AARON R. ALGER, Petitioner,
DEREK SCHMIDT, ANSAS ATTORNEY GENERAL, Respondent.
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 Lansing Correctional Facility who was convicted of first degree murder in the death of his girlfriend's two– year–old daughter. The parties do not dispute the procedural history of the case or the facts as set forth in Respondents' brief. Dk. 7. 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. 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. 766, 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. The Court first addresses Petitioner’s claim that he was denied his right to effective assistance of trial counsel.
A. Ineffective Assistance of Counsel
Petitioner claims that his trial counsel, Mr. Bernhart, was ineffective in the following respects: (1) failing to object to the admission of videotaped statements to police; (2) failing to argue that the victim’s death might have been caused by actions of emergency medical technicians; (3) failing to call Dr. Kathy Newell to provide expert testimony that the victim’s injuries did not cause instantaneous death; (4) failing to file a motion to suppress Petitioner’s involuntary statements to police; (5) failing to call Dr. Kathy Newell to provide expert testimony that shaking was not the cause of the victim’s death; and (6) failing to pursue testimony regarding a dog allegedly knocking Alexis down.
1. State Court Holding
Petitioner did not present the second or sixth of these claims, which suggest other causes of the victim’s injuries, to the Kansas appellate courts, either in his direct appeal or in his collateral appeal. Therefore, Petitioner may not raise these issues on habeas review, as they are procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding failure to give state courts one full opportunity to resolve constitutional issues by presenting claims in state appellate review process results in default).
Petitioner’s other claims of ineffective assistance of counsel were raised before the Kansas Court of Appeals (KCOA) in his appeal from the denial of his K.S.A. 60-1507 motion.
The KCOA applied the following test:
To support a claim of ineffective assistance of counsel, a defendant must demonstrate (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations omitted.]” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Alger v. State, 247 P.3d 234, at 3 (2011).
At trial, defense counsel called Dr. Richard Gilmartin as an expert to cast doubt on the State’s theory that Alexis was killed as a result of Petitioner abusing her, by challenging the timing of the victim’s injury. Before trial, defense counsel had consulted Dr. Newell, pursuant to Dr. Gilmartin’s suggestion, but decided not to call her at trial because she could not determine a precise time of the injury that would rule out Petitioner as the perpetrator.
Regarding Petitioner’s claim that his attorney was ineffective for failing to call Dr. Newell as a witness, the KCOA concluded:
Newell's proposed testimony would have prejudiced Alger's defense in that her testimony would have supported the State's allegation that Alexis' injury occurred on August 29 while Alexis was under Alger's care. [Petitioner’s attorney’s] testimony at the evidentiary hearing indicates this was the precise reason he did not call Newell as a witness. He testified he decided not to call Newell because she could not date the point of injury at a time when Alexis was not in Alger's care. It would have been poor trial strategy for [the attorney] to call a witness who would do nothing more than further substantiate the testimony of the State's experts that Alexis' fatal injury occurred on August 29 while she was in Alger's care. Clearly, [the attorney’s] decision to refrain from calling Newell as a witness was strategic and did not fall below an objective standard of reasonableness.
Because Bernhart's performance was not deficient for failing to call Newell as a witness, we need not address the second step of the ineffective assistance of counsel analysis. See Lumley v. State, 29 Kan.App.2d 911, 914, 34 P.3d 467 (2001), rev. denied 273 Kan. 1036 (2002).
Alger, 247 P.3d 234 at 5-6.
The KCOA then addressed Petitioner’s claim that his attorney’s failure to object to the admission of the videotape of Alger's third interview constituted ineffective assistance of counsel. Although neither the videotape nor a transcript of the interview was included in the record on appeal, the KCOA noted the Kansas Supreme Court’s statement that during the interrogation “the detective ... expresses doubt about [Alger's] evasiveness and repeatedly says that he is not being truthful.” 2011 WL 767886 at p. 6, citing 282 Kan. at 301–02.
Barnhart testified at the evidentiary hearing that allowing the jury to see the interview was a strategic decision … It is apparent that Bernhart wanted the jury to see that law enforcement repeatedly tried to get Alger to confess to shaking Alexis on August 29 by utilizing unfair tactics but that Alger never confessed.
According to Bernhart's testimony, it was part of the defense's strategy for the jury to see that Alger maintained to law enforcement, even throughout a tough interrogation, that he did not shake or injure Alexis on August 29. Moreover, the videotape provided support for the defense's argument regarding law enforcement's conduct in trying to get Alger to confess. This strategy is similar to that recognized by the court in Anthony.
Id., at p. 7. The KCOA concluded:
Bernhart's failure to object to the videotape was a result of reasonable trial strategy and, therefore, Bernhart's representation in this regard was not inadequate. See Gleason, 277 Kan. at 644. As a result, it is unnecessary to address the second step of the ineffective assistance of counsel analysis. See Lumley, 29 Kan.App.2d at 914.
Id., at p. 7.
2. Habeas Review
The Court reviews Petitioner’s claims of ineffective assistance of counsel under the familiar framework laid out in Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, to prevail on a claim of ineffective assistance of counsel, Petitioner must show both that his counsel's performance “fell below an objective standard of reasonableness” and that “the deficient performance prejudiced the ...