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Kleiner v. State

United States District Court, D. Kansas

July 8, 2014

STATE OF KANSAS, Respondent.


SAM A. CROW, District Judge.

This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Mr. Kleiner while he was serving his state sentence. Having considered petitioner's claims together with the state court record and relevant Supreme Court precedent, the court concludes that petitioner is not entitled to federal habeas corpus relief and denies the petition.


In November 2006, Mr. Kleiner was charged with aggravated battery and misdemeanor battery. These offenses arose during a fight at a tavern where the victim Mr. Jones was struck in the face with a pool cue. Kleiner v. State, 251 P.2d 112, 2011 WL 1877816, *1 (Kan.App. 2011). Jones was hospitalized and required approximately 20 stitches. Some witnesses identified Tommy Kleiner to police as the person who hit Mr. Jones. Kleiner entered a plea agreement in which he pled no contest to a reduced charge of aggravated battery in exchange for the State dismissing the misdemeanor battery. As part of the factual basis for the plea, the State recounted that during an interview with a law enforcement officer regarding a subsequent "traffic matter, " Mr. Kleiner made the statement that "he had knocked the shit out of" a man "with a pool cue" because the man had jumped his brother. Transcript of Plea Hearing, Vol. 6, Mar. 6, 2007 (T.PLEA) at pgs. 9-10. Petitioner was convicted upon his plea in the District Court of Osage County, Kansas and in September 2007, was sentenced to 36 months in prison and 24 months post-release supervision.[1]

Before sentencing, Mr. Kleiner filed a motion to withdraw his plea, which was denied. He appealed the denial to the Kansas Court of Appeals (KCA), which affirmed. His petition for review was denied by the Kansas Supreme Court (KSC). See State v. Kleiner, 202 P.3d 108 (Kan.App. Mar. 6, 2009), review denied (Kan. Sept. 2, 2009). This initial appeal is referred to as petitioner's "direct appeal".

Before his direct appeal was completed, Mr. Kleiner filed a pro se post-conviction motion pursuant to K.S.A. 60-1507, which was denied. Kleiner appealed, and the KCA affirmed. Kleiner, 251 P.3d at 112. The KSC denied review on October 24, 2011.


Petitioner delineates three grounds in his federal petition: (1) he was coerced into pleading nolo contendere and his attorney refused to take his case to trial; (2) he was denied a change of venue; and (3) his plea counsel was ineffective. The supporting facts he alleges under these grounds and in an attached "letter" are not as organized. Most of petitioner's supporting allegations for all three grounds relate to his "sister's murder case that shocked America" in which Lisa Montgomery was charged in Missouri with cutting a baby from its mother's womb. He claims that the national attention focused on her case adversely impacted his unrelated, ongoing criminal proceedings. He further alleges that his appointed defense counsel Bryan Hastert[2] said he would not take the case to trial because Kleiner would be found guilty by a jury due to his sister's case. In addition, he alleges that he was "freaked out" because he was being questioned and his DNA was tested by FBI agents in connection with his sister's case and that she and her attorney told authorities that he was involved in that murder. He also alleges that a particular FBI agent in his sister's case told him he would help him out. Under his claim of coercion and in his attached letter, he alleges that he acted in his brother's defense.


A. Federal Habeas Corpus

A federal court's review of a state criminal conviction is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") codified at 28 U.S.C. § 2254(d). AEDPA "erects a formidable barrier to federal habeas corpus relief for prisoners whose claims have been adjudicated in state court, " 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). A federal habeas court does not sit as a super state appellate court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). This court's "primary task" is to determine whether the Kansas courts' decisions denying petitioner relief were "contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent." Bonney v. Wilson, ___ F.3d ___, 2014 WL 2619800 (10th Cir. June 13, 2014)(citing 28 U.S.C. § 2254(d)).[3] 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). "AEDPA requires a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error... beyond any possibility for fairminded disagreement.'" Burt, 134 S.Ct. at 16 (citing Harrington v. Richter, 131 S.Ct. 770, 786-787 (2011)). "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, 749 F.3d 1212 (10th Cir. 2014).

B. Procedural Default

Respondent asserts in his Answer and Return (Doc. 9) that petitioner has defaulted his first two grounds. It is well-settled that a state prisoner must satisfy the exhaustion prerequisite in 28 U.S.C. § 2254(b)(1) before filing a federal habeas corpus application, which means that each of his federal claims must have been presented to the highest state court by way of either direct appeal or state post-conviction proceedings. When a habeas applicant failed to properly exhaust a claim in state court and those remedies are no longer available at the time the federal habeas application is filed, the applicant meets the technical requirements for exhaustion. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); see Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n. 7 (10th Cir. 2007). However, that claim is then subject to dismissal under the doctrine of procedural default. Under this doctrine, review by a federal habeas court of claims that were procedurally defaulted in state court is barred, unless the applicant can demonstrate either cause and prejudice for the default or that a fundamental miscarriage of justice would result if his claim is not considered. Coleman, 501 U.S. at 724, 750; Walker v. Martin, 131 S.Ct. 1120, 1127 (2011); Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir. 2009)(internal quotation marks omitted); see Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012), cert. denied, 133 S.Ct. 878 (2013)(When "a particular claim was defaulted in state court" federal courts "recognize the state courts' procedural bar ruling and do not address the claim on the merits unless cause and prejudice or a fundamental miscarriage of justice is shown.").

The cause standard requires a petitioner to "show that some objective factor external to the defense impeded... efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of such external factors include the discovery of new evidence, a change in the law, and interference by state officials. Id. As for prejudice, a petitioner must show "actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168 (1982). A "fundamental miscarriage of justice" requires a petitioner to demonstrate that he is "actually innocent" of the crime of which he was convicted. McCleskey v. Zant, 499 U.S. 467, 494 (1991).

C. Ineffective Assistance of Counsel

Under AEDPA, a state prisoner is not entitled to federal habeas corpus relief on a claim of ineffective assistance of counsel unless he establishes that the state court's adjudication of this claim was an unreasonable application of Supreme Court precedent. The Supreme Court precedent governing such claims is Strickland v. Washington, 466 U.S. 668 (1984). In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied Strickland in the guilty plea context, holding that a defendant challenging the effective assistance of counsel during the plea process must show that counsel's performance was deficient and that such deficient performance prejudiced him. Id. at 57-58. The Court in Lockhart explained that,

[I]n the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence....

Id .; O'Neill v. Bruce, 2006 WL 3087127, at *5 (D.Kan. Oct. 27, 2006)(quoting Lockhart, 474 U.S. at 59); Gardner v. McKune, 242 Fed.Appx. 594 (10th Cir. 2007)(applying the same standard in the context of a no contest plea). The Tenth Circuit recently summarized the relevant law governing analysis under Strickland's first prong:

"[O]ur review of counsel's performance under the first prong of Strickland is a highly deferential' one." Id. [ Byrd v. Workman, 645.3d 1159] at 1168 [(10th Cir. 2011)] (quoting Hooks, 606 F.3d at 723).... "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Byrd, 645 F.3d at 1168 (alteration omitted) (quoting Dever, 36 F.3d at 1537)(internal quotation marks omitted). Surmounting this "high bar" is not an "easy task." Richter, 131 S.Ct. at 788 (quoting Padilla v. Kentucky, ___ U.S. ___ ___, 130 S.Ct. 1473, 1485 (2010))(internal quotation marks omitted); see Fox, 200 F.3d at 1295 ("[Petitioner] bears a heavy burden in that he must overcome the presumption that his counsel's actions were sound trial strategy....").
A state prisoner in the § 2254 context faces an even greater challenge. Byrd, 645 F.3d at 1168. "[W]hen assessing a state prisoner's ineffective-assistance-of-counsel claims on habeas review, [w]e defer to the state court's determination that counsel's performance was not deficient and, further, defer to the attorney's decision in how to best represent a client.'" Id. (second alteration in original)(quoting Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009)). As the Supreme Court has explained, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). Thus, our review of ineffective-assistance claims in habeas applications under § 2254 is "doubly deferential." Id. "[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788.

Hooks, 689 F.3d at 1186-87.


A. Venue Claim

In support of this claim, petitioner alleges that the challenged criminal proceedings took place in a small community where everyone knew everybody; he wanted a change of venue due to his sister's case; and he went up against three persons with the same last name: District Attorney Brandon L. Jones, Magistrate Judge Stephen Jones and the victim Josh Jones. Petitioner generally indicated in his federal petition that he had exhausted state court remedies on all his claims, but he failed to answer the exhaustion questions for this particular claim.

To determine the procedural default issues in this case, the court reviewed the state court records including the motions filed by Mr. Kleiner, the briefs filed by both parties, and the transcripts of hearings on petitioner's claims as well as the written opinions of the KCA. The arguments presented by ...

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