The opinion of the court was delivered by: Sam A. Crow U.S. Senior District Judge
Petitioner proceeds pro se on a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Having reviewed the record which includes respondents' Answer and Return, the court enters the following findings and order.*fn1
Petitioner was convicted in 1995 of first degree felony murder in the shooting death of Larry Goodwin, and of aggravated battery in the drive-by shooting of Tyrone Elam. The district court judge sentenced petitioner to consecutive prison terms of life and 86 months. The Kansas Supreme Court affirmed petitioner's convictions, but vacated petitioner's sentence and remanded for resentencing. State v. Alderson, 260 Kan. 445 (1996)(Alderson I). A different district court judge imposed the same consecutive sentence, which the Kansas Supreme Court upheld. State v. Alderson, 266 Kan. 603 (1999)(Alderson II).
Petitioner then sought post-conviction relief under K.S.A. 60-1507, raising numerous claims of ineffective assistance of counsel. The district court denied the motion without conducting an evidentiary hearing. The Kansas Court of Appeals found petitioner's motion raised substantial issues of fact on three of the issues, and remanded for an evidentiary hearing. Alderson v. State, 2003 WL 22532936 (Kan.App. Nov. 7, 2003)(unpublished opinion)(Alderson III). On remand, the district court denied relief on all claims, and the Kansas Court of Appeals affirmed that decision. Alderson v. State, 36 Kan.App.2d 29 (2006)(Alderson IV), rev. denied (November 8, 2006).
Petitioner initiated the instant action in 1999 by filing a petition asserting fifteen grounds for relief. Following an extensive stay to allow petitioner's exhaustion of state post-conviction remedies, the petition as amended by petitioner and construed by the court now presents the following eight grounds*fn2 in which petitioner claims:
(I) he was denied a fair and impartial trial by the trial court's refusal to recuse himself from presiding over petitioner's trial;
(II) insufficient evidence supports his conviction for felony murder;
(III) he was not properly convicted of felony murder because the underlying offense of criminal discharge of a firearm at an occupied vehicle merged into the felony murder offense;
(IV) he was denied his right to a defense by the trial court's refusal to admit evidence of Goodwin's prior conviction;
(V) the trial court erred in denying petitioner's request to sequester witnesses;
(VI) the trial erroneously failed to instruct the jury on lesser included offenses of felony murder;
(VII) cumulative error denied him a fair trial; and (VIII) his trial counsel's representation was constitutionally inadequate.
Under 28 U.S.C. § 2254, a federal court is precluded from granting habeas relief on any claim adjudicated on the merits by a state court unless the state court's proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 405-13 (2000)(construing the review standard in 28 U.S.C. § 2254).
A state court's decision is "contrary to" an established federal law if the state court reaches a different result than the Supreme Court would when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent" or if the state court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. A decision is an "unreasonable application" of clearly established federal law if a "state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413.
In accord with 28 U.S.C. § 2254(e)(1), a state court's factual findings are presumed to be correct unless petitioner rebuts that presumption of correctness by clear and convincing evidence. See House v. Hatch, 527 F.3d 1010, 1019 (10th Cir. 2008). Additionally, the Supreme Court clearly dictates "it is not the province of a federal habeas court to re-examine state court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas actions do not provide relief for errors of state law. Id. (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). "Federal courts hold no supervisory authority over ...