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Barber v. McKune

United States District Court, D. Kansas

June 11, 2014

ROBERT E. BARBER, Petitioner,
DAVID McKUNE, et al., Respondents.


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 one count of attempted murder in the first degree and was sentenced to a term of imprisonment for 620 months. Evidence showed that Petitioner had pointed a.357 magnum pistol at the victim and had shot him once in the back. Petitioner makes multiple challenges to his conviction.

I. Procedural History

The procedural history of this case has been established by the Kansas Court of Appeals (KCOA) in Petitioner's direct appeal, State v. Barber, 157 P.3d 6, 2007 WL 1309602 (Kan.Ct.App. May 4, 2007) (Case No. 95, 038), and by the KCOA in Petitioner's K.S.A. § 60-1507 motion, Barber v. State, 264 P.3d 1060, 2011 WL 6385646 (Kan.Ct.App., December 16, 2011) (Case No. 105, 547). The Court adopts the facts stated in those 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).

II. AEDPA Standard

Habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA "erects a formidable barrier to federal habeas relief, " Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (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, ___ U.S. ___, 131 S.Ct. 770, 783-84, 178 L.Ed.2d 624 (2011).

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, 112 S.Ct. 475, 116 L.Ed.2d 385 (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, 127 S.Ct. 1933, 167 L.Ed.2d 836 (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, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

III. Issues

A. Prosecutorial Misconduct

Petitioner claims that he was denied due process when the prosecutor misstated the law and injected his personal opinion during closing argument. See R. Vol. 3, p. 119-20. Defense counsel did not object to the challenged statements. The prosecutor allegedly stated his personal opinion of the act in saying:

If Robert Barber had not planned on killing C.J. Dunn, then he would have attempted to have resolved this matter without violence. Instead, he chose to have a gun in his hand when he got out of the vehicle to confront C.J. Dunn. Robert Barber did not say anything except, "What's up now?" And he fired the gun, striking C.J. in the back.
The acts of Robert Barber in pointing a.357 magnum revolver at C.J. Dunn and in pulling the trigger on that gun proved that he intended to kill C.J. Dunn. You do not point a gun as powerful as this.357 magnum at someone and pull the trigger, unless you intend to kill that person. Robert Barber pointed the gun at C.J. Dunn and fired it with the intent to kill him. Robert Barber's actions were premeditated.

R. Vol. 3, p. 119-120. The prosecutor allegedly misstated the law by telling the jury that the element of premeditation was proved by Petitioner's acts of getting out of the car with a gun in his hand, pointing it at the victim, and shooting it. Petitioner contends this statement contradicts Kansas law that one cannot infer premeditation from the mere use of a deadly weapon, see State v. Hamilton, 216 Kan. 559 (1975), and renders his trial fundamentally unfair.[1]

Petitioner's allegation of prosecutorial misconduct was not raised on direct appeal so is procedurally defaulted. 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). This issue was presented to the state courts only within the context of an ineffective assistance of counsel claim.

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). Although cause may be shown by ineffective assistance of counsel, Petitioner fails to show cause here, as addressed below in Section B.

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. Thus the petitioner must demonstrate "a reasonable probability that, but for [the alleged] erro[r], the result of the proceeding would have been different." Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"The "miscarriage of justice" exception to this general rule requires a more substantial showing: The defendant must not simply demonstrate a reasonable probability of a different result, he must show that the alleged error more likely than not created a manifest miscarriage of justice." Sawyer, 505 U.S. at 364 (emphasis in original). This 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. Ineffective Assistance of Trial Counsel

Petitioner contends that he received ineffective assistance of trial counsel and was denied due process because counsel did not object to the prosecutor's statements noted above.

State Court Holding

In his 60-1507 motion, Petitioner contended that his trial counsel provided ineffective assistance of counsel by not objecting to the Prosecutor's closing argument regarding the intent to kill. He argued that the Prosecutor had "injected his personal opinion, when he stated in his closing argument that, you don't point a gun as powerful as this.357 magnum at someone and pull the trigger, unless you intend to kill that person.'"

The district court held an evidentiary hearing on the motion, at which trial counsel testified that he had not found the closing argument objectionable because the prosecutor was arguing facts and inferences from them. The judge who heard the 60-1507 motion, who had also presided over Petitioner's criminal case, agreed that the closing argument was not objectionable, stating: "I don't interpret Mr. Wilhoft's closing remarks as an expression of his personal opinion. I think that what he was doing was suggesting to the jury a logical conclusion that the jury should reach based upon the facts, based upon the evidence admitted in the trial." ...

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