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Overton v. Heimgartner

United States District Court, D. Kansas

September 12, 2017

EARNEST WAYNE OVERTON, Petitioner,
v.
JAMES HEIMGARTNER, et al., Respondents.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT COURT

         Pro se petitioner Earnest Wayne Overton seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petition For Writ Of Habeas Corpus (Doc. #1) filed December 4, 2015. For the reasons stated below, the Court denies the petition and denies a certificate of appealability.

         Factual Background

         In 2001, the District Court of Sedgwick County, Kansas found petitioner guilty of rape and aggravated indecent liberties with a child.[1] Petitioner alleges constitutional violations during the state court proceedings. See Doc. #1. The Kansas Court of Appeals summarized the evidence at trial and petitioner's conviction as follows:

A.D. testified that when she was in the seventh grade, she attended Truesdell Middle School. Overton was an eighth-grade science teacher at the school. Overton befriended A.D. by telling her that she was attractive. A.D. testified that Overton tried to kiss her during a planning period in his classroom, but she turned away. He tried again and kissed her on her lips. After school, Overton kissed A.D. again while she was working in the gym.
Overton and his wife, Michelle, wanted A.D. to babysit for their children for the summer. One day, Overton drove A.D. to show her the house. After locking the garage doors and leading A.D. downstairs, Overton turned on the radio and kissed her and felt her “vagina area” outside her clothes. Overton told her he cared for her. Moreover, he would always be there for her. A.D. testified that she told him she was having her period and she wanted to leave. Overton took her back to school. A.D. did not mention the incidents to anyone because Overton told her he would ruin her if she told anyone about what had happened.
During the summer, A.D. babysat the Overton children from morning until midafternoon on Mondays through Fridays. One day while Michelle was at work and the children were away, Overton started kissing A.D. on her neck. Overton pulled A.D. into the bedroom, laid her down on a towel on the bed, and took her shorts and underwear off. While he held her hands above her head with his hand, he penetrated her vagina with his penis. She could not move or get up, and she was crying. A.D. stated that she was a virgin and that she bled everywhere on the towel. Overton washed himself, got dressed, and went back to his business. A.D. went back to her chores. A.D. returned to Overton's house the next day to babysit. A.D. stated Overton forced sex on her “three, four [or] five” times during the summer.
T.R. testified that while attending Truesdell, she talked to Overton between classes and after school about her home life.
After T.R. went to high school, she babysat daily for the Overtons after school. Sometime between December 1996 and T.R.'s 16th birthday in January 1997, T.R. was staying overnight babysitting at Overton's house, while Overton and his wife went out with some friends. After they came home, Michelle went to bed and Overton went downstairs where T.R. was sleeping. Overton asked if she wanted to have sex with him. Although she said no, Overton took T.R. to a downstairs room and pushed her down on the floor. Overton held her hands over her head with his hand. He undressed her with his free hand. He pulled his pants down and inserted his penis into her vagina. Overton told her not to say anything or he would kill her or have someone kill her and her family.
T.R. continued to babysit for the Overtons after she turned 16, and Overton forced her to have sex five or six more times.
G.B. testified that while attending Truesdell, she and Overton became friends. Overton told her she did not have to do homework because he would give her an A.
In the fall of her eighth grade year, G.B. started babysitting for Overton. After Christmas of that year, Overton took her into the storage room after his class, shut the door, lifted her up on a counter, and kissed her neck. Overton touched her breast under her bra, and G.B. jumped down, pushed him away, and ran out of the room to her next class.
About a month later, Overton asked G.B. to babysit for his children. Overton drove G.B. to his home. Once inside the house, Overton locked the door. He told G.B. he did not have to pick up his children yet, but they “could have a little fun before they got home.” Overton grabbed her and led her to his bedroom and pushed her onto the bed. Overton held her hands over her head with one hand and took her pants off with his free hand. Overton spread her legs and put his penis inside of her, while she was crying and telling him to stop. Overton told G.B. not to tell anybody about the incident because he had friends who could hurt her and he could get her mother into trouble.
After Overton took G.B. home, G.B. told her mother what had happened. Although her mother wanted to call the police, G.B. told her about Overton's threats. They decided not to call the police.
Several years later, G.B. shared with the police what Overton had done. On July 6, 2001, Overton was arrested on allegations made by G.B., and on July 12, 2001, he was formally charged with aggravated indecent liberties with a child and rape against G.B. in case No. 01CR1633.
On July 25, 2001, Overton was charged with three counts of rape: counts 1 and 2 against T.R. and count 3 against A.D. These charges were made in case No. 01-CR1800. The charges in case Nos. 01CR1633 and 01CR1800 were consolidated and later amended to include count 1, aggravated indecent liberties with a child against G.B.; count 2, rape of G.B.; count 3, aggravated indecent liberties with a child against G.B. as an alternative charge to count 2; count 4, rape of T .R.; count 5, aggravated indecent liberties with a child against T.R., as an alternative charge to count 4; count 6, rape of T.R.; count 7, aggravated indecent liberties with a child against T.R., as an alternative charge to count 6; count 8, rape of A.D.; and count 9, aggravated indecent liberties with a child against A.D., as an alternative charge to count 8.
At the preliminary hearing, the trial court dismissed count 7 for lack of evidence and counts 8 and 9 as being outside the statute of limitations of 5 years. The State moved to admit the evidence relating to A.D. under K.S.A. 60-455 to show a plan. The trial court granted the State's motion to admit the evidence to show “there was a plan or a common scheme that Mr. Overton entered into regarding these young girls.”
The jury found Overton guilty of rape and aggravated indecent liberties with a child against G.B. The jury found Overton not guilty of rape and aggravated indecent liberties with a child against T.R. Overton was sentenced to 184 months' imprisonment for rape and a concurring term of 41 months for aggravated indecent liberties with a child.

State v. Overton, No. 88, 897, 2003 WL 22897263, at *1-3 (Kan.Ct.App. Dec. 5, 2003).

         Overton appealed his conviction and sentence to the Kansas Court of Appeals. He argued that the trial court erred when it (1) admitted A.D.'s testimony concerning her allegations against petitioner because this evidence violated Kan. Stat. Ann. § 50-455 and was more prejudicial than probative; (2) allowed the jury to view telephone conversation transcripts, which the court did not admit into evidence, during deliberations and (3) failed to recall the jury to investigate the prejudicial effect of a spectator's comment made during recess. See id. at *5-10. The Kansas Court of Appeals affirmed his conviction and sentence. Id. at *12. It held that the trial court had erred in allowing the jurors to view the telephone conversation transcripts but found that this error was harmless. See id. at *8, *12. On the same grounds, ...


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