United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
7, 2009, in the District Court of Crawford County, Kansas,
Benjamin Burdick was sentenced to 324 months in prison for
multiple drug-related convictions. This matter is before the
Court on Burdick's pro se Amended Petition Under 28
U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In
State Custody (Doc. #6) filed September 20, 2017. For
reasons stated below, the Court denies the petition and
denies a certificate of appealability.
April 2, 2009, in the District Court of Crawford County,
Kansas, a jury found Burdick guilty of manufacture of a
controlled substance; possession of ephedrine,
methamphetamine, marijuana and drug paraphernalia; use of
drug paraphernalia; and aggravated endangerment of a child.
The state court sentenced Burdick to a controlling sentence
of 324 months in prison.
trial, petitioner sought to suppress evidence which officers
obtained from a search of his residence conducted pursuant to
a search warrant. The Kansas Court of Appeals summarized
petitioner's challenge to the warrant as follows:
The warrant was obtained by Senior Special Agent Shawn
Campiti of the Kansas Bureau of Investigation. Campiti
obtained information from Matthew Hood, a known
methamphetamine user, indicating Burdick had been
manufacturing and distributing methamphetamine from his home.
Hood also named several other individuals involved in
Burdick's operation. Campiti verified Burdick lived at
the address Hood provided, and he conducted surveillance to
corroborate Hood's statements. Campiti checked the
pseudoephedrine logs from the local Walmart pharmacy and
discovered several of the names Hood had given him appeared
on the log. He also ran criminal history checks on the
individuals and found they had numerous convictions for
drug-related crimes. Campiti also discovered Burdick had two
prior drug-related arrests.
Campiti applied for a search warrant of Burdick's home
and provided a supporting affidavit. A judge issued the
warrant, and Campiti and other law enforcement officers
executed the search. During the course of the search, the
officers found evidence relating to the manufacture of
methamphetamine and other drug-related activity. Two minor
children were present in the home at the time of the search.
Prior to trial, Burdick filed a motion to suppress evidence
obtained as a result of the execution of the search warrant.
The motion alleged there was insufficient evidence to
establish probable cause, the search warrant was based on
faulty or incorrect information, there was no indication of
the informant's reliability, and the issuing judge was
misled by Campiti's affidavit. Burdick requested an
evidentiary hearing and obtained a subpoena to call Hood to
testify. The State moved to quash the subpoena arguing
Burdick could not impeach a nongovernment agent in
challenging the search warrant. Hood had not been served with
the subpoena and did not appear at the evidentiary hearing.
The district court denied the State's motion to quash as
moot and proceeded with the motion hearing without taking
evidence. Burdick's counsel did not request a continuance
of the hearing and had not complied with the procedures
required for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978). Specifically, the motion was filed without an
accompanying affidavit alleging a materially false statement
or omission by Campiti. The court denied Burdick's motion
Burdick v. State, 383 P.3d 181 (Table), 2016 WL
6138666, at *1-2 (Kan.Ct.App. 2016), rev. denied,
(Kan. June 20, 2017).
appealed his conviction and sentence. He argued in part that
the district court erred in denying his motion to suppress.
The Kansas Court of Appeals rejected petitioner's
challenge to the sufficiency of the affidavit because he had
failed to include the affidavit in the record on appeal.
See State v. Burdick, 243 P.3d 716 (Table), 2010 WL
5185782, at *1 (Kan. App. 2010), rev. denied, (Kan.
Feb. 15, 2011).
Marsh represented petitioner in state district court. Ryan
Eddinger of the Kansas Appellate Defender Office represented
petitioner on direct appeal.
August 18, 2011, petitioner filed his original K.S.A. §
60-1507 motion. He argued that trial counsel provided
ineffective assistance because he did not request a hearing
under Franks v. Delaware, 438 U.S. 154, 164 (1978)
and appellate counsel provided ineffective assistance because
he failed to include the search warrant affidavit in the
record on appeal. On May 5, 2015, the state district court
denied petitioner's motion on all claims. On October 21,
2016, the Kansas Court of Appeals affirmed. Burdick,
2016 WL 6138666, at *1-2.
instant action under 28 U.S.C. § 2254, petitioner
re-asserts his claims that (1) Marsh provided ineffective
assistance because he did not request a Franks
hearing and (2) Eddinger provided ineffective assistance
because he did not include the search warrant affidavit in
the record on appeal.
Court reviews a state prisoner's challenge to his
conviction in state court under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254. AEDPA “erects a formidable barrier to
federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Burt v. Titlow,
571 U.S. 12, 19 (2013). The Court may issue a writ of habeas
corpus only if petitioner's state court adjudication
resulted in a decision that (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) “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
the “contrary to” clause, the Court will grant
relief only if a state court reaches (1) a conclusion
opposite to that reached by the United States Supreme Court
on a question of law or (2) a different result from the
Supreme Court on “materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 405
the “unreasonable application” clause, the Court
will grant relief only when the state court “correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case.” Id. at 407-08. To warrant relief,
petitioner must establish that the state court ruling is
“objectively unreasonable, not merely wrong; even clear
error will not suffice.” Virginia v. LeBlanc,
--- U.S. ---, 137 S.Ct. 1726, 1728 (2017) (per curiam)
(internal quotation marks omitted). Petitioner must establish
that the state court ruling “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair
minded disagreement.” Id. (internal quotation
petitioner's claims assert ineffective assistance of
counsel. To establish ineffective assistance of counsel under
federal law, petitioner must show (1) that the performance of
counsel was deficient and (2) a reasonable probability that
but for counsel's unprofessional errors, the result of
the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). To establish
deficient performance, petitioner must prove that counsel
“made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. at 687.
In other words, petitioner must prove that counsel performed
“below an objective standard of reasonableness.”
United States v. Walling, 982 F.2d 447, 449 (10th
Cir. 1992). The Supreme Court recognizes, however, “a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
evaluating ineffective assistance claims under Section 2254,
the question “is not whether a federal court believes
the state court's determination under the
Strickland standard was incorrect but whether that
determination was unreasonable-a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S.
465, 473 (2007) (internal quotation marks omitted).
“And, because the Strickland standard is a
general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (citing Yarborough v. Alvarado, 541
U.S. 652, 664 (2004) (“[E]valuating whether a rule
application was unreasonable requires considering the
rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
asserts that (1) trial counsel provided ineffective
assistance because he did not request a Franks
hearing and (2) appellate counsel provided ineffective
assistance because he did not include the search warrant
affidavit in the record on appeal. To evaluate
petitioner's claims, the Court first sets forth federal
law governing search warrants and challenges to misstatements
or omissions in search warrant affidavits.
Fourth Amendment Warrant Clause provides that “no
warrants shall issue but upon probable cause, supported by
Oath or affirmation.” Franks, 438 U.S. at 164.
A warrant affidavit must set forth particular facts and
circumstances underlying the existence of probable cause, so
as to allow the magistrate to make an independent evaluation
of the matter. Id. at 165. In making a probable
cause determination, the court “is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before [it],
including the ‘veracity' and ‘basis of
knowledge' of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). A
reviewing court owes great deference to a court's finding
of the existence of probable cause to issue a warrant.
See United States v. Le, 173 F.3d 1258, 1265 (10th