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Cosby v. Schnurr

United States District Court, D. Kansas

February 5, 2018

LAFAYETTE D. COSBY, Petitioner,
v.
WARDEN DAN SCHNURR, Respondent.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL JUDGE

         Pursuant to 28 U.S.C. § 2254, pro se petitioner LaFayette D. Cosby, an inmate at Ellsworth Correctional Facility in Ellsworth, Kansas, seeks a writ of habeas corpus claiming various constitutional violations allegedly arising from his state court conviction for first degree murder. Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (“Petition”) (Doc. #1) filed September 2, 2015. For reasons stated below, the Court denies the petition and denies a certificate of appealability.

         Procedural And Factual Background

         In 2004, a jury in the District Court of Douglas County, Kansas found petitioner guilty of first degree murder. Petitioner appealed to the Kansas Supreme Court.[1] Based on prosecutorial misconduct, the Kansas Supreme Court reversed the conviction and remanded the case for a new trial. See State of Kansas v. Cosby, 285 Kan. 230, 169 P.3d 1128 (2007).

         In 2008, after a second trial, a jury again found petitioner guilty of first degree murder.[2]

         Highly summarized, the evidence at the second trial showed as follows:

In 2004, [petitioner] and two other men attended a Senegal Independence Day event in Kansas City, Missouri, before returning to their apartment for a small gathering that same night. The group of friends, acquaintances, and neighbors that gathered at the apartment included Robert Martin. Martin and two others joined the party in the early hours of the morning; shortly thereafter, Martin and [petitioner] were witnessed lying on a bed together, laughing and talking. Martin and [petitioner] soon joined the rest of the group in the living room. In the midst of a conversation in which Martin referenced smoking marijuana, [petitioner] left the room and returned with a handgun. When Martin reached into his pocket, possibly for marijuana, [petitioner] walked up to him and shot him three times in the chest. Almost everyone ran out of the apartment, although a few of the guests returned to retrieve various personal effects. Near dawn, one of [petitioner's] roommates finally contacted the police.

Cosby v. State of Kansas, No. 109, 880, 2014 WL 4435848, at *1 (Kan. App. Sept. 5, 2014).[3]

         Petitioner appealed. Petitioner argued that (1) the trial court improperly excluded as hearsay a question that he asked police regarding whether they had found a gun; (2) the trial court should have instructed the jury on the lesser included offense of voluntary manslaughter; (3) evidence regarding premeditation was insufficient to support the conviction; and (4) the prosecutor engaged in misconduct. See Kansas v. Cosby, 293 Kan. 121, 122, 262 P.3d 285, 287 (2011). On September 9, 2011, the Kansas Supreme Court affirmed the second conviction. Id., 293 Kan. at 137, 262 P.3d at 296.[4]

         On September 10, 2012, in the District Court of Douglas County, Kansas, petitioner filed a pro se motion for post-conviction relief under K.S.A. § 60-1507.[5] See KSA 60-1507 Motion, Case No. 2012-CV-000487 (D. Ct. Douglas Co.), Record-Vol. No. 1. As grounds for relief, petitioner asserted that by refusing his requests to appoint substitute trial counsel, the trial court violated his constitutional rights. See id. at 9-10. Petitioner asserted that because appellate counsel had failed to raise his claims on direct appeal, he had not previously presented them to any court. Id. ¶ 16.

         On October 31, 2012, petitioner filed a motion to amend his Section 60-1507 motion. See Motion To Amend Pleading, Case No. 2012-CV-000487 (D. Ct. Douglas Co.), Record-Vol. No. 1. Specifically, petitioner sought to include claims that the trial court violated his constitutional rights by (1) during a hearing on his motion to dismiss based on alleged police destruction and manipulation of exculpatory evidence, refusing to hear impeachment and bad faith evidence, id. at 42; (2) appointing counsel who was ineffective and biased, id. at 43; and (3) appointing ineffective counsel who failed to present his version of facts to the jury and therefore effectively required him to testify on his own behalf in the first trial, id. at 44. Petitioner also sought to add claims that (1) trial counsel was ineffective in failing to object to prosecutorial misconduct involving the use of perjured testimony, id. at 44; (2) trial counsel was ineffective in failing to object to prosecutorial misconduct involving the improper bolstering of state witnesses, id. at 45; (3) in light of new facts, the State presented insufficient evidence of first degree murder, id. at 45; and (4) the cumulative effect of trial errors caused substantial prejudice and denied him a fair trial, id. at 46.

         On December 5, 2012, the state district court issued a Memorandum Decision which denied relief under Section 60-1507. See Case No. 2012-CV-487, Record-Vol. No. 2. It found that although petitioner complained about counsel before and during the first trial, he did not object when the court appointed the same attorney to represent him in the second trial. See id. at 5-6. It also found that petitioner waited until the eve of the second trial to complain that counsel was not investigating issues and had a conflict of interest based on his relationship with police. See id. at 6-7. Further, it found that petitioner raised no facts or law to support a claim that in failing to appoint substitute trial counsel, the trial court abused its discretion. See id. at 8-11. The state district court concluded that the files and records of the case conclusively showed that petitioner was entitled to no relief. See id. at 12.[6]

         Petitioner appealed to the Kansas Court of Appeals. See Brief Of Appellant filed February 18, 2014, Case No. 13-109, 880-A.[7] Petitioner asserted that the state district court erred in (1) summarily dismissing his Section 60-1507 claims; (2) not ruling on issues raised in his motion to amend; and (3) not holding a preliminary or evidentiary hearing regarding non-record facts which would bear on the merits of his claims. See id. at 1-2, 4-12.

         On September 5, 2014, the Kansas Court of Appeals affirmed. See Cosby v. Kansas, No. 109, 880, 2014 WL 4435848 (Kan. App. Sept. 5, 2014). On de novo review, the Kansas Court of Appeals found that (1) petitioner did not show that the trial court abused its discretion in failing to appoint substitute trial counsel, see id. at *5-8; (2) because the motion to amend raised new issues that were untimely and did not relate back, the state district court did not need to address them, see id. at *2-4; and (3) because the record conclusively showed that petitioner was entitled to no relief, the state district court need not hold a hearing, see id. at *8.[8]

         On October 3, 2014, petitioner filed a petition for review in the Kansas Supreme Court. See Appellant's Petition For Review, Case No. 13-109, 880-S.[9] Petitioner asserted that in denying his Section 60-1507 claims, the lower state courts applied the wrong standard of review, which precluded him from presenting the merits of his ineffective assistance claim. Id. at 2-3, 6-7.[10]Notably, petitioner did not challenge the Kansas Court of Appeals ruling that the ineffective assistance claim did not relate back to his original claim and was therefore untimely.[11] Petitioner asserted that in light of his factual allegations, the lower courts erred in finding that the motion, files and records of the case conclusively showed that he was entitled to no relief. Id. at 8.

         On August 4, 2015, the Kansas Supreme Court denied the petition for review.

         On September 2, 2015, petitioner filed in this Court a petition seeking habeas corpus relief based on the following grounds: (1) appellate counsel failed to raise his Section 60-1507 claims on direct appeal (Ground 1), see Petition (Doc. #1) at 32-33; (2) in refusing to appoint substitute counsel, the trial court failed to conduct a proper inquiry into the details and nature of counsel's conflicts of interest and the conflict between petitioner and counsel (Ground 2), see id. at 34-37; (3) during a hearing on a motion to dismiss, the trial court refused to hear evidence regarding police bad faith and key impeachment witnesses (Ground 3), see id. at 38-41; (4) in forcing petitioner to rely solely on evidence presented by counsel, the trial court obstructed his ability to introduce exculpatory evidence (Ground 4), see id. at 42-43; (5) in not appointing substitute counsel, the trial court imposed ineffective and biased counsel who did not present petitioner's version of the facts, including his complete defense of actual innocence (Ground 5), see id. at 44-46; (6) in appointing ineffective and biased counsel who refused to investigate the case and present petitioner's version of the facts, the trial court effectively forced petitioner to testify in the first trial in violation his Fifth Amendment right to not testify (Ground 6), see id. at 47-51; (7) in representing petitioner under known conflicts of interest, trial counsel was ineffective (Ground 7), see id. at 52-54; (8) in not objecting to the prosecutor's use of perjured testimony, trial counsel was ineffective (Ground 8), see id. at 55-56; (9) in not objecting to improper bolstering of state witnesses, trial counsel was ineffective (Ground 9), see id. at 57-58; (10) new facts demonstrate actual innocence (Ground 10), see id. at 59-66; (11) the cumulative effect of trial errors caused substantial prejudice and denied him a fair trial (Ground 11), see id. at 67; and (12) the state courts failed to provide a full and fair hearing to argue the merits of his Section 60-1507 claims (Ground 12), see id. at 68-69.

         Standards For Habeas Petitions Under 28 U.S.C. § 2254

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in relevant part at 28 U.S.C. § 2254, governs the Court's review. Under Section 2254, the Court may not issue a writ of habeas corpus with respect to any claim that the state court adjudicated on the merits unless that adjudication

(1) 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) 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); see Charlton v. Franklin, 503 F.3d 1112, 1114-15 (10th Cir. 2007).

         Under the “contrary to” clause, the Court may issue a writ of habeas corpus only if (1) the state court arrived at a conclusion opposite to that reached by the United States Supreme Court on a question of law or (2) the state court decided the case differently than the United States Supreme Court on a set of materially indistinguishable facts. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004). Under the “unreasonable application” clause, the Court may grant habeas relief if the state court correctly identified the governing legal rule but applied it unreasonably to the facts of petitioner's case. Williams v. Taylor, 529 U.S. 362, 407-08 (2000). The Court may not issue a writ simply because it concludes in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly; rather, the application must have been objectively unreasonable. See id. at 409-11.

         The Court presumes that the state court factual determinations are correct. Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003). Petitioner bears the burden of rebutting this presumption with clear and convincing evidence. Id. This presumption does not extend to legal determinations or to mixed questions of law and fact. Id. That is, if the state court employed the wrong legal standard in deciding the merits of the federal issue, the deferential standard of review does not apply. Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)). Ultimately, the Court's review of the state court proceedings is quite limited, as Section 2254(d) sets forth a highly deferential standard for evaluating state court rulings. Frost v. Pryor, 749 F.3d 1212, 1222 (10th Cir. 2014).

         A state prisoner may not obtain federal habeas relief unless he “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The Tenth Circuit recently explained the doctrine of procedural default in detail. See Griffin v. Scnurr, 640 F. App'x 710, 716-17 (10th Cir. 2016). Four aspects of the exhaustion requirement contribute to the doctrine of procedural default. Id. at 716. First, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Id. To do so, the prisoner must seek discretionary review of the constitutional issues he wishes to pursue in the state's highest court - here, the Kansas Supreme Court. Id. Second, the prisoner must “fairly present” his claim in each appropriate state court, thus alerting that court to the federal nature of the claim. Id. (prisoner must present “substance” of claim to state courts to put courts on notice of federal constitutional claim); see Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012). Third, procedural default may arise from anticipatory procedural bar. Generally, a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies. But if the court to which petitioner must present his claims to meet the exhaustion requirement would now find those claims procedurally barred, “there is a procedural default for the purposes of federal habeas review.” Griffin, 640 F. App'x at 716. Fourth, federal courts do not address issues that petitioner defaulted in state court on an independent and adequate state procedural ground, unless petitioner can demonstrate “cause and prejudice or a fundamental miscarriage of justice.” Id. at 717 (citing Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007)).

         Analysis

         As noted, petitioner seeks habeas corpus relief based on 12 grounds. Respondent asserts that petitioner has procedurally defaulted all claims.[12] See Answer And Return (Doc. #9) filed June 8, 2017 at 10-11.

         I. Exhaustion And Procedural Default

         As noted, a state prisoner may not obtain federal habeas relief unless he has exhausted the remedies available in state courts. 28 U.S.C. § 2254(b)(1)(A). To do so, the prisoner must seek discretionary review of the constitutional issues that he wishes to pursue in the state's highest court - here, the Kansas Supreme Court. See Griffin, 640 F. App'x at 716-17. The prisoner must “fairly present” his claim in each appropriate state court, thus alerting the state court to the federal nature of his claim. Id. (prisoner must present “substance” of claim to state courts so as to put courts on notice of federal constitutional claim); see Prendergast, 699 F.3d at 1184.

         Where petitioner has failed to exhaust a claim in state court and state court remedies are no longer available when he applies for federal habeas relief, petitioner meets the technical requirements for exhaustion, i.e. no state remedies are available to him. See Coleman v. Thompson, 501 U.S. 722, 732 (1991), qualified on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012); Walker v. Heimgartner (Heimgartner I”) No. 15-3230-DDC, 2017 WL 1197645, at *5 (D. Kan. Mar. 31, 2017); Bowles v. Kansas, No. 15-3049-JTM, 2016 WL 3759508, at *1 (D. Kan. July 14, 2016). In this circumstance, the claim is subject to dismissal under the doctrine of procedural default. Bowles, 2016 WL 3759508, at *1; see also Coleman, 501 U.S. at 750. Procedural default occurs primarily in one of two ways: (1) when a state court clearly dismisses an issue on a state procedural ground that is independent of federal law and adequate to support the judgment; or (2) when petitioner fails to exhaust available state remedies and would be procedurally barred from now presenting the issue in state court. See Heimgartner I, 2017 WL 1197645, at *5; Bowles, 2016 WL 3759508, at *2. Federal courts may not review claims that have been procedurally defaulted in state court unless petitioner can demonstrate (1) cause and prejudice for the default or (2) that failure to consider the claims will result in a fundamental miscarriage of justice because petitioner has made a credible showing of actual innocence. Coleman, 501 U.S. at 750; Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014); Heimgartner I, 2017 WL 1197645, at *5.

         Here, the record shows that petitioner has procedurally defaulted some of his claims. Of the 12 claims that he asserts in this case, the Kansas Court of Appeals found that seven claims were time-barred and did not relate back to his original Section 60-1507 motion. See Cosby, 2014 WL 4435848, at *1-3. Specifically, the Kansas Court of Appeals found that the following claims were untimely and need not be addressed: (1) during a hearing on a motion to dismiss, the trial court refused to hear evidence regarding police bad faith and key impeachment witnesses (Ground 3), see Petition (Doc. #1) at 32-33; (2) in forcing him to rely solely on evidence presented by counsel, the trial court obstructed his ability to introduce exculpatory evidence (Ground 4), see id. at 42-43; (3) in defending him under known conflicts of interest, trial counsel was ineffective (Ground 7), see id. at 52-54; (4) in not objecting to the prosecutor's use of perjured testimony, trial counsel was ineffective (Ground 8), see id. at 55-56; (5) in not objecting to the prosecutor's improper bolstering of state witnesses, trial counsel was ineffective (Ground 9), see id. at 57-58; (6) new facts demonstrate actual innocence (Ground 10), see id. at 59-66; and (7) the cumulative effect of trial errors caused substantial prejudice and denied him a fair trial (Ground 11), see id. at 67. See Cosby, 2014 WL 4435848, at *1-3. In his petition for review in the Kansas Supreme Court, petitioner did not challenge the Kansas Court of Appeals ruling that these claims were time-barred. See Appellant's Petition For Review, Case No. 13-109, 880-S.[13] Because petitioner did not seek review in the Kansas Supreme Court, he has not exhausted state remedies as to those claims. See, e.g., Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir. 2002) (claims not included in petition for discretionary review to state highest court not exhausted and procedurally defaulted when time-barred). Moreover, it is too late for petitioner to now seek review in the Kansas Supreme Court. See, e.g., Griffin, 640 Fed. App'x at 719. Accordingly, unless petitioner can show cause and prejudice or a fundamental miscarriage of justice, the claims are procedurally barred. See id.; Walker v. Kansas, No. 101, 431, 2012 WL 686685, at *5 (Kan. App. Feb. 17, 2012).

         Petitioner asks the Court to “decline” respondent's argument that he has not exhausted state remedies and “mercifully” rule on the merits of his claims. Traverse To Answer And Return (Doc. #13) filed July 5, 2016. He provides no grounds, however, to support a claim that his procedural default is excused by adequate cause and prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. To satisfy the “cause” requirement, petitioner must show that an external factor prevented him from properly raising the claims in his petition for review to the Kansas Supreme Court. See Coleman, 501 U.S. at 753. Petitioner has not alleged or demonstrated that any external factor caused his failure to properly present the claims in the highest state court.[14] Accordingly, petitioner has not shown adequate cause to except his claims from procedural default.

         Moreover, petitioner has not shown that failure to consider the claims will result in a fundamental miscarriage of justice. To satisfy this exception, petitioner must make a credible showing of actual innocence, i.e. he must support his allegations of constitutional error with new reliable evidence which, if admitted, would have made it more likely than not that the jury would have acquitted him. See Cummings, 506 F.3d at 1224. Petitioner has failed to present any such evidence and thus cannot establish a claim of actual innocence. See, e.g., Shumpert v. Winn, No. 16-11565, 2017 WL 1151103, at *3 (E.D. Mich. Mar. 28, 2017) (petitioner's self-serving claim of innocence does not constitute new evidence to support actual innocence claim); Patterson v. Webb, No. DKC-12-3111, 2015 WL ...


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