United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT COURT
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.
2001, the District Court of Sedgwick County, Kansas found
petitioner guilty of rape and aggravated indecent liberties
with a child. 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
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
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
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).
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, ...