RICO L. GLYNN, Petitioner,
JAMES HEIMGARTNER, and ATTORNEY GENERAL OF KANSAS Respondents.
MEMORANDUM AND ORDER
SAM A. CROW, U.S. District Senior Judge.
This case comes before the Court on a petition for habeas corpus filed pursuant to 28 USC § 2254 by an inmate at El Dorado Correctional Facility who was convicted of rape, aggravated sodomy, and aggravated kidnapping. The parties agree to the procedural history of the case and to the facts as set forth in Respondents’ brief. Accordingly, the Court adopts those facts as correct and finds it unnecessary to set them forth herein except as necessary to the analysis of the Petition. See 28 U.S.C. § 2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004). Respondents admit that Petitioner has exhausted his available state court remedies.
I. AEDPA Standard
This matter is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA imposes a “highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.
__, 130 S.Ct. 1855, 1862 (2010) (citation and internal quotation marks omitted). Under AEDPA, where a state prisoner presents a claim in habeas corpus and the merits were addressed in the state courts, a federal court may grant relief only if it determines that the state court proceedings resulted in a decision (1) “that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “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).
A state court decision is “contrary to clearly established Federal law” when: (a) the state court “ ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' ”; or (b) “ ‘the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent .’ ” Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct legal rule from Supreme Court case law, but unreasonably applies that rule to the facts. Williams, at 407–08. Likewise, a state court unreasonably applies federal law when it either unreasonably extends, or refuses to extend, a legal principle from Supreme Court precedent where it should apply. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).
In reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). In order to obtain relief, a petitioner must show that the state court decision is “objectively unreasonable.” Williams, 529 U.S. at 409 (O'Connor, J., concurring). “[A] decision is ‘objectively unreasonable’ when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law.” Maynard, 468 F.3d at 671.
Petitioner alleges multiple constitutional errors during his criminal trial.
A. Obtaining Petitioner’s DNA
Petitioner first asserts that Respondents’ collection of his DNA evidence violated his Fourth and Fifth Amendment rights. Petitioner asserts that the manner of collection exceeded the scope of the warrant, so the evidence should have been suppressed. Petitioner contends that the search warrant in his home invasion case authorized only one saliva sample, but two were taken.
The facts show that after a victim positively identified Petitioner as the assailant in the home invasion case, officers got a search warrant for saliva samples then applied a buccal swab to the inside of each of Petitioner’s cheeks. Petitioner’s DNA matched the DNA taken from a rape location, and Petitioner was later charged with this rape case. The home invasion case and this rape case were kept together at the trial court level for control purposes because of the interrelation of motions filed in the cases, and the same judge presided over both trials.
1. Fourth Amendment Claim
Plaintiff claims that the manner of collection of his DNA exceeded the scope of the warrant and violated the Fourth Amendment. But Fourth Amendment claims generally may not be raised in a habeas corpus petition. In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 494. The Tenth Circuit has interpreted the “opportunity for full and fair consideration” to include the procedural opportunity to raise a Fourth Amendment claim, the full and fair evidentiary hearing contemplated by Townsend v. Sain, 372 U.S. 293 (1963), and the state court’s application of the correct and controlling constitutional standards. See Gamble v. State of Okl., 583 F.2d 1161, 1164-65 (10th Cir. 1978); Sanders v. Oliver, 611 F.2d 804, 808 (10th Cir. 1979), cert. denied, 449 U.S. 827 (1980) (“‘opportunity’ includes procedural opportunity to raise a claim.”).
Petitioner does not assert that he lacked an opportunity for a full and fair hearing on this issue before the state trial court, and the record shows that he in fact had one. See R. VIII, 45-52, 65-70, 77, 86-88, 113-15, 123-25. Petitioner also fully litigated this issue on appeal, both in his rape case, State v. Glynn, 38 Kan.App.2d 437, 455 (2007), and in his home invasion case, State v. Glynn, 2007 WL 1041759 at *9 (2007). See generally Wallace v. Kato, 549 U.S. 384 (2007) (“Stone requires full and fair opportunity to litigate a Fourth Amendment claim at trial and on direct review.”). Further, the state court reasonably applied the correct and controlling constitutional standard. Thus, Petitioner cannot be granted federal habeas relief for any Fourth Amendment violation regarding the manner in which his DNA was obtained.
Petitioner also asserts that an evidentiary hearing is necessary because he requested a Franks hearing in state court but got none. Petitioner thus disagrees with the trial court's ruling that he did not meet the Franks standard. But “[u]nder Stone it is irrelevant whether the trial court was correct in finding that the Franks standard was not met.” McIntyre v. McKune, 2011 WL 686120 (D.Kan. 2011). See Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A full and fair opportunity to litigate a Fourth Amendment claim “guarantees the right to present one's case, but it does not guarantee a correct result.” Cabrera v. Hinsley, 324 F.3d 527, 532 (7th Cir.), cert. denied, 540 U.S. 873 (2003).
2. Fifth Amendment Claim
The court next addresses Petitioner’s contention that the collection of his DNA violated the 5th Amendment. He contends that in the home invasion case, police continued to question him after he had invoked his right to remain silent and his right to counsel in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). Therefore, Petitioner contends, his confession and the resultant search warrant for his DNA evidence were invalid under the “fruit of the poisonous tree” doctrine of Wong Sun v. United States, 371 U.S. 472 (1963).
The facts show that Petitioner initially refused to talk to police. Soon thereafter, Detective Phil Jacobs told Petitioner that he would contact the District Attorney and seek to file charges of attempted first degree murder and aggravated robbery. Petitioner then said he “didn't agree” with one of those charges, and wanted to talk. Before speaking to Petitioner, Jacobs asked him to indicate on the Miranda form that he would answer questions without having counsel present and Petitioner did so.
The KCOA held in Petitioner’s direct appeal in this case that Petitioner’s confession in the home invasion case was voluntary and uncoerced, and that obtaining Petitioner’s saliva sample for DNA purposes was a separate and distinct act from the alleged improper interrogation of defendant. Glynn, 38 Kan.App.2d at 444. Because the application for the search warrant had been prepared in Wichita before the police questioned Petitioner at Lansing, it could not have been based on anything Petitioner told the officer during his Lansing confession. Id. Thus no causal connection was shown between the search for Petitioner’s DNA and the challenged interrogation.
The KCOA examined this same claim in the appeal in Petitioner’s home invasion case and concluded that the officer
neither promised nor threatened, but merely stated in a matter-of-fact way what his next action would be. He was not responsible for [Petitioner’s] reaction to his words, and the words did not appear to be designed to elicit [Petitioner’s] confession.
2007 WL 1041759, at *3.
Petitioner cites no Supreme Court authority holding that it is coercive for an officer to truthfully tell a suspect that the officer intends to seek specific charges against him based on the evidence known to the officer at the time. Rather, the Tenth Circuit has suggested there is “no Supreme Court authority suggesting that it is coercive to tell a suspect truthfully that the evidence would imply that he was guilty of a … crime.” Davis v. Workman, 695 F.3d 1060, 1071 (10th Cir. 2012). Thus the KCOA decision did not unreasonably determine the facts or unreasonably apply clearly established federal law.
B. Using Petitioner’s DNA in Cold Case
Petitioner additionally claims that even if his DNA was initially obtained legally in his home invasion case, the use of that DNA in this rape case violated his constitutional rights because it was not obtained pursuant to a search warrant in this case. Respondent notes that the search warrant was for “a saliva sample” and stated that his saliva would be compared to blood taken from a knife used in a home invasion case.
Respondents admit that this claim, although “arguably” barred by Stone v. Powell, supra, “is a novel issue that may not fit squarely under Stone.” Dk. 11, p. 13-14. The Court agrees. Although Stone has been broadly interpreted to bar all Fourth Amendment claims on habeas review, Stone’s analysis focuses upon officer’s obtaining evidence in an unconstitutional search or seizure, and the corresponding rationale of deterring police conduct. Here, Petitioner contends his DNA evidence, even if initially obtained constitutionally for use in another case, was used unconstitutionally in this “cold case” by matching it to the DNA sample recovered from the rape victim’s truck. ...