Opinion
Case No. 03-3072-JAR.
December 20, 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 David John Zabrinas has failed to show that there was insufficient evidence for his state court conviction or that his constitutional rights were violated by an ineffective assistance of counsel or by the state court's: failure to instruct the jury on a lesser included offense; failure to instruct the jury that they must unanimously agree on the underlying act for a guilty verdict; or upward departure of petitioner's sentence.
BACKGROUND
For purposes of this Petition for relief, the material facts are as follows. Petitioner David John Zabrinas was charged with one count of aggravated indecent solicitation of a child in violation of K.S.A. § 21-3511. The evidence at trial was that a four-year-old girl observed Zabrinas masturbating in a stairwell of the Memorial Hall building in Salina. The girl immediately reported the incident to an off-duty Kansas Highway Patrol officer who was in the building. The officer testified that in reporting the incident, the girl also told the officer that Zabrinas asked her to touch his penis. Zabrinas testified that he had said nothing to the girl. In January 1997, the jury returned a verdict of guilty; and Zabrinas was sentenced to a term of 60 months' imprisonment.
Zabrinas raised four issues on direct appeal: insufficiency of evidence; failure to give a unanimity instruction; failure to instruct on a lesser included offense; and improperly imposing an upward departure from the sentencing guideline range. The Kansas Court of Appeals affirmed the conviction; and the Kansas Supreme Court denied a petition for review.
State v. Zabrinas, No. 79,868 (Kan.Ct.App. Nov. 24, 1999).
Zabrinas then filed an action for post conviction relief pursuant to K.S.A. § 60-1507. In this state habeas action, Zabrinas alleged seven errors. In this state habeas petition, Zabrinas raised two of the issues he had raised on direct appeal: insufficiency of evidence and improper upward departure. Zabrinas's habeas petition did not raise the other two issues he had raised on direct appeal: failure to instruct on lesser included offense; and failure to give unanimity instruction. And, Zabrinas's habeas petition raised five new claims not raised on direct appeal: ineffective assistance of trial counsel; prosecutorial misconduct; police misconduct; admission of evidence of his subsequent criminal acts; and failure to instruct on the definition of "solicitation." The district court denied relief. On appeal from the denial of his state habeas petition, Zabrinas raised only the ineffective assistance and upward departure claims. The Kansas Court of Appeals affirmed; and the Kansas Supreme Court denied review. Zabrinas then filed this action for federal habeas relief.
STANDARD
Because Zabrinas "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
Failure to Instruct on Unanimity or Lesser Included Offense
In this federal habeas action, Zabrinas raises two claims that he raised on direct appeal but did not raise during the state habeas proceedings: failure to give a unanimity instruction; and failure to instruct on a lesser included offense. A petitioner must first exhaust his claim in state court before bringing a federal habeas petition. A claim is exhausted when the petitioner shows that he presented the issues he raises in his federal habeas petition as federal constitutional issues "to the highest state court, either by direct review of the conviction or in a post conviction attack." Because Zabrinas never presented these two issues in a state post conviction proceeding, it must be determined whether he satisfied the state exhaustion requirements through his direct appeal.
Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Paul v. Reid, No. 02-1122, 50 Fed. Appx. 954, 956, 2002 W L 31516999 at *2 (10th Cir. Nov. 13, 2002).
The statutory exhaustion requirement is satisfied "once the `substance of a federal habeas corpus claim' has been presented to a state court." This does not require a petitioner to cite "book and verse on the federal constitution" as long as the federal claim is "`fairly presented' to the state courts so that they have the first opportunity to hear the claim sought to be vindicated by the federal habeas petition." Zabrinas's failure to instruct on unanimity and on lesser included offense claims were brought in the same form in his direct appeal as they are presented before this Court. Therefore they were "fairly presented" to the state court, which had the first opportunity to hear the claim.
Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989) (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438 (1971)).
Id. (quoting Picard, 404 U.S. at 275-76, 278, 92 S. Ct. at 512-13).
This Court does not find that the state court decision concerning the failure to give a unanimity instruction was contrary to, or involved an unreasonable application of clearly established federal law. For when a single crime can be committed by various means, the jury need not unanimously agree on which means were used, as long as they unanimously agree on the crime committed. And, on direct appeal, the appellate court determined that the jury verdict must be unanimous as to the defendant's guilt for the offense charged, but need not be unanimous as to the means by which the crime was committed, so long as substantial evidence supports each alternative means. The appellate court further found that substantial evidence supported the alternative means of committing the offense of aggravated indecent solicitation of a child. This Court concludes that that finding was reasonable. Thus, habeas relief would not be warranted.
Schad v. Arizona, 501 U.S. 624, 631-32, 111 S. Ct. 2491, 2497, 115 L. Ed. 2d 555 (1991); United States v. Powell, 226 F.3d 1181, 1194-96 (10th Cir. 2000).
State v. Zabrinas, No. 97,868 (K an. Ct. App. Feb. 17, 2000) (citing State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 (1994)).
See Spears v. Mullin, 343 F.3d 1215, 1236 (10th Cir. 2003).
Moreover, the failure to give a lesser included instruction, whether or not warranted, is not grounds for federal habeas relief. The Tenth Circuit has held that "a petitioner in a non-capital case is not entitled to habeas relief for the failure to give a lesser-included offense instruction `even if in [the view of the reviewing court] there was sufficient evidence to warrant the giving of an instruction on a lesser included offense.'" Failure to instruct on a lesser included offense in a non-capital case does not raise a federal question, and thus cannot be a basis of federal habeas relief.
See Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993).
Id. (citing Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988)).
Loggins v. Hannigan, No. 01-3311, 45 Fed. Appx. 846, 849, 2002 WL 1980469 at *2 (10th Cir. Aug. 28, 2002) (citing Fero v. Kerby, 39 F.3d 1462, 1480 (10th Cir. 1994); Lujan, 2 F.3d at 1036).
Sufficiency of Evidence
In his direct appeal of his conviction, Zabrinas argued that there was insufficient evidence to submit his claim to the jury. In his state habeas petition, Zabrinas argued initially that the evidence was insufficient, but he abandoned the argument in his habeas appeal to the Kansas Court of Appeals. However, because the issue was exhausted on direct appeal and because Zabrinas now presents the same argument he exhausted in his direct appeal, this claim was "fairly presented" to the state court, which had the first opportunity to hear the claim, and therefore it has been exhausted.
Although Zabrinas properly exhausted his insufficiency of evidence claim, the claim fails on the merits. A state prisoner may challenge the sufficiency of the evidence in a federal habeas corpus proceeding pursuant to 28 U.S.C. § 2254(d). In determining whether there was sufficient evidence to support a petitioner's conviction, the Supreme Court held in Jackson v. Virginia that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts."
Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir. 2003).
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
Id.
For this claim, Zabrinas challenges only the sufficiency of the factual findings of the state court under 28 U.S.C. § 2254(d)(2) rather than whether the state court failed to apply clearly established Federal law under 28 U.S.C. § 2254(d)(1). Therefore this Court will examine whether the state court made an unreasonable determination of the facts in light of the evidence presented at trial. The Court "will presume correct any state-court factual finding, absent clear and convincing evidence to the contrary."
Hawkins v. Mullin, 291 F.3d 658, 662 (10th Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)).
Zabrinas challenges the sufficiency of evidence that he spoke to the alleged victim, one element of the solicitation offense. Viewing the evidence in the light most favorable to the government, the state appellate court concluded that a jury could rationally believe the officer's testimony that shortly after the incident, the child told him that Zabrinas asked her to touch him. The appellate court's decision was a reasonable determination of the facts in light of the evidence presented and was not rebutted by clear and convincing evidence. Habeas relief is not warranted on this ground.
Kan. Stat. Ann. § 21-3511 ("Aggravated indecent solicitation of a child is: (a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act. . . .")
See Valdez v. Ward, 219 F.3d 1222, 1238-39 (10th Cir. 2000) (stating "[b]ecause of the [state appellate court's] deference to the jury on the sufficiency of the evidence issue . . . we cannot characterize its determination as unreasonable.").
Upward Departure
Zabrinas further argues that the state court's application of an upward departure, raising his sentence above the statutory maximum for the crime he was convicted of, was unconstitutional in light of the holdings in Apprendi v. New Jersey and Blakely v. Washington. But Apprendi does not apply retroactively to habeas petitions. Moreover, in Leonard v. United States, the Tenth Circuit denied a federal habeas petition that was based on Blakely, noting that the Supreme Court had not expressly held that the rule announced in Blakely was retroactive to cases on collateral review. "[A] new rule is not `made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." Because the Apprendi and Blakely decisions do not apply to cases on collateral review, imposition of an upward departure in sentencing was neither contrary to, nor an unreasonable application of clearly established federal law. Thus, habeas relief on this ground is not warranted.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002).
383 F.3d 1146 (10th Cir. 2004).
Tyler v. Cain, 533 U.S. 656, 663, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001); see also Browning v. United States, 241 F.3d 1262, 1264 (10th Cir. 2001) (en banc) ("a rule is `made retroactive' by the Supreme Court only if the Supreme Court actually applies the rule retroactively, or makes some explicit statement regarding retroactivity").
Ineffective Assistance of Counsel
Zabrinas also claims ineffective assistance of trial counsel in failing to object to the prosecutor's closing argument. Zabrinas alleges that the prosecutor's comments on the truthfulness of Zabrinas's testimony constituted prosecutorial misconduct during the closing argument. Although Zabrinas raised claims of ineffective assistance of counsel in his state habeas petition, none was based on the prosecutor's closing argument. Rather, Zabrinas claimed that trial counsel rendered ineffective assistance in failing to: object to the court's failure to instruct on the definition of "solicitation;" file pretrial motions regarding coerced testimony of the alleged victim; and object to admission of either Zabrinas's conflicting statements or the victim's conflicting statements. Although Zabrinas mentioned that the prosecution accused him of being a liar, Zabrinas did not claim ineffective assistance concerning trial counsel's response or lack of response to the prosecutor's accusation. The fact that he asserted other claims of ineffective assistance to the district court does not exhaust a claim that was not raised in the state habeas petition. Consequently, the state district court never ruled on this basis for a claim of ineffective assistance.
Hawkins, 291 F.3d at 669 (contrast with United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) (holding that in a 28 U.S.C. § 2255 case, petitioner may assert an ineffective assistance of counsel claim for the first time on federal habeas review or based on different grounds than asserted on direct appeal)).
In Zabrinas's appeal of his state habeas petition, he claimed ineffective assistance of trial counsel and appellate counsel because neither counsel had raised a claim of prosecutorial misconduct. But although the appellate court decided Zabrinas's ineffective assistance of appellate counsel claim, they held that Zabrinas had abandoned his ineffective assistance of trial counsel claim, because he only incidentally raised the claim and had not prosecuted the claim in his habeas action. Therefore, this particular claim was not exhausted, as Zabrinas did not "fairly present the substance of this claim in the state habeas action."
See 28 U.S.C. § 2254(b)(1)(A); Hawkins, 291 F.3d at 669 (citing, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Thomas v. Gibson, 218 F.3d 1213, 1221 n. 6 (10th Cir. 2000); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999)).
Unexhausted claims that the state court would now deem procedurally barred are also procedurally defaulted from federal court consideration. Respondent argues that Zabrinas's ineffective assistance of counsel claim would be procedurally barred in state court because in Kansas, "[a]n issue not presented to the trial court will not be considered for the first time on appeal." Respondent also argues that under Kansas law, any issue that a petitioner fails to brief is deemed waived or abandoned. However, respondent does not explain how these arguments affect the fact that under K.S.A. § 60-1507(c), successive habeas motions are not prohibited. So there is a possibility the state court will allow Zabrinas to bring this claim in a successive state habeas petition.
See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).
State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998).
Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965, 972 (1992).
Kan. Stat. Ann. § 60-1507(c) (stating, "sentencing courts shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner").
Federal courts may dismiss a petition that contains both exhausted and unexhausted claims to allow the petitioner to return to state court to pursue his state court remedies, or they may reach the merits to deny the unexhausted claim. This Court chooses to reach the merits of this unexhausted claim and finds the claim to be without merit. Although the state appellate court found Zabrinas had waived or abandoned his ineffective trial counsel claim, they nevertheless reviewed his ineffective assistance of appellate counsel claim, and concluded that it was without merit because the prosecutor's statements, which are the same statements Zabrinas complains his trial counsel should have objected to, were within allowed bounds and thus did not constitute misconduct. Thus, the appellate court concluded that any failure by the appellate counsel to raise the issue of prosecutorial misconduct was not deficient. Similarly, any failure of Zabrinas's trial counsel to raise the issue would also not have been deficient. Furthermore, the Kansas Court of Appeals will hear a prosecutorial misconduct claim regardless of whether a contemporaneous objection was lodged at trial if "the claimed error has been determined to implicate a defendant's right to a fair trial. . . ." This Court concludes that there is no merit to Zabrinas's ineffective assistance of counsel claim. For this reason, habeas relief is not warranted on this ground.
See, e.g., Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).
See 28 U.S.C. § 2254(b)(2); Brown v. Shanks, 185 F.3d 1122, 1125 (10th Cir. 1999).
Pabst, 268 Kan. at 504, 996 P.2d at 325 (2000).
IT IS THEREFORE ORDERED BY THE COURT that the Petition for a Writ of Habeas Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS SO ORDERED.