United States District Court, D. Kansas
LAURANCE L. ELNICKI, Petitioner,
REX PRYOR, Respondent.
SAM A. CROW, Senior District Judge.
This matter is a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner seeks relief on the ground that his trial counsel provided ineffective assistance by failing to advise him that he had a constitutional right to testify at trial.
Petitioner was convicted in the District Court of Shawnee County, Kansas, of aggravated kidnapping, in violation of K.S.A. 21-3421; kidnapping, in violation of K.S.A. 21-3420(b); aggravated robbery, in violation of K.S.A. 21-3427; and aggravated burglary, in violation of K.S.A. 21-3716. He was sentenced to a term of 500 months in prison.
The Kansas Court of Appeals (KCOA) affirmed petitioner's convictions but vacated and remanded the matter on the issue of assessment of attorney fees. The Kansas Supreme Court denied petitioner's petition for review on June 23, 2010.
On August 27, 2010, petitioner filed a motion for post-conviction relief pursuant to K.S.A. 60-1507. The state district court denied relief, and the KCOA affirmed that action. Elnicki v. State, 301 P.3d 788 (Table), 2013 WL 2321032 (Kan.App. May 17, 2013)(unpublished order). The Kansas Supreme Court denied review on October 38, 2013.
Petitioner filed this matter on May 21, 2014.
The KCOA summarized the factual basis for petitioner's convictions as follows:
On December 28, 2004, the defendant and his girlfriend, Summer Cole, arranged to trade a set of car tires in exchange for an older set of car tires and a cell phone from Corey Cozzi. Cozzi was dating Darla Caudle and the two lived together in a trailer in Shawnee County, Kansas. The parties arranged to make the trade at the house of a mutual acquaintance, Mike Reisinger. The parties swapped two tires at Reisinger's house and then moved to Cozzi's and Caudle's trailer to complete the trade.
The defendant and Cole left the trailer after the trade was complete but returned to the trailer about an hour later with another unidentified man and a shotgun. When Caudle opened the door, they demanded she let them in to see Cozzi. Caudle said Cozzi was asleep but the three entered the trailer anyway and went to the bedroom where Cozzi was sleeping. One of the three struck Cozzi on the head and then they hog tied Cozzi and Caudle, although there is some dispute as to who hit Cozzi and who did the tying. The defendant then assisted either Cole or the other man in carrying Caudle to the bathroom and putting her in the bathtub.
The three proceeded to remove a variety of items from the trailer, including a television, stereo equipment, a DVD player, and credit cards. Cole demanded the pin numbers for the credit cards. They also searched the trailer for money. When the three left, Cole stole a car Cozzi was planning to buy from Caudle's son-in-law.
After the three intruders left the trailer, Caudle was able to free herself and Cozzi. Cozzi's forehead was bleeding from being struck, so Caudle and Cozzi when to the hospital where Cozzi received 7 stitches in his head.
The defendant and Cole were apprehended by law enforcement several hours later while they were moving items between Cozzi's car and yet another car Cole had stolen. Officers found Caudle's credit cards and driver's license in the defendant's ...