United States District Court, D. Kansas
SAMUEL L. REED, Petitioner,
SAM CLINE, Respondents.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter comes before the court on petitioner Samuel L.
Reed's petition for writ of habeus corpus (Doc. 1), the
State's Answer and Return (Doc. 11), and petitioner's
Traverse and Supplement to Traverse (Docs. 20, 21).
Petitioner attacks his state court conviction and raises four
claims for relief. First, petitioner asserts the trial judge
violated his right to a public trial. Then petitioner asserts
that his trial counsel, Quentin Pittman, failed to object
three separate times at trial, and that each failure supplies
a basis to claim ineffective assistance of counsel under the
Sixth Amendment. Doc. 1. at 4-9. For reasons explained below,
the court denies the petition.
Federal Habeas Standards
federal court reviews a state prisoner's challenge to
matters decided in state court proceedings according to the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which “requires federal courts
to give significant deference to state court decisions”
on the merits. Lockett v. Trammel, 711 F.3d 1218,
1230 (10th Cir. 2013). Under 28 U.S.C. § 2254, a federal
court should not grant a 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 of the claim
“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 of the claim
“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). “Clearly established
Federal law” refers to the Supreme Court's
holdings, but not dicta. Lockett, 711 F.3d at 1231.
The 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). The petitioner
has the burden of rebutting this presumption of correctness
by clear and convincing evidence. Id.
court applies a different standard 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:
The State charged [petitioner] and Price with attempted
first-degree murder [of Amos Becknell]. Price would
eventually enter into a plea agreement with the State, in
which he agreed to plead guilty to two counts of aggravated
battery and testify against [petitioner].
On the day of trial, the prosecutor informed the district
judge that Becknell was present but was unwilling to testify.
The district judge, the prosecutor, and [petitioner]'s
trial counsel discussed how best to proceed. The district
judge indicated that he was willing to bring Becknell into
the courtroom outside the presence of the jury in order to
“get some direct feedback on the record as to his
willingness [to testify].” The prosecutor responded
that Becknell was “not comfortable even coming into the
courtroom under the circumstances with spectators and taking
the witness stand even to state his refusal to
testify.” The prosecutor suggested conducting the
hearing in the judge's law library. [Petitioner]'s
trial counsel noted that “[i]t might be easier if we
just emptied the courtroom and then did it in here” but
ultimately “defer[red] to however the court wishe[d] to
After the judge swore in the members of the jury and the
parties' counsel made their opening remarks, the judge
excused the jurors and then emptied the courtroom except for
counsel, [petitioner], and court personnel. Becknell
initially refused to enter the courtroom, but eventually he
did so and was sworn in. Becknell informed the judge that he
refused to testify and wanted to go home. After a few
clarifying questions, the judge determined that Becknell was
unavailable as a witness and thus Becknell's preliminary
hearing testimony would be read to the jury.
Testimony at trial clearly pointed to [petitioner] as the
shooter. Becknell's mother and another witness testified
that they saw a blue car pull up to Becknell's home. Both
saw the driver exit, approach Becknell, and shoot him.
Becknell's mother had been unable to identify
[petitioner] from a photo lineup, but she testified at trial
that she recognized [petitioner] when she saw him at the
preliminary hearing. A third witness testified that
[petitioner] had told her that he shot someone, and a fourth
witness testified that she had overheard the conversation and
that Price had later informed her that [petitioner] shot
When Price testified, he said his plea agreement required him
to testify truthfully and that he was, in fact, testifying
truthfully. He said that he and [petitioner] drove to
Becknell's house, and then [petitioner] got out of the
driver's seat of the car and walked up to the house.
Price lost sight of [petitioner] as he approached the house,
but he heard a “loud clap” that “[c]ould
have been a gunshot.” After Price heard the loud noise,
[petitioner] returned to the car and the two left the scene.
Becknell's preliminary hearing testimony, admitted at
trial, was consistent overall with the observations of the
other witnesses. He said he had been sitting on his front
porch when a man approached him from the driver's side of
a blue car. After a brief exchange of words, the man shot
Becknell. Becknell also was able to identify [petitioner] as
the shooter. Becknell said that he knew Price and that it was
not Price who shot him.
[Petitioner] testified in his defense. He asserted it was
Price who shot Becknell. According to [petitioner], he had
agreed to take Price to Becknell's house so that Price
could fight Becknell. When [petitioner] approached
Becknell's house, Price identified the house and told
[petitioner] to drive past and circle back. On the way back
toward the house, Price crawled into the back seat. Once at
the house, [petitioner] testified, Price exited the
driver-side rear door, went up to Becknell outside the house,
and shot Becknell before running back to the car.
Kansas v. Reed, 352 P.3d 530, 534-35 (Kan. 2015)
(hereinafter Reed II). The jury convicted petitioner
for attempted first degree murder. Id. at 534. The
Sedgwick County District Court sentenced petitioner to 272
months in prison. Doc. 1. at 1.
appealed his conviction through counsel to the Kansas Court
of Appeals. He raised the following claims: (1) ineffective
assistance of trial counsel; (2) violation of his right to a
public trial; (3) prosecutorial misconduct depriving him of
his right to a fair trial; and, (4) a sentence that
constituted cruel and unusual punishment. Reed II,
352 P.3d at 536. The Kansas Court of Appeals affirmed his
conviction and sentence. Kansas v. Reed, No. 106,
807, 2013 WL 451900, at *22 (Kan.Ct.App. Feb. 1, 2013)
(hereinafter Reed I). On June 19, 2015, the Kansas
Supreme Court affirmed petitioner's conviction, but
remanded his case for resentencing. Reed
II, 352 P.3d at 549. On October 13, 2015, the United
States Supreme Court denied his petition for certiorari. Doc.
1 at 3; Reed v. Kansas, 136 S.Ct. 344, 344 (2015).
One year later, petitioner filed this 28 U.S.C. § 2254
petition in our court. Doc. 1.
§ 2254 petition asserts four distinct grounds for
relief. His first claim theorizes that the trial judge
violated his Sixth Amendment right to a public trial and
Fourteenth Amendment due process rights when he closed the
courtroom to inquire, on the record, whether Mr. Becknell was
available to testify. Doc. 1 at 4. Petitioner's remaining
claims assert that his Sixth Amendment rights were violated
due to ineffective assistance of counsel. Doc. 1 at 6-9. The
court addresses petitioner's first claim in Part A and
petitioner's remaining claims in Part B, below.
Ground One: Right to Public Trial
the Kansas Court of Appeals and the Kansas Supreme Court
considered petitioner's claim that the trial judge
violated his right to a public trial. See Reed II,
352 P.3d at 540; Reed I, 2013 WL 451900, at *22. And
both appellate courts rejected his claim on the merits.
Id. So, for petitioner to deserve relief on ground
one, he must demonstrate: (1) the adjudication of the claim
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) the adjudication of the claim resulted
in a decision “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). Using this
standard, the court turns to petitioner's first claim for
Ground One, petitioner asserts that the trial judge violated
his Sixth Amendment public trial right and Fourteenth
Amendment due process rights by closing the courtroom for Mr.
Becknell's inquiry. The Sixth Amendment, which applies to
the states through the Due Process Clause of the Fourteenth
Amendment, guarantees every criminal defendant a
“speedy and public trial.” Const. amend.VI;
see also Presley v. Georgia, 558 U.S. 209, 211-12
(2010). In our judicial system, the public trial guarantee
safeguards the defendant “from potentially perjurious
or abusive testimony.” Davis v. Reynolds, 890
F.2d 1105, 1109 (10th Cir. 1989). But this guarantee is not
an absolute one. Indeed, the “‘right to an open
trial may give way in certain cases to other rights or
interests, such as the defendant's right to a fair trial
or the government's interest in inhibiting disclosure of
sensitive information.'” Presley, 558 U.S.
at 213 (2010) (quoting Waller v. Georgia, 467 U.S.
39, 45 (1984)). And, federal courts have not extended the
Sixth Amendment public trial protection to every proceeding.
See, e.g., United States v. Norris, 780
F.2d 1207, 1211 (5th Cir. 1986) (holding that the Sixth
Amendment public trial right did not extend to private
conferences in chambers or at the bench because they were
“non-public exchanges between counsel and the
court” on technical legal issues).
Kansas Supreme Court weighed public trial opinions from
several federal courts before concluding that the Sixth
Amendment public trial right did not extend the trial
judge's inquiry with Mr. Becknell. First, the Kansas
Supreme Court consulted the Supreme Court's decision in
Press-Enterprise Co. v. Superior
Court. In Press Enterprise, the Supreme
Court adopted an “experience and logic” test to
determine whether the First Amendment requires public access
to preliminary hearing testimony. Press Enterprise,
478 U.S. at 7-8. This test has two prongs. First, the Supreme
Court considered whether preliminary hearings had
“historically been open to the press and general
public.” Id. at 8. The Supreme Court
recognized that certain processes, like the selection of
jurors, have “presumptively been a public process with
exceptions only for good cause shown.” Id.
Second, the Supreme Court considered whether public access
plays a significant positive role in the functioning of the
particular process in question.” Id. Applying
the “experience and logic” test, the Supreme
Court concluded that the First Amendment right of access to
criminal proceedings applies to preliminary hearings.
Id. at 13.
Kansas Supreme Court also considered an opinion from the
Ninth Circuit. In United States v. Waters,
Ninth Circuit analyzed the “values served by a public
trial.” Waters, 627 F.3d at 360. They are: (1)
ensuring a fair trial; (2) reminding the prosecutor and judge
about their responsibility to the accused; (3) encouraging
witnesses to come forward; and, (4) discouraging perjury.
Id. These values, the Circuit determined, favored
extending the public trial right to preliminary hearings.
the Kansas Supreme Court considered a Fifth Circuit opinion.
In Norris, the Fifth Circuit held that in-chambers
exchanges between counsel and the court on purely technical,
legal issues did not violate ...