1992. Taylor v. State, 843 P.2d 682 (Kan. 1992).
Petitioner then filed his second motion for habeas relief pursuant to K.S.A. § 60-1507 on July 22, 1993. This motion was denied by the District Court of Sedgwick County on August 11, 1993, and this decision was affirmed on appeal on August 5, 1994. Taylor v. State, No. 70,465 (Kan.Ct.App. 1994) (unpublished opinion). The Kansas Supreme Court denied the petition for review on November 8, 1994. (Doc. 8, p. 5).
Petitioner filed his third motion for habeas relief pursuant to K.S.A. § 60-1507 on September 25, 1996. This motion was denied by the District Court of Sedgwick County on March 18, 1997, and this decision was affirmed on appeal on September 25, 1998. Taylor v. State, No. 79,204 (Kan.Ct.App. 1998) (unpublished opinion). The Kansas Supreme Court denied the petition for review on November 10, 1998. Taylor v. State, No. 97-79204-AS, 1998 Kan. LEXIS 724 (Kan. 1998).
Petitioner commenced this action on May 27, 1999, raising the following grounds for relief: (1) as an aider and abettor, petitioner could not be found guilty of felony murder, (2) P.I.K. Jury Instruction 52.02 failed to adequately instruct the jury on the presumption of innocence and reasonable doubt, (3) ineffective assistance of counsel for thwarting petitioner's right to testify, (4) there was an insufficient record from which to establish a waiver of the right to testify, (5) the information failed to set forth the elements of attempted aggravated robbery, and (6) ineffective assistance of counsel for failing to object to improper closing argument.
Petitioner did not originally raise this ground as an ineffective assistance of counsel claim. (Doc. 1, p. 10). In their Answer and Return, respondents addressed the issue as an ineffective assistance of counsel claim because this was how the issue was raised at state level and if raised as merely a denial of the right to testify (as raised in the original petition), petitioner's claim would be procedurally barred. (Doc. 8, p. 11). In his traverse, petitioner addressed the claim as one of ineffective assistance of counsel. (Doc. 1, p. 38). Therefore, the court will assume that petitioner wants the claim addressed as an ineffective assistance of counsel claim in order to avoid the barriers of procedural default.
Respondent has filed an answer and return (Doc. 8) and petitioner has filed a traverse (Doc. 14) and supplement thereto (Doc. 15).
FACTUAL BACKGROUND
The facts were summarized by the Kansas Supreme Court as follows:
Several nights before he was killed, nineteen-year-old Michael Garcia played a game of pool with Donato Ornelas III. To his misfortune, Michael lost the game and a $1.00 bet. Michael told Ornelas he would pay up the bet on July 21, 1987, to which Ornelas agreed. Nevertheless, when Ornelas saw Michael in the parking lot of the Golden Cue on July 14, he asked for the money. Michael replied that he got paid on July 21 and would pay the bet then. A few minutes later, Ornelas and the defendant followed Michael into the Golden Cue.
There is disputed evidence as to who entered the restroom first, but while in the restroom of the pool hall Ornelas demanded money from Michael and threatened that his friend, Taylor, would "take care" of Michael if he did not pay. At that point, Ornelas pushed Michael. Michael tried to run out of the restroom but Taylor prevented his escape and hit Michael twice in the stomach.
Ornelas beat Michael with his fists and demanded money until Michael fell to the floor. Ornelas then kicked Michael in the face, which caused his head to slam backward into the restroom wall and knocked Michael unconscious. As payment for the pool debt, Ornelas took Michael's Swatch watch before leaving the restroom and fleeing from the Golden Cue.
Michael was immediately taken to the hospital. He was in a combative condition, screaming in pain and holding his head. Early the next morning, surgery was required to relieve pressure on the brain due to the formation of a blood clot over the brain caused by a blow to the head or fall on a hard surface. The surgery was unsuccessful: on July 18, Michael was declared brain dead.
Taylor, 784 P.2d 365, 1989 Kan. LEXIS 193, at *1-*2.
STANDARD OF REVIEW
Because Mr. Foster's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot 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," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. 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 decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
GROUND ONE — SUFFICIENCY OF THE EVIDENCE
Ground one challenges the sufficiency of the evidence used to convict petitioner of felony murder and aggravated robbery under a theory of aiding and abetting. Respondent alleges petitioner has procedurally defaulted on this ground because the Kansas Court of Appeals refused to address the issue in petitioner's third motion filed pursuant to K.S.A. § 60-1507. (Doc. 8, p. 9). However, an examination of the record reveals that the main thrust of petitioner's argument was presented on direct appeal as a challenge to the sufficiency of the evidence and properly exhausted. See Taylor, 1989 Kan. LEXIS 193 at *11-12.
The Kansas Court of Appeals denied this claim as follows:
Taylor contends there is insufficient evidence to support the conviction of either aggravated robbery or felony murder. In support of his argument, Taylor alleges there was no evidence that he intentionally participated in a robbery, or that he ever planned to commit a robbery, or that he was involved in taking the watch. Further, he argues there was no evidence of a premeditated murder.
Our scope of review is well settled. When a criminal defendant challenges the sufficiency of evidence to support a conviction, the standard of review upon appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988); State v. Bird, 240 Kan. 288, 298-99, 729 P.2d 1136 (1986).
As we discussed in issue one, there was clear and uncontradicted evidence that Ornelas deliberately took Michael Garcia's watch by force and by inflicting such bodily harm upon him that death resulted. Taylor participated in the bodily harm by throwing two punches and blocking Michael's escape. These actions allowed Michael's property to be taken. Furthermore, the evidence reveals Taylor was aware of his role before the beating began. Viewed in a light most favorable to the prosecution, these facts clearly indicate there was sufficient evidence for a rational factfinder to find Taylor guilty beyond a reasonable doubt as a participant in the aggravated robbery and first-degree murder of Michael Garcia.
Id., at *12.
A federal court may grant habeas relief only if it determines that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). "The relevant question is 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." Id. at 319. There is a presumption that "the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992). The federal court does not weigh the evidence, and "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). "To be sufficient, the evidence supporting the conviction must be substantial; that is, it must do more than raise a mere suspicion of guilt." Id. After examining the record with deference to the state court's findings of fact, the court finds that petitioner's claim lacks merit.
Petitioner claims that he was "at most in the vicinity of where the crime was committed and he was there at the time the crime was committed." (Doc. 14, p. 9). Although this may have been petitioner's defense theory, the evidence established that petitioner knew he and Mr. Ornelas were following the victim into the bar in order to "collect" on the $1.00 bet and that petitioner participated in the beating of the victim in order to accomplish this task. The evidence was substantial and sufficient to support the jury's verdict of guilty.
GROUND THREE — INEFFECTIVE ASSISTANCE OF COUNSEL, RIGHT TO TESTIFY
Petitioner alleges that his trial counsel was ineffective because he led petitioner to believe he could not testify on his own behalf and without this testimony, petitioner was unable to establish his withdrawal defense. (Doc. 14, p. 38).
The facts surrounding this claim are as follows:
On May 10, 1991, the trial court conducted an evidentiary hearing on Taylor's 1507 motion. Taylor's wife, Kaye, testified she was present during several conversations which Taylor had with O'Hara. Kaye testified that at the initial meeting with O'Hara, it was assumed Taylor would testify in his own behalf. Kaye further stated that during Taylor's trial, towards the end of the State's case, she and Taylor met with O'Hara at O'Hara's office. Kaye stated O'Hara told them "the decision had been made that [Taylor] would not testify." Kaye testified that Taylor responded, "but I want to testify" and O'Hara replied it was "just an unwise decision so I'm going to say no." According to Kaye, O'Hara told Taylor it would be pointless for him to testify.
Kaye testified that the next day she was in the hallway of the courthouse when Taylor caught O'Hara by the arm and said, "[Y]ou have got to let me testify." O'Hara allegedly responded, "[N]o, I've already decided you will not testify." Kaye further testified that after O'Hara presented the defense's case in chief, Taylor again told his attorney he wanted to testify. Kaye did not hear O'Hara's reply, but she testified that she observed O'Hara shaking his head no.
Barbara Taylor, Taylor's mother, testified she had attended Taylor's trial and had witnessed the confrontation in the hallway between Taylor and O'Hara. Barbara stated O'Hara told Taylor there was no need for him to testify and that "it was a little late for him to testify." Barbara also testified that during the trial she saw Taylor lean toward O'Hara and say, "I would like to testify." O'Hara had responded, "[N]ot at this time, Sherwin, I don't think you should."
Beverly Hubbs, a friend of Kaye Taylor, testified she went with Kaye to O'Hara's office on numerous occasions after the trial and during the appeals process. Hubbs testified that on one occasion O'Hara stated he knew Kaye and Taylor did not agree with him regarding Taylor testifying at trial, but it did not matter because it was O'Hara's decision. On another occasion, Hubbs was present when O'Hara stated the Taylors and he could not agree on whether Taylor should testify at trial, so O'Hara had "made the decision and that's all there was to it, period, he didn't wanna hear about it anymore."
Taylor's sister, Shirley Ferretti, also testified she attended Taylor's trial. Ferretti overheard Taylor express a desire to testify, but O'Hara said it was not in Taylor's best interest to testify. Taylor repeated his wish to testify, but O'Hara said "no."
Taylor testified that after his preliminary hearing he assumed he would testify at trial on his own behalf, but O'Hara indicated he wanted more information before he made that decision. The day before trial, Taylor told O'Hara he thought it would be best if he testified, and O'Hara made no response. Taylor further testified that several times during trial he told O'Hara he wanted to testify, but O'Hara was very adamant about him not testifying. According to Taylor, O'Hara didn't want Taylor to testify because it would introduce more variables into the trial.
O'Hara testified he had been an attorney for 15 years and most of his practice was devoted to criminal law. O'Hara testified he had had conversations with Taylor regarding whether he would testify. O'Hara admitted advising Taylor not to testify. O'Hara testified he specifically remembered asking Taylor at trial if he wanted to testify. Taylor, however, responded, "I'm gonna follow your advice, I'm not gonna testify." O'Hara also admitted he did not have any written documentation to indicate he had informed Taylor of his right to testify. O'Hara testified such was not his practice — "I know what the law is. I know he has a right to testify. And I told him. There's no doubt that I told him." O'Hara further testified:
"I told him it was his right [to testify] and his right alone. I have nothing to gain by forcing anyone not to testify. I mean, it doesn't matter to me. I mean, they're the ones on trial, not me.
. . . .
"[O]bviously it's a decision that every attorney has to look at in every case depending on the case as to whether [a defendant] should or shouldn't [testify]. And I discussed that and I have strong feelings depending on the case as to how it should go. And, in Mr. Taylor's case, it was kind of a close call, I thought really, but my advice in the end was for him not to testify. I didn't force him not to. I advised him that he could still do it if he wanted to."
O'Hara testified Taylor expressed a desire to testify at various stages of the prosecution. Taylor had stated he wanted to testify at the preliminary hearing, but O'Hara told him he should save his testimony for trial. O'Hara testified that occasionally during trial Taylor would state he wanted to testify in response to a State's witness' testimony. O'Hara explained Taylor could not testify at that point because it was not the defense's turn to present evidence.
O'Hara testified he felt Taylor understood what was happening. O'Hara specifically stated he never told Taylor he could not testify. Finally, O'Hara testified he always told Taylor he had the right to testify and that it was his decision, not O'Hara's.
Following the evidentiary hearing, the trial court made the following findings of fact:
14. The Petitioner's proffer of what his testimony would have been had he testified at his own criminal trial would have offered an explanation of his statements to the police, and such testimony would have been offered for the purpose of showing a lack of knowing involvement or assistance in the crime or crimes of Mr. Ornales.
15. The evidence presented in this action demonstrates a conflict of testimony concerning the conversations between the Petitioner and his trial counsel.
16. The important conversation or conversations are not those which were held here at the courthouse during the course of the trial.
17. The important conversations between the Petitioner and Mr. O'Hara were those conversations or that conversation that was held the evening before the State rested (and prior to the testimony at such trial on the following morning from Detective Abele regarding the lack of fingerprints), when the final decision was made whether or not the Petitioner would testify in his own behalf.
18. It is more probably true than not that the Petitioner wished to testify.
19. It is more probably true than not true that Mr. O'Hara did not want him to testify.
20. It is more probably true than not true that the Petitioner followed his attorney's advice and decided not to testify even though he wanted to testify.
21. The Petitioner understood that he had the right to testify.
The trial court then denied Taylor's 1507 motion, from which decision Taylor appeals.
Taylor, 843 P.2d at 684-686 (emphasis added).
The Sixth Amendment guarantees the right of a criminal defendant to effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To establish an ineffective assistance of counsel claim, petitioner must (1) "show that counsel's performance was deficient," and also (2) "that the deficient performance prejudiced [his] defense." Strickland, 466 U.S. at 687. In order to satisfy the first prong, petitioner must show that his counsel's conduct did not fall within the wide range of competence demanded of an attorney in a criminal case. See United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). The second prong, often called the "prejudice prong," is met when the petitioner proves that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." See Strickland, 466 U.S. at 695 (defining reasonable probability as a probability that is sufficient to undermine the confidence in the outcome of the trial).
In addition to establishing the oft-quoted two prong test, Strickland also established general guidelines for reviewing ineffective assistance claims. Judicial scrutiny of counsel's performance should be done in a "highly deferential" manner that "eliminate[s] the distorting effects of hindsight," and starts with the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688-89; see also Moore v. United States, 950 F.2d 656, 660 (10th Cir. 1991).
After noting the Strickland standard, the Kansas Supreme Court pointed out that it was the trial court's duty to weigh the evidence and judge the credibility of the witnesses. Taylor, 843 P.2d at 686-687. Because the witnesses on petitioner's behalf at the K.S.A. § 60-1507 hearing were either family members or family friends and because O'Hara's testimony reflected a very specific memory of petitioner's decision not to testify, the Kansas Supreme Court found that the trial court's decision was supported by the facts. Id. at 687.
After reviewing the transcript on this matter, the court agrees that the district court's decision was a reasonable determination of the facts. Although petitioner did present several witnesses on this issue, the bulk of their testimony only establishes that trial counsel strongly advised petitioner not to testify and furthermore, the credibility of these witnesses was questionable considering their relationship to petitioner.
Because petitioner has failed to show that the state court's factual findings are incorrect or that the state court's decision was an unreasonable application of the Strickland standard, relief must be denied under ground three.
GROUND FOUR — EVIDENCE OF WAIVER OF RIGHT TO TESTIFY
Ground four of the petition alleges the trial court erred in refusing to hold as a matter of law that a silent record cannot be sufficient to demonstrate a waiver of the right to testify in a criminal trial. Petitioner alleges that as with guilty pleas, the trial court should conduct an inquiry to determine whether the decision not to testify has been knowingly and voluntarily made.
Relying on prior precedent, the Kansas Supreme Court denied this claim on appeal noting that "[t]here is a danger that by asking a defendant if he is aware of his right to testify, a trial court may inadvertently influence a defendant to waive the equally fundamental right against self-incrimination." Taylor, 843 P.2d at 688.
Although petitioner does have the constitutional right to testify on his own behalf, Rock v. Arkansas, 483 U.S. 44, 51 (1987), the Supreme Court has not yet decided whether the trial court has an affirmative duty to advise the defendant of this right or obtain an on-the-record waiver of it. See U.S. v. McMeans, (4th Cir. 1991). However, several circuits have held that the trial court has no duty to make such an inquiry. See U.S. v. Yee Soon Shin, 953 F.2d 559, 561 (9th Cir. 1992); Siciliano v. Vose, 834 F.2d 29, 29 (1st Cir. 1987); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir. 1988). Therefore, it cannot be said that the Kansas Supreme Court's decision on this matter "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).
GROUND FIVE — DEFECTIVE INFORMATION
Ground five alleges the information insufficiently set forth the essential elements of attempted aggravated robbery. Petitioner was first charged with felony murder and aggravated robbery but during trial, attempted aggravated robbery was added as an alternate underlying felony. Taylor, No. 70,465 at p. 5.
The Kansas Court of Appeals decision on this matter is as follows:
There are two problems with Taylor's argument. First, he was not convicted of attempted aggravated robbery, but instead was convicted of aggravated robbery, which was properly charged in the first complaint. Second, no amendment is necessary to properly charge a lesser included offense. Cox v. State, 205 Kan. 867, Syl. ¶ 7, 473 P.2d 106 (1970). The district court had jurisdiction to consider attempted aggravated robbery under the original information, even if the amended information was somehow invalid.
Id. at p. 5.
Because petitioner was not convicted of attempted aggravated robbery, his argument regarding the sufficiency of the information for this crime is moot. U.S. v. Evans, 272 F.3d 1089, 1093 (8th Cir. 2001). Therefore, the Kansas Court of Appeals decision on this matter was a reasonable application of federal law. Relief should be denied as to ground five.
GROUNDS TWO AND SIX — PROCEDURAL DEFAULT
Respondents contend that petitioner has procedurally defaulted on grounds two and six. Ground two alleges that P.I.K. Jury Instruction 52.02 failed to adequately instruct the jury on the presumption of innocence and reasonable doubt. Ground six alleges ineffective assistance of counsel for failing to object to improper closing argument.
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. Coleman v. Thompson, 501 U.S. 722, 750 (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. 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." Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
Ground two was rejected by the Kansas Court of Appeals because it was not raised until petitioner's third K.S.A. § 60-1507 motion and it is a "trial matter which could and should have been raised in Taylor's direct appeal." Taylor v. State, No. 79,204 (Kan.Ct.App. 1998) (unpublished opinion). Relying on Kansas Supreme Court Rule 183, Kansas courts have routinely refused to hear trial errors that could have been raised on direct appeal, absent a showing of exceptional circumstances. See, e.g., Carmichael v. State, 872 P.2d 240, 244 (Kan. 1994), Estes v. State, 559 P.2d 392, 392-393 (Kan. 1977), Jones v. State, 598 P.2d 565, 567 (Kan.Ct.App. 1979).
Ground six was rejected by the Kansas Court of Appeals because petitioner failed to raise it in his first K.S.A. § 60-1507 motion and no exceptional circumstances existed which would justify review of this claim. Taylor, No. 70,465 at p. 4. The state court decision dismissing petitioner's successive motion 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). Abuse of remedy is a regularly accepted and applied doctrine in Kansas. See, e.g., Brooks v. State, 966 P.2d 686 (1998); Dunlap v. State, 559 P.2d 788; Walker v. State, 530 P.2d 1235 (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 688; Dunlap at 790; Weser v. State, 579 P.2d 1214, 1216 (1978).
The state procedural bars relied upon by the state courts were both independent and adequate. However, as cause for his procedural default, petitioner alleges these issues were not discovered until after his direct appeal. (Doc. 1, p. 9). Although petitioner's argument on the jury instruction issue may be based on case law which developed subsequent to petitioner's direct appeal, it is an Oklahoma case which he relies upon. (Doc. 14, p. 14). Although a change in law may satisfy the cause requirement, the change must be in controlling law. See Daniels v. United States, 254 F.3d 1180, 1190 (10th Cir. 2001). There has been no corresponding change in Kansas law and, in fact, the Kansas Supreme Court has specifically rejected the Oklahoma opinion petitioner relies upon. See State v. Pierce, 927 P.2d 929 (Kan. 1996).
Likewise, petitioner fails to establish "cause" for failing to raise his ineffective assistance of counsel claim within petitioner's first K.S.A. § 60-1507 motion. Although petitioner was represented on direct appeal by his trial counsel, he was not represented by trial counsel during his first K.S.A. § 60-1507 motion and this issue could have been discovered and raised then.
Petitioner argues ineffective assistance of appellate counsel as alternative cause for his procedural default. (Doc. 1, p. 11C). Petitioner's claims of ineffective assistance of appellate counsel must first be presented to the state courts as an independent claim before they can be used to establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 452 (2000), citing Murray v. Carrier, 477 U.S. 478, at 489 (1986). Petitioner did not argue before any state court that appellate counsel was ineffective for failing to raise the jury instruction issue, and therefore, he cannot establish cause for his procedural default as to ground two.
Petitioner did argue that appellate counsel was ineffective for failing to raise the claim that trial counsel was ineffective by failing to object to improper closing argument. See Taylor v. State, No. 70,465 at p. 4. (Kan.Ct.App. 1994) (unpublished opinion). However, the Kansas Court of Appeals refused to consider this claim because petitioner failed to raise it before the district court. Id. This is a rule which has been regularly followed by the Kansas Courts. See, e.g., State v. Crawford, 787 P.2d 1180, 1183 (Kan. 1990); State v. Holley, 712 P.2d 1214, 1220 (1986); State v. Kelly, 466 P.2d 350, 351 (Kan. 1970). Petitioner cannot use an ineffective assistance of appellate counsel claim as cause for his procedural default when this claim has also been procedurally defaulted. Edwards, 529 U.S. at 452 (2000). Because petitioner cannot establish cause for his procedural default of grounds two and six, relief must be denied.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be 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 file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); 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.