United States District Court, D. Kansas
MICHAEL D. WALKER, Plaintiff,
JAMES HEIMGARTNER, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on petitioner Michael D.
Walker's Petition for Writ of Habeas Corpus (Docs. 1, 3),
the State of Kansas' Answer and Return (Doc. 20), and
petitioner's Traverse (Doc. 24). Petitioner challenges
his state court convictions and sentence for two criminal
counts: (1) first degree murder; and (2) criminal discharge
of a weapon at an occupied dwelling.
alleges 12 grounds for relief: (1) due process violations
arising from the trial court's decision denying
petitioner's motion to suppress statements and evidence
discovered during a police interrogation; (2) due process
violation arising from the trial court's decision denying
petitioner's motion for change of judge; (3) due process
violation arising from petitioner's sentence both for his
convictions of felony murder and discharging a firearm at an
occupied dwelling; (4) double jeopardy violation arising from
petitioner's convictions for both felony murder and
discharging a firearm at an occupied dwelling; (5) due
process violation arising from the trial court's decision
denying defense counsel's objections; (6) due process
violation arising from the trial court allowing a layperson
to testify as a gang expert; (7) due process violation
arising from the trial court's refusal to submit a
self-defense or imperfect self- defense instruction; (8) due
process violation arising from the trial court's burden
of proof instruction; (9) prosecutorial misconduct; (10)
sufficiency of the evidence; (11) ineffective assistance of
counsel; and (12) Fourth Amendment violation because
petitioner's arrest was not supported by probable cause.
For reasons explained below, none of these grounds warrant
any relief, and so the court denies his petition.
Legal Standard Governing Federal Habeas Petitions
federal court reviews a state prisoner's challenge to
matters decided in state court proceedings under the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Lockett v. Trammel, 711 F.3d
1218, 1230 (10th Cir. 2013). This act “requires federal
courts to give significant deference to state court
decisions” on the merits. Id. A federal court
may not grant state prisoner habeas relief for “any
claim that was adjudicated on the merits in State court
proceedings” unless the prisoner can show one of the
following: (1) that the adjudication “resulted in a
decision 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 the adjudication “resulted in a decision
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)(1)- (2). The
phrase “[c]learly established Federal law” refers
to Supreme Court holdings, but not dicta. Lockett,
711 F.3d at 1231. An adjudication is “‘contrary
to' a clearly established law if it ‘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.'” Id. (quoting Bell v.
Cone, 535 U.S. 685, 694 (2002)).
factual determination “made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1);
see also Miller-El v. Cockrell, 537 U.S. 322, 340
(2003) (“[A] decision adjudicated on the merits in a
state court and based on a factual determination will not be
overturned on factual grounds unless [it is] objectively
unreasonable in light of the evidence presented in the
state-court proceeding.” (citing § 2254(d)(2))).
The petitioner bears the burden of rebutting this presumption
of correctness by clear and convincing evidence. 28 U.S.C.
court applies a different standard, however, to ineffective
assistance of counsel claims. “[I]n a federal habeas
challenge to a state criminal judgment, a state court
conclusion that counsel rendered effective assistance is not
a finding of fact binding on the federal court to the extent
stated by 28 U.S.C. § 2254(d).” Strickland v.
Washington, 466 U.S. 668, 698 (1984). “A convicted
defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction . . . has
two components.” Id. at 687. First, “the
[petitioner] must show that counsel's performance was
deficient.” Id. This requires showing that
counsel did not provide “reasonably effective
assistance.” Id. “Second, the defendant
must show that the deficient performance prejudiced the
defense.” Id. “This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial.” Id.
Kansas Supreme Court summarized the facts of petitioner's
state court conviction as follows:
Walker's convictions and sentences arose from a drive-by
shooting in which 16-month-old Lexus Mathis was mortally shot
in the abdomen as she slept on a couch in her family's
living room. Three days after the shooting, Walker was
interrogated by police regarding the shooting. After his
admission that he had driven the vehicle from which shots
were fired at the Mathis' home, Walker was charged with
committing the crimes of felony murder and criminal discharge
of a weapon. A jury convicted Walker as charged.
On direct appeal, [the Kansas Supreme Court] reversed
Walker's convictions after determining the trial court
had improperly admitted into evidence statements made by
Walker to police after Walker had clearly invoked his Fifth
Amendment right to counsel during a custodial interrogation.
State v. Walker, 276 Kan. 939, 80 P.3d 1132 (2003)
The case was remanded and Walker was tried a second time. He
was again convicted of first-degree felony murder and
criminal discharge of a firearm.
A detailed description of the facts related to the shooting
and the investigation can be found in State v. Lowe,
276 Kan. 957, 80 P.3d 1156 (2003), in which this court
affirmed the conviction of Walker's codefendant, Jermane
Lowe. Highly summarized, the evidence at Walker's second
trial established that Walker, Lowe, and others left a club
at closing. The group dispersed in separate cars. While some
of the group were driving around, another car approached and
fired shots. In response, Lowe, Walker, and perhaps others
decided to drive to the house of a rival gang member and fire
gunshots at the home. One of these shots struck Lexus Mathis.
Substantial evidence linked Walker and Lowe to the drive-by
shooting. Jendayi Maples told police she was talking to
Walker on her cell phone around 3:50 a.m., the approximate
time of the shooting. During the conversation she heard
Walker talking to Lowe and heard Walker ask Lowe if he
“got the Tec, ” a semiautomatic weapon. Maples
heard “that's the house, ” a series of about
nine gunshots, and a car speeding away. Then, the phone line
went dead. Frightened, she immediately called Walker back on
his cell phone. He assured her everything was fine but his
ears were ringing from the shots. Cell phone records verified
that the two were talking at the time Maples reported, which
was also the time witnesses reported hearing the shots fired
at the Mathis' home.
Also during the investigation, police found shell casings
from three types of cartridges near the curb directly across
from the house. The State argued to the jury that the
location of the casings indicated that the car had come to a
stop while shots were fired from three guns and then
additional shots were fired while the car was moving away.
There was evidence that on the night of the shooting Lowe was
driving a maroon 1989 Toyota Camry belonging to Scott
Shaffer. When Walker returned the Camry to Shaffer, the
windshield was damaged from projectiles and the trunk latch
was broken. Shell casings were found in the car. Ballistics
testing revealed that the casings found in the car were fired
from the same gun as some of the shells found at the scene of
the shooting. The State argued that the physical evidence of
where the shell casings were located in the car supported a
conclusion that the driver of the car had fired shots. Latent
fingerprints in the car did not match Lowe's or
In his defense, Walker presented the testimony of Lowe, who
denied that Walker had been with him on the night of the
shooting. Another witness testified that Lowe asked the
witness to go with him. The witness described the car that
Lowe was driving; the description did not match the
description of the car which Walker had driven that night.
State v. Walker, 153 P.3d 1257, 1263-64 (Kan. 2007).
appealed his conviction to the Kansas Supreme Court through
counsel. Petitioner raised the following issues on appeal:
(1) his confession was involuntary and thus the district
court had erred by refusing to suppress the statements and
evidence discovered as a result of his confession; (2) the
trial court judge should have recused; (3) the district court
erred by sentencing him for both felony murder and discharge
of a firearm; (4) the district court erred by using his prior
juvenile convictions to increase the sentence; and (5) the
increased sentence for discharge of a firearm was
unconstitutional because it constituted vindictive
sentencing. On March 23, 2007, the Kansas Supreme Court
rejected these arguments and affirmed petitioner's
convictions and sentence. Id. at 1257.
March 13, 2008, petitioner filed a motion for post-conviction
relief under Kan. Stat. Ann. § 60-1507 (“§
60-1507 motion”) in the District Court of Sedgwick
County, Kansas. His motion raised four issues: (1) he was
illegally arrested without probable cause; (2) his statements
were obtained in violation of his right to remain silent; (3)
the district court violated his due process rights by denying
his request to sequester witnesses; and (4) he received
ineffective assistance of counsel for not raising the first
three issues. On July 10, 2008, petitioner filed an amended
motion under Kan. Stat. Ann. § 60-1507, without leave of
the court. The amended motion raised nine more issues that
are subjects of this federal habeas petition.
August 28, 2008, the district court denied petitioner's
request to amend his original § 60-1507 motion to
include his new issues. And, on September 11, 2008, the
district court denied petitioner's original request for
relief under § 60-1507.
appealed, raising the following claims: (1) no probable cause
existed to arrest the petitioner; (2) his counsel was
ineffective by failing to move to sequester a witness; and
(3) the district court erred by denying petitioner's
request to amend his § 60-1507 motion. On June 11, 2010,
the Kansas Court of Appeals affirmed the district court's
decision. Walker v. State, 256 P.2d 896, 2010 WL
2545645, at *1 (Kan.Ct.App. June 11, 2010) (unpublished table
filed a Petition for Review with the Kansas Supreme Court. On
January 20, 2012, the Kansas Supreme Court granted
petitioner's Petition for Review and summarily reversed
the court of appeals' decision. The Kansas Supreme Court
remanded the case for the appellate court to reconsider
plaintiff's amended § 60-1507 motion under
Thompson v. State, 270 P.3d 1089 (Kan. 2011).
remand, the Kansas Court of Appeals found that the issues in
petitioner's amended § 60-1507 motion were
procedurally barred except for two: (1) whether petitioner
was illegally arrested without probable cause; and (2)
whether petitioner received ineffective assistance of counsel
when his counsel failed to move for a witness' sequester.
Walker v. State, 270 P.3d 1229, 2012 WL 686685, at
*5-6 (Kan.Ct.App. Feb. 17, 2012) (unpublished table opinion).
The court of appeals remanded the case to the district court
to determine if those two issues had merit. Id. at
*6. Petitioner never filed a Petition for Review of the
Kansas Court of Appeals' decision that many of his
grounds for relief were time-barred.
October 26, 2012, the district court denied petitioner's
request for relief on the two remanded issues. On August 1,
2014, the Kansas Court of Appeals affirmed the district
court's decision. Walker v. State, 329 P.3d
1253, 2014 WL 3843084, at *1 (Kan.Ct.App. Aug. 1, 2014)
(unpublished table opinion). Petitioner then filed a Petition
for Review to the Kansas Supreme Court. On September 14,
2015, the Kansas Supreme Court denied review. Petitioner
filed for federal habeas corpus relief under 28 U.S.C. §
2254 in our court on October 23, 2015. Doc. 3. As stated in
his Petition, petitioner raises 12 grounds for relief. The
court addresses each of them below.
Exhaustion and Procedural Default
State contends that petitioner procedurally defaulted on some
of the claims he now raises. Doc. 20. Procedural default
occurs only after a petitioner fails to exhaust his state
court remedies, as required by 28 U.S.C. § 2254(b)(1).
See O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999) (“Before a federal court may grant habeas relief
to a state prisoner, the prisoner must exhaust his remedies
in state court.”); id. at 848 (explaining that
courts consider exhaustion first, then ask whether the
petitioner “has properly exhausted” his
state-court remedies). To exhaust his state court remedies,
petitioner “must give the state courts one ...