Robinson v. Kansas, State of

Filing 25

MEMORANDUM AND ORDER. Signed by District Judge Monti L. Belot on 5/27/2011.Mailed to pro se party Donald E. Robinson 78002, HUTCHINSON Correctional Facility, PO Box 1568, Hutchinson, KS 67504 by regular mail (rm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONALD E. ROBINSON,
Plaintiff,
v.
STATE OF KANSAS,
Defendant.

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CIVIL ACTION
No.

10-3082-MLB

MEMORANDUM AND ORDER
I.

INTRODUCTION
This case comes before the court on petitioner’s application for

a writ of habeas corpus under 28 U.S.C. § 2254.

(Doc. 1.)

has been fully briefed and is ripe for decision.

The matter

(Doc. 22).1

The

court has reviewed those portions of the state court record which are
pertinent to the issues raised in the application and finds that an
evidentiary hearing is not warranted.

Petitioner’s application is

DENIED for reasons set forth herein.
Petitioner was convicted of aggravated battery and second-degree
murder following a jury trial in state court and sentenced to 213
months in prison.

In a federal habeas proceeding, the state court’s

factual findings are presumed correct and petitioner bears the burden
of rebutting that presumption by clear and convincing evidence.
U.S.C. § 2254(e)(1).
findings.

28

Petitioner does not challenge the state court’s

Accordingly, the court incorporates the Kansas Court of

Appeal’s version of the facts:
1

Petitioner has not filed a traverse and the time to file one
has now passed.

Sharon Hamilton had known Donald Robinson since they
were children. At some point Robinson was living for a time
in the same house as Hamilton and her sister. Robinson
supplied Hamilton with heroin. In August 2001, Hamilton
moved in with Charles “Joe” Cyrus. Robinson came by Cyrus'
house on a couple of occasions to see Hamilton.
Hamilton had been drinking and taking heroin on the
evening of September 24, 2001. She had been out with Audie
Suber. When Suber dropped Hamilton off at Cyrus' house, he
told her that he would call her when he got home to let her
know he had made it home okay. Hamilton was on the phone
talking to Suber when Robinson arrived at Cyrus' house.
Cyrus let Robinson into the house. Hamilton left the two
men together and went to a bedroom to continue her phone
conversation with Suber.
While on the phone, Hamilton heard a thump in the
living room. Robinson then entered the bedroom and struck
Hamilton in the back of the head with a baseball bat that
Cyrus had kept beside the front door. He hit her twice more
with the bat, breaking one of her fingers. Hamilton called
out Robinson's name. Suber heard this over the phone and
left his home immediately to return to Cyrus' house.
Robinson ran out of the house. Hamilton went into the
living room and found Cyrus on the floor with the side of
his face covered with blood. Hamilton called 911 and the
police were dispatched to the scene at 10:54 p.m. In the
meantime, Suber arrived; surveyed the scene; and, since he
was on parole at the time, left before the police arrived.
He did not talk to police about the incident until about 10
months later when he was back in prison for a parole
violation.
When the police arrived at the scene, Hamilton told
the officers Robinson had assaulted her with a baseball
bat. Cyrus was taken to the University of Kansas Medical
Center where he remained until his death a month later on
October 26, 2001. He died from the blunt force injury to
his head suffered on September 24. He never regained
consciousness. Robinson was charged with intentional
second-degree murder (Cyrus), and aggravated battery
(Hamilton).
***
Robinson's defense was that it was Suber, not he, who
committed the crimes and that Hamilton was a liar. He
argued that Suber could not have made it to his house and
back before the police arrived. He further claimed that on
the evening of the attack he was gambling at the Argosy
Casino from 10:00 p.m. and got home between 11:00 and 11:15
-2-

p.m. A casino employee testified that Robinson's casino
card had been used to enter the casino at 9:57 p.m.
However, the surveillance videos from September 24 that
would help identify the person using Robinson's card that
night were no longer available since they are routinely
recycled every 2 weeks.
State v. Robinson, No. 91,680, 2005 WL 1868889, *1-3

(Kan. Ct. App.

Aug. 5, 2005)(Robinson I).
The Kansas Court of Appeals affirmed petitioner’s conviction on
direct appeal.

Id.

The Kansas Supreme Court denied review on

November 2, 2005. Petitioner then sought post-conviction relief under
K.S.A. 60-1507.

The state district court summarily denied his

petition and the Kansas Court of Appeals affirmed. Robinson v. State,
No. 99,699, 2009 WL 3018065 (Kan. Ct. App. Sept. 18, 2009)(Robinson
II).

The Kansas Supreme Court denied review on February 10, 2010.
II.

ANALYSIS

This court’s ability to consider collateral attacks on state
criminal proceedings is circumscribed by 28 U.S.C. § 2254, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Under

the

highly

deferential

standard

set

forth

in

AEDPA,

if

petitioner’s claim has been decided on the merits in a state court,
a federal habeas court may only grant relief under two circumstances:
1) if the state court 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 2) if the state court decision “resulted in a decision
that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
2254(d)(2).

-3-

Id. §

A state court decision is “contrary to”
Supreme Court precedent in two circumstances: (1)
when “the state court applies a rule that
contradicts the governing law set forth in [the
Court’s] cases”; or (2) when “the state court
confronts a set of facts that are materially
indistinguishable from a decision of [the] Court
and nevertheless arrives at a result different
from” that reached by the Court.
Williams v.
Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495, 146
L. Ed. 2d 389 (2000).
A state court decision
constitutes an “unreasonable application” of
Supreme Court precedent if “the state court
identifies the correct governing legal principle
from [the] Court’s decisions but unreasonably
applies that principle to the facts of the
prisoner’s case.” Id. at 413, 120 S. Ct. 1495.
Thus, “[u]nder § 2254(d)(1)’s ‘unreasonable
application’ clause, . . . a federal habeas court
may not issue the writ simply because that court
concludes in its independent judgment that the
relevant state-court decision applied clearly
established
federal
law
erroneously
or
incorrectly. Rather, that application must also
be unreasonable.” Id. at 411, 120 S. Ct. 1495;
see also Thomas v. Gibson, 218 F.3d 1213, 1219-20
(10th Cir. 2000) (discussing Williams).
Finally, a state prisoner seeking habeas
relief based on alleged erroneous factual
determinations must overcome by clear and
convincing
evidence
the
presumption
of
correctness
afforded
state
court
factual
findings. See 28 U.S.C. § 2254(e)(1); Smith v.
Mullin, 379 F.3d 919, 924-25 (10th Cir. 2004).
Hamilton v. Mullin, 436 F.3d 1181, 1186 (10th Cir. 2006). An inherent
limitation to review under § 2254 is that a habeas court will only
consider alleged violations of federal law.

Estelle v. McGuire, 502

U.S. 62, 67-68, 112 S. Ct. 475, 479-80 (1991).

Moreover, the court

will not normally consider federal questions unless they have first
been presented to the state courts.

Picard v. Connor, 404 U.S. 270,

277-78, 92 S. Ct. 509, 513 (1971); but see 28 U.S.C. § 2254(b)(2)
(permitting denial on the merits, despite failure to exhaust state
remedies).

-4-

On direct appeal of his conviction and sentence, petitioner
asserted the following six errors: 1) prosecutorial misconduct in
eliciting testimony from the victim’s daughter during trial; 2) the
trial

court

erred

in

allowing

witnesses

to

improperly

bolster

Hamilton’s testimony; 3) ineffective assistance of counsel; 4) there
was insufficient evidence to sustain a conviction; 5) cumulative error
denied him a fair trial; and 6) the trial court erred in the
calculation of petitioner’s sentence.
I.

Br. of Appellant in Robinson

In his K.S.A. 60-1507 appeal, petitioner raised the same errors

as his direct appeal and, in addition, added the following to his
claim of ineffective assistance of counsel: 1) failing to secure the
surveillance videotape at the Argosy Casino before it was erased; 2)
for stating during closing arguments that Robinson was not named in
the 911 call when in fact Robinson was named in the tape; 3) for
failing to explore a possible plea bargain; 4) for failing to request
a continuance to secure the presence of an alibi witness; 5) counsel
appointed for petitioner’s postrial motion was ineffective for failing
to subpoena trial counsel to testify at the hearing; and 6) the police
acted in bad faith by failing to preserve the surveillance video. Br.
of Appellant in Robinson II.
Petitioner’s application for federal habeas relief states eight
grounds for relief.

(Doc. 1).

Petitioner has raised the following

issues: 1) prosecutorial misconduct in eliciting testimony from the
victim’s daughter during trial; 2) the trial court erred in allowing
witnesses to improperly bolster Hamilton’s testimony; 3) the police
acted in bad faith by failing to preserve the surveillance video;

4)

ineffective assistance of counsel; 5) the trial judge was biased
-5-

against

him;

6)

there

was

insufficient

evidence

to

sustain

a

conviction; 7) cumulative error denied him a fair trial; and 8) the
trial court erred in the calculation of petitioner’s sentence.

(Doc.

1).
A.

Prosecutorial Misconduct

Petitioner claims that the prosecutor engaged in misconduct by
eliciting testimony from Nelson, Cyrus’s daughter, about Cyrus's
hospitalization during the month before he died, and that the court
erred in not granting a mistrial on this basis.

The testimony was as

follows:
Q: Did you go and see your dad?
A: Yes, I went straight out to KU Med. As soon as I
found out, I ran straight out there.
Q: Did you ever have an opportunity to speak to your
dad or did he speak to you?
A: No, he wasn't able to say anything.
Q: How often did you visit him at the hospital?
A: Everyday all day long I was there.
Q: How long did that go on?
A: For the whole month that he was in the hospital, I
was there everyday.
Q: Did he ever try to communicate with you in any way?
A: Well, I would tell the doctor that he would-when I
would talk to him, he would squeeze my hand, but then it
could have been from reflex or something like that. But we
would just hold each other's hand and he would just squeeze
my hand.
Q: Can you tell us what sort of treatment your father
received at the hospital?
A: I remember them calling me one night that they have
to go and cut him right straight down the middle because he
had a lot of fluids on him. So they have to go and put
-6-

something up in him to try to drain some of that fluid off
of him. And also they put a trach in his throat so that
they could keep the phlegm and stuff out ofRobinson's attorney objected,
colloquy took place at the bench:

and

the

following

MR. CAHILL: My understanding from the prosecutors are
they plan on calling medical doctors to testify as to the
injuries and the treatment that was done upon Mr. Cyrus. I
think right now given, especially that being the case, that
this is far more prejudicial than probative. I think it's
being put on to play to the sympathy of the jury and it's
not adding anything to the factual nature of the evidence.
MS. SCHELL: Your Honor, this witness is merely giving
an overview of what she experienced during that month.
THE COURT: What she experienced is not relevant.
MS. SCHELL: WellTHE COURT: I would agree with the defense counsel that
to go through her suffering is not relevant to the crime
charged and, frankly, it-it's reversible, you know. It's
not-it's not relevant to the crime charged what she went
through. I mean, you can get to the fact that he died
eventually, you know, and that sort of thing through her,
but what she went through, I mean, him squeezing her hand
and that sort of thing, that from what little I've been
able to read upon the subject in case law, it's improper
and it's reversible error and it's not relevant.
MS. SCHELL: The only thing I'm getting to with that,
Your Honor, is that the defendant or-I'm sorry-that that
victim was never able to give a statement to anybody and
she's-she was there the entire time.
THE COURT: And that's a simple direct question that
you can ask.
MS. SCHELL: Okay.
MR. CAHILL: Judge, I think it's incumbent upon me at
this point-I know exactly the line of case law that you're
talking about and I think it is-you know, the-the cow's out
of the barn at this point and I think it is reversible
error. I think we're playing upon the sympathies of the
jury. That's been done. I'm gonna request a mistrial at
this time.
THE COURT: I don't think it has reached the extent
that I would feel justify in granting you a mistrial,
-7-

frankly. I think-I didn't know the line of questioning
where she was going with. It's okay to touch upon that
subject and then to move on and I think your objection was
made in a timely fashion when it became apparent that we
weren't just gonna touch on it. We were gonna stand around
awhile. And I think it's a timely objection. Now, I will-we
can handle this several ways. I'm not gonna grant your
motion for a mistrial, but if you want me to admonish the
jury and tell them not to consider the mental anguish of
the decedent's family, I mean, I can do that.
Robinson I, 2005 WL 1868889 at *2-3.
Generally, a prosecutor's conduct requires reversal of a state
conviction only if it “so infected the trial with unfairness as to
make the resulting conviction a denial of due process."

Miller v.

Mullin, 354 F.3d 1288, 1293 (10th Cir. 2004)(quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431
(1974)).

In considering a claim of prosecutorial misconduct, the

court considers "the totality of the circumstances, evaluating the
prosecutor's conduct in the context of the whole trial."

Cummings v.

Evans, 161 F.3d 610, 618 (10th Cir. 1998)(quotation omitted).
The Kansas Court of Appeals found that the last question to
Nelson was improper because it sought information beyond the question
of whether Cyrus communicated anything to his daughter during his last
month of life.

Robinson I, 2005 WL 1868889 at *3.

The court

concluded, however, that the error did not deny petitioner’s right to
a fair trial because the testimony was brief and not overly dramatic.
The court agrees.

Nelson’s testimony about Cyrus’s stay in the

hospital was brief in comparison with the rest of her testimony.
Nelson testified about the contents of Cyrus’s home, the baseball bat,
items that were missing from the home and her interactions with Cyrus
on the day of the crime.

(Tr., Vol. VII at 238-256).

-8-

“Any improper

comments, interspersed with this relevant evidence, did not affect the
jury's verdict or deny [petitioner] a fair trial.”

Spears v. Mullin,

343 F.3d 1215, 1246-47 (10th Cir. 2003)(finding that sympathetic
comments from the victim’s mother did not deny the petitioner a fair
trial).
Accordingly, petitioner’s application is denied on this claim.
B.

Prior Consistent Statements

Petitioner next asserts that the trial court erred in allowing
admission

of

Hamilton’s

prior

consistent

Hamilton’s testimony before she testified.

statements

to

bolster

During trial, the state

called a police officer, a paramedic and a detective, to testify about
statements Hamilton made to them about being assaulted by petitioner.
Petitioner’s trial counsel, however, objected only on the basis of
hearsay. Respondent argues that this issue is procedurally defaulted.
When a federal habeas petitioner’s claim has been defaulted in
state court on an independent and adequate state ground, federal
habeas courts will not generally address the issue.

Coleman v.

Thompson, 501 U.S. 722, 750 (1991); Klein v. Neal, 45 F.3d 1395, 1397
(10th Cir. 1995) (“It is now beyond cavil that the adequate and
independent state ground doctrine is fully applicable to federal court
review of habeas corpus petitions.”).

“A state procedural ground is

independent if it relies on state law, rather than federal law, as the
basis for the decision.

For the state ground to be adequate, it must

be strictly or regularly followed and applied evenhandedly to all
similar claims.”
1998).
consider

Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir.

Under those circumstances, a federal habeas court will only
a

claim

if

the

petitioner
-9-

can

demonstrate

“cause

and

prejudice or a fundamental miscarriage of justice.”

English v. Cody,

146 F.3d 1257, 1259 (10th Cir. 1998).
The Kansas Court of Appeals held that issues not raised before
the trial court cannot be raised on appeal, relying on State v.
Williams, 275 Kan. 284, 288 (2003).

The court also held that any

error in admitting the testimony was harmless because it would have
been admissible after Hamilton testified, citing State v. Clark, 22
Kan. 65, 71 (1977).

It is clear that the Kansas Supreme Court

determined this issue adversely to petitioner on an independent state
ground.

The court’s decision was based on Kansas precedent of

refusing to hear issues on direct appeal where the defendant failed
to object and in fact approved of the procedure utilized by the trial
judge.

The Court did not consider the merits of petitioner’s claim.

Thus, petitioner’s claim is not reviewable in a collateral proceeding.
Therefore, petitioner’s claim is procedurally defaulted, and may
only be considered by this court upon a showing of cause for the
default and resulting prejudice, or in order to prevent a fundamental
miscarriage of justice.

Coleman, 501 U.S. at 750.

Cause for default

must be some objective factor, external to petitioner and his counsel,
“something that cannot fairly be attributed to [them].”

Id. at 753.

“Examples of such objective factors include a showing that the factual
or legal basis for a claim was not reasonably available to counsel,
or that some interference by officials made compliance impracticable.”
Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995)(internal quotations
and citations omitted).

Petitioner has made no such allegation of

cause, and the court cannot find any basis in the petition to give
cause for procedural default of ground two.
-10-

Ineffective assistance

of counsel can be cause for procedural default, Murray v. Carrier, 477
U.S. 478, 488 (1986). However, the exhaustion doctrine requires “that
a claim of ineffective assistance be presented to the state courts as
an independent claim before it may be used to establish cause for a
procedural default.”

Id. at 489.

Petitioner has not raised an

ineffective assistance of counsel claim with regard to his counsel’s
objection to Hamilton’s testimony.
Moreover, petitioner cannot show actual prejudice by challenging
evidentiary rulings. See id. at 494 (“The habeas petitioner must show
not merely that the errors at . . . trial created a possibility of
prejudice,

but

that

they

worked

to

his

actual

and

substantial

disadvantage, infecting his entire trial with error of constitutional
dimensions.”).

Finally, a fundamental miscarriage of justice in this

context means that petitioner is probably innocent of the crime.
Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999).

Although

the evidence against petitioner was only circumstantial, it was
significant in volume and far more than was necessary to permit the
jury to convict him of the crimes charged beyond a reasonable doubt.
Hence, the court finds no fundamental miscarriage of justice.
Petitioner’s request for relief on this ground is denied.
C.

The Police Acted in Bad Faith

Petitioner claims in his third ground that the police acted in
bad faith by failing to secure the Argosy casino video tape after the
crime.

Respondent argues that this issue is procedurally defaulted.

Petitioner failed to raise this issue on direct appeal and instead,
presented it to the state courts in his motion for ineffective
assistance of counsel. The Kansas Court of Appeals declined to review
-11-

this issue on the merits.

Robinson II, 2009 WL 3018065 at *3.

It is

clear that the Kansas Court of Appeals determined this issue adversely
to petitioner on an independent state ground.

The court’s decision

was based on the Kansas Supreme Court’s ruling that a petitioner
cannot use a proceeding under K.S.A. 60-1507 for trial errors.

The

court did not consider the merits of petitioner’s claim and considered
no federal precedent of any kind in reaching its determination. Thus,
the Kansas Court of Appeals relied on an independent and adequate
state ground in finding that the relief petitioner sought was not
available.
Therefore, petitioner’s claim is procedurally defaulted, and may
only be considered by this court upon a showing of cause for the
default and resulting prejudice, or in order to prevent a fundamental
miscarriage of justice.
S. Ct. 2546 (1991).
and prejudice.
default.

Coleman v. Thompson, 501 U.S. 722, 750, 111

Petitioner has neither alleged nor shown cause

Therefore, petitioner has not overcome the procedural

Moreover,

the

court

has

found

that

no

fundamental

miscarriage of justice exists.
Petitioner’s claim of bad faith by the police is accordingly
procedurally defaulted.

Petitioner’s application for habeas corpus

relief on this ground is denied.
D.

Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel in violation of the
Sixth Amendment requires petitioner to show that 1) his counsel's
performance fell below an objective standard of reasonableness; and
2) but for his counsel's unreasonable errors, there is a reasonable
probability that the outcome of the proceeding would have been
-12-

different. Williams v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 688,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In evaluating the performance of trial counsel, the Supreme Court
provided the following guidance:
A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action "might be considered sound trial strategy." See
Michel v. Louisiana, supra, 350 U.S., at 101, 76 S. Ct., at
164.
. . .
Thus, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of
the time of counsel's conduct. A convicted defendant making
a claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment. The court must
then determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide
range of professionally competent assistance. In making
that determination, the court should keep in mind that
counsel's
function,
as
elaborated
in
prevailing
professional norms, is to make the adversarial testing
process work in the particular case. At the same time, the
court should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-66 (emphasis
added).

Thus, under this standard, counsel's performance is presumed

competent,

and

petitioner

bears

presumption.

-13-

the

burden

of

rebutting

that

1.

Counsel was Inadequately Prepared

First, petitioner asserts that his trial counsel was not prepared
at trial.

Petitioner, however, does not specify how his counsel was

inadequate and the trial record demonstrates that petitioner did not
make any complaints regarding counsel’s performance.

Moreover,

petitioner has failed to establish how he has suffered any prejudice.
The

Kansas

Court

of

Appeals’

decision

was

therefore

not

an

unreasonable application of Strickland.
2.

Right to Testify

Next, petitioner states that his counsel was ineffective for
refusing to allow him to testify. The record, however, shows that the
court informed petitioner as to his right to testify and petitioner
stated that he did not wish to testify.

At the hearing held before

the trial court on petitioner’s motion for a new trial, petitioner
testified that his counsel forced him to say that he did not wish to
testify.

The trial court did not find petitioner’s testimony to be

credible.

The Kansas Court of Appeals upheld this determination.

Petitioner offers no further argument in support of his position in
his petition.

Therefore, the Kansas Court of Appeals’ decision was

not an unreasonable application of Strickland.
3.

Witness Testimony

Plaintiff further asserts that his counsel was ineffective for
failing to call an alibi witness and failing to investigate the
victim.

The testimony given by petitioner at a hearing on his motion

reflects that his trial counsel could not locate the alibi witness and
that the evidence pertaining to the victim was character evidence.
(Tr. Vol. X at 24-26).

Trial counsel cannot be ineffective for the
-14-

failure to call a witness when he attempted to find that witness and
he could not be located.

As to the victim character evidence, the

Kansas Court of Appeals held that the evidence was not admissible and
plaintiff does not offer any argument to the contrary in his petition.
Therefore,

the

Kansas

Court

of

Appeals’

decision

was

not

an

unreasonable application of Strickland.
4.

DNA Evidence

Petitioner next asserts that trial counsel was ineffective for
failing to introduce DNA evidence.

The DNA evidence, however, only

consisted of blood samples belonging to the victim.

Therefore,

petitioner has not demonstrated that the failure to introduce this
evidence was prejudicial.
5.

Sleeping Jurors

At some point during the trial, one of the jurors fell asleep.
Petitioner’s

trial

counsel

thereafter closely observed.

alerted

the

court

and

the

jury

was

Petitioner has failed to allege that

there were other instances of juror inattentiveness.

Therefore, he

has again failed to demonstrate prejudice.
6.

Video Evidence

Finally, petitioner asserts that his counsel was ineffective for
failing to recover a surveillance tape from the Argosy Casino.

The

tape, however, was reportedly destroyed prior to trial counsel being
appointed in petitioner’s case.

Therefore, trial counsel cannot be

held to be ineffective for failing to subpoena an item that was no
longer in existence.
Accordingly, the Kansas Court of Appeals’ decision was not an
unreasonable application of Strickland. Petitioner’s application for
-15-

habeas corpus relief on his claim of ineffective assistance of counsel
is denied.
E.

Trial Judge Bias

In his fifth claim of error, petitioner asserts that the trial
judge was biased against him and had formed an improper opinion of
petitioner’s guilt.

The Kansas Court of Appeals held as follows with

respect to this claim:
On October 12, 2006, Robinson filed a K.S.A. 60-1507
motion alleging ineffective assistance of counsel, bad
faith on the part of the trial court, and bias by the
judge. . . On appeal, Robinson claims the district court
erred in summarily denying his motion without holding an
evidentiary hearing.
Specifically, Robinson argues that
(1) he received ineffective assistance of trial counsel;
(2) he received ineffective assistance of counsel at the
motion for new trial; and (3) the police acted in bad faith
and violated his due process rights.
The other issues
raised in Robinson's motion have not been argued in his
appellate brief, so they are deemed abandoned. See State v.
Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
Robinson II, 2009 WL 3018065 at *1 (emphasis supplied).
It is clear that the Kansas Court of Appeals determined this
issue adversely to petitioner on an independent state ground.

The

court’s decision was based on the Kansas Supreme Court’s ruling that
a petitioner has abandoned issues that are not argued.
not consider the merits of petitioner’s claim.

The court did

The court considered

no federal precedent of any kind in reaching its determination. Thus,
the Kansas Court of Appeals relied on an independent and adequate
state ground in finding that the relief petitioner sought was not
available.

Robertson v. Roberts, No. 09-3445, 2010 WL 2760591, *8

(10th Cir. July 14, 2010)(“Kansas courts hold that an issue not
briefed by the appellant is deemed waived or abandoned [] and we see
no reason not to consider this default an independent and adequate
-16-

state law ground for denying habeas relief.”)(internal citations
omitted).
Therefore, petitioner’s claim is procedurally defaulted, and may
only be considered by this court upon a showing of cause for the
default and resulting prejudice, or in order to prevent a fundamental
miscarriage of justice.
S. Ct. 2546 (1991).
and prejudice.
default.

Coleman v. Thompson, 501 U.S. 722, 750, 111

Petitioner has neither alleged nor shown cause

Therefore, petitioner has not overcome the procedural

Moreover,

the

court

has

found

that

no

fundamental

is

accordingly

miscarriage of justice exists.
Petitioner’s

claim

procedurally defaulted.

of

trial

judge

bias

Petitioner’s application for habeas corpus

relief on this ground is denied.
F.

Sufficiency of the Evidence

When considering sufficiency of the evidence, the court views the
evidence in the light most favorable to the prosecution.
Mullin, 343 F.3d 1215, 1238 (10th Cir. 2003).

Spears v.

Under that standard,

habeas relief may only be granted if “no rational trier of fact could
have found proof of guilt beyond a reasonable doubt.”
Jackson

v.

Virginia,

443

U.S.

307,

319

(1979)).

Id. (quoting
The

jury’s

determination must be accepted as long as it is within the bounds of
reason.

Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996).

Though it involves factual issues, a challenge to the sufficiency of
the evidence is reviewed for legal error.

Id.

Accordingly, under

AEDPA the court is limited to determining whether the Kansas Supreme
Court reasonably applied the Jackson standard in this case.

Id.

Under Kansas law, in order to convict petitioner of second degree
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murder, the jury had to conclude that he killed Cyrus intentionally
under circumstances showing extreme indifference to human life.

See

K.S.A. 21-3402. To convict petitioner of aggravated battery, the jury
had to conclude that he caused bodily harm to Hamilton with a deadly
weapon.

See K.S.A. 21-3414.

Petitioner essentially argues that the

evidence was not sufficient to convict him because Hamilton and Suber
were not credible witnesses and he did not have a motive to commit the
crime.

To prove that petitioner committed the murder, the State

introduced evidence from Hamilton that she was on the phone talking
to Suber when petitioner arrived at Cyrus's house. Hamilton testified
that she heard a thump in the living room and then petitioner entered
the bedroom and struck Hamilton in the back of the head with a
baseball bat.

Petitioner hit her twice more with the bat, breaking

one of her fingers.

Hamilton called out petitioner's name and Suber

heard this over the phone and left his home immediately to return to
Cyrus's house. Hamilton found Cyrus on the floor with the side of his
face covered with blood and called 911. The court finds that based on
all the above evidence, the jury’s determination that petitioner
killed Cyrus was rational.

The jury chose to believe the testimony

of Hamilton and Suber over petitioner’s arguments that they were
lying.

That was the jury’s prerogative.

The court cannot make

credibility determinations on review. The evidence is circumstantial,
but it cannot be said that “no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.”

Jackson v. Virginia, 443

U.S. at 319 (1979).
The Supreme Court of Kansas concluded that the evidence was
sufficient to uphold the jury verdict.
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Robinson I, 2005 WL 1868889

at *3.

That conclusion was neither contrary to, nor an unreasonable

application of, Jackson.

Accordingly, petitioner’s application is

denied on this claim.
G.

Cumulative Error

Petitioner’s seventh ground of error is that the cumulative
effect of the errors denied him of his constitutional right to a fair
trial.

The Kansas Supreme Court determined that there was no

cumulative error because Nelson’s testimony regarding the hospital
care was harmless and the admission of Hamilton’s prior consistent
statements was inevitable.

Robinson I, 2005 WL 1868889 at *6.

The

court agrees. Petitioner has failed to establish that the trial court
committed reversible error during his trial. Therefore, petitioner’s
application is denied on this claim.
H.

Sentence

In his last claim of error, petitioner specifically claims that
the state district court violated his Sixth and Fourteenth Amendment
rights by imposing an enhanced sentence using his past criminal
convictions without requiring that those convictions be pled in the
complaint and thereafter proven to a jury beyond a reasonable doubt.
He relies on Apprendi v. New Jersey, a U.S. Supreme Court case that
had clearly established how the Sixth and Fourteenth Amendments
applied to “sentence-enhancing facts” at the time of petitioner’s
conviction, to support his claim.

See Apprendi v. New Jersey, 530

U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
In Apprendi, the Supreme Court addressed whether the Due Process
Clause of the Fourteenth Amendment required a jury, under Sixth
Amendment trial procedure, to find all facts that might increase a
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defendant’s

prison

sentence

beyond

otherwise provided by statute.

the

maximum

prison

sentence

Allowing an explicit exception for

criminal history in accordance with Almendarez-Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), the
Court held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”

Apprendi, 530 U.S. at 490 (emphasis added).

The law, as laid out by the Supreme Court, is clear.

Recidivism

may be used by the court in calculating a defendant’s sentence, even
if defendant’s criminal history makes the sentence imposed longer than
the statutory maximum provided.

Almendarez-Torres, 523 U.S. at 243.

Because criminal history is considered a sentencing factor and not an
element of a charged crime, the state “need not allege defendant’s
prior conviction in the indictment.”

Id.

The “procedural safeguards

attached to [the] ‘fact’ of [petitioner’s] prior conviction” as well
as petitioner’s opportunity to “challenge the accuracy of that ‘fact’”
during sentencing “mitigate[] the due process and Sixth Amendment
concerns otherwise implicated in allowing a judge to determine a
‘fact’ increasing punishment beyond the maximum of the statutory
range.”

Apprendi, 530 U.S. at 488.

A judge may find a “fact” of

prior conviction and use it in sentencing without running afoul of the
Fourteenth or Sixth Amendments.
The Court is aware that some Supreme Court justices have since
criticized the Almendarez-Torres decision.

See Shepard v. United

States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005)
(Thomas,

J.,

concurring).

However,
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the

Supreme

Court

has

not

overruled it in any of its later decisions.

See U.S. v. Moore, 401

F.3d 1220, 1224 (10th Cir. 2005) (noting that Almendarez-Torres is
still good law).

As such, this Court is bound to follow current U.S.

Supreme Court precedent.
For petitioner’s appeal, the Kansas Court of Appeals followed
precedent established by the state’s high court.
1868889 at *6.

Robinson I, 2005 WL

The appeals court cited State v. Ivory, 273 Kan. 44,

41 P.3d 781 (2002), in support of its holding that the trial court had
not violated petitioner’s Sixth and Fourteenth Amendment rights.

Id.

In Ivory, the Supreme Court of Kansas identified the same U.S. Supreme
Court case law and principles discussed above and concluded that prior
convictions could be used in sentencing without being submitted to and
decided by a jury.

273 Kan. at 46-47.

In relying on the state

supreme court’s reasonable interpretation and application of federal
law, the Kansas Court of Appeals’ decision was neither contrary to nor
an unreasonable application of the law as established by the Supreme
Court of the United States.
Therefore, petitioner’s application is denied on this claim.
III. CONCLUSION
Petitioner’s application for habeas corpus is denied.

(Doc. 1).

A motion for reconsideration of this order under Local Rule 7.3
is not encouraged.

The standards governing motions to reconsider are

well established.

A motion to reconsider is appropriate where the

court has obviously misapprehended a party's position or the facts or
applicable law, or where the party produces new evidence that could
not have been obtained through the exercise of reasonable diligence.
Revisiting the issues already addressed is not the purpose of a motion
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to reconsider and advancing new arguments or supporting facts which
were otherwise available for presentation when the original motion was
briefed or argued is inappropriate. Comeau v. Rupp, 810 F. Supp. 1172
(D. Kan. 1992).

Any such motion shall not exceed three pages and

shall strictly comply with the standards enunciated by this court in
Comeau v. Rupp.

The response to any motion for reconsideration shall

not exceed three pages.

No reply shall be filed.

IT IS SO ORDERED.
Dated this

27th

day of May 2011, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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