Bartling v. Heimgartner

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge.

         Adam Bartling, a prisoner in a state correctional facility in Kansas, filed a Petition for Relief From a Conviction or Sentence By a Person in State Custody (Doc. 1.) Petitioner was convicted in state court of aggravated indecent liberties with a child. He seeks a writ pursuant to 28 U.S.C. § 2254. Specifically, petitioner requests federal relief on the following grounds: (1) ineffective assistance of both trial and appellate counsel; (2) the trial court erred when it denied petitioner's motion for discovery requesting the victim's psychological reports; (3) the trial court should have allowed evidence of the victim's prior allegations of sexual assault for impeachment and confrontation; (4) the trial court violated petitioner's right to prepare a defense; (5) prosecutorial misconduct during closing argument; (6) insufficient evidence; and (7) cumulative error. The court has reviewed the record and petitioner's arguments, and finds that habeas relief is not warranted. For the following reasons, the petition is denied.

         I. Standard of Review

         Because petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the court reviews petitioner's claims pursuant to the provisions of the Act. Lott v. Trammell, 705 F.3d 1167, 1172 (10th Cir. 2013). The Act permits a court to grant a writ only if one of two circumstances is present: (1) the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1); or (2) the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” id. § 2254(d)(2). Absent clear and convincing evidence to the contrary, the court presumes the state court's factual findings are correct. Id. § 2254(e)(1).

         II. Background

         Petitioner, then 26 years old, developed a relationship with the victim, a 15-year-old female. For approximately one month, the victim met with petitioner on several occasions without her parents' knowledge. While petitioner claimed that the relationship was merely platonic, the victim indicated that the two were having sexual intercourse and oral sex. The state charged petitioner with seven counts of aggravated indecent liberties with a child and two counts of criminal sodomy. The jury acquitted petitioner of all charges except for one count of aggravated indecent liberties that occurred in petitioner's bedroom on April 11 or 12, 2003, when two other people were in another room of petitioner's apartment.

         III. Discussion

         A. Ineffective Assistance of Counsel

         In evaluating petitioner's claims that his counsel provided ineffective assistance, the appropriate standard is that identified in Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner bears the burden of satisfying a two-pronged test. First, he must show that his attorney's “performance was deficient” and “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. The court affords considerable deference to an attorney's strategic decisions and “recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Second, a habeas petitioner must demonstrate prejudice, which requires a showing that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

         There is no reason for a court deciding an ineffective assistance claim to address both components of the inquiry if the petitioner makes an insufficient showing on one. If it is easier to dispose of an ineffectiveness claim based on a lack of prejudice, then that course should be followed. Id. at 697.

         i. Psychological Evaluation

         Petitioner claims that trial counsel was ineffective when he failed to properly pursue a psychological evaluation of the victim as well as obtain a written ruling from the trial court on the matter. Petitioner also alleges that appellate counsel was ineffective for failing to obtain a written ruling and designate it for the appellate record. Petitioner acknowledges that when the trial court ordered the records to be produced for in camera inspection, it tentatively ruled that it would deny the motion unless something eye-opening was revealed during its review.

         Trial counsel moved for a psychological evaluation of the victim and requested that the results be provided to the defense. Trial counsel argued in favor of his motion at a hearing before the trial court. Respondents note that the trial court never issued a formal ruling on petitioner's motion, but refers to the trial court's tentative ruling denying it. Respondents argue that the state court's rulings that trial counsel's efforts were not deficient, and that petitioner could not show a different outcome had a written order been in the record, were not unreasonable applications of the Strickland standards.

         While petitioner did not properly raise his claim against trial counsel for failing to preserve the record, the Kansas Court of Appeals addressed the merits of each of petitioner's arguments in its January 30, 2015 Memorandum Opinion. Bartling v. State, No. 109659, 2015 WL 569344, *5 (Kan.Ct.App. Jan. 30, 2015). Thus, this court limits its review to whether the appellate court unreasonably applied Strickland or whether its factual determination was unreasonable in light of the evidence presented.

         In its opinion, the Kansas Court of Appeals referenced Kansas law, but properly set forth the same Strickland standards cited above. Bartling, 2015 WL 569344 at *3. It identified petitioner's allegations of ineffective assistance of counsel, and rejected petitioner's claims. Id. at *4-5. The appellate court considered trial counsel's actions in filing the motion and arguing for a psychological evaluation. Id. at *4. It noted that there was no further action for trial counsel to perform, except perhaps file a motion requesting the trial court to make a definitive ruling. Id. The appellate court found that such a motion would not have swayed the trial court to decide one way or another. Id. It further found that petitioner did not show that attaching a written ruling of the trial court's decision would have altered the appellate court's prior rulings on direct appeal, or its characterization of petitioner's attempt for an evaluation as a “fishing expedition.” Id. at *5. Ultimately, the Kansas Court of Appeals held that petitioner could not show that trial counsel or appellate counsel was ineffective. Id. at *4-5.

         Because the state court reasonably applied clearly established federal law to the facts before it. 28 U.S.C. § 2254(d)(1). Petitioner is not entitled to relief on these claims.

         ii. Prior False Accusations

         Petitioner also alleges that trial counsel conducted an inadequate investigation and was ineffective when he failed to present evidence of the victim's prior false accusations of sexual assault.

         Petitioner claims that appellate counsel was ineffective when he failed to attach a copy of the police report to the appellate record on direct appeal as well as cite proper legal authority. Petitioner attached a copy of the police report to his petition, and indicates that it was obtained nine years after his conviction. He argues that before now, the state courts have only been able to speculate about what the report might have detailed as well as how it might have affected his case.

         In the state appeal from petitioner's Kan. Stat. Ann. § 60-1507 motion, the police report was added to the appellate record and reviewed by the Kansas Court of Appeals. Bartling, 2015 WL 569344 at *5. The appellate court rejected petitioner's argument that it had previously speculated about the report's contents because there were two transcripts in the record in which trial counsel extensively discussed the contents of the police report and provided argument in support of its admissibility. Id. at *7. On direct appeal, the state court recognized that two different law enforcement officers testified inconsistently about the veracity of the victim's statement, and the prosecutor consistently argued that the prior case was dropped because the victim was uncooperative. State v. Bartling, No. 92, 106, 2005 WL 345524, *3 (Kan.Ct.App. Dec. 16, 2005). Specifically, one police officer reported the victim was uncooperative, while another police officer supplemented the report concluding that the victim's statement lacked credibility. Id. at *8. The state court further found that petitioner could not show trial and appellate counsels' failures to attach the police report to the record would not have changed the outcome of petitioner's appeal. Bartling, 2015 WL 569344 at *7-8. The appellate court was aware of the police report's contents and applied applicable case law even though it was not cited by appellate counsel. Id. at *8.

         As stated above, this court limits its review to whether the state court unreasonably applied Strickland, or whether its factual determination was unreasonable in light of the evidence presented. The court has reviewed the police reports attached by petitioner and they are consistent with the state court's factual findings. The state court rulings were reasonable as petitioner cannot show the outcome of his direct appeal ...