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 the El Dorado Correctional Facility. Petitioner was convicted of one count of rape, two counts of aggravated burglary, one count of aggravated criminal sodomy, and one count of theft in state court. Petitioner, who is serving a 620-month prison sentence, makes multiple allegations in this petition, including trial court error, ineffective assistance of trial and appellate counsel, insufficient evidence, and sentencing error.
The parties do not challenge the procedural history of the case or the facts stated by the Kansas Court of Appeals (KCOA) in petitioner’s prior appeals. See State v. Evans, 154 P.3d 1184, 2007 WL 1042136 (Kan.Ct.App. April 6, 2007) (affirming on direct appeal); Evans v. State, 248 P.3d 281, 2011 WL 1004609 (Kan.Ct.App., March 18, 2011) (affirming denial of K.S.A. 60-1507). Accordingly, the Court adopts those facts and shall not repeat them except as necessary to the analysis of this 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, 773 (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.
II. Issues procedurally barred
The court first addresses the State’s claim that a number of issues raised by petitioner are procedurally defaulted.
A. District Court Error in Using an Interpreter
Petitioner contends that the district court erred in permitting Y.M., an English-speaking victim whose native language was Spanish, to testify in Spanish through an interpreter. Petitioner raised a similar claim in his appeal from the denial of his K.S.A. 60-1507, in contending that trial counsel's failure to object to the use of an interpreter by Y.M constituted ineffective assistance of counsel. 2011 WL 1004609 at 4. But in his petition for review of the KCOA’s opinion denying him relief under K.S.A. 60-1507, petitioner abandoned any claim that there was any district court error in permitting Y.M. to testify through an interpreter or that his trial or appellate counsel was ineffective in any way relating to the interpreter. Petitioner cannot remedy that fault now in state court. Accordingly, those claims have been procedurally defaulted. See O'Sullivan v. Boerckel, 526 U.S. 838, 848-49 (1999); Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
To overcome this procedural default, Petitioner must show cause for his default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that this Court's failure to consider these claims will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 488–89, 496 (1986). To show “cause” for his default, Petitioner must show that some external factor prevented him from raising the claim. See Coleman, 501 U.S. at 753. Petitioner has made no such showing, so has not overcome procedural default.
Nor has Petitioner shown that denying review on the merits of this claim would be a miscarriage of justice. A miscarriage of justice is shown when the error complained of probably resulted in the conviction of an innocent person. Bousley v. United States, 523 U.S. 614, 623 (1998). Here, application of this exception is soundly defeated by the eyewitness testimony from the victims, Y.M.’s child, the police officers who apprehended petitioner near the scene of the crimes, from the physical evidence showing the manner of petitioner’s entry into the homes, and from the DNA evidence placing petitioner at the scene of Y.M.’s rape.
But even if this court had reached the merits of this issue, it would necessarily find that rules governing interpreters are a matter of state law. It is well established that “federal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (further citations omitted)). And even had petitioner sufficiently alleged a claim of violation of his right to due process, instead of merely a state law claim, this Court cannot identify any Supreme Court precedent on this issue. Thus, the Court could not find the state court's determination resulted in a decision contrary to clearly established Supreme Court law, as is necessary to grant a habeas petition. See Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006) (holding state court could not have unreasonably applied clearly established federal law given the lack of holdings from the Supreme Court).
B. Trial Counsel’s Advice not to Testify
Petitioner also contends that his trial counsel was constitutionally ineffective in advising him not to testify at trial. Dk. 1, p. 8.
But Petitioner never raised this issue to the state courts. See Picard v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). He thus failed to give the state courts a full opportunity to address this claim. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). This issue cannot be raised now in the state courts because it is procedurally barred under state law as a successive and untimely motion. See K.S.A. 60-1507(c), (f); State v. Kelly, 291 Kan. 868, 873-74, 248 P.3d 1282 (2011). Under these circumstances, “there is a procedural default for purposes of federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). Petitioner has failed to provide any exceptional circumstances or any evidence of manifest injustice that would allow him to proceed on this claim when it has not been addressed by the state courts. It is thus procedurally defaulted and shall not be addressed on the merits.
C. Effectiveness of Appellate Counsel
Petitioner contends he was denied the effective assistance of appellate counsel for not having raised on direct appeal all of the issues raised in his 60-1507 motion. The issues raised in his K.S.A. 60-1507 motion were: 1) trial counsel’s ineffectiveness for failing to call Officer Breedlove as a witness; 2) appellate counsel’s ineffectiveness for not challenging the district court’s use of an interpreter for Y.M.’s testimony; and 3) appellate counsel’s ineffectiveness for not challenging on appeal the sufficiency of the evidence of his conviction for aggravated burglary Faelber's house because there was no evidence of intent to rape Faelber.
Petitioner exhausted a claim that his trial counsel was ineffective for failing to call Officer Breedlove as a witness, and that issue is addressed on the merits below. But petitioner has not exhausted his claim that appellate counsel was ineffective for not raising the issue of ineffective assistance of trial counsel relative to the officer’s report.
The second claim, regarding use of an interpreter, was raised in petitioner’s 60-1507 motion, but his petition for review of the KCOA opinion denying him relief under K.S.A. 60-1507 did not include that claim and thus abandoned it, preventing this court from addressing on the merits this claim of appellate counsel’s ineffectiveness.
The court will address below Petitioner’s claim that appellate counsel was ineffective for not challenging the sufficiency of the evidence of his conviction for aggravated burglary Faelber's house because there was no evidence of intent to rape Faelber.
Issues Properly Exhausted:
A. Lesser Included Offense Instruction
Petitioner contends that the district court erred in failing to give petitioner’s requested instruction for the lesser included offense of attempted aggravated burglary of Faelber's apartment.
1. State Court Holding
The KCOA, on direct appeal, found that the evidence, when viewed in the light most favorable to the petitioner, was insufficient to support a conviction on that lesser included offense.
... According to State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993):
“The trial court has an affirmative duty to instruct the jury on all lesser included offenses for which there is evidence to support a conviction on the included offense. The evidence may be inconclusive, weak, or unsatisfactory, but must be substantial enough that a rational factfinder could reasonably find the defendant guilty of the lesser included offense. On review, this court views the evidence in the light most favorable to the defendant. [Citation omitted.]”
Evans claims he was entitled to an instruction on attempted aggravated burglary based on two versions of the evidence: (1) some evidence showed that he did not actually insert his entire body into the apartment, and (2) some evidence showed that he only spoke to Faelber through her window. The first version of the evidence does not support a conviction of attempted aggravated burglary because, as we have already concluded, the insertion of any part of his body into Faelber's apartment constituted a complete entry as a matter of law. Ervin, 223 Kan. at 201–02.
The second version of the evidence does not support a conviction of attempted aggravated burglary because, if the jury believed Evans only spoke to Faelber through her window, there would have been no overt act toward the commission of the crime as required by K.S.A. 21–3301. In other words, either the jury could have believed Faelber's testimony that Evans was partly through the window, in which case he was guilty of aggravated burglary, or the jury could have believed Evans' testimony that he only spoke to Faelber through the window, in which case Evans was guilty of nothing at all. However, there was no version of the evidence to support a conclusion that Evans somehow attempted to burglarize Faelber's residence but was prevented from completing the act. Thus, the district court was not required to give Evans' requested instruction on attempted aggravated burglary.
2007 WL 1042136 at *3-4.
2. Habeas Review
The Supreme Court has never recognized a federal constitutional right to a lesser included offense instruction in non-capital cases. See Beck v. Alabama, 447 U.S. 625, 638 n. 14, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). And Tenth Circuit precedent establishes a rule of ‘automatic non-reviewability’ for claims based on a state court's failure, in a non-capital case, to give a lesser included offense instruction. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). As a result, Petitioner cannot raise a ...