Barber v. Kansas, State of et al

Filing 13

MEMORANDUM AND ORDER. The petitions under 28 U.S.C. § 2254 for a writ of habeas corpus (Dks. 1 and 9) are denied and no certificate of appealability shall be granted. Signed by U.S. District Senior Judge Sam A. Crow on 2/27/2013. Mailed to pro se party: Mr. Terry. L. Barber, Reg. No. 84515, 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
TERRY L. BARBER,
Petitioner,
Vs.

No. 11-3014-SAC

STATE OF KANSAS, 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 (Dk. 1) and an amended petition
seeking the same relief (Dk. 9). Convicted of attempted rape and
aggravated sexual battery and sentenced to 142 months’ imprisonment, the
petitioner challenges his sentence as unlawfully enhanced by a prior
Arkansas conviction due to a lack of supporting findings and as
unconstitutionally enhanced in violation of his Sixth Amendment rights as
established under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny.
In response to the court’s show cause order (Dk. 2), the
respondents filed their answer and return (Dk. 11) and forwarded for the
court’s review the relevant state court records (Dk. 12). The petitioner has
not filed any traverse with the court, and the time for filing one has passed.
PROCEDURAL HISTORY

Following a jury trial in the District Court of Sedgwick County,
Kansas, petitioner was convicted of one count of attempted rape and one
count of aggravated sexual battery. The petitioner challenged his criminal
history that included a 1985 rape conviction in Arkansas. The court imposed
a persistent sex offender sentence of 142 months’ imprisonment based on
that prior rape conviction. On direct appeal, the petitioner argued the district
court erred in not instructing on the defense of voluntary self-intoxication.
His conviction was affirmed by the Kansas Court of Appeals. State v. Barber,
No. 95,780, 157 P.3d 1129, 2007 WL 1461334 (Kan. App. May 18, 2007)
(unpub. op.), rev. denied, 284 Kan. 947 (2007).
In 2008, petitioner filed a motion to correct his sentence
pursuant to K.S.A. 22-3504 in Sedgwick County District Court arguing his
sentence as a persistent sex offender under K.S.A. 21-4704(j) based on the
prior sexual felony conviction in Arkansas was in violation of Cunningham v.
California, 549 U.S. 270 (2007). The district court denied his motion, and
the Kansas Court of Appeals affirmed. State v. Barber, No. 102,357, 238
P.3d 331, 2010 WL 3636272 (Kan. App. Sept. 10, 2010), rev. denied, 291
Kan. No. 1 (vi) (2010).
Also in 2008, petitioner filed a motion for writ of habeas corpus
pursuant to K.S.A. 60-1507 in Sedgwick County District Court arguing
several trial errors and two claims of ineffective assistance of counsel. The
district court held an evidentiary hearing on the ineffective assistance claims
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and denied the petitioner’s motion. The Kansas Court of Appeals affirmed.
State v. Barber, No. 103,725, 257 P.3d 351, 2011 WL 3558223 (Kan. App.
Aug. 12, 2011), rev. denied, --- Kan. --- (2012).
The petitioner has filed this action for federal habeas corpus
relief pursuant to 28 U.S.C. § 2254 arguing the following two claims. First,
the district court erred in denying his motion to correct his sentence based
on the sentencing court’s failure to find that the Arkansas conviction met the
statutory requirements for the persistent sex offender enhancement.
Second, the sentencing court imposed the persistent sex offender
enhancement in violation of his Sixth Amendment rights as explained in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. The facts
underlying the defendant’s conviction are not necessary to the court’s
determination of this § 2254 motion.
AEDPA STANDARD OF REVIEW
This matter is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). AEDPA imposes a “highly deferential
standard for evaluating state-court rulings, and demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766,
130 S. Ct. 1855, 1862 (2010) (citation and internal quotation marks
omitted). Under AEDPA, where a state prisoner presents a claim in habeas
corpus and the merits were addressed in the state courts, a federal court
may grant relief only if it determines that the state court proceedings
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resulted in a decision (1) “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) “that was 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).
A state court decision is “contrary to clearly established Federal
law” when: (a) the state court “‘applies a rule that contradicts the governing
law set forth in [Supreme Court] cases'”; or (b) “‘the state court confronts a
set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that]
precedent.’” Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006) (quoting
Williams v. Taylor, 529 U.S. 362, 405 (2000)), cert. denied, 549 U.S. 1285
(2007). A state court decision involves an unreasonable application of clearly
established federal law when it identifies the correct legal rule from Supreme
Court case law, but unreasonably applies that rule to the facts. Williams, at
407–08. Likewise, a state court unreasonably applies federal law when it
either unreasonably extends, or refuses to extend, a legal principle from
Supreme Court precedent where it should apply. House v. Hatch, 527 F.3d
1010, 1018 (10th Cir. 2008), cert. denied, 555 U.S. 1187 (2009).
In reviewing state criminal convictions in federal habeas corpus
proceedings, a federal court does not sit as a super-state appellate court.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather than issuing
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whenever a state court errs or is incorrect in applying clearly established
federal law, the writ is reserved for when the state court’s application is
“objectively unreasonable.” Renico v. Lett, 130 S. Ct. at 1862. “This
distinction creates a substantially higher threshold for obtaining relief than
de novo review.” Id. (internal quotation marks and citation omitted). “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists
exercising their independent judgment would conclude the state court
misapplied Supreme Court law.” Maynard, 468 F.3d at 671.
COMPLIANCE WITH K.S.A. 21-4704(j)
The petitioner’s first issue is that the district court did not
comply with K.S.A. 21-4704(j) in failing to find that his Arkansas rape
conviction was for a sexually violent offense comparable to his offense of
conviction under K.S.A. 22-3717(d)(2). To qualify as a “persistent sex
offender” under Kansas law, the defendant must be convicted of a sexually
violent crime under K.S.A. 22-3717 and must have a prior conviction for a
sexually violent crime under that same statute or a “comparable felony
under the laws of another statute.” K.S.A. 21-4704(j)(2). The issue here is
limited to the second part of that finding.
After conducting an evidentiary hearing, the sentencing court
found that the defendant was “the same person who was convicted of the
crime of rape in the state of Arkansas back in 1985 as indicated in the
judgment . . . and therefore that that should be included in the defendant’s
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prior criminal history as a prior person felony.” (Dk. 12, App. No. 09102357-A, Vol. 4, Tran. 6/8/2005 Hrg, p. 18). Whether this finding is
sufficient to invoke the provisions of K.S.A. 21-4704(j) and whether the
Arkansas rape conviction is a prior sexually violent crime within the meaning
of that statute are both questions of state law that involve the simple
application and interpretation of state law. Consequently, these issues do
“not implicate federal habeas review.” Harris v. Roberts, 485 Fed. Appx.
927, 2012 WL 2354433, at *2 (10th Cir. Jun. 21, 2012) (issue of prior felony
being included in criminal history score was controlled by state law); See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding that “it is not
province of a federal habeas court to reexamine state-court determinations
on state-law questions”). For that matter, “a state court’s interpretation of
state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76 (2005). Thus, the court is bound by the Kansas
Court of Appeal’s conclusions that “the district court’s finding is sufficient to
invoke the provisions of K.S.A. 21-4704(j)” and that a comparison of the
Arkansas statute and the Kansas statute shows the Arkansas rape conviction
qualifies as a sexually violent crime under K.S.A. 22-3717. State v. Barber,
238 P.3d 331, 2010 WL 3636272 at *1-*2 (Kan. App. Sept. 10, 2010).
VIOLATION OF APPRENDI

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Petitioner next argues the district court applied the persistent
sex offender enhancement in violation of Apprendi in that the enhancement
involves factual findings for a jury to decide. For this enhancement to apply,
the Kansas Supreme Court has explained that the sentencing court must find
that the defendant’s current conviction and his prior conviction meet the
statutory definition of a sexually violent crime. State v. Moore, 274 Kan.
639, 652, 55 P.3d 903 (2002). The Kansas Court of Appeals here found that:
Here, Barber’s sentencing court was not required to find that the 1985
Arkansas rape was sexually motivated. It only needed to find that the
conviction existed. Once the existence of the prior conviction was
established, whether the Arkansas rape was analogous to one of the
statutorily defined, sexually violent crimes listed in K.S.A. 22-3717
was a legal conclusion. Thus, Apprendi does not apply.
Barber, 2010 WL 3636272 at *2. The court concluded that Moore controls in
that the findings required for applying persistent sex offender enhancement
need not “be proved to a jury beyond a reasonable doubt in order to use
them to increase a defendant’s sentence.” Id. at 3 (quoting Moore, 274 Kan.
at 652.
Clearly established federal law holds: “Other 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 v. New Jersey, 530 U.S. 466, 490
(2000) (italics added); Blakely v. Washington, 542 U.S. 296, 301 (2004).
This “prior conviction” exception originated in the earlier case of
Almendarez–Torres v. United States, 523 U .S. 224, 226–27 (1998), where
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the Court found that a prior conviction is a sentencing factor and is not an
element of a crime, and thus need not be proven beyond a reasonable
doubt. The Supreme Court’s rationale is that prior convictions “entered
pursuant to proceedings with substantial procedural safeguards of their own”
are not “contested issues of fact,” and that recidivism has traditionally been
the basis for a sentencing court to increase an offender's sentence.
Apprendi, 530 U.S. at 488–89. Accordingly, this court finds that the Kansas
courts' adjudication of petitioner's claim did not result in a “decision that was
contrary to . . . clearly established Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1). Nor did the state courts engage in
an objectively unreasonable application of the principles in Apprendi or its
progeny. See Anderson v. Mullin, 327 F.3d 1148, 1158 (10th Cir.), cert.
denied, 540 U.S. 916 (2003).
In sum, Barber is not entitled to federal habeas corpus relief on
either of his claims. 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
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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).
Petitioner has not met this standard as to any issue presented, so no
certificate of appealability shall be granted.
IT IS THEREFORE ORDERED that the petitions under 28 U.S.C. §
2254 for a writ of habeas corpus (Dks. 1 and 9) are denied.
Dated this 27th day of February, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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