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Grammer v. Sauers

United States District Court, D. Kansas

November 1, 2017

FRANKLIN L. GRAMMER, JR., Petitioner,
v.
M. SAUERS, et al., Respondents.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         In 2010, Petitioner Franklin L. Grammer, Jr. was convicted, upon a plea of guilty, of one count of second degree murder in violation of K.S.A. § 21-3402(a), and upon a plea of no-contest, of one count of attempted first degree murder in violation of K.S.A. § 21-3401 and § 21-3301. He was sentenced to 274 months incarceration and is currently incarcerated at the Ellsworth Correctional Facility in Ellsworth, Kansas.

         Petitioner petitions this Court to issue a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). He argues that there was an insufficient factual basis for his conviction of attempted first degree murder. In addition, he asserts that his counsel was ineffective on direct appeal for not raising the issue that his conviction for attempted first degree murder was not factually supported. Having reviewed the record, the Court denies Petitioner's petition for a writ of habeas corpus.

         I. Factual and Procedural Background

         Petitioner pled guilty to one count of second degree murder for killing Betty Jo Grammer and pled no contest to one count of attempted first degree murder for attempting to kill Sam Shanks. The factual basis for the plea, as stated during Petitioner's plea hearing, and as stated by the Kansas Court of Appeals is as follows:

I'm going to ask the Court to also consider the testimony of the preliminary hearing as part of [the basis for the guilty and no contest plea]. In addition to those facts, the State would have presented on June 8, that Betty Grammer, Sam Shanks and Jeff Robinson were working on painting a house at 6247 Glenfield in Fairway, Johnson County, Kansas.
There had been previous or ongoing disagreements between … Grammer, and his wife, Betty [Jo] Grammer. On that morning, he showed up, after parking his vehicle a distance away from the job site, walked up to Betty [Jo] Grammer, put her in a headlock, applied a gun to her head and shot her once. She immediately fell onto the ground and later died of those injuries.
While [Grammer] was committing this murder, Sam Shanks was on the roof of the house. He heard a disturbance, went over to the edge of the roof, looked down to witness [Grammer] shooting Betty [Jo] Grammer in the head. Sam Shanks will indicate that he immediately became concerned because he had just witnessed the murder that he would be next and, in fact, jumped off the roof to run away.
The evidence will indicate that after [Grammer] shot his wife, Betty [Jo] Grammer, in the head, that he then walked across the front of the house, still holding the firearm in a ready position. Jami[e] and Pete Hyde, who were the owners of the house which was being painted, observed him walking across the front of the house holding the handgun in ready position as if he was looking for other people. Jami[e] would indicate that it looked as though Mr. Grammer was looking for and pursuing the other painters that had been working on the house and felt that he was pursuing them to also do harm to them based on his demeanor. She, in fact, told the 911 operators those facts.
Both individuals, Sam Shanks and Jeff Robinson ran away from the scene. Sam Shanks was able to run and hide away from Mr. Grammer to prevent him from locating him. Mr. Grammer then left the residence and got in his car and drove away, later to be apprehended in California by law enforcement authorities and taken into custody. In his possession at the time of being taken in was a .22 caliber firearm. That firearm was consistent with the one witnessed by the eye witnesses as the one used to kill Betty [Jo] Grammer and was displayed as he was walking away from the site.
Both eye witnesses, Sam Shanks and Jeff Robinson, would indicate that … Grammer, was the individual who shot, Betty Jo Grammer, and then walked across the front of the residence. The homeowners of 6247 Glenfield would also indicate that, based on their prior contact with … Grammer, they both identified him as the individual that walked across the front of the yard and chased the other painters.
The State would submit as regards Count II, there was sufficient evidence that Mr. Grammer was looking for the other painters, including Sam Shanks, that he was armed with a firearm after shooting Betty Jo Grammer, a sufficient fact basis for attempted first degree murder charge in Count II.[1]

At Petitioner's sentencing, he requested a downward departure. The district judge denied his request, and Petitioner was sentenced to 274 months imprisonment. Petitioner appealed his sentence. The Kansas Supreme Court summarily affirmed his sentence after finding that it was without jurisdiction to consider the issue because his sentence was within the presumptive sentencing range.[2]

         Petitioner then filed a motion for post-conviction relief pursuant to K.S.A. § 60-1507. With regard to this motion, Petitioner claimed that (1) there was an insufficient factual basis to support his conviction for attempted first degree murder, and (2) his appellate counsel was ineffective because counsel failed to raise the insufficient factual basis as an issue during his direct appeal. The district court held an evidentiary hearing and denied Petitioner's § 60-1507 motion. The Kansas Court of Appeals affirmed the district court's decision, and the Kansas Supreme Court denied review.

         In August of 2016, Petitioner filed his petition for habeas relief pursuant to 28 U.S.C. § 2254 in this Court. He claims that there was an insufficient factual basis for his conviction of attempted first degree murder and that his counsel was ineffective on direct appeal for not raising the issue that his conviction for attempted first degree murder was not factually supported.

         II. Legal Standard

         The Court's consideration of a state prisoner's collateral attacks on state criminal proceedings is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which “requires federal courts to give significant deference to state court decisions.”[3] The Court can only grant relief to a petitioner's claim that has been decided on the merits in state court if the state decision: (1) “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) “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.”[4]

         A state court decision is contrary to Supreme Court precedent when: (1) “the state court applies a rule that contradicts the governing law set forth in [a United States Supreme Court case]” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.”[5] A state court's decision is an unreasonable application of Supreme Court precedent if “the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.”[6] Thus, this Court may not issue a writ of habeas corpus simply because it ...


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