Opinion
CIVIL ACTION No. 02-3348-GTV
January 29, 2004
MEMORANDUM AND ORDER
Petitioner Randall C. Wyatt, a prisoner in the Lansing Correctional Facility in Lansing, Kansas, has filed a petition pro se for writ of habeas corpus (Doc. 1). Petitioner was convicted of one charge of rape and one charge of aggravated sodomy in state court, and seeks a writ pursuant to 28 U.S.C. § 2254. Petitioner claims that he is entitled to habeas relief because the state prosecutor withheld exculpatory evidence in violation of Brady v. Maryland, and because his Sixth Amendment rights to effective assistance of counsel and confrontation were violated. 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.
At the time Petitioner filed the present action, he was a prisoner at Hutchinson Correctional Facility in Hutchinson, Kansas. He was later transferred to the Lansing Correctional Facility.
I. Procedural History
In May 1997, Petitioner was charged in the Sedgwick County District Court of Kansas with one count of rape in violation of Kan. Stat. Ann. § 21-3502(a)(1) and with one count of aggravated criminal sodomy in violation of Kan. Stat. Ann. § 21-3506(a)(3). Petitioner was tried and convicted by a jury on both counts on December 12, 1997. Petitioner was sentenced on February 26, 1998 to 154 months imprisonment on each count with the terms to run concurrently. Petitioner appealed, and the Kansas Court of Appeals affirmed his convictions in an unpublished opinion on February 18, 2000. The Kansas Supreme Court denied Petitioner further review on May 2, 2000. On March 8, 2000, 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 21, 2001. The Kansas Supreme Court again denied review. On October 15, 2002, Petitioner filed the instant request for federal habeas relief.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 derived from the testimony and evidence that were presented during Petitioner's trial.
On May 14, 1997, the victim ("KK") was suspended by her employer for three days due to suspicion of drug use and absenteeism from work. Wanting to relieve some stress, KK called Petitioner to ask him if he could take her out for a beer; the two had been friends for twelve years. That evening, Petitioner and KK began drinking and doing drugs together at Petitioner's house. Later that night, KK wanted to purchase some more drugs, but she did not have any money. Petitioner grabbed some personal items at his house to use as collateral for the drugs, and then went with KK to her house so that she could gather some items as well. KK brought the collateral to her dealer's house, but she was unable to purchase any drugs because the dealer demanded cash. KK returned to her house to find Petitioner passed out on the couch, so she decided to go out to a local bar for a drink.
Around two in the morning, KK returned home from the bar. Petitioner was still sleeping on the couch. KK testified that when she woke Petitioner up, he became angry at her for leaving the house. Petitioner told KK to go to the bedroom with him, but she refused. KK tried to call one of her friends to help, but Petitioner ripped the phone out of the wall. KK then ran to the kitchen and tried to dial 911 on another phone, but Petitioner again ripped the phone out of the wall. KK testified that Petitioner began hitting her, forced her into the bedroom, and then sexually assaulted her. Eventually, KK ran out the back door of her house completely naked, screaming for help. Petitioner quickly tackled her, dragged her back inside the house, and forced her to go back to the bedroom. KK testified that Petitioner came back in the bedroom with a knife, threatening to cut her throat. At some point, KK jerked her leg up in the air and was stabbed by the knife. As a result, Petitioner became remorseful and tried to clean up her wound. KK testified that when she told Petitioner to leave her alone, he became angry and sexually assaulted her for a second time.
After a second unsuccessful escape attempt by KK, Petitioner decided to take her back to his residence. During this trip, KK escaped from the car and ran to a local gas station for help. A deputy sheriff arrested Petitioner later that morning.
IV. Petitioner's Grounds for Relief
Petitioner maintains that this court should grant him habeas relief because (1) the State withheld exculpatory evidence in violation ofBrady v. Maryland: and (2) he was denied his Sixth Amendment rights to effective assistance of counsel and confrontation.A. Procedural Default Waived
As a preliminary matter, the court notes that Respondents failed to raise Petitioner's procedural default as a defense to his claims. The Kansas Court of Appeals denied Petitioner's motion under Kan. Stat. Ann. § 60-1507 because Petitioner failed to raise that "the prosecution withheld exculpatory evidence, that he was denied the right of confrontation, and that he received ineffective assistance of counsel" in his direct appeal. Citing Kansas Supreme Court Rule 183(c), the Kansas Court of Appeals held that Petitioner's claims were barred because Petitioner did not establish any exceptional circumstances to excuse his failure to raise these constitutional errors on direct appeal.
A federal court "may invoke the procedural bar defense sua sponte."United States v. Hernandez 94 F.3d 606, 612 (10th Cir. 1996) (citing Hines v. United States. 971 F.2d 506, 508 (10th Cir. 1992)). "However,. . . `if a court elects to raise a defense sua sponte, the court must generally afford the movant an opportunity to respond to the defense.'" Id. (quoting Hines. 971 F.2d at 509). Due to the late stage of the proceedings, and Petitioner's lack of opportunity to demonstrate cause and prejudice, the court concludes that Respondents have waived the procedural default defense and will consider Petitioner's claims on the merits. See Duvall v. Reynolds. 139 F.3d 768, 796 (10th Cir. 1998) (quotingHernandez 94 F.3d at 612; United States v. Allea 16 F.3d 377, 378-79 (10th Cir. 1994); Manlove v. Tansy. 981 F.2d 473, 476 n. 4 (10th Cir. 1992); Bailey v. Cowley. 914 F.2d 1438, 1439 (10th Cir. 1990)).
B. Brady Violation
Petitioner claims that the prosecution withheld exculpatory evidence, that if provided, would have proven that he was innocent in violation ofBrady v. Maryland. 373 U.S. 83 (1963). Specifically, Petitioner maintains that during discovery his counsel requested all serological evidence in the custody or control of the State so that independent testing could be performed. Petitioner asserts that the State refused to turn over the serological evidence and that if independent DNA testing had been performed, it would have proven that another person committed the alleged offenses.
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad forth of the prosecution." Brady. 373 U.S. at 87. "Thus, to establish a Brady violation, a defendant must demonstrate that `(1) the prosecutor suppressed evidence; (2) the evidence was favorable to the defendant as exculpatory or impeachment evidence; and (3) the evidence was material.'" United States v. Walters. 269 F.3d 1207, 1214 (10th Cir. 2001) (quoting Gonzales v. McKune. 247 F.3d 1066, 1075 (10th Cir. 2001)). "`Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome.'" United States v. Hughes. 33 F.3d 1248, 1251 (10th Cir. 1994) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
The court concludes that Petitioner's Brady claim fails because he has not shown that the result of his trial would have been different if his counsel had independent testing performed on the serological evidence. At Petitioner's trial, a chemist specializing in forensic serology testified that the evidence gathered from the rape kit tested positive for seminal material in KK's vaginal and rectal areas. Petitioner's defense at trial, however, did not focus on the identify of the rapist, but on the consensual nature of the sexual intercourse. It was undisputed that Petitioner had sexual intercourse with the victim; Petitioner testified at trial that he had sex with KK two times. Thus, the serological evidence merely corroborated that Petitioner and KK engaged in sexual intercourse. Independent testing would not have provided evidence material to Petitioner's defense; there was simply no evidence or suggestion that anyone other than Petitioner committed the rape.
C. Sixth Amendment Right to Effective Assistance of Counsel
Petitioner makes six arguments that his counsel was ineffective such that his right to counsel guaranteed by the Sixth Amendment was denied. To prevail on his claim of ineffective assistance of counsel, Petitioner must show: (1) that his counsel's representation was deficient; and (2) that counsel's deficient performance was prejudicial to Petitioner.Strickland v. Washington 466 U.S. 668, 687 (1984).
To establish that counsel's performance was deficient, Petitioner must establish that counsel's representation fell below an objective standard of reasonableness. United States v. Walling. 982 F.2d 447, 449 (10th Cir. 1992). Counsel's errors must be "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland. 466 U.S. at 687. To meet his burden, Petitioner must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Id. at 689.
To establish prejudice, Petitioner must show that counsel's performance was so prejudicial to him 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. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
1. Independent Testing of Serological Evidence
First, Petitioner claims that his counsel was ineffective for failing to obtain independent testing of the serological evidence. The court concludes Petitioner's claim fails for the same reasons provided in response to Petitioner's Brady claim. Petitioner never disputed having sexual intercourse with KK; the only issue Petitioner's counsel disputed was whether the intercourse was consensual or not. Petitioner's counsel was not deficient when he decided not to have independent testing completed, and Petitioner was not prejudiced by this tactical decision.2. Voir Dire
Petitioner next contends that his counsel failed to move for a mistrial on the grounds that: (1) a member of the jury knew one of the state's witnesses; and (2) the victim tampered with a potential juror on the day of voir dire. The court determines that Petitioner's claims are without merit.
First, Petitioner alleges that "the jury was stacked" against him because a member of the jury personally knew one of the prosecutor's witnesses. Petitioner maintains that this circumstance warranted a mistrial or the suppression of the witness's testimony, but that his counsel failed to object.
The record reflects that the prosecutor asked the venire persons whether they knew one of her potential witnesses, Twila Flowers, a sexual assault nurse examiner. In response, one of the potential jurors, Mr. Elrod, stated that he remembered Ms. Flowers from a class he taught ten years earlier. Mr. Elrod further stated that this class focused on the registration admission system for the hospital, and that he did not know anything about her training as a sexual assault nurse examiner. Finally, Mr. Elrod replied in the affirmative when the prosecutor asked him whether he could be as fair as anyone else when he listened to her testimony. The court determines that Petitioner's counsel was not deficient and that Petitioner was not prejudiced based on the limited connection between Mr. Elrod and Ms. Flowers, and Mr. Elrod's statement that he could be fair.
Second, Petitioner claims that his counsel failed to move for a mistrial based on a conversation that KK had with a potential juror. During voir dire, one of the venire persons, Mr. Kraft, informed the prosecutor that KK had approached him that morning. Mr. Kraft stated that KK did not want him there due to the personal nature of the case and that fact that the two worked in the same building. Based on this information, the prosecutor requested that Mr. Kraft be removed for cause. Petitioner's counsel objected, and the trial judge permitted him to inquire further of Mr. Kraft. Mr. Kraft stated that he understood his duty to be fair and impartial, and that even though he was only an acquaintance of the victim, his feelings would be affected because he did not want to make the victim uncomfortable. The trial judge ruled that based on the circumstances, he would excuse Mr. Kraft for cause. In response, Petitioner's counsel preserved his objection to this ruling, maintaining that there was not a sufficient basis for excusing Mr. Kraft.
Based on the victim's communication with the potential juror, Petitioner now argues that his counsel should have moved for a mistrial because "[f]his tampering totally prejudiced the jury against the petitioner, denying the petitioner a fair trial or a fair decision by his peers." The court disagrees. First, Petitioner's counsel was anything but deficient in handling this matter; Petitioner's counsel further probed Mr. Kraft concerning his communication with KK and properly preserved his objection to Mr. Kraft's dismissal for the record. Second, Petitioner's argument that the victim's "tampering" prejudiced the jury is without merit because Mr. Kraft was not even a member of the jury. Finally, any argument that the trial judge erred in excusing the juror is not reviewable by this court. On direct review, the Kansas Court of Appeals, citing Kan. Stat. Ann. § 22-3410(2)(i), held that the trial judge did not abuse his discretion in excusing Mr. Kraft for cause. Again, a federal court may not review a state court decision for errors of state law in a habeas action. See Estelle, 502 U.S. at 67-68. The court denies Petitioner relief based on this claim.
3. Independent Testing of Knife Fingerprints
Petitioner next argues that his attorney failed to secure independent tests on the fingerprints found on a knife admitted into evidence at his trial. Petitioner states that if his counsel had obtained independent tests, "it would have conclusively determined that the petitioner did not have this alleged weapon in his hand. . . ." The court disagrees.
During trial, the prosecutor called the latent print examiner for the Wichita Police Department to the stand. The examiner testified that she was asked to compare the unknown latent print submitted by Investigator Cunningham to the known inked impression of Petitioner. The examiner graded the four latent prints "as very poor quality, but they were comparable." Furthermore, when asked what her tests uncovered, the examiner testified: "Negative result on comparison of latent prints to the known print of Randall C. Wyatt." On cross examination, Petitioner's counsel had the examiner reiterate that the latent prints were graded as very poor.
Q. Did you compare that to the known inked impression versus Randall Wyatt's in this case?
A. Yes.
Q. That was absolutely not a match?
A. Correct.
Q. Meaning the same person could not have made the same prints as you were comparing to?
A. That's correct.
The court determines that counsel's performance was not deficient. Cross examination of the examiner confirmed that the prints found on the knife were of "very poor quality" and did not match Petitioner's fingerprints. The decision to rely solely on this cross examination did not fall below an objective standard of reasonableness. Moreover, Petitioner was not prejudiced by his counsel's failure to secure independent testing; there was not a shred of evidence at trial indicating someone else could have stabbed or sexually assaulted KK.
4. Blood/Saliva Samples
Petitioner next claims that his counsel "never objected to the blood and saliva samples that were taken from the petitioner without a warrant or court order." After reviewing the transcript from Petitioner's sentencing, it appears to the court that Petitioner is objecting to the trial judge's order directing Petitioner to submit samples of blood and saliva to the Kansas Bureau of Investigation ("KBI").
In 1991, the Kansas Legislature enacted Kan. Stat. Ann. § 21-2511, which provides that any adult convicted of a felony is required to submit blood and saliva specimens to the KBI. Kan. Stat. Ann. § 21-2511(a) (2002). This information is utilized by the KBI "in preparing `genetic marker groupings,' . . . to detect and deter the commission of crimes by recidivists. Schlicher v. Peters, 103 F.3d 940, 941 (10th Cir. 1996) (upholding the constitutionality of K.S.A. § 21-2511);see also Vanderlinden v. Kansas. 874 F. Supp. 1210, 1217 (D. Kan. 1995) (same). The trial judge properly ordered Petitioner, as a convicted sex offender, to submit blood and saliva specimens.See Kan. Stat. Ann. § 21-2511(c) (stating that a court shall order these collections to occur within ten days after sentencing). Accordingly, the court denies Petitioner's claim that his counsel was ineffective for failing to object to these specimen collections.
5. Failure to Retain Medical Expert
Petitioner next claims that his counsel should have retained a medical doctor to review the examination performed by Twila Flowers, the rape kit nurse. Petitioner asserts that this expert was necessary to verify that her procedures were correct and to testify whether or not a medical doctor is needed to examine sexual assault victims.
The court concludes that Petitioner's counsel did not perform below professional standards in failing to request a medical expert. Petitioner's counsel simply chose to attack the nurse's testimony on cross examination, rather than with a medical expert. Thus, the court determines that counsel's decision not to obtain an independent medical doctor was a reasonable decision regarding trial strategy. See Yohey v. Collins. 985 F.2d 222, 228 (5th Cir. 1993) (stating that the "decision not to hire experts falls within the realm of trial strategy"). Second, the court has no evidence in the record before it that a medical doctor would have helped Petitioner's defense. In fact, it is possible that a medical doctor's testimony could have been damaging to Petitioner's case. Petitioner fails to demonstrate how a medical doctor's testimony would have raised a reasonable probability that the outcome of the trial would have been different, and therefore, Petitioner is unable to establish prejudice. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("Speculation about what an expert could have said is not enough to establish prejudice."). Accordingly, Petitioner is denied habeas relief as to this claim.
6. Hearsay Testimony
Finally, Petitioner maintains that his counsel was ineffective and that his right to confrontation was violated because his attorney failed to object when hearsay statements from a detective were entered into evidence and read aloud for the jury.
The record reflects that Petitioner's counsel stipulated to admit the handwritten notes of Detective Tracey Repp regarding a conversation Detective Repp had with KK at the hospital. Detective Repp, who was in charge of the investigation against Petitioner, was unavailable to testify because, at the time of Petitioner's trial, Detective Repp had left the Wichita Police Department to accept a job with the FBI. Detective Repp was training for his new job at the FBI academy in Quantico, Virginia.
Petitioner's counsel first advised the trial judge of Detective Repp's situation by making the following remarks on the record:
Just to briefly inform the Court [what] I expect the parties' agreement will bear out which is Detective Repp is going to be out of town. We would like to call him as a witness. However, because he's not going to be available, the State has agreed by stipulation, and also I suppose in terms of any other testimony that needs to be received, that any statement made by him through his writings and written reports and/or typed reports will be agreed upon to be admitted without his testimony.
Later on in the proceedings, Petitioner's counsel notified the trial judge of the agreement to stipulate:
Mr. Adams: The ongoing saga of this situation with Detective Repp. I have determined at this point that rather than delay and ask for continuance, I am not going to do so. I will go ahead and go with the stipulation that I originally indicated to the Court that I would. Essentially that would consist of displaying or marking of this interview that Detective Repp had with [KK] the morning in the hospital as an exhibit, stipulate it has been made by Detective Repp, that it was done in his law enforcement capacity, and that several of those issues in regard to what the circumstances were would be stipulated to as well. That would be sufficient for my purposes at this point.
Court: Is the state still agreeable to accept that stipulation?
Ms. Ladner: We are.
Per this agreement, Petitioner's counsel submitted a photocopy of Detective Repp's notes and the trial judge admitted them into evidence. Petitioner now argues that Detective Repp's personal knowledge "differed greatly" from his written notes and that his counsel failed to object to the admission of this evidence and denied him the right to cross examination.
The court first notes that it is not entirely clear whether Petitioner has a right to assert a confrontation claim that is separate from his claim of ineffective assistance of counsel; the act Petitioner alleges violated his right to confrontation was his trial counsel's decision to stipulate. The court will consider Petitioner's right to confrontation claim, but views this claim as more appropriately considered under Petitioner's ineffective assistance of counsel claim.
The Tenth Circuit has held that "a defendant waives the protections guaranteed by the [Confrontation] Clause when his counsel, for reasonable strategic or tactical reasons `stipulates to the admission of hearsay evidence' or elects not to cross-examine a witness." Bullock v. Carver. 297 F.3d 1036, 1057 (10th Cir. 2002) (quoting Hawkins v. Hannigan, 185 F.3d 1146, 1154-55 n. 5 (10th Cir. 1999)). The trial record contains no evidence that Petitioner disagreed or objected to his counsel's decision to stipulate to portions of Detective Repp's notes. The record reflects that Petitioner's counsel clearly stated to the trial judge on at least two separate occasions his intention to stipulate to Detective Repp's notes. There is no indication in the record that Petitioner was not present during those conversations with the trial judge or when his his counsel moved to admit Detective Repp's notes as a part of Petitioner's defense. The court concludes that Petitioner waived his rights under the confrontation clause.
The court also determines that Petitioner's ineffective assistance of counsel claim fails. Counsel's decision to enter the stipulation, rather than move for a continuance, was a matter of trial strategy. See Hakeem v. Bever, 990 F.2d 750, 763 n. 10 (3d Cir. 1993) (stating that counsel's decision to stipulate as to the testimony of an absent witness involved trial strategy and thus was entitled to deference). Although Petitioner's counsel might have preferred to call Detective Repp as a witness, the court cannot conclude his decision to stipulate to portions of Detective Repp's notes from an interview fell below an objective standard of reasonableness. In addition, the court determines that the decision by Petitioner's counsel to stipulate to portions of Detective Repp's notes did not affect the outcome of Petitioner's trial. Based on the testimony and evidence presented at Petitioner's trial, it is not reasonably probable that the substance of Detective Repp's live testimony could have changed the outcome of Petitioner's trial.
IT IS, THEREFORE, BY THE COURT ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is denied.
The case is closed.
Copies of this order shall be transmitted to pro se Petitioner and to counsel of record.
IT IS SO ORDERED.