United States District Court, D. Kansas
JAMES W. GRIFFIN, Petitioner,
DAN SCNURR and DEREK SCHMIDT, 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 found guilty in state court of attempted second-degree intentional murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery based upon his role in driving his half-brother (Franklin) to and from a restaurant in Topeka at which Franklin shot the restaurant's general manager. Petitioner was sentenced to 296 months' imprisonment. He exhausted his direct appeal as well as two KSA § 60-1507 motions, and filed a K.S.A. 60-260 motion for relief from judgment but failed to appeal its denial. Petitioner timely filed this habeas petition.
I. Procedural History
The procedural history of this case has been established by prior state court decisions including the following: the Kansas Court of Appeals' (KCOA) decision in Petitioner's direct appeal of his sentence, State v. Griffin, No. 95, 346, 2007 WL 806008 (Kan.App. March 16, 2007); the KCOA's affirming the denial of Petitioner's first K.S.A. 60-1507 motion, G riffin v. State, No. 102, 328, 2010 WL 923145 (Kan.App. March 12, 2010); and the KCOA's affirming the denial of Petitioner's second K.S.A. 60-1507 motion, G riffin v. State, No. 105, 807, 2011 WL 4721477 (Kan.App. October 7, 2011).
Additionally, this court previously addressed some of the habeas issues and ordered supplemental briefs on the following issues:
1. Did the jury instructions regarding aiding and abetting and foreseeability together with arguments made by the prosecutor to the jury at petitioner's trial negate or diminish the State's burden of proving the element of intent.
2. If the instructions and arguments were erroneous in this manner, were they error as a matter of state law only, or did they also violate any clearly established federal law, as promulgated by the Supreme Court?
3. If the instructions were erroneous as a matter of clearly established Supreme Court precedent, was the error in any event harmless based on the state court record?
Griffin v. Scnurr, 2013 WL 5276129, 8 (D.Kan. 2013). Those briefs have now been filed.
This Court adopts the underlying facts stated in these prior opinions 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). 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).
II. 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, ___ 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).
"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, 122 S.Ct. 1843, 152 L.Ed.2d 914 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Likewise, a state court unreasonably applies federal law when it either unreasonably extends 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, 502 U.S. at 67-68 ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). "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).
Petitioner claims that the aiding and abetting instructions in conjunction with the Prosecutor's comments diminished or negated the state's burden of proof on the element of intent, necessary for attempted second-degree murder, violating his right to due process. See Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ("[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged."); Griffin, 2013 WL 5276129 at 7.
The challenged aiding and abetting instructions, which the Prosecutor referred to as the "in for a penny, in for a pound instructions, " Tr. Vol. IV, p. 622, state:
No. 7 A person who either before or during its commission intentionally aids... another to commit a crime with the intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.
No. 8 A person who intentionally aids... another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime if the other crime was reasonably foreseeable.
Tr. Vol. IV, p. 608. These two paragraphs track the language in PIK Crim.3d 54.05 (Responsibility for Crimes of Another) (Instruction No. 7) and PIK Crim.3d 54.06 (Responsibility for Crimes of Another-Crimes Not Intended) (Instruction No. 8.). The Prosecutor repeated the "In for a penny, in for a pound, " theme in voir dire (Vol. 6, p. 1-201), in opening statement, Vol. 1, p. 233, and in closing argument, Vol. 9, p. 615. Petitioner contends that this comment and others throughout trial made by the Prosecutor implied that even the slightest evidence of defendant's remotest connection would be sufficient to support a conviction for second degree murder.
IV. State Court Proceedings
A. Prosecutor's Comments
Petitioner expressly raised the issue of prosecutorial misconduct on direct appeal, and the KCOA examined whether the prosecutor's comments were outside the wide latitude allowed in discussing evidence and whether the comments were plain error. Griffin, 2007 WL 806008, at *5. The KCOA defined "plain error" as "whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006)." Griffin, 2007 WL 806008, 3. It noted the following factors in that determination:
"(1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors." State v. Elnicki, 279 Kan. 47, 64-65, 105 P.3d 1222 (2005).
Griffin, 2007 WL 806008, at 3.
The KCOA found the prosecutor's statement "in for a penny, in for a pound" to be a proper illustration of the concept of aiding and abetting, given the statutory language (K.S.A. § 21-3205), and the Kansas Supreme Court's interpretation of it to mean that "[a]ll participants in a crime are equally guilty, without regard to the extent of their participation.' State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964.)" Griffin, 2007 WL 806008 at 4. Petitioner included this issue in his petition for review to the Kansas Supreme Court.
B. Jury Instructions
The KCOA addressed the issue of erroneous jury instructions less directly, while examining the sufficiency of the evidence to convict Griffin of attempted second-degree intentional murder and attempted aggravated robbery, 2007 WL 806008, 5-6. This Court previously found the instructions issue not procedurally defaulted based in large part on the appellate briefs which referred specifically to the instructions in addressing the sufficiency of evidence. See Griffin, 2013 WL 5276129 at 4-6.
The KCOA relied upon the aiding and abetting statute, Kansas Supreme Court interpretations of that statute, and "overwhelming evidence that Griffin and Franklin planned the robbery." It concluded that "[t]he evidence, viewed in a light most favorable to the prosecution clearly supports the conclusion that a rational factfinder could have found Griffin guilty of attempted aggravated robbery on an aiding and abetting theory." Griffin, 2007 WL 806008 at 5.
The Court then found that that Griffin's attempted second-degree intentional murder conviction was supported by sufficient evidence of the foreseeability of that crime, and that there was no need to prove Griffin's intent to kill the victim, reasoning as follows:
Further, State v. Robinson, 256 Kan. 133, 137, 883 P.2d 764 (1994), is not applicable to our case because it may hold that Kansas does not recognize the crime of attempted felony murder but that is not the crime charged in our case.
As we have earlier said, all participants are equally guilty, regardless of the extent of their participation. Turner, 193 Kan. at 196. Under K.S.A. 21-3205(2), a person is liable under subsection (1) "for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person or a ...