United States District Court, D. Kansas
MARVIN B. DAVIS, JR., Petitioner,
RAY ROBERTS and STEVE KOBACH 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. Petitioner was convicted in state court of aggravated burglary, aggravated kidnapping, domestic violence, and aggravated indecent liberties, and was sentenced to 230 months imprisonment. Petitioner makes multiple challenges to his conviction, including trial court errors, ineffective assistance of trial and appellate counsel, and insufficient evidence.
The procedural history of this case has been established by the Kansas Court of Appeals (KCOA) in Petitioner's direct appeal, State v. Davis, No. 79, 553, 1999 WL 533699 (Kan.App. May 28, 1999) (unreported opinion), and in Petitioner's various K.S.A. 60-1507 appeals: Davis v. State , No. 85, 683, 2002 WL 968737 (Kan.App. May 3, 2002) (unpublished opinion reversing for sufficient findings of fact and conclusions of law on petitioner's 60-1507 motion); Davis v. State , No. 89, 354, 2003 WL 22283015 (Kan.App. October 3, 2003) (unpublished opinion dismissing 60-1507 motion filed in this case, but challenging a sentence in his 1990 case that had been served); Davis v. State , No. 94, 330, 2007 WL 1109528 (Kan.App. April 13, 2007) (unpublished opinion affirming 60-1507 decision); Davis v. State , No. 104, 281, 2011 WL 3250578 (Kan.App. July 22, 2011) (unpublished opinion finding separate 60-1507 motion untimely, finding no manifest injustice, and declining to consider whether the motion was also second or successive). The Court understand that case Nos 98, 354 and 02C0350 are not relevant to this habeas corpus as they relate to an earlier case, State v. Davis, 90CR2192 and not to State v. Davis, 96CR2192.
The Court adopts the facts stated in the relevant prior opinions and shall not repeat them except as necessary to the analysis of this petition. See 28 U.S.C. § 2254(e)(1) (a court presumes that the factual findings of the state court are correct unless the petitioner rebuts that presumption by "clear and convincing evidence."); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004). In short, Petitioner's conviction for aggravated indecent liberties with a child was founded upon his consensual intercourse with a 15-year-old girl, and his other convictions were founded upon a domestic altercation between him and his common-law wife.
Motion to Expand Records
The petitioner moves this court for an order expanding the records, citing Rule 7 governing § 2254 cases. Petitioner seeks to include the following "correct records and cases" he contends are "directly relevant and integral to" his motion; Davis v. Kansas, 04, 92777 (Kan.Sp.Ct.J_004); Davis v. Clark, No. 99, 121 (Kan.App.Unpub. July 25, 2008); Davis v. Clark, No. 05-94, 269 (Kan.Sp.Ct. June 10, 2005); State v. Davis, No. 98, 674 (Kan.App. August, 27, 2007); Davis v. KCOA et al., No. 105, 130 (Kan.Sp.Ct. June 20, 2011).
The cited rule permits a judge to direct the parties to expand the record, yet case law may permit a petitioner, upon good cause shown, to file such a motion. See Harris v. Nelson, 394 U.S. 286, 300 (1969). But Petitioner has shown no need to expand the record, as he does not show the significance of any document not included in the record before this court, and the Court can take judicial notice of the filings in related cases. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). This motion shall thus be denied.
I. AEDPA Standard
The habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA "erects a formidable barrier to federal habeas relief, " Burt v. Titlow, 134 S.Ct. 10, 16 (2013), and "requires federal courts to give significant deference to state court decisions" on the merits. Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013); see also Hooks v. Workman, 689 F.3d 1148, 1162-63 (10th Cir. 2012) ("This highly deferential standard for evaluating state-court rulings demands state-court decisions be given the benefit of the doubt." (quotations 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). See also Harrington v. Richter, 131 S.Ct. 770, 783-84 (2011).
"Clearly established law is determined by the United States Supreme Court, and refers to the Court's holdings, as opposed to the dicta." Lockett, 711 F.3d at 1231 (quotations omitted). A state court decision is "contrary to" the Supreme Court's clearly established precedent "if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002) (quotations omitted).
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 v. Taylor, 529 U.S. 362, 407-08 (2000)). 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 making this assessment, the Court reviews the factual findings of the state court for clear error, reviewing only the record that was before the appellate court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
A writ of habeas corpus may issue only when the petitioner shows "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Id. at 786 (emphasis added). "Thus, "even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable." Id. "If this standard is difficult to meet'-and it is-that is because it was meant to be.'" Titlow, 134 S.Ct. at 16 (quoting Richter, 131 S.Ct. at 786). See Frost v. Pryor, ___ F.3d ___, 2014 WL 1647013 (10th Cir. April 25, 2014).
Petitioner has filed 334 pages in addition to his actual petition, in violation of the rules of this court. See D.Kan.Rule 5.1(f) ("Bulky or voluminous materials should not be filed in their entirety... unless the court finds the materials essential and grants leave to file them. The court may strike any pleading or paper filed in violation of this rule."); Cf, Rule 7.1(e) (limiting the arguments and authorities section of briefs or memoranda to 30 pages, absent a court order). From Petitioner's lengthy and disorganized statements, the court finds and resolves the following issues.
A. Sufficiency of the evidence
Petitioner claims that the State presented insufficient evidence to support his convictions for aggravated indecent liberties with a child and aggravated kidnapping. Generally, as to the evidence of aggravated indecent liberties, he points to the weakness of the victim's testimony against him, which was the sole evidence of that crime. As to the aggravated kidnapping, Petitioner asserts that records of relevant 911 calls refute the victim's testimony about the time of events, making it impossible for him to have committed that crime.
Respondent contends that this issue is procedurally defaulted because Petitioner failed to challenge the sufficiency of the evidence in his direct appeal to the state court. The Court agrees. Federal habeas review is available only where the petitioner has given the state courts "one full opportunity to resolve any constitutional issues." O'Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Petitioner has not done so here.
Even though "[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion [since] there are no state remedies any longer available to him, " Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), "there is a procedural default for purposes of federal habeas." Id. at 735 n.
1. Accordingly, this claim is procedurally barred from federal habeas review because it was not fairly presented to the Kansas Supreme Court and would now be untimely under Kansas's procedural rules. See O'Sullivan, 526 U.S. at 848.
For the Court to reach the merits of this claim, Petitioner must show cause for his default and prejudice as a result of the alleged violation of federal law, or demonstrate that this Court's failure to consider the claim will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 488-89, 496, 106 S.Ct. 2639, 2645-46, 2649, 91 L.Ed.2d 397 (1986).
To show cause petitioner must demonstrate that "some objective factor external to the defense impeded [his] efforts to comply" with the state law. Murray, 477 U.S. at 488. "Such an external factor might, for example, be proven by a showing that the factual or legal basis for a claim was not reasonably available to counsel, ... or that some interference by officials made compliance impracticable." Scott v. Mullin, 303 F.3d 1222, 1228 (10th Cir. 2002) (quoting Murray, 477 U.S. at 488).
To show prejudice, petitioner must show that he suffered "actual prejudice as a result of the alleged violation of federal law." Coleman, 501 U.S. at 750. A petitioner cannot establish prejudice when there is strong evidence of petitioner's guilt. United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
The fundamental miscarriage of justice exception is "a narrow exception to the cause requirement where a constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense." Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (internal quotation marks omitted).
"[T]he fundamental miscarriage of justice exception seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." Schlup v. Delo, 513 U.S. 298, 324 (1995). To make a credible showing of actual innocence, a "petitioner must support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'" Cummings, 506 F.3d at 1223 (quoting Schlup, 513 U.S. at 324). This new evidence "must be sufficient to show that it is more likely than not that no reasonable juror would have convicted the petitioner in the light of the new evidence.'" Id . (quoting Schlup, 513 U.S. at 327); accord House, 547 U.S. at 539-40 (reaffirming the Schlup test after AEDPA). This standard is "demanding and permits review only in the extraordinary case." House, 547 U.S. at 538 (quotations omitted).
Frost, at 17.
Petitioner has failed to assert and to show either cause and prejudice, or actual innocence, as is necessary to overcome this procedural default.
B. Prosecutorial Misconduct
Petitioner contends that he was denied a fair trial because of prosecutorial misconduct. Respondent asserts that the following claims of prosecutorial misconduct are procedurally defaulted: that the prosecutor (1) said in his closing argument "there was no evidence otherwise" in reference to the sexual intercourse and whether it happened; (2) lied to the jury by telling them the state had a positive result from the sexual assault kit and that is why it was not presented by the defense; (3) insinuated that Petitioner had committed uncharged crimes; and (4) said there is no presumption of innocence.
These claims of error were not included in any of Petitioner's state court proceedings, thus Petitioner has procedurally defaulted them. Because Petitioner has not shown cause and prejudice or that this Court's failure to consider these claims will result in a fundamental miscarriage of justice, these claims cannot be reviewed in this proceeding.
One such claim is, however, properly before this court - that the prosecution improperly shifted the burden of proof by repeatedly asserting during closing argument that the defendant had the power to subpoena witnesses, and by saying that the defendant could have introduced the results of the rape kit performed on R.C. The objectionable rape kit comment is:
They don't have to prove anything, but the only thing they can do is ask for a rape kit... It may suggest or show if somebody has had or hasn't had sex. Now, they don't have to introduce it. They don't have to do a thing; but if they wanted it... they could have introduced it.
(R. VIII, pg. 416, ll. 20-23). On direct appeal Petitioner raised this claim of prosecutorial misconduct, alleging that these statements erroneously shifted the burden of proof to him.
State Court Holding
The Kansas Court of Appeals (KCOA) found that the prosecutor's repeated statements that defendant had subpoena power "were likely improper." Davis, No. 79, 553, 1999 WL 533699, at *5 (Kan.App. May 28, 1999) (unpublished opinion), R.Vol. I, p. 4 of decision. But the KCOA found no prejudice because the jury was repeatedly instructed by the prosecutor, defense counsel, and the court that the State had the burden of proving defendant's guilt. See e.g., Instr. No. 2, instructing that the State has the burden of proving the defendant is guilty and the defendant is not required to prove that he is not guilty. R. Vol. 1, No. 96-cr-02192. The trial court had also instructed the jury that statements, arguments and remarks of counsel are not evidence and should be disregarded if not supported by evidence.
Regarding reference to the rape kit in closing, the KCOA found that the prosecutor's comment was in response to defendant's argument about why the rape kit was not introduced, so was not prejudicial error. The Court then concluded:
Here, the prosecutor's statements did not shift the burden of proof to defendant. Even if the prosecutor's statements were improper, such did not rise to the level of being so gross and flagrant as to deny the defendant a fair trial. Further, the statements had little likelihood of changing the result of the trial. There was substantial competent evidence of defendant's guilt. The evidence was that R.C. had consensual sex with defendant, ...