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Burdick v. Kline

United States District Court, D. Kansas

January 29, 2019

BENJAMIN BURDICK, Petitioner,
v.
WARDEN SAM KLINE, Respondent.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         On July 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.

         Factual Background

         On 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.

         Before 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 to suppress.

Burdick v. State, 383 P.3d 181 (Table), 2016 WL 6138666, at *1-2 (Kan.Ct.App. 2016), rev. denied, (Kan. June 20, 2017).

         Petitioner 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).

         Samuel Marsh represented petitioner in state district court. Ryan Eddinger of the Kansas Appellate Defender Office represented petitioner on direct appeal.

         On 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.[1] 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.

         In the 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.

         Analysis

         The 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. § 2254(d)(1), (2).[2]

         Under 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 (2000).

         Under 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 marks omitted).

         Both of 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.

         In 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 determinations”)).

         Petitioner 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.

         The 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 Cir. ...


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