Reyna v. Roberts et al
Filing
20
MEMORANDUM AND ORDER. The petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 (Dk. 1) is denied and this action is dismissed and all relief is denied. A certificate of appealability is denied. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 10/11/2011.Mailed to pro se party: Mr. Israel Reyna, Reg. No. 90424, El Dorado Correctional Facility, PO Box 311, El Dorado, KS 67042 by regular mail. (bmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ISRAEL REYNA,
Petitioner,
v.
No. 10-3254-SAC
RAY ROBERTS, et al.,
Respondents.
MEMORANDUM AND ORDER
This matter comes before the court on a petition for habeas corpus
filed pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the El Dorado
Correctional Facility, proceeds pro se, so the court liberally construes his
pleadings. See Federal Exp. Corp. v. Holowecki, 552 U.S. 389, 402 (2008).
Petitioner raises the following claims: 1) his convictions were obtained
unconstitutionally due to the State’s failure to charge and the trial court’s
failure to instruct on an element of the crimes alleged; 2) the court erred in
admitting expert witness testimony; 3) his right to a fair trial was violated by
limitation of his counsel’s voir dire of potential jurors; 4) insufficient
evidence was presented at trial to support his convictions.
Procedural background
Petitioner was convicted by a jury of four counts of Aggravated
Indecent Liberties with a Child, in violation of K.S.A. 21-3504(a)(3)(A), in
July of 2007, and was sentenced to a term of life imprisonment with no
possibility of parole for 25 years. Petitioner appealed and his convictions
and sentences were affirmed by the Kansas Supreme Court. State v. Reyna,
290 Kan. 666, cert. denied, 131 S.Ct. 532 (2010). On appeal, Petitioner
raised the following claims: the State failed to charge an essential element
of the crime; the trial court erred by allowing certain expert testimony and
limiting defense counsel’s voir dire; insufficient evidence supported his
convictions; the mandatory minimum sentence of K.S.A. 21-4643 was
unconstitutional; and, the district court erred in denying his motion for a
downward departure sentence. After the United States Supreme Court
denied certiorari, Petitioner timely filed this petition for federal habeas
corpus relief pursuant to 28 U.S.C. § 2254. Petitioner has thus exhausted his
available state court remedies as to each of the claims raised in this petition.
Underlying facts
This court must presume that the state court's factual findings are
correct, absent clear and convincing evidence to the contrary. 28 U.S.C. §
2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004), cert.
denied, 545 U.S. 1146 (2005). Petitioner has not rebutted by clear and
convincing evidence the factual findings which the Kansas Supreme Court
set forth in its opinion. Accordingly, the Court incorporates its factual
statement, which follows:
In December 2006, Reyna lived in Salina with his ex-wife, Kelly.
The two had divorced but later reconciled. Kelly operated a daycare
center out of their home. One of the children that she routinely cared
2
for was the 6–year–old daughter, B.B., of her brother, Scott B. B.B.
had two brothers. Scott had been seeing a woman named Amber E.,
who had two children: a girl, 7–year–old A.E., and a boy.
December 22, 2006, was Scott's 30th birthday and Amber had
planned a surprise party for him ... Kelly ... agreed that Scott's and
Amber's children could stay at her house. Amber dropped the children
off around 5:30 p.m.
Kelly left for the party around 8 p.m. Reyna decided not to go
because most of Kelly's family would be there and his relations with
them were strained. Kelly indicated that she did not intend to stay
long. Kelly and Reyna's sons, Matt, age 13, and Aaron, age 11, were
left in charge of the younger children, with Reyna present as the
responsible adult.
While Kelly was gone, Reyna sat in their upstairs bedroom
listening to music, watching television, and drinking whiskey and Coke.
Aaron mostly stayed in his room, also upstairs near his parents'
bedroom. Matt mostly stayed downstairs. The smaller children, A.E.,
B.B., and the three boys, apparently ran wild throughout the house,
wrestling, getting into Kelly's makeup, making tents in the upstairs
hallway, watching television, and playing video games with Aaron. A.E.
and B.B. also spent some time in Reyna and Kelly's bedroom with
Reyna. While Kelly was gone, a friend of hers called and talked to
Reyna on the phone for 30 to 45 minutes.
As Kelly was leaving the party, Amber asked her if the children
could spend the night at Kelly's so that Amber could continue partying
with Scott and friends. Kelly agreed to keep the children. A.E. and B.B.
were excited to learn that they would spend the night and slept on the
living room couch together.
A.E. returned to school following the holiday break on January
4th. She attended an after-school care program. That afternoon, the
supervisor of the program called Amber to come to the school. A.E.
had told one of the program adults that Reyna had engaged in
inappropriate sexual conduct with her and B.B. Amber called Scott.
Scott and Kelly later brought B.B. from Kelly's house to the house
where Amber and Scott were living. On the way, Scott asked B.B. if
there was anything she needed to tell him. After first confessing that
she got in trouble for hitting someone in daycare, she then said that
Reyna had touched her “privates.”
Reyna was charged with one count of rape or, in the alternative,
aggravated indecent liberties with each child. He was also charged
with a second count of aggravated indecent liberties with each child.
The complaint set out his year of birth, and he testified at trial that he
was 37 years of age; however, the complaint did not allege as part of
3
the charges of aggravated indecent liberties with a child that he was
over the age of 18 at the time of the offenses, nor was the jury
instructed to determine his age.
The State questioned the prospective jurors during voir dire for
over an hour. Shortly into the defendant's voir dire, the trial judge
called counsel to the bench and a discussion was had off the record.
Defense counsel resumed questioning of the prospective jurors but
later put on the record that she had felt limited by an admonition from
the judge during the off-the-record discussion.
During trial, the State presented the testimony of a child sexual
abuse therapist, Joni Alberts–Plumer. Prior to trial, the defense
objected to the therapist testifying about her counseling of the victims,
reasoning that any testimony that she had counseled them necessarily
implied a finding that they had been sexually abused. The court agreed
and limited the therapist's testimony to general statements concerning
the behavior of child sexual abuse victims. The defense registered a
continuing objection to her testimony at trial.
Both A.E. and B.B. testified at trial. Although their testimony was
a bit sketchy, as might be expected from a 7–and 6–year old,
respectively, they both testified that Reyna had touched their vaginal
areas and made them touch his genitals.
The jury returned guilty verdicts on two counts of aggravated
indecent liberties against A.E. and on both the rape count and the
alternative count of aggravated indecent liberties against B.B., in
addition to the stand alone count of aggravated indecent liberties
against B.B. The trial court later dismissed the rape conviction.
The defense filed a posttrial motion for a new trial and a motion
for sentencing under the Kansas Sentencing Guidelines Act (KSGA),
alleging that the failure to plead and prove Reyna's age, an element of
the off-grid offense, required sentencing him under the KSGA rather
than treating the convictions as off-grid felonies under K.S.A. 2006
Supp. 21–4643. He also filed a motion for dispositional and durational
departure from the sentence set out in K.S.A. 2006 Supp. 21–4643(d).
The trial court denied the motions and sentenced Reyna to a
controlling sentence of life with a hard 25 years. He timely appealed.
Reyna, 290 Kan. at 669-671.
Standards for 2254 motions
Federal habeas corpus relief is available under § 2254 only upon a
showing that petitioner is in custody in violation of the constitution or laws of
4
the United States. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This court
cannot correct errors of state law, and is bound by the state court’s
interpretation of its own law. Id.
The provisions of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) govern and circumscribe a federal court's review of
petitioner's claims. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under §
2254, as amended by AEDPA, the Court may not grant federal habeas
corpus relief unless the applicant establishes the state court's adjudication of
the claims resulted in a decision that was either (1) “contrary to, or involved
an unreasonable application of, clearly established federal law as determined
by the Supreme Court”; or (2) “based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). See Bobby v. Mitts, __ U.S.__, 131 S.Ct. 1762, 1763
(2011).
A state-court decision is contrary to the Supreme Court's clearly
established precedents if the decision applies a rule that contradicts
the governing law set forth in Supreme Court cases, or if the decision
confronts a factual scenario that is materially indistinguishable from a
Supreme Court case but reaches a different result.... A state-court
decision involves an unreasonable application of the Supreme Court's
clearly established precedents if the decision applies Supreme Court
precedent to the facts in an objectively unreasonable manner.
Sperry v. McKune, 445 F.3d 1268, 1271 (10th Cir.), cert. denied, 549 U.S.
1039 (2006), citing Brown v. Payton, 544 U.S. 133, 141 (2005). “A legal
principle is ‘clearly established’ ... only when it is embodied in a holding of [
5
the Supreme Court]” as the governing legal principle when the state court
renders its decision. Thaler v. Haynes, __ U.S. __, 130 S.Ct. 1171, 1173
(2010); Lockyer, 538 U.S. at 71-72. The application of clearly established
Supreme Court law must be unreasonable, not just incorrect. Renico v. Lett,
__ U.S.__, 130 S.Ct. 1855, 1858 (2010).
Discussion
Omission of element of crimes charged
Petitioner first contends that his convictions were obtained in violation
of the Sixth and Fourteenth Amendments to the United States Constitution
because the State failed to charge and the trial court failed to instruct on an
element of the crimes alleged, i.e., his age.
Petitioner is correct that under the facts of this case, his age was an
element of the crimes charged. Petitioner was charged and sentenced under
K.S.A. 21-3504(a)(3)(A) and K.S.A. 21-4643, which subjected him to a life
sentence with no possibility of parole for 25 years. The Kansas Supreme
Court has ruled that because the enhanced sentence of K.S.A. 21-4643 (life
without possibility of parole for 25 years) is applicable only to defendants
who are at least 18 years old, a defendant’s age is an element of the crime
that must be proven to a jury beyond a reasonable doubt, in accordance
with the United States Supreme Court’s holding in Apprendi v. New Jersey,
6
530 U.S. 466 (2000).1 See e.g., State v. Bello, 289 Kan. 191, 195-200
(2009); State v. Gonzales, 289 Kan. 351, 371-72 (2009). Additionally, it is
uncontested that the State failed to charge Petitioner’s age as an element of
the crimes, and that the trial court failed to instruct the jury on that
element.
When Petitioner raised this issue on his direct appeal, the Kansas
Supreme Court agreed that failure to charge and instruct on the element of
his age was error, but found that a harmless error analysis applied. The
Court found that the complaint adequately charged Petitioner with the
off-grid offenses, although it failed to include the off-grid element of age in
the individual counts charging the crimes. It agreed that the instructions
were erroneous in omitting the defendant's age at the time of the offenses,
and that the sentencing was an Apprendi-type error to the extent it relied on
judicial factfinding of the omitted element of age, because that element
enhanced the maximum applicable sentence. The Court found those errors
to be harmless, however, because the fact of Petitioner’s age was
uncontroverted. The crimes were alleged to have occurred the year prior to
trial, and Petitioner testified at trial, in response to a question by his own
1
Apprendi held that any fact, other than the fact of a prior conviction,
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and established beyond a reasonable
doubt.
7
counsel,2 that he was 37 years old at the time of trial. No contradictory
evidence was offered on that issue. Reyna, 290 Kan. at 679-82. Accordingly,
the Court found that the conviction and sentence would have been the same,
absent the error.
In reaching that ruling, the Court looked to State v. Daniels, 278 Kan.
53, 57, cert. denied, 543 U.S. 982 (2004), which adopted the pre-Apprendi
test of Neder v. United States, 527 U.S. 1 (1999), and to the post-Apprendi
case of Washington v. Recuenco, 548 U.S. 212 (2006). The Kansas Supreme
Court’s summarization of those rulings, which found that a Sixth
Amendment violation in this context is not structural error, is accurate:
Thus, Daniels stands for the proposition that this court will apply
the harmless error analysis to the omission of an element from the
instructions to the jury when a review of the evidence leads to the
conclusion beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error. And Recuenco
stands for the proposition that characterizing the omission as an
Apprendi-type error, i.e., judicial factfinding of the omitted element
when that element enhances the maximum applicable sentence, does
not change that analysis.
Reyna, 290 Kan. at 772. The Kansas Supreme Court properly found the
harmless error analysis to be applicable.
The Court then found the omission of the element from the jury
2
Petitioner appears to erroneously believe that because the State has
the burden to prove each element of the crimes, only testimony from the
State’s witnesses can be used to meet that burden. The law is not so
restrictive.
8
instructions to be harmless error because the record contained no evidence
that could rationally have lead the jury to a contrary finding with respect to
defendant’s age at the time of the crime. Because the only evidence on the
issue was Petitioner’s credible testimony that he was 37 at the time of trial
in July of 2007, he was indisputably over the age of 18 at the time of the
crimes in December of 2006. For the same reasons, the Court found
harmless the Apprendi-type error that occurred when the trial court, rather
than the jury, made the age determination and imposed sentence on Reyna
under K.S.A. 2006 Supp. 21–4643. Id., at 682. The Kansas Supreme Court’s
application of the harmless error standard was thus reasonable.
The complaint satisfied due process by advising Petitioner of the
precise nature of the charge and of the date, time and place when the
offenses were alleged to have been committed. The Kansas Supreme Court’s
decision on the issue of the omission of Petitioner’s age from the jury
instructions was neither contrary to, nor an unreasonable application of,
clearly established federal law as determined by the Supreme Court.
Instead, it was an accurate and reasonable application of Neder and
Recuenco.
Unlike such defects as the complete deprivation of counsel or trial
before a biased judge, an instruction that omits an element of the
offense does not necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence." Id.
at 9, 119 S.Ct. 1827. Therefore, in general, "the omission of an
element [from a jury instruction] is subject to harmless-error
analysis." Id. at 10, 119 S.Ct. 1827.
9
United States v. Dago, 441 F.3d 1238, 1244 -1245 (10th Cir. 2006). See
Scoggin v. Kaiser, 186 F.3d 1203, 1207 (10th Cir.), cert. denied, 528 U.S.
953 (1999) (recognizing that misstatements or omissions of an element in
jury instructions are subject to harmless error analysis on habeas review).
Petitioner, in his traverse, contends that failure to instruct on an
element is structural error, citing the Tenth Circuit case of United States v.
Miller, 111 F.3d 747 (1997). Miller, however, did not examine omission of an
essential substantive element of a crime, but examined the failure to instruct
on venue. It held that the failure to instruct on venue, when requested, is
reversible error unless it is beyond a reasonable doubt that the jury's guilty
verdict on the charged offense necessarily incorporates a finding of proper
venue. That issue is not before this Court, but even if it were, Miller applied
the harmless error analysis used for trial error, not the per se analysis used
for structural error. Miller does cite to United States v. Wiles, 102 F.3d 1043
(10th Cir. 1996), which held that the district court's failure to instruct on an
essential element of a crime was structural error. But Wiles is no longer good
law on this issue because the Supreme Court subsequently held in Neder
that the failure to instruct the jury on an element of the offense does not
constitute structural error, which is reversible per se, but is instead subject
to harmless error review. See United States v. Schleibaum, 522 U.S. 945
(Nov 03, 1997) (granting certiorari, vacating judgment in Wiles); United
States v. Schleibaum, 130 F.3d 947 (10th Cir. Dec 10, 1997) (decision on
10
remand). See also United States v. Acosta-Gallardo, 2011 WL 3805764, 14,
n. 3 (10th Cir. 2011) (so stating).
The same is true for the court’s conclusion that the Apprendi-type
error that occurred in sentencing was subject to harmless error analysis, and
was in fact harmless. See Recuenco, 548 U.S. at 222 ("[f]ailure to submit a
sentencing factor to the jury, like failure to submit an element to the jury, is
not structural error.") Thus, Petitioner must show that the asserted error
“had substantial and injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Here, no “actual
prejudice” has been shown. Id. at 637 (internal citations and quotations
omitted). Based on the uncontested evidence, there is no reasonable
possibility that the jury would have found that Petitioner was under the age
of 18 at the time of the crimes. Consequently, Petitioner has not stated a
Fourteenth Amendment claim or shown any basis for federal habeas relief.
Expert testimony
Petitioner next complains about the trial court’s admission of the
expert witness testimony of a child therapist. The expert did not testify that
she had examined the victims or that they had symptoms consistent with
sexual abuse, but testified only about generalizations concerning typical
behaviors of sexual abuse victims, including their delay in reporting the
offenses.
The petition states: “The court erred in allowing a therapist to provide
11
testimony in violation of K.S.A. 60-456(b).” Doc. 1, p. 3. This claim, and
Petitioner’s description of it elsewhere in his habeas petition, alleges only a
violation of a state rule of evidence, not of the federal constitution. Similarly,
the Kansas Supreme Court examined only whether the trial court abused its
discretion in admitting the testimony, not whether admission of the
testimony violated due process of any other federal law. If Petitioner wishes
to raise a federal constitutional claim, it is incumbent upon him to do so. See
Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam) (“If a habeas
petitioner wishes to claim that an evidentiary ruling at a state court trial
denied him the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal court, but in state court.”).
“Federal habeas review is not available to correct state law evidentiary
errors; rather it is limited to violations of constitutional rights.” Smallwood v.
Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999) (citing Estelle v. McGuire, 502
U.S. 62, 67–68 (1991)), cert. denied, 531 U.S. 833 (2000). Nothing in the
petition, read liberally in Petitioner’s favor, raises a federal constitutional
claim regarding this issue. Therefore, the petition does not raise a claim
upon which federal habeas relief can be granted.
But even if the constitutional issue had been raised in the habeas
petition, Petitioner has shown no basis for habeas relief. Federal habeas
corpus relief is proper only if the evidentiary ruling rendered the trial so
fundamentally unfair as to constitute a denial of due process. “When the
12
admission of evidence in a state trial is challenged on federal habeas, the
question is whether the error, if any, was so grossly prejudicial that it fatally
infected the trial and denied the fundamental fairness that is the essence of
due process.” Williamson v. Ward, 110 F.3d 1508, 1522–23 (10th Cir. 1997)
(pre-AEDPA). See Lopez v. Trani, 628 F.3d 1228 (10th Cir. 2010); Moore v.
Marr, 254 F.3d 1235, 1246 (10th Cir.), cert. denied, 534 U.S. 1068 (2001).
The standard required to make this showing is very high, as the Tenth
Circuit has found:
To demonstrate that the Kansas Court ... violated a clearly
established federal law [Petitioner] must meet an extraordinarily high
standard; he must demonstrate that the putative error was a “failure
to observe that fundamental fairness essential to the very concept of
justice. In order to declare a denial of it we must find that the absence
of that fairness fatally infected the trial.” Parker v. Scott, 394 F.3d
1302, 1310 (10th Cir. 2005) (quoting Lisenba v. California, 314 U.S.
219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941)).
Pouncil v. Nelson, 123 Fed.Appx. 348, 352, 2005 WL 375939, 3 (10th Cir.
2005).
Further, "because a fundamental fairness analysis is not subject to
clearly definable legal elements, when engaged in such an endeavor a
federal court must tread gingerly and exercise considerable self restraint."
Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation
marks omitted). In conducting its fundamental fairness analysis, the habeas
court is not to "second guess a state court's application or interpretation of
state law ... unless such application or interpretation violates federal law."
13
Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir.), cert. denied, 513 U.S. 926
(1994).
Petitioner contends that the expert testimony was inadmissible under
the Kansas statute. K.S.A. 60-456(b) limits expert opinion testimony to
“such opinions as the judge finds are ... (2) within the scope of the special
knowledge, skill, experience or training possessed by the witness." Petitioner
contends the expert testimony was not based on necessity and was within
the common knowledge of the jury.
Kansas’ evidentiary rule on admissible expert testimony corresponds
with the federal rule. The federal rule expressly allows experts to testify if
the trial court finds their testimony will assist the trier of fact in
understanding the evidence or determining a fact in issues. Fed.R.Evid. 702.
The Kansas rule does not expressly state the same premise, but case law
interpreting the statute establishes that same basis for admission. Although
Petitioner is correct that some Kansas authority states that the basis for
admission of expert testimony is “necessity,” see e.g., State v. Cooperwood,
282 Kan. 572 (2006), the Kansas Supreme Court interprets “necessity” to
mean “helpfulness,” as its recent statement clarifies:
Necessity under the particular circumstances of the case, e.g.,
helpfulness to the jury, is the basis for the admissibility of expert
witness testimony.” Cooperwood, 282 Kan. 572, Syl. ¶ 5, 147 P.3d
125. Consequently, “ ‘ “ ‘[if] the normal experience and qualifications
of jurors permit them to draw proper conclusions from [the] given
facts and circumstances, expert conclusions or opinions are not
necessary.’ ” ' [Citations omitted.]” Cooperwood, 282 Kan. at 578, 147
14
P.3d 125.
State v. Wells, 289 Kan. 1219, 1236 (2009). Thus “[i]t is fundamental that
in order for expert testimony to be admitted into evidence at trial it must be
helpful to the jury.” State v. Reser, 244 Kan. 306, 309 (1989). See Sterba v.
Jay, 249 Kan. 270, 282 (1991) (“Expert opinion testimony is admissible if it
will be of special help to the jury on technical subjects as to which the jury is
not familiar or if such testimony would assist the jury in arriving at a
reasonable factual conclusion from the evidence.”); Puckett v. Mt. Carmel
Regional Medical Center, 290 Kan. 406, 444 (2010) (admission of expert
testimony “depends on finding that the testimony will be helpful to the
jury”); In re Care and Treatment of Stanley, 2009 WL 3082539, 3 (Kan.App.
2009) (“expert opinion testimony generally is admissible if it aids the trier of
fact with unfamiliar subjects or interpreting technical facts, or if it assists the
trier of fact in arriving at a reasonable factual conclusion from the
evidence.”). It is within the discretion of the district court to determine
whether the proposed testimony would or would not assist the jury. See
Cooperwood, 282 Kan. at 578.
Kansas courts have repeatedly permitted experts to testify concerning
the very matters that the child therapist testified to in Petitioner’s case,
based on tacit, if not express, findings that the average juror is unfamiliar
with how children respond in sexual abuse situations. See e.g., State v.
McIntosh, 274 Kan. 939, 958–60,(2002); Reser, 244 Kan. at 315; State v.
15
Ulate, 42 Kan.App.2d 971 (Kan.App. 2009); State v. Roux, 87 P.3d 993
(Table) (Kan.App. 2004); State v. Lawrence, 2004 WL 2659125, 9 (Kan.App.
2004); Cf, State v. Gaona, 41 Kan.App.2d 1064 (2009).
In child sexual abuse cases, the trial court has the discretion to
allow an expert to testify concerning the common behaviors displayed
by children who are sexually abused. State v. McIntosh, 274 Kan. 939,
955-60, 58 P.3d 716 (2002). Additionally, an expert is permitted to
testify regarding whether the child in the case fits the pattern of one
who is sexually abused. 274 Kan. at 959. As the Supreme Court
evidently found in McIntosh, the average juror would be unfamiliar
with how children respond in sexual abuse situations. See McIntosh,
274 Kan. at 955-60.
State v. Lawrence, 2004 WL 2659125, 9 (Kan.App. 2004).
The Kansas Supreme Court on Petitioner's direct review found no
violation of the state evidentiary rules, because the trial court's finding that
the testimony would be helpful to the jury was within its discretion. See
Reyna, 290 Kan. at 682-86. The Court finds that the testimony of the
challenged expert did not render Petitioner's trial fundamentally unfair such
that he was deprived of his due process rights, and that the Kansas
Supreme Court did not act contrary to or unreasonably apply federal law in
concluding that the admission of this testimony was proper.
In his traverse, Petitioner alleges a “variance,” claiming that the
expert’s testimony went beyond what the prosecutor alleged she would
testify to, and beyond the limits to her testimony imposed by the judge, thus
doing indirectly what she could not do directly. See Doc. 19, p. 4-6. These
are new claims, so are not properly before the court. See, e.g., Vanderlinden
16
v. Koerner, 2006 WL 1713929 (D.Kan. 2006), citing Loggins v. Hannigan, 45
Fed. Appx 846, 849, 2002 WL 1980469 (10th Cir. 2002) (“We will not
consider petitioner's argument ... as this issue was first raised in petitioner's
traverse to respondents' answer to habeas petition.”) A traverse is not the
proper pleading to raise additional grounds for relief. However, even if these
claims were not procedurally barred, they would be denied on the merits. It
would have been proper for the expert to have testified that she had
examined the victims and that they had symptoms consistent with sexual
abuse. Reyna, 290 Kan. at 684-85. Instead, her testimony was limited to
generalizations concerning typical behaviors of sexual abuse victims, and
she was subject to cross-examination. No denial of fundamental fairness
occurred by the admission of her testimony.
Limitation of voir dire
Petitioner next contends that his sixth and fourteenth amendment
rights to a fair trial were violated by the trial court’s limitation of his
counsel's voir dire of potential jurors. See K.S.A. 60-247(b) (“The court must
permit the parties or their attorneys to conduct an examination of
prospective jurors.”). Petitioner recognizes that K.S.A. 22-3408(3) permits
the court to “limit the examination by the defendant, his attorney or the
prosecuting attorney if the court believes such examination to be
harassment, is causing unnecessary delay or serves no useful purpose.”
The facts relating to this issue, as found by the Kansas Supreme
17
Court, follow:
The State questioned the jury panel at length before passing the panel
for cause. Counsel for Reyna began her voir dire by saying, “[T]he
good news is the State has asked a lot of questions that I would have
so chances are my portion of the voir dire, which this process is called,
won’t take quite so long.” Reyna’s counsel then immediately began
asking questions of individual jurors. She had questioned three jurors
individually when the court called counsel to the bench and the offthe-record discussion was held. Following the discussion, counsel
resumed questioning jurors individually. In all, after the discussion at
the bench, counsel questioned another 20 jurors individually. She
asked only five questions generally of the panel, and one of those
resulted in individual discussions with three additional jurors before
she passed the panel for cause.
Peremptory strikes were conducted in chambers. Following that
process, Reyna's counsel stated:
“Judge, I would just ask that when the Court calls counsel up to
the bench, that the Court tries not to scowl or make any kind
of—and I'm stating this is because what happened [sic] I got
called up to the bench in voir dire and I will tell the Court that I
cut my voir dire back because I felt like if I was admonished
again it was going to have a negative impact on Mr. Reyna,
resulting in not being able to ask many questions of jurors that
said nothing.”
The trial judge responded, “Well, that's noted for the record. It's
without any basis.”
Counsel for Reyna filed a motion for new trial in which she
alleged that the State's voir dire consumed close to 1 and 1/2 hours
but the defense was not given an opportunity to sufficiently voir dire
the panel. She alleged that in the discussion at the bench, the trial
court “told defense counsel that she would not be permitted to do an
individual voir dire, that the questions that were being asked were not
germane and to move on as there wasn't time for this.” At argument
on the motion, counsel again stated that the court had admonished
her that her voir dire questions were not germane, that it had limited
her opportunity to question the potential jurors and, in particular, she
had been limited from delving into their education and the degrees
some of them were seeking, which in turn hampered her ability to
select a jury that did not have preconceived notions.
In ruling on the motion, the district judge characterized the
off-the-record conversation this way:
“The selection of the jury. In all due respect I think I made one
18
comment to counsel out of hearing of the jury that I questioned
whether it was germane to ask each of the very young witnesses
or potential jurors who said they were in school or going to
school what their major in college was or was going to be.
Anybody that's been a parent and had children go through
college knows that statistics that the major change [ sic ] an
average of four to five times from when they start out and what
they end up. That was the only comment I recall making and I
believe that defense counsel had certainly adequate opportunity
to—to question and voir dire. And once again, all due respect,
Ms. McKenna, you've never been timid or reluctant to challenge
my ruling in various trials by—by pushing those limits and asking
your questions subject to further admonition. So I believe that
the jury was fairly questioned by both sides and was fairly
selected in this case.”
The motion for new trial was denied.
Reyna, 290 Kan. at 686-88.
Petitioner attempts to rebut some of the facts by stating: “...
petitioner’s counsel was unconstitutional[ly] limited in her voir dire for the
sole reason that the trial judge ‘needed to move on because did not ha[ve]
the time for it.’ See record at R.I. 69, VIII, pages. 56-63.” Doc. 19, p. 6. The
record reflects that the language quoted above about needing to move on is
not the statement of the judge, but merely the characterization of Petitioner’s
counsel during post-trial motions, as detailed below.
The sole record of any interruption by the court during the voir dire by
Petitioner’s counsel is the following:
Ms. McKenna: When will ... Ms Holthaus, when will your fall semester
begin?
Ms. Holthaus: August 16th.
Ms. McKenna: Mr. House, -The Court: Would counsel approach please?
(Counsel approached the bench and an off-the-record discussion
19
was held.)
R.Vol. I, p. 63. Thereafter, Ms. McKenna’s voir dire continued. The record
does not reflect that the judge ever asked Petitioner’s counsel to move on
because he didn’t have time for it, or for any other reason. Instead, the voir
dire by his counsel proceeded for some time, comprising nearly 30 additional
pages of transcript after the court’s interruption of voir dire.
Petitioner’s counsel, in her motion for new trial, stated that during the
unrecorded bench conference, the judge said he didn’t have time for
questions he found were not germane to the proceedings :
the court told defense counsel that she would not be permitted to do an
individual voir dire, that the questions that were being asked were not
germane and to move on as there wasn’t time for this.
Ap. Ct. Vol. I, p. 69. The prosecutor’s understanding of the bench conference
was that defense counsel was not permitted to conduct individual voir dire:
The State did not conduct any type of individual voir dire of any of the
potential jurors and I think the Court’s position was that the defense
wasn’t going to conduct any individual voir dire.
Transcript, Ap. Ct. Vol. II, Sept. 17, 2007 transcript (re: post-trial motions).
Accordingly, no record supports Petitioner’s factual challenge to the record,
The Court therefore accepts the Kansas Supreme Court’s statement of facts,
and turns its attention to the governing law.
The purpose of voir dire examination is to enable the parties to select
jurors who are competent and without bias, prejudice, or partiality. State v.
Hayden, 281 Kan. 112 (2006); Mu'Min v. Virginia, 500 U.S. 415, 431 (1991).
20
The scope of juror examination during voir dire is within the discretion of the
trial court. State v. Madkins, 42 Kan.App.2d 955 (2009). “[T]he trial court
[however] retains great latitude in deciding what questions should be asked
on voir dire.” Mu’Min, 500 U.S. at 424.
On habeas review, “[t]his court’s review of the state trial court’s voir
dire is ‘limited to enforcing the commands of the United States Constitution.’
“ Neely v. Newton, 149 F.3d 1074, 1083-84 (10th Cir. 1998) (quoting Mu’Min
v. Virginia, 500 U.S. 415, 422) (pre-AEDPA), cert. denied, 525 U.S. 1107
(1999) .The crucial question before this court is whether the trial court’s
restriction during voir dire rendered the proceeding "fundamentally unfair."
Sallahdin v. Gibson, 275 F.3d 1211, 1222 (10th Cir. 2002).
A defendant's right to an impartial jury includes the right to an
adequate voir dire to identify unqualified jurors .... The trial court,
however, retains great latitude in conducting voir dire ... and the
Constitution does not require an additional opportunity to make a
searching inquiry.
Sallahdin, 275 F.3d at 1222-23(citations omitted).
On habeas review, this Court gives deference to the trial court’s
superior perspective to assess which inquiries will be fruitful in uncovering
bias and which will not be.
The Constitution "does not dictate a catechism for voir dire, but only
that the defendant be afforded an impartial jury." Morgan v. Illinois,
504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Neither
due process nor the Sixth Amendment entitles a defendant to ask
prospective jurors every question that might prove helpful. Mu'Min v.
Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493
(1991). What matters is whether the defendant's inability to ask a
21
question renders the proceeding "fundamentally unfair" by making it
impossible to identify an unqualified juror. Id. at 426, 111 S.Ct. 1899.
And in answering that question, we again remain mindful that the trial
court's vantage point gives it a superior perspective to assess which
inquiries will be fruitful in uncovering bias and which will not be. See
Morgan, 504 U.S. at 729, 112 S.Ct. 2222.
Bedford v. Collins, 567 F.3d 225, 232 (6th Cir. 2009), cert. denied, __ U.S.
__, 130 S.Ct. 2344 (2010). See Jackson v. Mullin, 46 Fed.Appx. 605 (10th
Cir. 2002) (reciting same standard).
The Kansas Supreme Court properly stated its task as independently
evaluating the circumstances to determine whether the trial court assured
that the accused was tried by an impartial jury. Reyna, 290 Kan. at 686. It
concluded:
Putting together the various segments of the trial at which the
voir dire was conducted and discussed, we cannot conclude that
Reyna's counsel was limited in her questioning of the jury panel in any
meaningful way. Following the discussion at the bench, counsel
proceeded to question 20 panel members on an individual basis. Her
questioning resulted in the removal of one juror for cause. While she
did leave the topic of college majors following the discussion at the
bench, the trial court's assessment of that topic hardly seems an abuse
of discretion. We pause to note that it was Reyna's burden to produce
an adequate record on this issue and a request to put the conversation
at the bench on the record would have assisted in our review. See
State v. Seward, 289 Kan. 715, 720–21, 217 P.3d 443 (2009). That
said, we also note that it is not a common practice for a trial judge to
sua sponte interrupt voir dire, and our review of the record indicates no
reason it should have been interrupted here. However, our independent
evaluation of the circumstances does not indicate prejudice to Reyna.
Reyna, 290 Kan. at 688.
The Kansas Supreme Court thus decided that the limitation of voir dire
was within the trial court’s discretion and was not prejudicial to the
22
defendant. It found that any curtailment of defendant’s ability to ask about
college majors or potential majors during voir dire did not render the
proceeding "fundamentally unfair," and that defendant had not met its
burden to show that any other limitation had been placed on voir dire. This
was a reasonable determination of the facts. Although defense counsel’s voir
dire was curtailed in part, she nonetheless had sufficient opportunity to
ascertain bias or prejudice on the part of the prospective jurors, and to
intelligently exercise her peremptory challenges. The record does not reflect
that she was denied any leeway in questioning the jurors that was granted to
the prosecution. The Kansas Supreme Court did not act contrary to or
unreasonably apply federal law in concluding that the trial court's restriction
during voir dire did not render Petitioner's trial fundamentally unfair.
Sufficiency of evidence
Petitioner lastly contends that insufficient evidence was presented at
trial to support his convictions. His argument focuses on alleged
inconsistencies between the victims’ pretrial statements and their trial
testimony.
The standard to be applied by this Court to a sufficiency of the evidence
claim is deferential toward the prosecution.
To determine whether the judgment of a state court on a sufficiency of
the evidence claim violates clearly established federal law we apply the
standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). See Parker, 394 F.3d 1032, 1314. A fact
finder's verdict does not violate a defendant's due process rights if
23
“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.” Jackson, 443 U.S.
at 319, 99 S.Ct. 2781.
Pouncil, 123 Fed.Appx. at 353. See Torres v. Mullin, 317 F.3d 1145, 1151
(10th Cir.), cert. denied, 540 U.S. 1035 (2003); Grubbs v. Hannigan, 982
F.2d 1483, 1487 (10th Cir. 1993).
In performing this task, a habeas court does not weigh conflicting
evidence or consider witness credibility. Wingfield v. Massie, 122 F.3d 1329,
1332 (10th Cir. 1997), cert. denied, 523 U.S. 1005 (1998); Messer v.
Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). This standard of review
respects the jury's responsibility to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from the testimony
presented at trial. Jackson, 443 U.S. at 319. Under AEDPA, the Court must
decide whether the Kansas Supreme Court’s decision that there was sufficient
evidence to support a jury's finding of guilt was contrary to or an
unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1); Spears v.
Mullin, 343 F.3d 1215, 1238-39 (10th Cir. 2003), cert. denied, 541 U.S. 909
(2004).
Petitioner states in his traverse, that instead of challenging the
credibility of the childrens’ statements, he is challenging the reliability of their
statements, since they had seen a counselor or therapist several times after
the events, and that person may have influenced their testimony. To the
24
extent this is a new claim, it is not properly before the court, as explained
before. But even if it were not a new claim, it is procedurally barred because
due to Reyna's objection, no evidence that the victims had seen a counselor
or therapist was presented at trial.3 Accordingly, the Court focuses on the
evidence that was presented at trial.
The Kansas Supreme Court examined the evidence presented at trial in
light of the Petitioner’s claims and found some inconsistencies. Reyna, 290
Kan. at 671-74, But it held “in key details, the testimony of the victims
corroborated each other’s.” 290 Kan. at 674. The court concluded that the
evidence, viewed in the light most favorable to the prosecution, was sufficient
for a rational juror to find the Petitioner guilty beyond a reasonable doubt. Id.
Having reviewed the evidence, this court agrees with Petitioner that the
pretrial statements of the two children are not entirely consistent with their
trial testimony. But the court also agrees with the district court that the
evidence as a whole was sufficient for a reasonable jury to have found the
3
The expert was precluded from testifying that she had counseled the
children after the alleged assaults, because Reyna objected that any such
evidence was tantamount to introducing her opinion that they had in fact
been sexually abused. Reyna, 290 Kan. at 682-83. The trial court agreed, so
precluded such testimony. Reyna’s claim of unreliability depends on
admission of testimony that the expert had counseled them, which
testimony Reyna kept out of trial, and is thus precluded by the invited error
doctrine, a firmly established and regularly followed state procedural rule.
See State v. Bello, 289 Kan. 191, 193 (2009) (a party may not invite error
and then complain of the error on appeal); State v. Plunkett, 261 Kan. 1024,
1033 (1997).
25
Petitioner guilty beyond a reasonable doubt of four counts of aggravated
indecent liberties. Conflicting evidence is a matter for the jury to resolve, not
for this court to weigh when reviewing a habeas petition. Instead, on habeas
review, the court must presume “that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.”
Jackson, 443 U.S. at 326. The Kansas Supreme Court correctly applied the
standard of Jackson, thus its rejection of Petitioner’s sufficiency of the
evidence challenge did not involve an unreasonable application of federal law.
See 28 U.S.C. § 2254(d)(1); Wymer v. Workman, 311 Fed.Appx. 106 (10th
Cir. 2009). The Court additionally finds that the Kansas Supreme Court’s
determination of the facts was not unreasonable. See 28 U.S.C. §
2254(d)(2).4
Evidentiary hearing
The court finds that an evidentiary hearing is not required in this case.
"[A]n evidentiary hearing is unnecessary if the claim can be resolved on the
record." Anderson v. Attorney Gen. of Kansas, 425 F.3d 853, 859 (10th Cir.
2005); see Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("[I]f the record
4
The Tenth Circuit is split as to “whether, under AEDPA, we review a
sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. §
2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1).” Romano v.
Gibson, 239 F.3d 1156, 1164 n.2 (10th Cir.), cert. denied, 534 U.S. 1045
(2001); see Dockins v. Hines, 374 F.3d 935, 939 (10th Cir. 2004); Torres v.
Mullin, 317 F.3d 1145, 1151 (10th Cir. 2003). Under either standard,
Petitioner's claim fails.
26
refutes the applicant's factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing."). The
court finds that the record in this case refutes Petitioner's allegations and
otherwise precludes habeas relief.
Certificate of appealability
Rule 11 of the Rules Governing Section 2254 Proceedings states that
the court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. "A certificate of appealability may issue
... only if the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). Where a district court has
rejected the constitutional claims on the merits, a petitioner makes that
showing by demonstrating that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). See United States v. Bedford, 628 F.3d
1232 (10th Cir. 2010). "When the district court denies a habeas petition on
procedural grounds without reaching the petitioner's underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in it procedural ruling."
Slack, 529 U.S. at 484. Neither of these standards is met here. For the
reasons stated above, defendant has not made a substantial showing of the
27
denial of a constitutional right. The court therefore denies a certificate of
appealability.
IT IS THEREFORE ORDERED that the petition for habeas corpus relief
filed pursuant to 28 U.S.C. § 2254 (Dk. 1) is denied.
IT IS FURTHER ORDERED that this action is dismissed and all relief is
denied.
Dated this 11th day of October, 2011.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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