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Wilson v. Schnurr

United States District Court, D. Kansas

October 8, 2019

ROBERT L. WILSON, Petitioner,
v.
WARDEN DAN SCHNURR, Respondent.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On 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.[1] For reasons stated below, the Court denies the petition and denies a certificate of appealability.

         Factual And Procedural Background

         On 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 Outlet.”
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 respond.
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 away.
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 Kansas.
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 examination.
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 store.
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).

         On 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.

         Petitioner appealed his conviction and sentence. On December 13, 2013, the Kansas Court of Appeals affirmed. See id. at *11.

         Joshua 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.

         On 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.

         In the 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 ...


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