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Adams v. Shelton

United States District Court, D. Kansas

March 12, 2018

KENNETH D. ADAMS, Petitioner,
JAY SHELTON, ET AL., Respondents.



         This matter comes before the Court on Petitioner Kenneth D. Adams' Petition for Writ of Habeas Corpus (Doc. 1), Respondents' Answer and Return (Doc. 19), Petitioner's Traverse (Doc. 20), his Amended Petition (Doc. 24), and the state court records (Doc. 13). Adams, proceeding pro se, alleges twenty-four grounds for relief, including ineffective assistance of counsel, jury instruction errors, and sentencing errors. This matter is fully briefed, [1] and the Court is prepared to rule. After a careful review of the record and the arguments presented, the Court denies Petitioner's Amended Petition without need for an evidentiary hearing.[2]

         I. Federal Habeas Standards

         A. Generally

         The Court reviews Petitioner's challenges to state-court proceedings pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”).[3] The AEDPA requires that federal courts give “significant deference to state court decisions” adjudicated on the merits.[4] Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on any claim adjudicated in state court, unless the petitioner establishes the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”[5]

         A state court's decision is “contrary to” an established federal law if the state court reaches a different result than the Supreme Court has “done on a set of materially indistinguishable facts” or “if the state court applies a rule different from the governing law” set forth in Supreme Court cases.[6] A decision is an “unreasonable application” of clearly established federal law if a “state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies it to the facts of [a petitioner's] case.”[7]Additionally, “an unreasonable application may occur if [a] state court either unreasonably extends, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply.”[8] Courts employ an objective standard in determining what is unreasonable.[9]

         A federal court must presume the state court's factual findings, including credibility findings, are correct in the absence of clear and convincing evidence to the contrary.[10] The law “stops just ‘short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.'”[11] Courts may not issue a writ of habeas corpus if “‘fairminded jurists could disagree' on the correctness of the state court's decision.”[12] Even when a petitioner has a strong case for relief, this “does not mean that the state court's contrary conclusion was unreasonable.”[13]

         Because Adams proceeds pro se, the Court must construe his pleadings liberally and apply a less stringent standard than what is applicable to attorneys.[14] However, the Court may not provide additional factual allegations “to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[15] The Court need only accept as true plaintiff's “well-pleaded factual contentions, not his conclusory allegations.”[16]

         B. Exhaustion and Procedural Default

         A federal court may not grant a writ of habeas corpus unless the petitioner has exhausted the available state court remedies.[17] Under the exhaustion doctrine, “[a petitioner] 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.”[18] “[A]ny claims not included in a petition for discretionary review are unexhausted.”[19] Ordinarily, when a petitioner does not bring claims to the state's highest court, a claim is unexhausted.[20] However, if a petitioner's claims are barred under state law and it is too late to pursue relief in state court, a claim will be deemed exhausted because there are no state remedies available to the petitioner.[21]

         Even where the claim is considered exhausted because there are no state remedies available, the claim may be subject to dismissal for procedural default.[22] For the Court to review a claim that has been procedurally defaulted, the petitioner must: 1) allege sufficient cause for failing to raise the claim and resulting prejudice, or 2) demonstrate that the failure to consider the procedurally defaulted claim will result in a fundamental miscarriage of justice because the petitioner made a credible showing of actual innocence.[23] “Cause” requires the petitioner show that some objective external factor impeded efforts to comply with state procedural rules.[24]“Prejudice” requires the petitioner to demonstrate “actual prejudice as a result of the alleged violation of federal law.”[25]

         C. Ineffective Assistance of Counsel

         The Supreme Court set forth the standard to review ineffective assistance of counsel claims in Strickland v. Washington.[26] Strickland requires a petitioner to show both that his counsel's performance “fell below an objective standard of reasonableness” and that “the deficient performance prejudiced the defense.”[27] Failure under either prong is dispositive.[28]

         In reviewing counsel's performance, courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.[29] “To be deficient, the performance must be outside the wide range of professionally competent assistance. In other words, it must have been completely unreasonable, not merely wrong.”[30] Petitioner bears a heavy burden of overcoming the presumption that counsel's actions were sound trial strategy.[31] This burden increases doubly at the § 2254 proceeding level as federal courts defer not only to the attorney's decision in how to best represent a client, but also to the state court's determination that counsel's performance was not deficient.[32]

         II. Factual Background

         The Court presumes the state court's factual determinations are correct, unless the petitioner rebuts the presumption with clear and convincing evidence.[33] Adams has not proffered any evidence in support of that burden. Thus, the Court adopts the following facts from the Kansas Supreme Court (“KSC”) opinion affirming his conviction.[34]

Adams was arrested following an investigation that began with a routine traffic stop of Adams' housemate, Rachel Nelson. Nelson was stopped in Protection, Kansas, after Police Chief Darren Konrade saw her run a stop sign. Nelson appeared to be intoxicated, so Konrade conducted field sobriety tests. Nelson failed the tests and admitted to drinking alcohol and smoking methamphetamine. Konrade arrested Nelson and advised her of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966).
Konrade searched the pickup truck Nelson was driving and Nelson's purse. In the purse, he found a handwritten list of several items that he recognized were commonly used in the manufacture of methamphetamine: toluene, D batteries, lithium, starting fluid, and distilled water. Nelson admitted she had purchased some of these items with the purpose of manufacturing methamphetamine. She claimed the manufacturing process was done in Oklahoma, although she indicated that she lived in Protection with “Kenny Adams.” After further questioning, Nelson admitted some of the items had been purchased the previous day and were at her home in Protection. Nelson was taken to the police station where she completed a written statement. In that statement, she provided additional details regarding her involvement in methamphetamine manufacturing and implicated George Pitcherello as the person responsible for manufacturing the methamphetamine.
Less than 3 hours after the initial traffic stop, law enforcement officers executed a search warrant on Nelson's home in Protection. On arrival at the home, officers saw three individuals standing by a parked car and a woman and a small child sitting inside the car. Adams was one of the three individuals standing by the car.
While outside the home, officers could smell odors they associated with methamphetamine manufacturing, and, upon entering the home, the officers observed a haze throughout the kitchen area and traced the strong chemical odor to a bottle sitting in a skillet. Officers found a bedroom they suspected was being used for a methamphetamine lab and noticed several items commonly used in the manufacture of methamphetamine. The officers then called in agents for the Kansas Bureau of Investigation (KBI) to process a possible methamphetamine lab.
At that point, the officers detained several suspects, including Adams. Adams was given a recitation of his Miranda rights, after which Adams made several statements that indicated he was familiar with the pieces of paraphernalia being used in his house to manufacture methamphetamine and with the manufacturing process.
The KBI agents performed a complete search of the home and processed a large number of items used in the manufacture of methamphetamine. After these items were tested, methamphetamine was detected in at least eight different samples of liquids, powders, and other substances taken from the scene. Methamphetamine only was detected in at least four samples, while other samples contained a mix of methamphetamine and one or more of the following products: pseudoephedrine, toluene, and ethyl ether. Other samples did not test positive for methamphetamine but contained various chemicals either used during methamphetamine manufacturing or produced naturally by the process, including lithium metal, ammonia, ethanol, methanol, ethyl ether, hydrochloric acid, toluene, sodium chloride, and sulfuric acid.
The State charged Adams with six counts: (1) manufacture of methamphetamine in violation of K.S.A. 2007 Supp. 65-4159(a), a severity level 1 drug felony, or alternatively, attempted manufacture of methamphetamine, see K.S.A. 21-3301; (2) conspiracy to manufacture methamphetamine in violation of K.S.A. 21- 3302(a) and K.S.A. 2007 Supp. 65-4159(a), a severity level 1 drug felony; (3) possession of lithium metal with the intent to manufacture methamphetamine in violation of K.S.A. 2007 Supp. 65-7006(a), a severity level 2 drug felony; (4) possession of drug paraphernalia with intent to manufacture a controlled substance in violation of K.S.A. 2007 Supp. 65-4152(a)(3), a severity level 4 drug felony; (5) possession of methamphetamine in violation of K.S.A. 2007 Supp. 65-4160(a), a severity level 4 drug felony; and (6) possession of drug paraphernalia in violation of K.S.A. 2007 Supp. 65-4152(a)(2), a class A nonperson misdemeanor.
After his preliminary hearing but before trial, Adams filed a motion to suppress the evidence obtained when officers executed the search warrant. The trial court denied the motion.
At trial, Nelson testified for the State and indicated she and Adams had used methamphetamine the day of the traffic stop. Nelson also testified she and Adams had used various forms of paraphernalia to ingest the methamphetamine. Nelson then testified that Adams and Pitcherello had been partners in manufacturing methamphetamine. She also testified to some of the specific methamphetamine manufacturing processes they used.
In addition to Nelson's testimony, two other individuals who were present when the search warrant was executed, Tina Steinbarger and Charles Townsend, testified. Steinbarger testified that she, Townsend, and Pitcherello had driven together from Oklahoma to Adams' home in Kansas. When the group arrived at Adams' home, Pitcherello went inside. Townsend and Steinbarger went into the home about 30 minutes later. Steinbarger testified that once inside, she, Townsend, and Pitcherello all injected methamphetamine. According to her, she did not possess any methamphetamine when she arrived in Protection.
Townsend testified that he had provided Pitcherello and Adams with pseudoephedrine pills in exchange for the two manufacturing methamphetamine for him. Townsend testified that while he and Steinbarger waited outside, he saw shadows in a room where Steinbarger had told him Pitcherello and Adams were cooking methamphetamine. Townsend entered the home, and the people inside, including Adams, were using methamphetamine. Townsend testified that after using the methamphetamine, Adams walked back toward the room where Townsend had seen the shadows. Adams entered the room, and an ammonia-like odor got much stronger. Pitcherello left the room holding a small, brown container with methamphetamine. Townsend identified that small, brown container as one of the containers police seized in the bust and explained that Pitcherello did not have that or any other methamphetamine when he arrived at Adams' house.[35]

         On July 2, 2008, a jury found Adams of guilty of all charges. The alternative charge of attempted manufacture of methamphetamine was dismissed as multiplicitous. On September 30, 2008, the trial court sentenced Adams to 148 months' imprisonment for the manufacture of methamphetamine, 148 months for conspiracy, 51 months for possession of lithium metal, 12 months for possession of drug paraphernalia, 12 months for possession of methamphetamine, and 12 months in the county jail for misdemeanor possession of drug paraphernalia. The trial court ordered these sentences to run concurrently, but consecutive to another sentence in Oklahoma.

         Adams appealed his convictions and sentences. On June 4, 2010, the Kansas Court of Appeals (“KCOA”) affirmed his convictions and sentences.[36] Adams sought review of that decision by the KSC. On April 6, 2012, the KSC upheld Adams' convictions, but found Adams had been erroneously sentenced on his conviction for possession of lithium metal with intent to manufacture a controlled substance.[37] The KSC remanded the case to the trial court for resentencing of that possession count as a severity level 4 drug felony, rather than a level 2 offense.[38]

         On May 29, 2012, Adams filed a motion for post-conviction relief under K.S.A. § 60-1507 (the “1507 Motion”), in Comanche District Court, raising 14 grounds for relief.[39] Adams mainly claimed his trial attorney, Robert Slinkard, had provided ineffective assistance of counsel due to his failure to review the video of Nelson's arrest with Adams prior to the suppression hearing and his failure to effectively cross-examine the State's witnesses.

         In July 2012, Adams filed a motion to vacate and arrest judgment.[40] He alleged that “a structural defect in the trial procedure” divested the district court of “jurisdiction to impose sentence” on him.[41] He argued that the reasonable doubt instruction provided at his jury trial was disapproved in a recent case, which warranted vacating his sentence and granting him a new trial.

         On October 1, 2012, the district court held an evidentiary hearing on the 1507 Motion. Adams and Slinkard testified. The court denied the 1507 Motion, finding Slinkard's performance constitutionally adequate. The court also denied the motion to vacate, finding that the reasonable doubt instruction did not misstate the law. The court then resentenced Adams pursuant to the KSC's decision.

         Adams appealed these decisions in two separate cases. On August 8, 2014, the KCOA dismissed the appeal of the instructional error for lack of jurisdiction in State v. Adams, 330 P.3d 441 (Kan. App. 2014). The KSC denied review of that decision on July 27, 2015.

         On October 31, 2014, the KCOA affirmed the denial of the 1507 Motion in Adams v. State, 337 P.3d 72 (Kan. App. 2014). The KSC denied review of that decision on July 24, 2015.

         On September 12, 2015, Adams filed this federal habeas case, alleging twenty-one grounds for relief. Respondents filed an Answer on June 3, 2016. Adams filed his Traverse on August 25, 2016. He then sought a stay of proceedings to fully exhaust several issues at the state level.[42] This Court denied the stay request, but granted Adams leave to submit an amended Petition presenting only exhausted federal claims.[43] Adams filed an amended petition on January 26, 2017, asserting three additional claims.[44] For convenience, the Court denominates the three additional grounds as follows: denial of marital privilege (“Ground 22”); ineffective assistance of appellate counsel (“Ground 23”); and resentencing error due to addition of a conspiracy element to the sentence (“Ground 24”).

         III. Analysis

         Adams has withdrawn Ground 13 as a basis for federal habeas relief.[45] Adams has abandoned Ground 21 since his briefs did not specifically address it, but mistakenly lumped it with Grounds 17-20, which are ineffective assistance of counsel claims.[46] The Court divides the remaining grounds into six categories and discusses them seriatim.

         A. Search Warrant (Grounds 1-3)

         Grounds 1 through 3 attack the validity of the search warrant. Adams asserts that law enforcement coerced Nelson into making statements that suggested drug-related activity occurred at the home she shared with Adams (Ground 1), omitted conflicting material statements made by Nelson (Ground 2), and fabricated statements to obtain the issuance of the search warrant (Ground 3). He argues that without the search warrant, a jury could not have found him guilty of six drug-related crimes, including the possession and manufacture of methamphetamine.

         Under existing Supreme Court precedent, Fourth Amendment claims generally may not be raised in a habeas corpus petition. In Stone v. Powell, [47] the Supreme Court held “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”[48] The Tenth Circuit has interpreted the “opportunity for full and fair consideration” to include the procedural opportunity to raise a Fourth Amendment claim, the full and fair evidentiary hearing contemplated by Townsend v. Sain, [49] and the state court's application of the correct and controlling constitutional standards.[50]

         Adams does not allege that he lacked an opportunity for a full and fair hearing on these issues before the state trial court. Indeed, the record shows that he did in fact have one. On April 25, 2008, Adams, through counsel, filed a motion to suppress the search warrant, alleging: 1) Nelson had not made any statements about the house when she was arrested; 2) the police fabricated the statements that tied methamphetamine to Adams' home; and 3) the affiant overstated his knowledge of the process of manufacturing methamphetamine.[51] The trial court considered the search warrant's affidavit's validity at a hearing on June 12, 2008.[52] The trial court denied the motion to suppress, finding: 1) Chief Konrade's testimony at the hearing confirmed the affidavit accurately reported Nelson's statement, and 2) the affidavit contained no material misrepresentations or statements made in reckless disregard for the truth. Adams also fully litigated these issues in his direct appeal to the KCOA with the assistance of newly appointed counsel. Upon the KCOA's affirmance of that decision, [53] he sought review by the KSC. Under these facts, Adams had an opportunity for a full and fair hearing on these issues.[54]

         Even if Adams' Fourth Amendment claim is not barred by Stone v. Powell, he fails to show that the KSC's decisions on these issues were based upon an unreasonable application of Supreme Court precedent or involved an unreasonable determination of the facts.[55] Thus, Adams is not entitled to relief based on Grounds 1-3.

         B. Ineffective Assistance of Counsel

         1. Trial Counsel's Performance (Grounds 5, 7, 8, and 11)

         Adams alleges his trial counsel, Robert Slinkard, provided ineffective assistance three different ways: 1) failing to review the video of Nelson's arrest and all other discovery with Adams prior to the suppression hearing (Ground 5); 2) failing to communicate with Adams prior to the suppression hearing (Ground 7); and 3) failing to review the video of Nelson's arrest with Adams and to seek his input to develop a defense prior to trial (Grounds 8 and 11).[56] The KCOA rejected all these claims, finding Slinkard's performance was adequate. Adams now argues that the KCOA's decision was an unreasonable application of Strickland. The Court disagrees.

         The KCOA's analysis, in pertinent part, was as follows:

When a defendant seeks to set aside the result of a criminal trial on the ground that his or her defense attorney provided ineffective assistance, the defendant has the burden to show (1) that the attorney's work was below minimum standards and, thus, was constitutionally deficient; and (2) that the attorney's substandard work prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mattox v. State, 293 Kan. 723, Syl. ¶ 1, 267 P.3d 746 (2011). An attorney's performance was deficient if it fell below an objective standard of reasonableness considering all the circumstances. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Courts evaluating an attorney's performance must indulge a strong presumption that the attorney's conduct fell within the wide range of reasonable assistance an attorney might provide and must attempt to eliminate the impact of hindsight by looking at the attorney's conduct from the attorney's perspective at the time. 283 Kan. at 90.
Under the second prong, a party has been prejudiced by trial counsel's deficient performance if he can show that there is a reasonable probability that the outcome of the trial would have been different if he had been appropriately represented. 283 Kan. at 90. A reasonable probability is a probability sufficient to undermine confidence in the trial's outcome. State v. Bricker, 292 Kan. 239, 246, 252 P.3d 118 (2011).
The district court held that Adams had failed to establish both required prongs. First, it held that Adams' counsel's performance was adequate. Substantial evidence supports this conclusion: Slinkard met with Adams many times while preparing for trial, filed numerous motions on Adams' behalf and on Adams' request, cross-examined witnesses, participated in numerous hearings, and went over most of the evidence in the case with Adams as soon as he could.
Adams' primary argument on appeal appears to be that Slinkard was ineffective because he didn't go over the video of Nelson's traffic stop with him before the hearing on the motion to suppress and because he didn't introduce the video at trial. Adams contended in the district court that the fact that Nelson did not implicate him while being videotaped was proof that she never implicated him at all, which in turn meant that the police must have made up the information they provided to the judge to get a search warrant for Adams' home.
But, as the district court noted, introducing the video would not have proved that Nelson did not implicate him. It merely would have shown that she didn't implicate him while being recorded. Adams even admitted at his hearing that just because Nelson hadn't implicated him on video did not mean that she hadn't implicated him at some other time before the warrant was issued.
Slinkard's decision not to introduce this video was entirely reasonable because it did not prove that the police had lied to get a warrant and therefore didn't help Adams' case. Though Adams may have wished for a different outcome at trial, no evidence we have located in the record-and certainly no evidence cited in Adams' appellate brief-suggests that Slinkard's performance fell outside the wide range of reasonable representation a defendant is guaranteed by the [C]onstitution. The district court therefore correctly held that Adams failed to establish that his counsel was ineffective under the first element of the Strickland test.
Further, Adams failed to show that he had been prejudiced by his counsel's performance, the second element of the Strickland test. With only one exception, a failure to establish prejudice is fatal to an ineffective-assistance-of-counsel claim. That exception applies when counsel completely abandons a client and the character of the adversarial process is so undermined as to be fundamentally unfair. See United States v. Cronic, 466 U.S. 648, 656-57 . . . (1984); State v. Adams, 297 Kan. 665, Syl. ¶ 4. 304 P.3d 311 (2013).
Here, Slinkard didn't abandon Adams-he represented him before trial, throughout the trial, and during sentencing. Slinkard tested the prosecution's case throughout the trial. Adams' failure to prove prejudice separately precludes granting relief based on his claim of ineffective assistance of counsel.[57]

         The Court finds the KCOA's analysis of whether trial counsel was constitutionally ineffective was not contrary to clearly established Supreme Court law. The KCOA evaluated the evidence of record and applied law consistent with the Strickland standard for ineffective counsel. Because the KCOA reasonably applied the Strickland standard in determining that Adams was not denied his right to effective assistance of counsel, Adams is not entitled to habeas relief based on Grounds 5, 7, 8, and 11.

         2. Evidentiary Errors (Grounds 4, 6, and 10)

         Grounds 4, 6, and 10 claim the State introduced perjured and false testimony at the preliminary hearing, the pretrial motions hearing, and at trial. All three grounds are premised on the theory that Nelson's testimony that precursors to manufacture methamphetamine would be found at the home she shared with Adams were inconsistent with what she said on the video of her arrest. Respondents assert that Adams never raised Grounds 4, 6, and 10 to any Kansas Appellate Court.[58] The Court disagrees. Adams raised these issues in his state habeas petition.[59] The state district court lumped them with Adams' ineffective assistance of trial counsel claims[60] and denied the state habeas petition.[61] Adams appealed that decision to the KCOA, alleging one issue-error in overruling the Petition.[62] Because the KCOA's ruling touched on the alleged perjured testimony, the Court will consider the merits of these alleged errors in that context.

         The district court found the following with respect to the alleged perjured testimony:

[T]he evidence that is at issue here today regarding the existence of methamphetamine manufacturing precursors that may or not be present in the home of the Defendant apparently were made at sometime, but there is a lack of any recording so that it's not certain.
The only reliable information that we have is the restatement of those statements by Rachel Nelson that were made by the officers who were requesting the warrant, and, then, who later testified.
Mr. Adams is concerned that the video recording that he has does not depict all of the statements that are attributed to Rachel Nelson. But, as has been pointed out, a recording is not exclusive where a suspect, or a person in custody, has an opportunity to make additional statements after the recording is terminated. It appears to me that some of those statements were made to the arresting deputy after the recording was terminated.
Even attributing the most favorable light to Mr. Adams, because the statements that were made were never refuted by Rachel Nelson, and the articles that were allegedly described were, in fact, discovered. And, that makes it likely-or, it makes it appear more likely that those statements were made by Rachel Nelson after her stop.
* * *
In addition, there were no witnesses that controverted the evidence that was given for the basis for the search warrant, and there was no evidence that would clearly show there was any perjury presented. And, it appears that Mr. Slinkard elicited the testimony that was available from these witnesses. . . . [I]t doesn't appear that he could have done any more that would have had an effect on the outcome of the case. And, for that reason, I'm denying the Petition.[63]

         The KCOA succinctly affirmed the trial court's ruling with respect to the above in the introductory paragraph of its opinion:

Adams claims that the video proves that his roommate, Rachel Nelson, never implicated him as a drug user or manufacturer and that the police lied when they said that she did on their request for a search warrant. But the video wasn't a complete record of the State's communication with Nelson, and Nelson testified that she had told the police that Adams used and manufactured drugs. Because the video would not have exonerated Adams and was not otherwise relevant, his counsel's decision not to use the video was within the wide range of reasonable choices counsel may constitutionally make. The district court correctly held that Adams' counsel's performance was adequate and could not be the basis for habeas corpus relief.[64]

         To the extent that Adams raises these grounds as part of his ineffective assistance of counsel claim, the Court denies relief for the reasons stated in Section III.B.1. To the extent he attempts to raise these grounds independently, he has procedurally defaulted them. Even if they were not defaulted, they would fail.

         To find a violation of due process based on state evidentiary rulings, the Court must find the rulings were so grossly prejudicial[65] that they “rendered the trial so fundamentally unfair that a denial of constitutional rights results.”[66] The Court must examine the entire proceedings, including the strength of the evidence against Petitioner and instructions to the jury, to determine whether state evidentiary rulings resulted in fundamental unfairness.[67] Here, in light of all the evidence, the Court finds allowing Nelson's testimony did not render the trial fundamentally unfair. Grounds 4, 6, and 10 do not provide a basis for federal habeas relief.

         3. Denial of Request for Substitute Counsel (Ground 9)

         Ground 9 alleges the trial court erred when it denied Adams' motion for substitute trial counsel without investigating his concerns about Slinkard's performance as counsel. Respondents argue this ground should be procedurally barred as it was made in passing and not adequately presented to the state appellate courts.[68] Adams counters that he preserved this issue by raising ineffective assistance of counsel claims in his 1507 Motion and appeal.

         To the extent that Adams raises Ground 9 as part of his ineffective assistance of counsel claim, the Court denies relief for the reasons stated in the section above. To the extent he attempts to raise Ground 9 as an independent ground for federal habeas relief, the Court finds one sentence in Adams' appellate brief that simply recites the denial of the motion for substitute counsel insufficient to preserve the issue for federal review.[69] Ground 9 is procedurally defaulted.

         Even if this ground was not procedurally defaulted, Adams would not be entitled to federal habeas corpus relief on this ground. “A defendant seeking substitution of counsel must show ‘good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.'”[70] Courts considering such a motion should consider four factors: 1) whether defendant made a timely motion requesting new counsel; 2) whether the trial court adequately inquired into the matter; 3) whether the conflict between the defendant and his attorney was so great that it resulted ...

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