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Walker v. Heimgartner

United States District Court, D. Kansas

March 31, 2017

MICHAEL D. WALKER, Plaintiff,
v.
JAMES HEIMGARTNER, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         The 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.

         Petitioner 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.

         I. Legal Standard Governing Federal Habeas Petitions

         A 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)).

         A 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. § 2254(e)(1).

         The 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.

         II. Factual Background

         The 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) (Walker I).
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 Walker's.
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).

         Petitioner 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.

         On 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.

         On 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.

         Petitioner 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 opinion).

         Petitioner 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).

         On 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.

         On 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.

         III. Analysis

         A. Exhaustion and Procedural Default

         The 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 ...


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