United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
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
Standard of Review
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).
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
Ineffective Assistance of Counsel
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.
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.
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.
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.
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.
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.
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
Prior False Accusations
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
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.
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.
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 ...