Opinion
Case No. 01-3303-DES
August 15, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Ellsworth Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On May 13, 1993, petitioner was found guilty in Sedgwick County District Court of possession of cocaine. (Rec. Vo. 5, p. 241). On August 6, 1993, petitioner was sentenced to life in prison. (Rec. Vol. 6, p. 47). On December 22, 1994, petitioner's conviction was affirmed by the Kansas Supreme Court. State v. Goseland, 887 P.2d 1109 (Kan. 1994).
Petitioner filed a post-conviction motion to modify his sentence which was denied by the district court on February 27, 1995. (Rec. Vol. 2, Motion Minutes Sheet). Petitioner then filed an amended motion to modify his sentence and this motion was denied by the district court on or about May 3, 1996. (Rec. Vol. 2, Letter from Judge Rustin to defense counsel and the district attorney). The Kansas Supreme Court affirmed this decision on October 31, 1997. State v. Goseland, No. 77,079 (Kan. 1997).
Petitioner then filed for post-conviction relief pursuant to K.S.A. 60-1507. After being remanded to the district court by the Kansas Court of Appeals, the motion was denied and this decision was affirmed on appeal. Goseland v. State, 996 P.2d 848; 2000 Kan. App. LEXIS 168 (Kan.Ct.App. January 21, 2000). The Kansas Supreme Court denied the petition for review. Goseland v. State, No. 98-80710-AS; 2000 Kan. LEXIS 304 (Kan. March 21, 2000).
Petitioner again filed a post-conviction motion for relief pursuant to K.S.A. 60-1507 and a motion to correct journal entry. Both of these motions were denied by the district court and these decisions were affirmed by the Kansas Court of Appeals on July 28, 2000. State v. Goseland, 4 P.3d 1192; 2000 Kan. App. LEXIS 779 (Kan.Ct.App. 2000). On November 8, 2000, the Kansas Supreme Court denied the petition for review. State v. Goseland, No. 99-83540-AS; 2000 Kan. LEXIS 853 (Kan. 2000).
Petitioner commenced this action on July 23, 2001, raising the following grounds for relief: (1) denial of due process for failing to grant petitioner a third state diagnostic center evaluation, (2) denial of the right to allocution, (3) ineffective assistance of trial counsel, and (4) a life sentence is unusually severe and disproportionate to that received by other offenders. Respondents have filed an answer and return (Doc. 8) and petitioner has filed a traverse thereto (Doc. 24).
FACTUAL BACKGROUND
The facts surrounding the crime were summarized by the Kansas Supreme Court as follows:
This is a direct appeal by Paul Goseland from his conviction by a jury of possession of cocaine, in violation of K.S.A. 65-4127a(a). It was his third conviction for possession of cocaine, and he was sentenced pursuant to K.S.A. 65-4127a(a) to imprisonment for life.
On August 9, 1992, while on routine patrol in the early morning hours, Officers Ruffner and Henninger saw a motorcycle being driven in excess of the speed limit. The officers also observed that the motorcycle had no taillights and the license tag had expired. With the emergency lights on their patrol car activated, the officers pursued the motorcycle. The motorcycle failed to stop and, while in close pursuit, Officer Henninger saw the driver of the motorcycle remove his left hand from the handlebars, dig for something in front of him, and then drop a small blue bag to his side. When Goseland, who was the motorcycle driver, stopped, he was arrested and read his Miranda rights. The blue bag was retrieved and found to contain white powder. A small amount of the powder tested with a field kit registered positive for cocaine.
At the jail, Goseland again was read his Miranda rights, and he said he would not answer questions. While in the booking area completing the paperwork, Officer Henninger remarked to Goseland, "[Y]ou need to find something else to do with your life." Goseland responded, "[N]o, I'll not stop selling dope, because then you all would not have anything to do." Goseland's motion to suppress the statement was denied after a hearing.
At trial, a KBI chemist testified that the blue bag contained two packets of cocaine which weighed a total of one-third gram. A detective testified that cocaine commonly is sold for personal use in approximately one-quarter gram quantities with a street value of $25 to $30. The jury found Goseland guilty of one count of possession of cocaine.
It was stipulated that Goseland had twice before been convicted of possession of cocaine. His prior convictions were in September 1991 and March 1992. He was sentenced to life imprisonment. The district court declined to request preparation of another Topeka Correctional Facility (TCF) report and advised counsel that "I am considering this a final judgment."
State v. Goseland, 887 P.2d 1109, 1110 (Kan. 1994).
STANDARD OF REVIEW
Because Mr. Goseland's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot be granted unless 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 "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
GROUND ONE — FAILURE TO ORDER AN EVALUATION
Petitioner contends his due process rights were violated when the trial court failed to order an evaluation by the State Reception and Diagnostic Center for sentence modification purposes. The Kansas Supreme Court resolved this claim as follows:
Goseland's final issue on appeal is that the district court abused its discretion in denying his request to have another TCF [Topeka Correctional Facility] evaluation prepared and in refusing to consider a motion to modify sentence. In pertinent part, the complaint/information filed against Goseland in the present case (93CR256) states:
"[I]n the County of Sedgwick, and State of Kansas, and on or about the 9th day of August, 1992, A.D., one PAUL L. GOSELAND did then and there unlawfully, willfully, possess cocaine at 2700 South Broadway, Wichita, Sedgwick County, Kansas, after prior convictions, to-wit: March 12, 1992, Possession of Cocaine, contrary to K.S.A. 65-4127a, Class C Felony, Case No. 92CR124; and September 26, 1991, Possession of Cocaine, contrary to K.S.A. 65-4127a, Class C Felony, Case No. 90CR1755."
Presentence investigation (PSI) and TCF reports were prepared in each of the previous cases, and a PSI report was prepared in the present case. The TCF reports for the two previous convictions are identical. They bear dates of November 24, 1992, and June 3, 1993. The sentencing date in the present case was August 6, 1993. In the TCF reports from the previous two convictions, the recommendation was that Goseland "[s]erve appropriate sentence." The recommendation is followed by these comments: "It is recognized that this offender has done poorly in the community and is in need of incarceration at this time. It is also felt that he is in need of intensive substance abuse treatment."
At the sentencing hearing in the present case, Goseland's counsel requested a suspended sentence. . . . The district court judge stated, "In reviewing this file, I've reviewed several SRDC reports and several presentence investigation reports." Defense counsel asked, "Would the Court request another SRDC report so that I may file a motion to modify the sentence?" The district court judge responded: "No, sir. I think the other two have been enough. If he — he goes through, I think, an SRDC rotation, so he'll go through that rotation. But I don't think it will benefit him, . . . so your request is denied." Then the judge added, "I am considering this a final judgment . . . of this case." Defense counsel asked if appeal time therefore started 10 days from the date of sentencing, and the district court judge said that was correct.
Goseland contends that the district court abused its discretion in denying him the opportunity to be evaluated and to seek modification of the life sentence.
. . . .
The State dutifully brings to the court's attention State v. Tillman, 18 Kan. App. 2d 556, 559, 858 P.2d 1219, rev. denied 253 Kan. 863 (1993), in which the Court of Appeals stated: "We can find no exceptions in the statutes or the available case law to the rule that an SRDC report is required in every case. . . ."
On appeal, Tillman raised the question whether the district court abused its discretion in denying his motion to modify. He based his argument on K.S.A. 1989 Supp. 21-4603(3)(a), which provided in pertinent part: "`[T]he court . . . shall modify such sentence if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.'" 18 Kan. App. 2d at 558, 858 P.2d 1219. He argued that it was improper for the district court to deny his motion without an SRDC report "because the report might have recommended a lesser sentence." 18 Kan. App. 2d at 559, 858 P.2d 1219. The Court of Appeals agreed, and it added that an evaluation at SRDC is mandatory pursuant to K.S.A. 75-5220 and K.S.A. 75-5262. 18 Kan. App. 2d at 559-60.
. . . .
K.S.A. 1993 Supp. 75-5262 provides:
"The primary function and purpose of the Topeka correctional facility shall be to provide for examination and study of all felony offenders sentenced by the courts of this state to the custody of the secretary of corrections so that each such offender may be assigned to a state correctional institution having the type of security and programs designed to accomplish a maximum of rehabilitation for such offender. Such offenders shall be delivered to the center as provided in K.S.A. 75-5220 and amendments thereto, upon being sentenced by the court."
Thus, the principal use of the evaluation is made by the Department of Corrections in placing offenders in facilities and programs. The district court's use is secondary. Here, in contrast to Tillman, there was an evaluation at TCF. The main purpose was satisfied by Goseland's previous examinations at TCF and the resulting reports. No further purpose would be served by generation of another report. It should be noted that the district court judge seemed to believe that Goseland would be examined at TCF as a matter of course and that his declining to order an evaluation report simply spared TCF staff the responsibility of preparing a written report of the evaluation, or, as seems likely in this case, of changing the date and reissuing the old report. This expectation matches the Court of Appeals' interpretation of 75-5220 and 75-5262 in Tillman.
. . . .
Because the district court has discretionary authority for 120 days to modify a sentence without regard to the TCF report, it does not seem that the district court's declining to order a TCF report precluded the possibility of modification of Goseland's sentence and did not preclude the filing of a motion to modify. The district court judge's statement that he considered the sentence to be a final judgment, however, clearly conveyed to Goseland and his counsel the message that filing a motion would be futile. Although we disapprove of the judge's statement, it did not preclude the defendant from filing a motion to modify.
Here, the district court judge, at the time of sentencing, already had all the information available from the defendant's previous evaluations at TCF. As previously noted, the two reports were identical, and the second report was dated less than two months prior to sentencing in the present case. There would be no reason for the judge to expect supplementation of the information available at sentencing. Under the unusual facts of this case, the failure to order a third TCF report was not an abuse of discretion, nor did the district court deny the defendant the opportunity to file a motion to modify his sentence.
Goseland, 887 P.2d at 1116-18.
Petitioner's claim is premised only on alleged violations of state law. Violations of state law are not cognizable in a federal habeas action. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). In non-capital cases, the practice of sentencing offenders based upon an examination of individualized circumstances "rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-05 (1978). Petitioner had no constitutional right to the evaluation and relief should be denied as to ground one. See Adams v. Dugger, 850 F.2d 1495, 1500 (11th Cir. 1988) (trial court's alleged failure to consider the presentence investigation report did not raise a federal constitutional issue for habeas review).
GROUND TWO — DENIAL OF RIGHT OF ALLOCUTION
Petitioner contends he was denied the right of allocution because the sentencing court did not ask him if there was any legal cause why the sentence should not be imposed and because he was not personally asked if he possessed any evidence of mitigation.
Petitioner has failed to present a claim based on the federal constitution: "the failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus." Hill v. U.S., 368 U.S. 424, 428 (1962). In addition, there is no constitutional right in non-capital cases to have the trial court consider mitigating factors during sentencing. Scrivner v. Tansy, 68 F.3d 1234, 1240 (10th Cir. 1995). Therefore, relief should be denied as to ground two.
GROUND THREE — INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner alleges that his counsel was ineffective for: (1) failing to conduct a presentence investigation, (2) failing to secure his right to allocution and to present mitigating evidence, (3) failing to secure his right to a third State Reception and Diagnostic Center evaluation, and (4) failing to properly litigate his Eighth Amendment claim.
The Sixth Amendment guarantees the right of a criminal defendant to effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To establish an ineffective assistance of counsel claim, petitioner must (1) "show that counsel's performance was deficient," and also (2) "that the deficient performance prejudiced [his] defense." Strickland, 466 U.S. at 687. In order to satisfy the first prong, petitioner must show that his counsel's conduct did not fall within the wide range of competence demanded of an attorney in a criminal case. See United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). The second prong, often called the "prejudice prong," is met when the petitioner proves that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." See Strickland, 466 U.S. at 695 (defining reasonable probability as a probability that is sufficient to undermine the confidence in the outcome of the trial).
In addition to establishing the oft-quoted two prong test, Strickland also established general guidelines for reviewing ineffective assistance claims. Judicial scrutiny of counsel's performance should be done in a "highly deferential" manner that "eliminate[s] the distorting effects of hindsight," and starts with the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688-89; see also Moore v. United States, 950 F.2d 656, 660 (10th Cir. 1991).
Failure to conduct a presentence investigation: Petitioner has provided an affidavit from a drug counselor who was present at sentencing and prepared to offer evidence in mitigation of punishment. (Doc. 24, Attachment). This affidavit states that petitioner's attorney made no attempt to contact him either prior to or at sentencing. Id. The drug counselor would have testified that petitioner voluntarily attended group drug treatment sessions on a weekly basis and that it is common for addicts to relapse and require more treatment before they are drug-free. Petitioner contends that this testimony would have directly contradicted the sentencing court's statement that "I'm not really sure, Mr. Sevart, that your client is asking for and wants any help." (Rec. Vol. 6, p. 45).
The Kansas Supreme Court denied this claim because evidence of petitioner's participation in treatment programs was considered by the sentencing court and deemed insufficient to support a modification of the life sentence. State v. Goseland, No. 77,079, at pp. 11-12 (Kan. October 31, 1997). Therefore, petitioner's claim of ineffective assistance of counsel failed to to satisfy the prejudice prong of Strickland. Id. at 12.
This court agrees. Although presenting the live testimony of the drug counselor may have boosted the credibility of the evidence regarding petitioner's efforts at rehabilitation, it is unlikely that this testimony would have changed the sentencing decision.
Failing to secure his right to allocution and to personally present mitigating evidence: Petitioner alleges that had he been able to speak and had he known of his right to personally present mitigating evidence, the sentencing court would not have believed that petitioner "did not want any help with his addiction." (Doc. 24). However, as discussed above, evidence regarding petitioner's efforts at rehabilitation was presented to the sentencing court and petitioner has failed to identify any additional or more persuasive evidence which would have changed the sentencing outcome.
Failing to secure his right to a third State Reception and Diagnostic Center (SRDC) evaluation: Petitioner alleges counsel should have brought to the court's attention the fact that his second SRDC evaluation was basically a "sham" evaluation because the SRDC merely changed the date of petitioner's first evaluation and re-submitted it. Petitioner further alleges that had the court known of this fact, he would not have concluded that there was no need for a third SRDC evaluation. Petitioner then assumes that a third evaluation would have contained "information of Goseland's current recovery effort, and perhaps a recommendation for probation." (Doc. 24).
The Kansas Supreme Court resolved this claim as follows:
In his pro se argument, Goseland observed that counsel had failed to make any showing of the changes that would have been reflected in a new TCF [Topeka Correctional Facility] report, and he express concern that counsel's failure will prejudice him. In its opinion on Goseland's direct appeal, this court stated:
"In the TCF report from the previous two convictions, the recommendation was that Goseland `[s]erve appropriate sentence.' The recommendation is followed by these comments: `It is recognized that this offender has done poorly in the community and is in need of incarceration at this time. It is also felt that he is in need of intensive substance abuse treatment.'" 256 Kan. at 740, Goseland asserts that re-evaluation would reveal his "voluntary efforts, willingness and progress in maintaining sobriety and building his recovery since the November 92 evaluation. . . ." Information provided by the defendant for the PSI report, prepared for this case after the TCF was issued, indicates that he had participated in several substance abuse programs. . . .
The State contends that there was no realistic possibility that a new TCF report would have resulted in modification of Goseland's sentence. . . . The basic premise of the State's argument is that the only possible alternative to the sentence of life imprisonment is probation. . . .
Although the State's premise is not entirely accurate, the conclusion it drew is fundamentally sound. The district court's refusing to consider probation was based on Goseland's dismal track record when given probation in the past, and that record will not change. . . . Nothing in an updated TCF report would change Goseland's past pattern of probation violation and revocation. Moreover, according to the State, the sentencing recommendations in the reports are based on defendant's probation and incarceration records.
State v. Goseland, No. 77,079, at pp. 4-5 (Kan. October 31, 1997).
Rather than aid petitioner, it is more likely that a third evaluation would have harmed him, considering the information the reports are based upon. Furthermore, because SRDC basically resubmitted the first report in their second report, it is unlikely they would undergo a more thorough investigation for petitioner's third report. See Goseland, 887 P.2d at 1118 (noting that it was likely that the third report would merely involve "changing the date and reissuing the old report"). The similarity of the first and second reports would have been readily apparent to the sentencing judge because he reviewed both evaluations. His review of these evaluations lead him to conclude that a third evaluation would not benefit petitioner. This conclusion is supported by the nature of the first and second reports. Therefore, any argument regarding the "sham" behind the second report was already readily apparent to the trial judge. Therefore, petitioner's claim fails the prejudice prong of Strickland. 466 U.S. at 695.
Failing to properly litigate the Eighth Amendment claim: Petitioner alleges counsel did not properly litigate his Eighth Amendment claim because he did not present any case law or facts which would illustrate to the court how a life sentence is cruel and unusual in petitioner's circumstance. Respondents contend that petitioner has failed to properly exhaust this claim.
Petitioner only raised his underlying Eighth Amendment claim in his appeal from the denial of his motion to modify his sentence and never presented an ineffective assistance of counsel claim on this issue. Because it is unlikely that the Kansas courts would entertain a successive motion pursuant to K.S.A. 60-1507, these claims are subject to an anticipatory procedural default. See Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) ("[I]f the court to which petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.") (relying on Coleman v. Thompson, 501 U.S. 722 (1991)). Kansas courts uniformly find an abuse of remedy when successive petitions are filed under K.S.A. 60-1507. See, e.g., Brooks v.State,966 P.2d 686 (1998); Dunlap v. State, 559 P.2d 788; Weser v. State, 224 Kan. 272, 274 (1978). Such a state procedural bar is an independent and adequate ground upon which to deny relief. Thus, petitioner's failure to timely present this claim results in a procedural default as well.
As cause for his procedural default, petitioner alleges appellate counsel was ineffective for failing to raise this claim on direct appeal. However, before petitioner may assert ineffective assistance of appellate counsel as "cause" to excuse a procedural default, the ineffective assistance claim must first be presented to the state courts as an independent claim. Edwards v. Carpenter, 529 U.S. 446, 452 (2000), citing Murray v. Carrier, 477 U.S. 478, at 489 (1986). Petitioner has not done so.
The claim alleging counsel was ineffective in presenting Eighth Amendment arguments at sentencing was not timely presented and has been procedurally defaulted. As such, this court is barred from reviewing this claim on federal habeas review.
GROUND FOUR — SENTENCE IN VIOLATION OF EIGHTH AMENDMENT AND EQUAL PROTECTION
Petitioner next argues his life sentence is disproportionate to the severity of his offense, in violation of the Eighth Amendment. Petitioner also argues his sentence violates equal protection because the sentence is harsher than those issued under the Kansas Sentencing Guidelines Act. Respondents contend that petitioner did not fully exhaust this claim because he failed to file a petition for review in the Kansas Supreme Court.
It appears that petitioner did raise this issue before the Kansas Supreme Court on his appeal from the denial of his motion to modify his sentence. State v. Goseland, No. 77,079, at p. 8 (Kan. October 31, 1997). However, the Kansas Supreme court refused to consider it because the issue should have been raised on direct appeal.
The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default, however, does not bar consideration of a federal claim on habeas review unless the state procedural rule is both independent and adequate. The state procedural rule is independent if the last state court that rendered a judgment in the case clearly and expressly stated that its decision rested upon a state procedural bar. Church v. Sullivan, 942 F.2d 1501, 1506 (10th Cir. 1991) (relying upon Harris v. Reed, 489 U.S. 255 (1989)). The state procedural bar is adequate if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
The Kansas courts have routinely refused to entertain an issue in a second appeal or collateral proceeding which could have been raised on direct appeal. See State v. Johnson, 7 P.3d 294, 299 (Kan. 2000); State v. Neer, 795 P.2d 362, 365 (Kan. 1990). The state procedural bar relied upon by the state court was both independent and adequate.
Petitioner alleges a fundamental miscarriage of justice will occur if this court refuses to hear his claim. However, the miscarriage of justice exception requires a colorable showing of actual innocence, and "[a] person cannot be actually innocent of a noncapital sentence." United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993). Therefore, relief should be denied on ground four.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this report and recommendation terminates the referral of this case to the undersigned.
Dated this 15th day of August, 2002, at Topeka, Kansas.