Soriano-Garcia v. McKune et al

Filing 17

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Petitioner's motion 11 to appoint counsel is denied. Signed by Senior District Judge Sam A. Crow on 2/8/2012. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GILBERTO SORIANO-GARCIA,
Petitioner,
v.

CASE NO. 11-3042-SAC

DAVID McKUNE, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254 filed by a prisoner in state custody. Petitioner
proceeds pro se and in forma pauperis.
Procedural and Factual Background
Petitioner was convicted of one count of Aggravated Kidnapping
in violation of K.S.A. 21-3421, three counts of Criminal Threat in
violation of K.S.A. 21-3419(a)(1), one count of Criminal Restraint
in violation of K.S.A. 21-3424(a), and one count of Domestic Battery
in violation of K.S.A. 21-3413a (a)(1)(b)(2) following a jury trial
in the District Court of Finney County, Kansas.
The

convictions

arose

from

a

sequence

of

events

between

petitioner and the victim, Sylvia R. At the time of the first of
these events, petitioner and Sylvia were living together. The events
are summarized by date:
February 28, 2005: Petitioner and Sylvia went dancing at a bar,

where Sylvia began to talk to a male co-worker. Petitioner got into
an argument with Sylvia, yelled at her, then followed her outside,
where he grabbed her around the neck, slapped her, and put her into
his car. He then drove the car to their home, calling her names and
pulling her hair.
When they arrived at the residence, Sylvia told petitioner she
wanted to leave. Petitioner responded by locking her inside their
trailer and taking the key. Sylvia tried to reach for the telephone,
but petitioner threw it against the wall and destroyed it. Sylvia
tried to leave several more times, and petitioner struck her in the
face and pulled her hair. Petitioner told her she was never going to
leave and threatened to kill her.
Eventually, petitioner left and Sylvia went to the home of a
neighbor to call a friend to pick her up. On the following day, a
police officer took a report and photographed Sylvia’s facial and
neck injuries.
April 4, 2005: Sylvia went dancing at a bar with a female
friend. Petitioner approached Sylvia, pulled her by the arm from the
dance floor and stole her cell phone. Sylvia and her friend called
911 from the bar restroom. After they left the restroom, petitioner
grabbed Sylvia and pulled her into the parking lot, where he struck
her a number of times. The responding officer testified that she saw
a cut on Sylvia’s lip and marks on her neck and arms.
April 7, 2005: Petitioner came to Sylvia’s new home and pounded
on the door. She asked him to leave, but he continued to pound on
the door, and then on her bedroom window. He said he was going to
2

break into her house if she did not let him in and that he would
kill her. Sylvia called 911. Petitioner left when the police
arrived.
Petitioner was sentenced to a term of 284 months.
On appeal, the Kansas Court of Appeals (KCOA) remanded the
matter to the state district court to determine whether petitioner
had received ineffective assistance of counsel. The district court
found that petitioner had received ineffective assistance during the
sentencing phase of the criminal proceedings. After a hearing,
petitioner was resentenced to a term of 195 months.
The KCOA later affirmed petitioner’s convictions. State v.
Soriano-Garcia,

174

P.3d

458,

2008

WL

142104

(Kan.App.

2008)(unpublished order). The Kansas Supreme Court (KSC) denied
review.
Petitioner filed a state post-conviction action pursuant to
K.S.A. 60-1507. The state district court summarily denied all claims
presented in that action. Petitioner then filed an unsuccessful
motion to alter or amend judgment.
Petitioner next filed an appeal, and the KCOA affirmed the
summary denial entered by the state district court. Soriano-Garcia
v. State, 243 P.3d 716, 2010 WL 5185796 (Kan.App. 2010)(unpublished
order). The Kansas Supreme Court denied review.
In this action, petitioner seeks relief on the following
grounds: (1) there was insufficient evidence to convict him of
Aggravated Kidnapping, Criminal Threat, Criminal Restraint, and
Domestic Battery; (2) prosecutorial misconduct; and (3) ineffective
3

assistance of trial and appellate counsel.
Discussion
Motion to appoint counsel
Petitioner moves for the appointment of counsel, citing his
limited financial resources and the unavailability of the inmate who
assisted him in preparing the petition.
There is no constitutional right to the appointment of counsel
in a federal habeas corpus action. Pennsylvania v. Finley, 481 U.S.
551, 555 (1987).

Rather, the decision whether to appoint counsel

rests in the discretion of the court.

Swazo v. Wyoming Dep’t. of

Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir.
1994).

See also 18 U.S.C. § 3006A(a)(2)(B)(the court may appoint

counsel in action under § 2254 where “the interests of justice so
require”).
The court has studied the record and finds that the factual and
legal issues are not unusually complicated. Accordingly, the court
concludes the appointment of counsel is not warranted in this
matter.
Standard of review
This matter is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA). The AEDPA “imposes a highly deferential
standard for evaluating state-court rulings and demands that statecourt decisions be given the benefit of the doubt.” Felkner v.
Jackson,

562 U.S., ___, ___, 131 S.Ct. 1305, 1307 (2011)(per

curiam)(quoting Renico v. Lett, 559 U.S. ___, ___, 130 S.Ct. 1855,

4

1862 (2010))(internal quotation marks omitted).
Under the AEDPA, where a state court has adjudicated a claim,
a petitioner may obtain federal habeas corpus relief only 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” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.” See 28 U.S.C. § 2254(d); Williams v.
Taylor, 529 U.S. 362, 402 (2000). If a state court applies the
correct federal standard to deny relief, a federal court may
consider only whether the state court applied the federal law in an
objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699
(2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir.2002). Where
Supreme Court decisions “give no clear answer to the question
presented,

....,

it

cannot

be

said

that

the

state

court

‘unreasonabl[y] appli[ed] clearly established Federal law,’ and
habeas “relief is unauthorized” under § 2254(d)(1)). Wright v. Van
Patten, 552 U.S. 120, 126 (2008)(internal citation omitted).
Finally, a “determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Procedural default
Respondent argues that petitioner’s claims of insufficiency of
the evidence, prosecutorial misconduct, and ineffective assistance
of appellate counsel are barred by procedural default.
5

Federal habeas corpus relief ordinarily is not available to a
state prisoner unless all state court remedies have been exhausted
before the federal petition is filed. 28 U.S.C. § 2254(b); Harris
v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994). “States should have
the first opportunity to address and correct alleged violations of
state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722,
731 (1991).
A claim is procedurally defaulted when a petitioner fails to
present the claim in a proper and timely manner in the state courts
and the claim is rejected on an independent and adequate state law
ground. Coleman, 501 U.S. at 750. “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.” See Hickman v. Spears, 160 F.3d 1269, 1271
(10th Cir.1998)(internal quotations and citations omitted).
Where such a procedural default occurs, the federal court will
not consider the claim unless the petitioner shows either cause and
prejudice or a fundamental miscarriage of justice. Johnson v.
Champion, 288 F.3d 1215, 1223 (10th Cir.2002)(quoting Maes v.
Thomas, 46 F.3d 979, 985 (10th Cir.1995)).
Generally, in order to establish “cause” for a procedural
default, a petitioner must show that some external factor impeded
his efforts to comply with the procedural rule. Murray v. Carrier,
477 U.S. 478, 495–96 (1986). Next, to show “prejudice”, a petitioner

6

must show “‘actual prejudice’ resulting from the errors of which he
complains.” United States v. Frady, 456 U.S. 152, 168 (1982). A
petitioner cannot establish prejudice if there is strong evidence
of petitioner's guilt. Id. at 172.
Finally, a petitioner’s procedural default may be excused on
the basis of the fundamental miscarriage of justice exception if the
petitioner presents both a constitutional claim and a colorable
showing of factual innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454
(1986). The exception is “extremely narrow” and requires a showing
that “a constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Phillips v. Ferguson,
182 F.3d 769, 774 (10th Cir.1999)(internal quotation marks and
citation omitted).
Insufficient evidence
Petitioner first presented the claim of insufficient evidence
in his post-conviction action filed pursuant to K.S.A. 60-1507. The
KCOA upheld the summary dismissal of the claim, finding petitioner
failed to present the claim on appeal and stating that where an
appeal is taken, “[i]ssues that could have been raised are deemed
waived.” Soriano-Garcia v. State, 243 P.3d 716, 2010 WL 5185796, *3
(Kan.App.)(unpublished order)(citing Drach v. Bruce, 136 P.3d 390
(2006), cert. denied, 549 U.S. 1278 (2007)).
Prosecutorial misconduct
Likewise, in considering the claim of prosecutorial misconduct,
the

KCOA

found

that

while

petitioner

7

raised

a

claim

of

such

misconduct in his direct appeal, it was not the same allegation of
prosecutorial misconduct he presented in his action under K.S.A. 601507. The KCOA relied on Drach for the proposition that when an
appeal is taken, the judgment is res judicata to all issues actually
raised, and claims of trial error that could have been raised but
were not, are waived. Soriano-Garcia, id.
Ineffective assistance of appellate counsel
The KCOA determined that petitioner waived the claim that he
received ineffective assistance of appellate counsel because he did
not address the claim in his appellate brief. Soriano-Garcia, id.,
(citing Kingsley v. Kansas Dept. of Revenue, 204 P.3d 562 (Kan.
2009)).
The court agrees these claims are barred by procedural default,
and finds no basis to excuse the default on the basis of either
cause and prejudice or a miscarriage of justice. The court therefore
does not consider the defaulted claims.
Ineffective assistance of trial counsel
Petitioner’s claim of ineffective assistance of counsel was
limited by the KCOA to a single issue, namely, that trial counsel
erred in

failing to present a voluntary intoxication defense. The

KCOA found that petitioner had raised that claim in his appellate
brief but that other challenges to trial counsel’s performance were
raised only “incidentally” and thus were not preserved for review.
Soriano-Garcia, 2010 WL 5185796, *4 (citing Cooke v. Gillespie, 176
P.3d 144 (Kan. 2008)).
The KCOA cited the correct standard for evaluating the claim of
8

ineffective

assistance

of

counsel,

namely,

that

counsel’s

performance was constitutionally defective and that the performance
prejudiced the petitioner’s defense. Id. at *3. This is the standard
set forth in Strickland v. Washington, 466 U.S. 668, 685–86 (1984).
The KCOA rejected the claim on its merits, stating:
...there was little or no evidence that Soriano-Garcia was
intoxicated during the times he committed the crimes. At
only one point during the trial was his alcohol
consumption raised. On cross-examination, in response to
the State’s question of how much alcohol Soriano-Garcia
consumed on one of the nights of the crimes, SorianoGarcia replied, “[n]ot too much.” No other indication of
alcohol consumption was presented at the trial. Thus,
Soriano-Garcia himself admitted that he had not consumed
much alcohol before the crimes were committed.
Therefore, Soriano-Garcia has failed to show that his
trial counsel’s assistance was ineffective so as to
deprive Soriano-Garcia the right to a fair trial. SorianoGarcia, 2010 WL51855796, *5.
Under the standard for habeas corpus review, this court must
uphold the state court’s decision unless it was an objectively
unreasonable application of the Strickland standard. The court finds
no basis to overturn the well-reasoned decision of the KCOA on the
only claim of ineffective assistance that is before this court. The
strategic decisions of defense counsel are presumed to be correct
unless they are “completely unreasonable, not merely wrong, so that
[they] bear no relationship to a possible defense strategy.” Fox v.
Ward,

200

F.3d

1296,

1296

(10th

Cir.2000)(internal

quotations

omitted). Here, the KCOA reasonably applied the correct standard in
evaluating the performance of trial counsel.

9

Conclusion
Petitioner’s claims alleging insufficiency of the evidence,
prosecutorial misconduct, and ineffective assistance of appellate
counsel and, with one exception, of trial counsel are barred by
procedural default. The state courts applied the proper legal
standards

and

reasonably

applied

those

standards

in

rejecting

petitioner’s remaining claim that he was denied the effective
assistance of trial counsel by the failure to assert a defense based
upon voluntary intoxication. The petitioner is not entitled to
habeas corpus relief from his convictions.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed and all relief is denied.
IT IS FURTHER ORDERED petitioner’s motion to appoint counsel
(Doc. 11) is denied.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 8th day of February, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

10