United States District Court, D. Kansas
ROBERT L. WILSON, Petitioner,
WARDEN DAN SCHNURR, Respondent.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
February 3, 2012, the District Court of Wyandotte County,
Kansas sentenced Robert L. Wilson to 586 months in prison for
aggravated criminal sodomy and rape. This matter is before
the Court on Wilson's pro se Petition Under 28
U.S.C. § 2254 For Writ Of Habeas Corpus By A Person
In State Custody (Doc. #1) filed March 1,
2018. For reasons stated below, the Court denies
the petition and denies a certificate of appealability.
And Procedural Background
direct appeal, the Kansas Court of Appeals set forth the
relevant facts as follows:
Around 1 p.m. on July 7, 2008, 19-year-old N.H. called the
Vibeline, which is a chat line used to meet local people.
Individuals calling into the chat line record greetings, and
later callers can listen to the greetings to select an
individual to connect with live. N.H. selected a greeting for
a man claiming to be Jaylen, who said it was his birthday and
that he was looking to hang out before going to work.
N.H. connected with Jaylen, and he told her that he wanted to
go to the movie theater off of Ward Parkway. He also said
that he lived by the Legends shopping center, worked at
General Motors, and had recently been transferred from Texas
to Kansas. N.H. gave the man she believed to be Jaylen her
address, and he arrived at her house about an hour later with
an unidentified friend.
The man N.H. knew as Jaylen was actually named Robert Wilson.
N.H. got into Wilson's car-still believing his name was
Jaylen. After dropping off his friend at an apartment, Wilson
went to a convenience store where he purchased alcohol.
Subsequently, Wilson drove to a duplex where he claimed his
cousin lived. Wilson tried several times to get N.H. to go in
the duplex, but she refused.
A little while later, Wilson came out of the duplex and
yelled back that he was going to the movies. Wilson then
drove N.H. to an area with which she was unfamiliar-not near
the movie theater that he told her they were going to. N.H.
later testified that she saw a sign for Quindaro shortly
before Wilson turned onto a road marked “No
Wilson drove the car to the end of the road next to some
train tracks. N.H. did not see any businesses or houses in
the area, but she recalled seeing a field with horses. Wilson
stopped the car and asked to borrow N.H.'s phone. After
Wilson made a call, N.H. asked for her phone back. Wilson
refused and told her to shut up. N.H. started to open her
door, but Wilson leaned over her, pulled the door shut,
locked it, and told her if she tried to get out of the car
again he would break her jaw.
Wilson told N.H, that she better do what he said if she
wanted to make it home. He then ordered her to perform oral
sex. According to N.H., she did so because she was afraid of
what would happen to her if she refused. Shortly thereafter,
Wilson took off N.H.'s underwear and told her to get into
the back seat. Wilson opened the back driver's side door,
pulled his pants down halfway, got on top of N.H., and forced
his penis into her vagina.
Wilson raped her briefly until a truck pulled up behind them
and asked if everything was okay. Wilson hurriedly got up and
said that everything was fine. After the truck left, N.H. got
back into the front seat of the car. Wilson then drove to
pick up a friend for work. On the way, Wilson told N.H. that
she “had some good pussy, ” and he asked if she
was going to call him when she got home. N.H. did not
When they arrived at Wilson's friend's house, a woman
said that the friend had already left for work. So Wilson
drove to a convenience store to get some gas. Seeing an
opportunity to get away, N.H. grabbed her phone from under
the driver's seat and went into the store. Wilson drove
N.H. called her mother and then called a friend to come pick
her up. Before leaving the convenience store, N.H.'s
friend flagged down a police officer and told him that N.H.
had been raped. N.H. then went to Truman Medical Center where
she consented to a rape examination. DNA from the rape kit
examination was positive for Wilson. After initially telling
investigators that he had never met N.H., Wilson later
admitted that he had sex with N.H. According to Wilson,
however, the sex was consensual and did not involve a rape.
Over Wilson's objection, the State presented evidence at
trial of another woman's allegation that Wilson had raped
her. Evidently, Wilson had previously been tried in Missouri
and acquitted of the charge. The other alleged victim, N.L.,
testified that about a month prior to the rape of N.H., she
had also met a man calling himself Jaylen on a chat line. The
man, later identified as Wilson, said that it was his
birthday, that he worked at General Motors, that he lived by
the Legends, and that he had recently moved from Texas to
N.L. testified that she and Wilson-who she still believed to
be Jaylen-were supposed to go out to dinner. Instead, Wilson
came to her apartment shortly after 9:00 p.m. with a friend.
According to N .L., she had a 2-month-old baby and did not
want to go out that late. Wilson asked if he could stay
awhile and have his friend pick him up later. N.L. agreed and
Wilson's friend left.
After sitting on the couch talking, Wilson and N.L. went
upstairs to watch a movie. Wilson and N.L. attempted to get
the baby to go to sleep and were eventually successful. Once
the baby was asleep, Wilson asked N.L. to get into her
“birthday suit.” N.L. testified that when she
refused, Wilson said “bitch, you gonna quit playing
with me. You gonna give me some pussy.”
According to N.L., she reached for her phone but Wilson
took it from her. He then pulled out a pocket knife and the
two struggled. N.L. testified that Wilson threatened her baby
with the knife, eventually choked her unconscious with a bed
sheet, and had sex with her without her consent. When she
regained consciousness, Wilson came out of the bathroom and
gave her a hug. After Wilson's friend picked him up, N.L.
called 911 and went to the hospital for a rape kit
At the trial of the present case, Wilson testified in his own
defense. He admitted that he had sex with both N.H. and N.L.
But he claimed that both N.H. and N.L. had consented to
having sex with him. Wilson testified that he met N.H. on a
chat line. In fact, he testified that he liked to use chat
lines because women knew what he wanted and he knew what they
wanted. He also admitted telling N.H. that it was his
birthday, although his actual birthday was more than a month
earlier. Nevertheless, on cross-examination, Wilson admitted
that in both cases he initially told investigators he did not
know the alleged victims and that he had never had sex with
anyone he had met on a chat line.
Wilson corroborated N.H.'s testimony about the various
stops they made in the car. But he asserted that N.H. wanted
to go somewhere secluded to get high, so he went down a
one-way street near Quindaro where there were some horses.
According to Wilson, he and N.H. got high and had sex until
some men pulled up in a truck to ask if everything was
alright. Wilson and N.H. said yes, laughing because they got
caught “doing the hanky panky.”
Wilson further testified that he and N.H. drove to the house
of one of his friends, who was not home. They then drove to a
convenience store for gas. Wilson claimed that he left N.H.
at the convenience store because he had to go to work. He
indicated that N.H. might have been upset that he met her on
the chat line, used her for sex, and then left her at the
Wilson also admitted that he met N.L. on a chat line. He
testified that he told her he was looking for a one-night
stand and he agreed to pay her for sex. Wilson corroborated
N.L.'s story about watching movies and trying to calm her
fussy baby. But he said that after they had consensual sex,
N.L. upped the price that she was charging. According to
Wilson, he told N.L. that he was not going to pay the higher
price, and she said that he would pay one way or another.
State v. Wilson, 314 P.3d 900 (Table), 2013 WL
6726263, at *1-3 (Kan.Ct.App. 2013), rev. denied,
(Kan. Jan. 15, 2015), cert. denied, 135 S.Ct. 2902
(June 29, 2015).
April 2, 2009, in the District Court of Wyandotte County,
Kansas, a jury found petitioner guilty of aggravated criminal
sodomy and rape. The state court sentenced petitioner to a
controlling sentence of 586 months in prison.
appealed his conviction and sentence. On December 13, 2013,
the Kansas Court of Appeals affirmed. See id. at
Allen initially represented petitioner in state district
court. Before trial, Craig Lubow replaced Allen as counsel.
Christina M. Kerls of the Kansas Appellate Defender Office
represented petitioner on direct appeal.
September 2, 2015, petitioner filed a pro se motion under
K.S.A. § 60-1507. He asserted numerous claims of
ineffective assistance, including that trial counsel (1)
failed to secure a transcript of his Missouri trial, (2)
failed to subpoena his Missouri trial counsel; and (3) did
not effectively cross-examine the victim from the Missouri
case. See Wilson v. State, 396 P.3d 1261 (Table),
2017 WL 2709846, at *1-2 (Kan.Ct.App. 2017), rev.
denied, (Kan. Oct. 25, 2017). On September 11, 2015, the
state district court summarily dismissed the motion without a
hearing. On June 23, 2017, the Kansas Court of Appeals
affirmed. See id.
instant action under 28 U.S.C. § 2254, petitioner claims
that (1) the state district court violated the constitutional
prohibition on double jeopardy because it admitted evidence
of a prior crime for which he had been acquitted; (2) the
prosecution failed to present sufficient evidence that he
committed rape and aggravated criminal sodomy under
circumstances where the victim was overcome by both force and
fear; (3) the state district court erred in overruling
without an evidentiary hearing his motion for new trial based
on ineffective assistance of counsel; (4) the state district
court violated his right to counsel because it overruled his
motion for new trial without appointing separate counsel to
argue the motion; (5) the state district court violated his
due process rights because it enhanced his sentence based on
criminal history without a jury finding on the issue; (6)
trial counsel provided ineffective assistance because he did
not use the transcript of ...