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Reed v. Cline

United States District Court, D. Kansas

July 14, 2017

SAMUEL L. REED, Petitioner,
v.
SAM CLINE, Respondents.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Federal Habeas Standards

         A 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.

         But the 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.

         II. Factual Background

         The 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 do it.”
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 someone.
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.

         Petitioner 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.

         III. Analysis

         Petitioner's § 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.

         A. Ground One: Right to Public Trial

         Both 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 relief.

         In 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).

         The 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.[1] 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.

         The Kansas Supreme Court also considered an opinion from the Ninth Circuit. In United States v. Waters, [2] the 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. Id.

         Next, 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 ...


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