Opinion
CASE NO. 99-3045-DES
June 2, 2000
MEMORANDUM AND ORDER
This matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction of involuntary manslaughter in the District Court of Reno County, Kansas, alleging his trial attorney provided ineffective assistance and that the trial court erred in instructing the jury on the victim's right of defense of property other than a dwelling.
Respondents filed an answer and return, and petitioner has filed a traverse. Having examined these pleadings and the state court records, the court enters the following findings and order.
Background
On June 6, 1993, petitioner and the victim, Edward McIver, argued over petitioner's efforts to hang a stop sign on a fence between McIver's property and a residence owned by petitioner's brother. As petitioner fastened the sign to the fence, McIver came from his house and shouted at petitioner to remove the sign. Petitioner ignored this request, and McIver reached to turn petitioner from the fence. Petitioner struck McIver, and McIver fell to the ground. Petitioner stomped and kicked McIver, and petitioner's friend Ricky Norland, who was moving into the adjoining property, came to his aid. After the two men were separated, McIver again approached petitioner, and petitioner struck McIver in the mouth, causing his head to snap back. Petitioner's statements to sheriff's officers and later investigation of the scene suggested McIver struck his head on a tree.
McIver's wife saw much of the incident from their home and called 911 for assistance. Petitioner left the scene before the deputy arrived. After the responding deputy spoke to the McIvers, they drove to the hospital. McIver was coherent on arrival, but on the following day, he went into a coma and later died.
Discussion
This petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Under the AEDPA, this court cannot grant relief unless the decisions of the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented" in the state court. 28 U.S.C. § 2254(d)(1)-(2).
Respondents assert petitioner failed to fully exhaust state court remedies by failing to petition for review in the Kansas Supreme Court from the decisions of the Kansas Court of Appeals on his postconviction motions filed pursuant to K.S.A. 60-1507. While a review of the state court records supports respondents' claim, the court concludes review of the merits nevertheless may be undertaken pursuant to 28 U.S.C. § 2254(b)(2), which provides "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." This section was added to the federal habeas corpus statute in the AEDPA and has been interpreted in this Circuit in conjunction with Granberry v. Greer, 481 U.S. 129 (1987), in which the Supreme Court noted that a rigid application of the exhaustion requirement in some cases may result in futile litigation. Hoxsie v. Kerby, 108 F.3d 1239, 1242-43 (10th Cir.), cert. denied, 522 U.S. 844 (1997) (quoting Granberry, 481 U.S. at 134). Likewise, the Supreme Court has noted that when an unexhausted claim is "easily resolvable against the habeas petitioner," the district court may proceed under section 2254(b)(2) and deny the claim on the merits.See Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
Because the court is convinced that no further review of petitioner's unexhausted claim by the state courts is warranted by the record, an examination of the merits is appropriate under § 2254(b)(2).
Because the court reaches the merits of petitioner's claim of ineffective assistance of counsel, it does not address petitioner's claim that the state district court erred in dismissing his motions for postconviction relief without a hearing.
Petitioner first claims the trial court erred by instructing the jury on defense of property other than a dwelling. The instruction read:
A person lawfully in possession of property, other than a dwelling, is justified in using such force to stop an unlawful interference with such property as would appear necessary to a reasonable man under the circumstances then existing. (State Ct. Rec., unnum. attach., Inst. 9.)
Petitioner alleges this was false and misleading to the jury, and he contends McIver was not in fact in possession of the property at the time of their altercation. He alleges that a survey he obtained after the trial demonstrated that the area where the fight occurred did not belong to McIver. The Kansas Court of Appeals rejected this claim on direct appeal, reasoning that to find petitioner guilty of involuntary manslaughter, the jury had to find that he killed McIver during the commission of a battery or of a lawful act done in an unlawful manner, such as using excessive force in self-defense. The Court of Appeals found the jury could reasonably conclude petitioner killed McIver under either theory, but that in either case, the instruction on defense of property was inconsequential.
A claim of error in jury instructions in a state criminal trial does not provide a basis for federal habeas corpus review unless the error was so fundamentally unfair it deprived the petitioner of a fair trial. Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999) (citations omitted). The relevant inquiry in this matter is whether the instruction so infected the trial that the conviction violates due process. Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
The court concludes petitioner cannot satisfy this threshold. First, the jury instruction concerning McIver's right to defend his property was consistent with the testimony at trial, which suggested that all of the parties believed petitioner was on McIver's property at the time of the fight. Next, the issue to be determined by the jury was whether petitioner's actions were an appropriate exercise of self-defense, an unlawful battery, or a lawful, but excessive, use of force in self-defense. Instructing the jury on McIver's right to defend his property assisted the jury in evaluating his conduct in initiating the confrontation, but it did not improperly distort the core issue before the jury, namely, the legality of petitioner's response. The court therefore concludes petitioner was not denied due process and denies relief on this claim.
Petitioner also alleges he was denied the effective assistance of counsel at trial. Petitioner recognizes that to prevail on this claim, he must satisfy the two-part test established inStrickland v. Washington, 466 U.S. 668 (1984). Under this test, he first must demonstrate that counsel's performance fell below an objective standard of reasonableness, id. at 688, and second, that this failure caused prejudice to his defense, a showing that requires petitioner to show that counsel's errors denied him "a fair trial, a trial whose result is reliable." Id. at 687-89.
Petitioner asserts a number of claims concerning his counsel's performance, including counsel's failure to secure a land survey to show that the altercation did not occur on the victim's land, his failure to examine the victim's medical records, and his failure to present favorable evidence.
First, the failure to obtain a land survey was not significant, since the parties believed at the relevant time that they were on McIver's property. Next, the relevance of McIver's medical records is limited, since testimony at trial established that his death was a direct result of the altercation with petitioner. Finally, the court has reviewed the trial transcript and finds counsel for petitioner pursued a reasonable trial strategy based upon self-defense. Counsel elicited testimony to establish the lengthy antagonism between the victim and the petitioner and brought out the victim's initial aggression in the altercation which resulted in his death. The evidence against petitioner was significant, as it tended to show he intentionally placed a sign on the victim's property and ignored his verbal request to stop. The evidence also showed the petitioner was approximately thirty years younger than the victim and that he sustained only minor injuries in the altercation.
While counsel did not engage in every inquiry petitioner now believes would have been beneficial, this is not a sufficient basis for relief. The Sixth Amendment requires counsel "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. The record reflects counsel made reasonable decisions in conducting petitioner's defense, and the court concludes petitioner is entitled to no relief on his claim of ineffective assistance.
Conclusion
For the reasons set forth, the court finds the decisions of the state courts are consistent with established federal law and based upon a reasonable construction of the facts in light of the evidence presented at trial.
IT IS THEREFORE ORDERED this matter is dismissed and all relief is denied.
Copies of this Memorandum and Order shall be transmitted to the parties.
IT IS SO ORDERED.
This ___ day of June, 2000, at Topeka, Kansas.