Opinion
Case No. 01-3215-JAR.
July 27, 2004
MEMORANDUM AND ORDER
This matter is before the Court on a Petition for a Writ of Habeas Corpus (Doc.1) seeking federal habeas relief from a state conviction, pursuant to 28 U.S.C. § 2254. After considering the parties' submissions, the Court is prepared to rule. The Petition shall be denied because Petitioner Michael J. Mitchell has failed to show that he was denied effective assistance of counsel in violation of his Sixth Amendment right to counsel.
BACKGROUND
In January 1995, in the District Court of Wyandotte County, Kansas, Petitioner Michael J. Mitchell was charged with one count of cocaine possession, in violation of K.S.A. 65-4161. A week later, the charges were amended to add an additional count, charging him with first-degree felony-murder, in violation of K.S.A. 21-3401. After a trial by jury, Mr. Mitchell was convicted on both counts. In July 1995, Mr. Mitchell was sentenced to a term of life on the murder count and twelve months on the cocaine possession count. These sentences were to run concurrently.
On direct appeal to the Kansas Supreme Court, Mr. McKinney raised two issues: (1) the trial court erred in failing to instruct the jury on self-defense; and (2) the trial court erred in failing to instruct the jury that it must decide each charge separately. The convictions were affirmed by the Kansas Supreme Court in 1997. Mr. McKinney filed for post-conviction relief in 1998, alleging that he was denied effective assistance of counsel, raising six issues. In 1999 the District Court of Wyandotte County denied the petition for post-conviction relief, and the Kansas Court of Appeals affirmed the denial of post-conviction relief. On February 7, 2001, the Kansas Supreme Court denied review. Mr. McKinney then filed this Petition for Habeas Review, raising the same six issues.
State v. Mitchell, 262 Kan. 687, 942 P.2d 1 (Kan. 1997).
Mitchell v. State, No. 84,554 (K an. Ct. App. Nov. 22, 2000) (unpublished opinion).
The petition was file stamped by the Court on May 31, 2001; liberally construing the mailbox rule, Mr. McKinney had filed the petition on May 23, 2001. After another judge of this Court granted the defendants' motion to dismiss this action as untimely, still another judge of this Court vacated that decision on a motion for reconsideration.
STANDARD
Because Mr. Mitchell "filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this [proceeding]." The AEDPA "`circumscribes a federal habeas court's review of a state-court decision.'" Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on any claim adjudicated in state court, unless the adjudication:
Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citing Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).
Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir. 2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)).
(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding.
A state court's decision is "contrary to" an established federal law if the state court reaches a different result than the Supreme Court would when presented with facts that are ". . . materially indistinguishable from a relevant Supreme Court precedent" or if the state court "applies a rule that contradicts the governing law" set forth in Supreme Court cases. A decision is an "unreasonable application" of clearly established federal law if a "state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Unreasonable application of facts includes an unreasonable extension of a principle, or an unreasonable refusal to extend a principle to the facts at hand The courts are to employ an objective standard in determining what is unreasonable.
Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000).
Id. at 413.
Id. at 407.
Id. at 409.
Although unreasonable determinations of fact are a second basis for a writ, a state court's determination of a factual issue shall be presumed to be correct. The petitioner has the burden of rebutting this presumption by clear and convincing evidence. "This presumption does not extend to legal determinations or to mixed questions of law and fact." "That is, the `deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue.'" "Ultimately, our review of the state court's proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings."
Martinez, 330 F.3d at 1262 (explaining that a state court's determination of a factual issue is presumed to be correct and petitioner has burden of rebutting this presumption by clear and convincing evidence); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002).
Martinez, 330 F.3d at 1262 (citing Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000)).
Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)).
Anderson, 327 F.3d at 1152 (internal citations omitted).
ANALYSIS
In his petition, Mr. Mitchell contends that he was denied his Sixth Amendment right to effective assistance of counsel, in six respects:
(1) defense counsel's theory of the defense and closing argument eliminated Mr. Mitchell's ability to defend against the felony-murder charge and actually contributed to his conviction by eliminating his potential defenses;
(2) defense counsel failed to subpoena and call the only available defense witness, who would have seriously undermined the credibility of the State's two material witnesses;
(3) defense counsel failed to seek severance of the two charges against Mr. Mitchell on the basis that each charge involved completely separate acts, separate evidence and separate proof;
(4) the prejudice from the joinder of the two charges was magnified by defense counsel's failure to request a jury instruction that the two unconnected offenses must be determined separately;
(5) defense counsel did not file any motions to suppress Mr. Mitchell's statements to officers when sufficient grounds existed to do so; and
(6) defense counsel's failure to give an opening statement, combined with other deficiencies cumulatively constituted a Sixth Amendment violation.
Because the state court reviewed Mr. Mitchell's ineffective assistance claims on their merits, he is entitled to relief only if the state court's decision was contrary to or involved an unreasonable application of controlling Federal law. The Kansas Court of Appeals reviewed Mr. McKinney's ineffective assistance claims consistent with established Federal law, Strickland v. Washington. The state court applied Strickland's two prong inquiry for evaluating ineffective assistance claims, and determined that Mr. Mitchell had not shown that "his counsel's performance was deficient . . . and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial."
466 U.S. 668 (1984).
Memorandum Opinion, dated November 22, 2000, Case No. 84,554 (unpublished opinion) (citing to Chamberlain v. State, 236 Kan. 650, Syl. ¶ 3, 694 P.2d 468 (1985) (adopting the holdings of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984))).
The state court held that having considered "the individual effect as well as the cumulative effect of all the actions taken by Mitchell's counsel at trial . . . the trial court correctly determined that Mitchell's representation at trial did not fall below an objective standard of reasonableness." The state court further followed Strickland in noting that to establish prejudice, "the defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." The state court recognized and applied clearly established law, and reasonably applied such law to all of the issues raised by Mr. Mitchell, reaching a decision in accordance with the law. Theory of Defense and Closing Argument, Failure to Call Witness, Failure to file Suppression Motion
Id.
Id. (internal citations omitted).
Upchurch v. Bruce, 333 F.3d 1158, 1164 (10th Cir. 2003) (noting that the proper determination is whether there was an unreasonable application of the law by the state court).
The theory of the defense was that Barbara Williams and Nathaniel Hill arranged for Mr. Mitchell to sell cocaine to the victim; and that while Mr. Mitchell was transacting the sale, a struggle ensued. Williams and Hill shot Mr. Mitchell in the leg. Mr. Mitchell did not know whether Williams and Hill also shot the victim, because Mr. Mitchell left the scene. The defense argued in the alternative, that even if Mr. Mitchell shot the victim, this wound was not fatal; it was Williams and Hill who later inflicted the fatal gunshots.
Mr. Mitchell insists that defense counsel should have argued self-defense based on Mr. Mitchell's statements to the police that he was there to buy marijuana from the victim (not to sell cocaine) and that when the victim attempted to rob Mr. Mitchell at gun point, the gun discharged several times during Mr. Mitchell's struggle with the victim. But, the state court's determination that defense counsel's theory and closing arguments were not ineffective was a reasonable application of clearly established law, for "[s]elf-defense . . . was not a plausible argument in this case, as Beebe [the victim] was shot multiple times in the back." Mr. Mitchell was unable to explain how the victim was shot in the back of the head in self-defense.
Memorandum Opinion, dated November 22, 2000, Case No. 84,554 (unpublished opinion).
Furthermore, as the state court noted, there was overwhelming evidence that Mr. Mitchell was there to sell cocaine, not buy marijuana. Not only did Williams and Hill so testify, police recovered from the victim's truck, where the transaction had taken place, cocaine and drug paraphernalia commonly used to inject cocaine, not marijuana. The contrary evidence was Mr. Mitchell's statements to the police that he was there to buy marijuana.
Even while complaining that defense counsel should have pursued a theory of selfdefense based on his statements to the police, Mr. Mitchell complains that his counsel should have filed a motion to suppress other statements he made to the police, in which he admitted that he was there to sell cocaine. This issue raises a state evidentiary question. It is well-established that questions concerning the admissibility of evidence in a state criminal proceeding are beyond the review of a federal court, as they are matters of state law and federal habeas actions do not lie for errors of state law.
Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
This Court must analyze whether this evidentiary issue affected Mr. Mitchell's constitutional rights. It did not, for the voluntariness of Mr. Mitchell's statements was adjudicated before trial, in a Jackson v. Denno hearing. This constituted a hearing on the same issue(s) that would have adjudicated in a pretrial hearing on a motion to suppress. Thus, the state court reasonably applied the law and concluded that Mr. Mitchell had not shown prejudice; he did not show the result of the proceeding would have been any different had counsel filed a motion to suppress.
Jackson v. Denno, 378 U.S. 368, 376-77, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
Mr. Mitchell also asserts that defense counsel gave ineffective assistance in failing to call Donald Moss as a witness. The state court noted that "there is nothing in the record, other than speculation by Mitchell's attorney at the 60-1507 hearing, as to the substance of Moss' alleged testimony." But, finding that at best, Moss' testimony would have contradicted some of Williams' and Hills' testimony, the state court, referencing Strickland, concluded that it was unlikely that Moss' testimony would have changed the verdict. This was a reasonable application of Strickland, given that Williams' and Hills' testimony was corroborated by other evidence; Mr. Mitchell's testimony was contradicted by the physical evidence of the gunshot wounds, by Mr. Mitchell's inconsistent statements to the police, and by the evidence recovered from the victim's truck. Failure to Make Opening Statement
See Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690, "In applying this test, we give considerable deference to an attorney's strategic decisions and `recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'")
Mr. Mitchell did not raise this issue in his state court petition for post conviction relief, and may not have preserved the issue for this Court's review. A state prisoner cannot petition for federal habeas corpus relief "unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." "The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack." In any event, defense counsel's waiver of an opening statement is a strategic or tactical decision within the discretion of trial counsel. Without more, "a strategic decision to eschew an opening" does not constitute ineffective assistance of counsel. Joinder of murder and drug charge; failure to seek instruction on separate charges
Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Nguyen v. Reynolds, 131 F.3d 1340, 1350 (10th Cir. 1997).
United States v. Miller, 907 F.2d 994, 1000 (10th Cir. 1990); see also United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993).
Mr. Mitchell contends that defense counsel's failure to seek a severance of the felony murder and drug charges constituted ineffective assistance of counsel. The Kansas Court of Appeals determined that counsel's performance was not deficient, because it was unlikely that the trial court would have granted a motion to sever these two charges. Moreover, because of the evidence that this murder occurred during the course of the sale of cocaine, Mr. Mitchell was not prejudiced by the joinder of these charges. The Kansas Court of Appeals analyzed prejudice, by asking whether Mr. Mitchell's conviction for possession of cocaine would have been admissible in a subsequent trial on the murder charge. Although finding that the cocaine possession conviction would not be admissible under K.S.A. 60-455, the state court counterpart to Federal Rule of Evidence 404(b), the court concluded that the circumstances surrounding the murder, rendered such evidence not prejudicial.
This Court agrees with the state court's analysis. Severed charges may have rendered inadmissible in the murder trial, evidence of Mr. Mitchell's prior conviction for cocaine. But, there was no prejudice, for even in a trial of the severed murder charge, evidence of the cocaine transaction underlying the murder would likely have been admissible as "other crimes or wrongs" relevant to prove "motive" and perhaps other bases under this evidentiary rule. Thus, the state court's conclusion that there was no prejudice is in accordance with the law, for severance of the charges would not have materially affected the admissible evidence and thus, in all likelihood, would not have changed the outcome.
Mr. Mitchell argues that defense counsel's failure to seek severance, was compounded by defense counsel's failure to request an instruction that the jury is to consider each charge separately. In Mr. Mitchell's direct appeal, the Kansas Supreme Court found that the trial court erred in failing to give this separate charge instruction, but found that the error was not clearly erroneous. And, the Kansas Court of Appeals found that counsel's deficient failure to request the instruction was not prejudicial error. That determination was a reasonable application of the Strickland prejudice standard, for these crimes occurred on different dates and at different locations, and there were separate instructions and separate verdict forms given for each charge. The state court reasonably applied the law in determining that there was no prejudice under these circumstances.
Mitchell, 262 Kan. at 697.
Because the state court specifically and thoroughly addressed the six issues raised by Mr. McKinney, and in every respect, reasonably applied clearly established federal law, reaching a decision in accordance with such law, this Court concludes that Mr. McKinney is not entitled to relief.
IT IS THEREFORE BY THIS COURT ORDERED that the Petition for a Writ of Habeas Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254 is DENIED and this case is DISMISSED.