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Horn v. State

United States District Court, D. Kansas

December 7, 2018

THEODORE VINCENT HORN II, Petitioner,
v.
STATE OF KANSAS, et al., Respondents.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         Theodore Vincent Horn II, a prisoner housed by the Kansas Department of Corrections, filed a pro se petition for writ of habeas corpus (Doc. 1). Petitioner was convicted in state court of first degree murder and seeks a writ pursuant to 28 U.S.C. § 2254. He seeks federal relief, arguing that his constitutional rights were violated by over thirty acts. Before filing the instant petition in federal court, petitioner filed five habeas petitions in state court. The court has now fully reviewed the record and petitioner's arguments and is ready to rule. For the following reasons, the court finds that habeas relief is not warranted. Horn's § 2254 petition is denied.

         I. Procedural History

         • November 4, 2002. A Sedgwick County, Kansas jury convicted petitioner of one count of first degree premeditated murder.

         • December 12, 2002. The state court sentenced petitioner to a term of life imprisonment with no possibility of parole for 50 years (Hard 50). Petitioner appealed.

         • June 18, 2004. The Kansas Supreme Court affirmed petitioner's conviction and sentence.

         May 9, 2005. Petitioner filed a motion for post-conviction relief pursuant to Kan. Stat. Ann. § 60- 1507 in state court (his first motion). This motion (and all subsequent § 1507 motions) was filed in the Sedgwick County District Court.

         • January 10, 2006. The district court denied petitioner's § 1507 motion. Petitioner appealed.

         • July 3, 2007. Petitioner filed a second § 1507 motion.

         • July 6, 2007. The Kansas Court of Appeals affirmed the denial of petitioner's first § 1507 motion.

         • November 7, 2007. The Kansas Supreme Court denied review.

         • December 10, 2007. The district court denied petitioner's second § 1507 motion as untimely and successive. Petitioner appealed.

         • April 20, 2009. Petitioner filed a third § 1507 motion.

         • April 29, 2009. The district court denied petitioner's third § 1507 motion as successive. Petitioner did not appeal.

         • October 9, 2009. The appellate court affirmed the denial of petitioner's second § 1507 motion.

         • November 6, 2009. Petitioner filed a fourth § 1507 motion.

         • June 23, 2010. The Kansas Supreme Court denied review of petitioner's second § 1507 motion.

         • September 21, 2010. The district court denied petitioner's fourth § 1507 motion as untimely and successive. Petitioner appealed.

         • August 17, 2012. The appellate court affirmed the denial of petitioner's fourth § 1507 motion.

         • April 8, 2013. The Kansas Supreme Court denied review of petitioner's fourth § 1507 motion.

         • April 12, 2013. Petitioner filed a fifth § 1507 motion.

         • August 8, 2013. Petitioner filed for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (a case preceding the instant case).

         • August 23, 2013. The district court denied petitioner's fifth § 1507 motion as successive and an abuse of the remedy. Petitioner appealed.

         • December 24, 2014. The Kansas Court of Appeals affirmed the district court's denial of petitioner's fifth § 1507 motion.

         • April 6, 2015. Petitioner filed a motion to correct illegal sentence in state court.

         • July 31, 2015. The Sedgwick County District Court denied petitioner's motion to correct illegal sentence. Petitioner appealed.

         • August 20, 2015. The Kansas Supreme Court denied review of petitioner's fifth § 1507 motion.

         • June 27, 2016. The Kansas Supreme Court summarily affirmed petitioner's sentence.

         • June 28, 2016. The United States District Court dismissed petitioner's first federal habeas petition without prejudice for petitioner to exhaust his claims.

         • July 18, 2016. Petitioner filed the instant petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254.

         II. Standard of Review

         Because petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the court reviews petitioner's claims pursuant to the provisions of the Act. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). The Act permits a court to grant a writ only if one of two circumstances is present: (1) the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1); or (2) the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” id. § 2254(d)(2). Absent clear and convincing evidence to the contrary, the court presumes that state court factual findings are correct. Id. § 2254(e)(1).

         Under the first circumstance, the court will find that a state court decision is contrary to clearly established law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the second circumstance, the court will find that a state court decision is an unreasonable application of clearly established federal law “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.” Id. The key inquiry is whether the state court's application of the law was objectively unreasonable. Id. at 409; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (observing that the “objectively ...


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