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Glynn v. Heimgartner

United States District Court, Tenth Circuit

June 5, 2013

RICO L. GLYNN, Petitioner,
v.
JAMES HEIMGARTNER, and ATTORNEY GENERAL OF KANSAS, Respondents.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District 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 attempted first-degree murder, aggravated burglary, aggravated battery, and attempted aggravated robbery. The parties agree to the procedural history of the case and to the facts as set forth in Respondents' brief.[1] 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).

I. Incorporation of Ruling on Related Petition

This habeas petition raises several issues identical to those raised in Petitioner's companion habeas petition in Glynn v. Heimgartner, et al, No. 12-3031 (D. Kan. 2013), and the Court incorporates herein its recent ruling in that case. Accordingly, the following issues raised in this case are governed by the analysis and result set forth in the Court's recent ruling on that habeas petition, and will not be repeated here: 1) Petitioner's Fifth Amendment rights were violated because his statement to police was coerced, yet was not suppressed; 2) the court used his prior juvenile adjudications to enhance his sentence, violating Apprendi and Blakely; 3) Petitioner's DNA was obtained in violation of the Fourth and Fifth Amendments; and 3) his trial and appellate counsel rendered ineffective assistance of counsel. Claims that are not duplicative of those addressed in his companion habeas petition are addressed below.

II. Other Issues

A. Sufficiency of the Evidence

Petitioner claims that insufficient evidence was presented to support his convictions of aggravated burglary and attempted aggravated robbery. Because these two arguments are interrelated, the Court addresses them together.

A criminal defendant has a federal due process right against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Jackson v. Virginia, 443 U.S. 307, 314 (1979) (citation omitted). When reviewing the sufficiency of the evidence in a habeas corpus action "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. In petitioner's direct appeal, the KCOA restated and applied this constitutional standard. See Petitioner, 2007 WL 1041759 at *3.

To prove aggravated burglary under Kansas law, the State was required to show that Petitioner entered the home with the intent to commit a felony therein. See K.S.A. 21-3716. The underlying felony alleged by the State was aggravated robbery. Petitioner complains of insufficient evidence of his intent to commit aggravated robbery, stating: 1) persons inside the apartment only assumed he intended to rob them; 2) one person offered his wallet to Petitioner because he only thought a robbery was taking place; 3) Petitioner never requested the wallet or attempted to retrieve it; and 4) Petitioner left the apartment with no wallet or valuables from anyone.

In challenging the sufficiency of the evidence establishing his intent to commit an aggravated robbery, Petitioner relies on testimony by himself and one witnesses that he never asked for money or property while inside the apartment, and that the witness merely assumed he wanted money. Dk. 1, p. 16. Petitioner also points to a witness's testimony that Petitioner asked him what he had. Petitioner thus asserts that the testimony about his intent to commit robbery was too vague and insufficient to show that he intended to rob anyone, let alone the victim.

But Petitioner ignores other testimony of record. Lupton testified that she remembered Petitioner asking for money at some point during the incident. And the same witness who testified that Petitioner "asked [him] what [he] had, " interpreted that question to be a request for money or valuables. That witness also testified that Petitioner said, "Give me what you got." S.C. testified that she woke and heard a man talking about money. See Glynn, 2007 WL 1041759, 3. S.C. also testified that she heard her brother say that Glynn wanted money. Other evidence showed that Petitioner forced his way into the apartment, was armed with a knife, and threatened the victims. (R. XIII, 38, 41, 43, 86-92, 119-20.) See R. XIII, 87, 121.). The jury was entitled to make credibility calls and reasonable inferences from all the testimony in the case, and could properly have found that Petitioner intended to rob them. Sufficient evidence was thus presented of Petitioner's intent to commit an aggravated robbery.

Having reviewed the record, the court finds the state court's determination was neither a contrary nor an unreasonable application of Jackson, nor an unreasonable determination of the facts in light of the evidence presented at trial.

B. Omitted Instructions

1. Voluntary Intoxication

Petitioner claims that the trial court's failure to give a voluntary intoxication instruction violated his right to a fair trial. Petitioner did not request such an instruction at trial, however.

On habeas review, this Court's role in evaluating jury instructions is limited”it looks only to determine if instructional errors "had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in a constitutional sense." Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir. 1990) (quotation omitted). See also Nichols v. Sullivan, 867 F.2d 1250, 1253 (10th Cir.) ("the scope of our review is narrow: our responsibility is to ensure that [petitioner] was afforded the protections of due process, not to exercise supervisory powers over the [state] courts."), cert. denied, 490 U.S. 1112, (1989).

Petitioner contends that the voluntary intoxication instruction was necessary because the state's witness mentioned Petitioner's cocaine use to the jury, in violation of a motion in limine. But Petitioner must show that the failure to provide the instruction so deprived him of due process that it caused his trial to be fundamentally unfair. See ...


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