Washington v. Roberts et al

Filing 54

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Petitioner's motion 43 for order to file a supplemental brief and his motion 52 to supplement the record with a typewritten copy of that br ief are granted. Petitioner's combined renewed motion 46 to appoint and to submit certified question is denied. Respondents' motion 49 to strike petitioner's motion for summary judgment is granted and the motion 48 for summary judgment is denied. Petitioner's motion 51 for evidentiary hearing is denied. Signed by Senior District Judge Sam A. Crow on 03/30/15. Mailed to pro se party Marcus Washington by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARCUS WASHINGTON,
Petitioner,
v.

CASE NO. 11-3045-SAC

RAYMOND ROBERTS, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254.
Procedural background
Petitioner was convicted in the District Court of Wyandotte
County, Kansas, on one count of first-degree premeditated murder in
violation of K.S.A. 21-3401 and one count of criminal possession of
a firearm in violation of K.S.A. 21-4204. He was sentenced to life
without parole for 50 years and a concurrent term of 18 months. His
motion for new trial was denied.
On

direct

appeal,

the

Kansas

Supreme

Court

affirmed

the

convictions but remanded the matter for resentencing. State v.
Washington, 68 P.3d 134 (Kan. 2003)(Washington I).
On remand, the trial court re-imposed the sentences of life
without parole for 50 years and concurrent 18-month term. Petitioner
appealed, alleging that the evidence was insufficient to support the
Hard

50

term

and

that

the

Hard

50

sentencing

scheme

was

unconstitutional. The Kansas Supreme Court affirmed the sentence.
State v. Washington, 123 P.3d 1265 (Kan. 2005), cert. denied, 549 U.S.

1018 (2006)(Washington II).
Petitioner then filed a post-conviction motion pursuant to
K.S.A. 60-1507, presenting seven claims for relief. The state district
court denied relief, and petitioner then filed a notice of appeal and
two

motions

for

reconsideration.

The

district

court

filed

an

additional memorandum decision denying relief, and petitioner filed
a second notice of appeal. The Kansas Court of Appeals affirmed that
decision. Washington v. State, 216 P.3d 191, 2009 WL 3082582 (Kan.App.
2009)(Washington III).
Petitioner again sought review in the Kansas Supreme Court. The
Kansas Supreme Court denied review, and petitioner commenced this
action on February 23, 2011.
On September 18, 2012, the court entered a stay in this matter
to allow petitioner to present certain additional claims in the state
courts. That process is completed; however, because petitioner failed
to timely present a petition for review in the Kansas Supreme Court,
those claims are barred by his procedural default. This court lifted
the stay on April 8, 2014. The present petition therefore addresses
only the claims presented in the original petition, namely, (1) the
prosecution’s use of peremptory challenges violated petitioner’s
right to equal protection; (2) the trial court erred in admitting
petitioner’s confession; (3) petitioner was denied the effective
assistance of counsel during the pretrial motion to suppress the
confession;

(4)

the

prosecution

committed

misconduct

in

its

statements concerning the mental defense offered; (5) the trial court
erred in limiting cross-examination of Dr. William Logan; (6) the
failure of the Kansas Legislature to define premeditation and the
action

of

the

Kansas

Supreme

Court

defining

the

element

of

premeditation violates the separation of powers doctrine; (7) the
definition of premeditation under Kansas law denied petitioner equal
protection and substantive due process; (8) the district court
improperly instructed the jury on the prosecution’s burden of proof
regarding self-defense and denied petitioner due process and a fair
trial; and (9) the trial court erred in responding to a jury question
outside petitioner’s presence.
Factual background
The Kansas Supreme Court summarized the facts of petitioner’s
crime as follows:
Marcus
Washington
was
convicted
of
first-degree
premeditated murder and criminal possession of a firearm
based upon the January 16, 2000, shooting death of Stacey
Quinn. The defendant was sentenced to 50 years in prison
without the possibility of parole (a hard 50 sentence). […]
Officer James Bauer of the Kansas City, Kansas Police
Department responded to a report of shots fired in the
neighborhood of 33rd and Farrow at 1:26 a.m. He found a woman
later identified as Stacey Quinn, laying on the lawn of
Beatrice Cannon’s home at 3217 Farrow. Medical personnel
summoned to the scene determined that Quinn was dead.
Erik Mitchell, a forensic pathologist, testified that Quinn
suffered a number of gunshot injuries, with entry and exit
wounds to her neck, chest, torso, and extremities. Dr.
Mitchell recovered a bullet from Quinn’s clothing and
another from the surface of Quinn’s neck. He also recovered
a bullet from Quinn’s liver. Dr. Mitchell opined that Quinn
died from the gunshot wounds, which caused internal
hemorrhaging and great blood loss.
Neighbors’ Trial Testimony
Erica Warrior, who lived next door to where Quinn’s body
was found, testified that she heard gunshots in the early
morning hours, dialed 911, and then heard a young woman cry
for help. After the 911 call, Warrior heard another set of
gunshots. Contrary to the defendant’s testimony, Warrior
did not hear tires screeching and did not hear a car speeding
away. She also did not hear the victim make a threatening
statement.

John Carr also lived next door to the crime scene. At
approximately 1:30 a.m., he heard a volley of about 10
shots, which lasted about 5 seconds. The shots sounded to
Carr like they came from a handgun. Carr testified he then
heard a woman cry for help. According to Carr, he heard the
woman say, “Help me, oh help me, please somebody help me.”
Carr testified that the woman’s cry sounded like it came
from Cannon’s house.
Carr called the authorities, and as he was calling he heard
a second volley of shots. Carr believed the second volley
also contained 10 shots and lasted about 5 seconds. Carr
said that 1 minute lapsed between the first volley of shots
and the woman’s cry, and less than 1 minute lapsed between
the cry and the second volley. He did not hear an automobile
collision or screeching tires during this time.
Carr’s daughter also testified and generally confirmed her
father’s testimony. In addition, she testified that she
looked out of her bedroom window and viewed a man with a
gun run across the front lawn of her house. Carr’s daughter
identified the defendant to the jury as the man she saw run
in front of her house.
Mashan Minor, who resides three houses from the crime scene,
testified that the early morning shots woke her up. She
opened her front door and saw a young lady hopping in the
street on the corner of 33rd and Farrow. Minor observed that
a shoe was in the middle of the street. She also heard the
victim at Cannon’s house knocking on the door and pleading
for help. Minor looked out the door again and observed
someone standing in Cannon’s driveway. Minor shut her door
and then heard another round of gunfire.
Investigation of Evidence at the Crime Scene
After calling for medical help, Officer Bauer testified he
noticed blood at one location and shell casings at two
different locations. Marvin Main, a crime scene technician
for the police department, identified and gathered the
shell casings at 33rd and Farrow and those found near the
body of the victim. He found no firearm at the scene or on
the body of the victim. He recovered a bullet from the living
room of Cannon’s house. Officers also recovered .40 caliber
bullets from the scene, in addition on one .25 caliber
casing which tended to support the defendant’s theory that
Quinn shot at him with a small caliber firearm.
Officers found a Chevrolet Cavalier parked on 33rd Street
not far from where Quinn’s body lay. The vehicle’s engine

was still warm. The car was locked, but the keys were lying
on the back floorboard of the vehicle. The Chevrolet
Cavalier was registered to Nina Betts. Detective Zeigler,
along with another detective, Roger Golubski, contacted
Betts at her apartment between 8:30 and 8:45 that morning.
The defendant answered their knock at the door, and Zeigler
asked to speak with Betts. Zeigler went outside with Betts
and asked about her car. According to Zeigler, Betts said
that when her mother had left around 11 the night before,
her car was still parked outside. There was no indication,
such as broken glass, that the car had been stolen.
Betts told Zeigler that the defendant had been at her
apartment the entire evening. Zeigler wanted to get both
the defendant and Betts to the detective bureau to see
whether their stories matched. Zeigler asked the defendant
to go to the detective bureau, and the defendant agreed.
Zeigler also asked Betts’ permission to search her
apartment. She agreed, and officers found a Styrofoam
container for bullets in the bathroom. They also found a
bullet on the floor of a closet in a bedroom and a handgun
in the closet which was later identified as the one used
against the victim, Stacy Quinn. Betts had denied that any
firearms were in her apartment.
Zeigler and his partner, Golubski, took Betts’ statement
at the detective bureau at around 1:15 p.m., and then took
the defendant’s statement. At one point during the
discussions with the defendant, he began to cry
uncontrollably. The detectives concluded that the
defendant might implicate himself in the shooting. After
settling the defendant down, the detectives advised him of
his Miranda rights. He acknowledged these rights and
elected to talk to the detectives. He admitted his
involvement in the shooting. An audiotape of the
defendant’s statement was played for the jury, and a
transcript from the interview was shown to the jury.
The defendant testified that he was deathly afraid of a man
by the name of Hill at the time of the shooting, who,
according to the defendant, had made prior attempts on the
defendant’s life. He believed the victim, Stacey Quinn was
involved with Hill in a plot on his life. Because of this
fear, the defendant testified he acted in self-defense in
shooting Quinn. Consistent with psychiatric testimony on
his behalf, the defendant testified that he had not intended
to kill Quinn and that he had not possessed the mental state
necessary to commit the crime of premeditated murder.
The defendant’s ex-wife, Sony Reeves, testified that Hill

demonstrated threatening behavior toward the defendant on
two occasions and, after each of these incidents, the
defendant was very scared. In August or September 1999, she
bought the .40 caliber handgun because there had been
break-ins at the apartments where she lived. Reeves left
the handgun at the house of the defendant’s mother when she
and the defendant separated in October 1999. On
cross-examination, Reeves identified the firearm recovered
from Betts’ apartment as the one she had purchased.
Betts testified that there was no damage to the Chevrolet
Cavalier on the day before the shooting. However, after the
shooting, Betts noted that there was a dent behind the
driver’s side door. Betts also testified that after the
shooting, there were approximately five to eight new dents
on the passenger door which looked like buckshots.
The defendant testified concerning the first incident
between him and Hill which occurred in a parking lot during
the summer of 1997. The defendant told the jury that Hill
fired shots at him and that he had been afraid of Hill from
that time on. The defendant did not report this incident
to the police. The second incident occurred in June 1998
while the defendant attended a barbecue. A vehicle pulled
up to the house and stopped, and Hill emerged from the
vehicle pointing a gun at the defendant. The defendant
testified he dove through a screen door to protect himself.
The police were called, and they responded to the scene.
The defendant testified that as a result of the two
incidents he had been having nightmares in which he was
killed as a result of an altercation with Hill. In his dream,
the defendant was unable to make it through the screen door.
The defendant testified that his fear of being killed
existed at the time of the shooting and continued to exist
at the time of his testimony at trial.
The defendant also described for the jury his version of
the events that led to Quinn’s death. He received a call
from his mother the night before the shooting. She asked
him to pick up his younger brother from a skating rink which
closed at 11:30 p.m. The defendant picked up his brother
from the skating rink and dropped him off at his mother’s
house. He then visited a friend for about an hour, leaving
around 1 a.m. and drove by his mother’s house to make sure
that everything was in order there.
After driving past his mother’s house, he saw a woman
frantically waving her arms along the street in the area
of 27th and Brown. The defendant partially rolled down his

window to see what the trouble was. The woman, who was later
identified as Quinn, asked the defendant whether he had any
“yay.” The defendant said that he did not sell drugs. Quinn
asked for a ride and the defendant agreed to give her a lift.
Quinn asked the defendant to let her visit a house at 3216
Farrow. The defendant turned right off of Farrow onto 33rd
Street and waited for Quinn to return to his car. Quinn
returned to the defendant’s car, and the defendant began
to reverse toward Farrow to leave.
At this point, the defendant said that another vehicle
heading east on Farrow struck his car while he was in the
process of backing onto Farrow. The defendant said that he
panicked and drove a short distance forward on 33rd and then
stopped.
The defendant said that he believed Hill or Hill’s relatives
were somehow involved in the collision. The defendant
grabbed the .40 caliber firearm and got out of the car. Quinn
tried to wrestle the gun away from the defendant, but the
defendant managed to get the gun and exit the vehicle. The
defendant proceeded to walk down 33rd toward the
intersection of 33rd and Farrow. The vehicle that collided
with the defendant’s vehicle approached the defendant. He
pointed his firearm at the car, and the car reversed away
from the defendant. The defendant shot at the vehicle. The
defendant said that he was fearful.
As he returned to his vehicle in order to call the police,
Quinn confronted him pointing a small caliber chrome
firearm directly at him from the middle of the street. The
defendant described the woman as wild-eyed and shaking. He
thought that Quinn was under the influence of something.
The defendant testified that Quinn said that she was going
to “--- [him] up.” According to the defendant, Quinn fired
first and he fired back without stopping until his gun was
empty.
The defendant said he went back to his car but the keys that
he thought were in the ignition when he left his car were
gone. The defendant ran down the street, and a man picked
him up and took him home. The defendant told the jury he
did not intend to shoot Quinn. When he returned to Betts’
apartment, Betts was there, and she was sleeping.
The defendant called Steven Weinberg, an accident
reconstructionist, to testify. In Weinberg’s opinion, the
damage to Betts’ car was consistent with the story that his
car was parked and that it was impacted by a larger vehicle.
Weinberg testified that the damage to the passenger side

of the vehicle appeared to be caused by gunshots. Weinberg
observed eight distinctive dents. Weinberg opined that a
small-caliber firearm, either a .22 or a .25 caliber would
have caused the damage to the passenger side of the vehicle.
According to Weinberg, the bullets came at an angle from
the rear of the car, which was consistent with the
defendant’s story that he encountered Quinn standing in the
middle of Farrow.
The defendant also called Gilbert Parks, a psychiatrist,
to testify. Dr. Parks testified he met with the defendant
on five different occasions and the defendant talked to Dr.
Parks about the two incidents involving Hill. Dr. Parks
believed each of the incidents involving Hill were key to
understanding the defendant’s emotional state. Dr. Parks
testified that the incidents between Hill and the defendant
were traumas for the defendant. Dr. Parks diagnosed the
defendant with having suffered from posttraumatic stress
disorder (PTSD) on the day of the shooting. Dr. Parks said
that when Quinn pointed a gun at the defendant, it was just
another of a string of incidents during which the defendant
perceived a threat to his life. It was Dr. Parks’ opinion
that the defendant did not possess the requisite intent of
willfulness when he shot Quinn. Dr. Parks believed that the
defendant was not capable of intentionally shooting Quinn
that day.
In rebuttal, William Logan, a psychiatrist, criticized Dr.
Parks’ diagnosis. Dr. Logan reviewed a report written by
Dr. Parks and found that it did not list the qualifying
symptoms for PTSD. Dr. Logan questioned why Dr. Parks did
not interview the people surrounding the defendant to
verify the symptoms the defendant described. Dr. Logan said
that PTSD did not explain why the defendant would have
followed Quinn to Cannon’s front steps. Further, Dr. Logan
found it questionable that someone suffering from PTSD
would pick up a stranger so early in the morning.
To counter Dr. Logan’s testimony, the defendant called
another psychiatrist, Elizabeth Roberta Hatcher, who
testified that after reviewing Dr. Parks’ report she did
not find anything that would lead her to believe the
defendant was not suffering from PTSD. Washington I, 68 P.3d
at 140-143.

Standard of review
This matter is governed by the Antiterrorism and Effective Death

Penalty Act (AEDPA). The AEDPA established a highly deferential
standard of review of state court proceedings. When a state prisoner
presents a claim that has been adjudicated by the state courts, the
habeas court may not grant relief unless it determines that the state
court proceedings 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 upon an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d).
“Clearly established law is determined by the United States
Supreme Court, and refers to the Court’s holdings, as opposed to the
dicta.” Lockett v. Trammel, 711 F.3d 1218, 1231 (10th Cir. 2013). A
state court’s decision is “contrary to” established Supreme Court law
where the state court reaches a conclusion opposite of that reached
by the Supreme Court on a question of law or decides a case differently
than the Supreme Court on materially indistinguishable facts. Dodd
v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013)(citing Williams v.
Taylor, 529 U.S. 362, 413 (2000)).
Finally,

a

state

court’s

decision

is

an

“unreasonable

application” of Supreme Court case law if “the state court identifies
the correct governing legal rule…but unreasonably applies that
principle to the facts of the prisoner’s case.” Gipson v. Jordan, 376
F.3d 1193, 1196 (10th 2004)(brackets and internal quotation marks
omitted).
The United States Supreme Court recognizes that “AEDPA erects
a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires ‘a state

prisoner [to] show that the state court’s ruling on the claims being
presented in federal court was so lacking in justification that there
was an error … beyond any possibility for fairminded disagreement.’”
Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 16 (2013)(quoting
Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786-87
(2011)).
Analysis
Issue 1: Use of peremptory challenges
During jury selection, the prosecutor used twelve peremptory
challenges to strike potential jurors. Ten of those persons were
African

American.

Petitioner

was

tried

by

a

jury

of

two

African-Americans, one Asian-American, one Native American, and eight
white jurors. Washington I, 68 P.3d at 145. Following jury selection,
petitioner lodged an objection pursuant to Batson v. Kentucky, 476
U.S. 79, (1986).
In Batson, the United States Supreme Court held that purposeful
discrimination based upon the race of a potential juror violates the
Equal Protection Clause of the Fourteenth Amendment. 476 U.S. at 84.
Under Batson, the courts employ a three-part analysis to determine
whether a peremptory strike violates the defendant’s right to equal
protection. First, the defendant must present a prima facie case by
establishing facts that provide an inference of discriminatory
purpose; second, if the defendant makes that showing, the burden
shifts to the prosecution to provide a race-neutral justification for
the strike; and third, if the prosecution provides such a showing,
the court then determines whether purposeful discrimination has
occurred. U.S. v. Exom, ___ Fed. Appx. ___, 2014 WL 1688449, *2 (10th
Cir. 2014)(citing Johnson v. California, 545 U.S. 162, 168 (2005)).

A race-neutral justification “means an explanation based on
something other than the race of the juror.” Hernandez v. New York,
500 U.S. 352, 360 (1991).
The trial court’s decision on the third step of this inquiry is
entitled to considerable deference on appeal. Id. at 364-65.
On direct appeal, the Kansas Supreme Court found that petitioner
waived Batson challenges to four potential jurors by conceding to the
prosecution’s race-neutral explanations for three of them, Blake,
Fielder, and Collins, and by failing to mention the fourth, McDonald,
on appeal.
Accordingly,

in

this

action,

the

court

considers

only

petitioner’s challenges to the peremptory strikes against potential
jurors Spratt, Hodges, Anderson, Bullock, Brantley, and Powers.
Spratt
The prosecutor provided three reasons for striking Ms. Spratt,
first, that she was evasive on the kind of jury she previously served
on; second, that she had difficulty in remembering or understanding
what that case involved; and third, that she “live[d] in the projects”,
where numerous homicides occurred.
The Kansas Supreme Court said:
Spratt admitted that she vaguely remembered the facts of
the prior case and that she was unsure about how to describe
what seemed to be a simple robbery. This alone constitutes
a facially valid, race-neutral reason to strike Spratt.
Thus, regardless of how one might view the prosecutor’s
remarks concerning Spratt’s residence, the defendant’s
Batson challenge as to Spratt fails. Washington I, 68 P.3d
at 145.
Hodges
Ms. Hodges stated during voir dire that she worked two jobs, one
of which ended at 10 p.m.; that she held a bachelor’s degree in business

administration; and that she had served on a criminal jury about 15
years earlier in a matter involving a shooting. The prosecutor
explained

the

grounds

for

striking

this

venireperson

as

her

evasiveness concerning prior jury service and her difficulty in
understanding or explaining what that case involved.
The Kansas Supreme Court stated that while it could not make a
determination concerning Hodges’ demeanor,
“[t]he State also points out the detail with which a white
potential juror described his prior jury experience,
recalling that the case in which he served as a juror was
a robbery and murder and remembering that the prosecutor
in the case was now the judge presiding over the defendant’s
trial. We conclude the trial court was correct in its
determination that the State established a facially valid
race-neutral reason for striking Hodges.” 68 P.3d at 656.
Anderson
This potential juror stated that Greg Hill was her cousin, whose
age she estimated at 18. The prosecution then stated the Greg Hill
involved in the case was approximately 28, but later corrected that
to estimate his age as 25. Ms. Anderson then stated she did not know
the age of her cousin but that if her cousin were involved in the
matter, it would not affect her ability to consider the matter.
The prosecution explained striking this potential juror due to
the potential family relationship between her and someone involved
in the case. The Kansas Supreme Court found that the possibility of
such a relationship provided a “facially valid race-neutral reason
for striking Anderson….” 68 P.3d at 657.
Bullock
Venireperson Bullock did not properly fill out the juror

questionnaire, providing inconsistent answers and failing to properly
complete items, as, for example, providing the names of her children
instead of their ages, as sought by the question. The prosecution
explained striking this potential juror on the ground that she could
not follow directions.
While petitioner argued on direct appeal that two other potential
jurors had provided the gender of their children, the Kansas Supreme
Court noted they had also provided the children’s ages as directed.
The court found that the prosecution had provided a facially valid,
race-neutral ground for striking Bullock. 68 P.3d at 146.
Brantley
The prosecutor explained the challenge striking venireperson
Brantley was due to his statement that he knew someone who carried
a gun to protect himself, as she believed that similar reasoning
concerning the petitioner might be developed at trial. The district
court found this reason was race-neutral, and the Kansas Supreme Court
agreed, stating his response “indicated sympathy for the need to carry
a gun for self-protection. This sympathy, in turn, translated into
sympathy for the defendant’s theory at trial.” 68 P.3d at 147.
Powers
The prosecution explained it struck Ms. Powers, a high school
student aged 18, because of her youth and relative inexperience. The
district court found this explanation was race-neutral.
The Kansas Supreme Court agreed, stating that “[w]hile Powers
certainly had had life experiences, she likely had fewer that the

remainder of the potential jurors.” 68 P.3d at 147. This is consistent
with case law in the Tenth Circuit. See Hidalgo v. Fagen, Inc., 206
F.3d 1013, 1019 (10th Cir. 2000)(recognizing youth as a race-neutral
basis for use of a peremptory strike).
To prove a violation of equal protection under Batson, petitioner
must show that the prosecution engaged in purposeful discrimination
on the basis of race in striking potential jurors. See Sallahdin v.
Gibson, 275 F.3d 1211, 1225-26 (10th Cir. 2002).
The federal court, sitting in habeas, may grant relief only if
it

“was

unreasonable

to

credit

the

prosecutor’s

race-neutral

explanations for a Batson challenge.” Rice v. Collins, 546 U.S. 333,
338 (2006). Here, the determinations of the Kansas appellate court
were well-grounded and reasonable, and the court finds no basis to
grant relief.
Issue 2: Admission of petitioner’s confession
Petitioner

contends

his

confession

should

not

have

been

admitted, alleging that he was placed under arrest without probable
cause at the apartment of Nina Betts.
The trial court, ruling on a motion to suppress the confession,
found petitioner was not in custody prior to the time he was given
Miranda warnings at the police station and denied the motion to
suppress.
The Kansas Supreme Court summarized the evidence presented to
the trial court as follows:
The evidence presented through [Detective] Ziegler
established that the defendant initially agreed to

accompany the detectives to the station. In his brief on
appeal, the defendant admits as much by stating that
although he may have initially gone to the station
voluntarily, he was clearly being detained and at some point
had been seized. The other evidence before the court
indicated that the defendant was not in an interrogation
room but was in a victim’s room with a television set
available. He did wait approximately 4 hours at the station,
but most of that time was accounted for based upon the delay
faced by the detectives in searching Betts’ apartment.
The defendant, according to the evidence before the trial
court, was not advised of the outstanding warrants and was
not formally arrested or handcuffed. He was asked if he
would come to the station to answer questions at a time when
the detectives did not know who he was and did not suspect
him of the crime they were investigating. The defendant was
free not to go to the station and would not have gone there
had he declined the invitation. Other than the time lapse
after the defendant came to the station, most of which was
consumed by a search of Betts’ apartment and by the
questioning of Betts, there was no evidence to establish
that the defendant was in custody. Washington I, 68 P.3d
at 150-51.

The Kansas Supreme Court determined that the decision of the
trial court was supported by “substantial competent evidence” and
concluded, upon de novo review of the legal issue that the petitioner
was not under arrest or in custody prior to the Miranda warnings. Id.
at 151.
The decision of the Kansas Supreme Court reflects that it applied
the correct standard of review under federal law. See, e.g., U.S. v.
Achana-Suaso, 568 Fed. Appx. 627, 630 (10th Cir. 2014)(a court
assessing the denial of a motion to suppress accepts factual findings
and determinations of credibility unless they are clearly erroneous
and reviews legal conclusions de novo).
After reviewing the record, this court concludes the Kansas

Supreme Court reasonably applied the standard. The testimony of
Detective Ziegler explained the sequence of events, the petitioner’s
response to the request that he come to the police station, and the
reasons for the delay. Petitioner was told he did not have to talk
to the detectives and was given Miranda warnings and signed a printed
form containing those rights. Finally, there is no evidence of any
coercive behavior, such as threats.
There is no basis for habeas corpus relief on this claim.
Issue 3: ineffective assistance of counsel for suppression motion
Petitioner asserts he was denied the effective assistance of
counsel during the motion to suppress due to his counsel’s failure
to present additional evidence. He presented this claim in a motion
for a new trial. The trial court held a hearing on that motion, and
petitioner was represented by new counsel. In response to a question
from the court, counsel stated she was arguing both that the court
had erred in its ruling and that prior counsel was ineffective because
he failed to present additional evidence.
Counsel presented two witnesses, and petitioner testified. Betts
testified that she was transported to the police station in another
vehicle, and a detective, Detective Michael, testified that although
he monitored the petitioner in a victim’s room, he had no idea whether
petitioner was a suspect or a witness at the time. Detective Ziegler
also testified, explaining that petitioner was frisked before being
placed in the patrol car as a matter of routine safety procedure, and
that he may have told the transporting officer that there were

outstanding warrants. Petitioner testified that he was told before
he left the apartment that he had outstanding traffic warrants, and
that he believed he was under arrest for those warrants and could not
leave.
The trial court ruled from the bench that the only new information
provided was the petitioner’s testimony that he believed that he was
in custody and that he was guarded by Detective Michael during his
time at the station. The court determined that petitioner voluntarily
went to the station and that petitioner’s counsel had provided
effective representation.
The

Kansas

Supreme

Court

stated

that

the

trial

court’s

determination that petitioner’s testimony was self-serving and lacked
credibility could not be reweighed on review, and it noted that
petitioner had the chance to testify at the initial suppression
hearing but chose not to do so.
It applied the standard announced in Strickland v. Washington,
466 U.S. 668, 687 (1984) and determined that petitioner had shown
neither substandard performance nor prejudice to the petitioner.
It is apparent that the Kansas Supreme Court applied the
appropriate federal standard, namely, that announced in Strickland.
Likewise, this court’s review of the record shows that the standard
was reasonably applied to the circumstances of this case. The Kansas
Supreme Court carefully examined the performance of petitioner’s
counsel, which was thorough, and it determined that petitioner had
not shown that he would have obtained a different result on the motion

to suppress had counsel presented additional evidence. Petitioner is
not entitled to relief on this claim.
Issue 4: prosecutorial comment on mental defense
Petitioner alleges statements by the prosecutor during closing
argument denied him a fair trial.
The statements were summarized by the Kansas Supreme Court as
follows:
During her closing arguments, the prosecutor argued that
“posttraumatic stress disorder does not give someone a
license to kill.” The defendant’s objection to this
argument was sustained, and the jury was admonished to
disregard the argument. When she began her argument again,
the prosecutor said that the defendant’s defense attorney
“wants [the jury] to find that posttraumatic stress
disorder excuses [the defendant’s] conduct.” This time the
defendant’s objection was overruled. On appeal the
defendant complains that the prosecutor “diminish[ed] the
existence of the posttraumatic stress disorder and the
mental disease or defect defense.” Washington I, 68 P.3d
at 154.
The Kansas Supreme Court found that the first reference to the
mental defense was cured by the trial court’s admonition to the jury.
It found that the second such reference was not prejudicial, noting
that the trial court instructed the jury on state law concerning mental
disease or defect and criminal intent, that the reference in closing
argument was only a small mention in the context of the lengthy
proceeding, and that the evidence of the petitioner’s guilt was
overwhelming. Id. at 154-55.
This analysis applied the correct legal standard. Habeas corpus
relief is proper when a prosecutor’s comment has “so infected the trial
with unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 180 (1986)(quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
A petitioner seeking relief for alleged prosecutorial misconduct
must show that the error is “of sufficient significance to result in
the denial of the [petitioner’s] right to a fair trial.” Green v.
Miller, 483 U.S. 756, 765 (1987)(internal quotation marks omitted).
In this analysis, the prosecutor’s statement or act is viewed
not in isolation, but in light of the entire trial. Id. at 765-66.
In reviewing the record, the court considers “the strength of the
evidence against the petitioner… [and] [a]ny cautionary steps – such
as instruction to the jury – offered by the court to counteract
improper remarks.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002).
The Kansas Supreme Court applied this standard by considering
the admonition of the trial court following the first reference to
the theory of defense and by its consideration of the strength of the
case against petitioner in the context of the entire trial record.
The application of the standard was reasonable, and there is no basis
for habeas corpus relief.
Issue 5: limitation of cross-examination of Dr. Logan
Petitioner next alleges error in the trial court’s limitation
his cross-examination of the prosecution’s rebuttal witness, Dr.
Logan. The defense sought to question Dr. Logan concerning prior
assaults on the petitioner and another, unrelated case in which Dr.
Logan testified.
The trial court allowed the defense to inquire only generally

about past incidents, as specific evidence of those matters had not
been admitted, and it allowed the defense to cross-examine Dr. Logan
on dissociative symptoms but not the specific facts of the unrelated
case in which he had testified.
The Kansas Supreme Court analyzed this claim under the framework
in State v. Jacques, 14 P.3d 409 (2000). That analysis rests on federal
precedent in Davis v. Alaska, 415 U.S. 308 (1974) and Delaware v. Van
Arsdall, 475 U.S. 673 (1986).
The Sixth Amendment protects the right of a criminal defendant
“to be confronted with the witnesses against him.” U.S. Const. amend.
VI. A core component of the right to confrontation is the right of
the accused to cross-examine adverse witnesses. Davis, 415 U.S. at
315-16. The right to confrontation, though, is not absolute, and the
trial

court

has

latitude

“to

impose

reasonable

limits

on

…

cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, … or interrogation
that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S.
at 679.
The Kansas Supreme Court found no abuse of discretion by the trial
court in the limitations placed upon the testimony of Dr. Logan because
the details of the earlier incident concerning petitioner were not
the subject of the direct examination, and because petitioner’s
counsel was allowed to explore the question of bias. Notably, defense
counsel was able to question Dr. Logan on his hourly fee, whether he
previously had worked for the prosecutor, and when he was contacted

and how much time he spent on the case. (R. XI, pp. 1278-80.)
The analysis of the Kansas Supreme Court is a reasonable
application of federal precedent, and petitioner is not entitled to
relief. The decisions of the trial court are grounded in the
established rules of evidence, and the trial court allowed defense
counsel the opportunity for cross-examination protected by the Sixth
Amendment.
Issue 6: separation of powers violation
Petitioner

alleges

that

the

Kansas

Supreme

Court’s

interpretation of the term “premeditation”, as used in K.S.A. 21-3401,
violates the separation of powers doctrine.
Respondent contends that this claim is not cognizable in federal
habeas corpus because it does not present a federal constitutional
question.
It is settled that federal habeas corpus review does not lie for
errors of state law. See Swarthout v. Cooke, 562 U.S. 216, 219
(2011)(citing Wilson v. Corcoran, 562 U.S. 1, 5 (2010) and Estelle
v. McGuire, 502 U.S. 62, 67 (1991)). The separation of powers issue
here is exactly such a question. See, e.g., Chromiak v. Field, 406
F.2d 502, 505 (9th Cir. 1969)(federal constitutional doctrine of
separation of powers applies only to the operation of the federal
government is not binding on the states; likewise, the resolution of
a separation of powers issue under the state Constitution is a matter
for the state courts to resolve). Petitioner cannot seek federal
habeas relief on this claim.

Issue 7: denial of due process or equal protection
Petitioner claims that Kansas case law on premeditation is
inconsistent and confusing to such an extent that he was denied due
process and equal protection.
The Kansas Court of Appeals rejected this claim on two grounds.
First, it determined that petitioner lacked standing to challenge the
entire body of state case law; second, it found the claim simply lacked
merit. Plaintiff cited no authority supporting his claim, nor did he
show he was treated differently than anyone else. Washington III, 2009
WL 3082582 at *5.
To

the

extent

that

petitioner

argues

the

definition

of

“premeditation” is not adequately distinguished from an intentional
killing, the court finds that point has been resolved against his
position. In Sperry v. McKune, 445 F.3d 1268 (10th Cir. 2006), the Tenth
Circuit rejected the claim of a Kansas prisoner that defining
“premeditation” as “to have thought over the matter beforehand” would
render

the

state

first-degree

murder

statute

essentially

indistinguishable from its second-degree murder statute.
The Tenth Circuit noted that while some concurring opinions
appearing in state case law suggest that the issue may be debated,
a majority of the Kansas justice have found that the definition of
premedication is acceptable. The federal appellate court found that
the decision of the Kansas Court of Appeals rejecting the vagueness
challenge in Sperry reasonably applied federal due process law and
satisfied the AEDPA standard.

See Sperry, 445 F.3d at 1272-73 (“An

ordinary person could discern a difference between a killing that is
committed intentionally and a killing that is committed intentionally
and with premeditation.”) Petitioner’s due process claim fails.
This court also finds that petitioner has not shown how his
conviction under the first-degree murder statute resulted in his being
treated differently from anyone similarly situated. See City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)(Equal
protection “is essentially a direction that all persons similarly
situated should be treated alike.”) Petitioner is not entitled to
relief on this claim.
Issue 8: instruction on burden of proof
Petitioner claims that the trial court failed to properly
instruct the jury on the burden of proof in its instruction on
self-defense.
The Kansas Court of Appeals summarized the background as follows:
At Washington’s trial, defense counsel requested the
following instructions, which the district court refused:
(1) “‘that the government has the burden of proof beyond
a reasonable doubt that defendant did not act in
self-defense,’” and (2) “if you find … the defendant did
act in self-defense, you must find him not guilty.” On
direct appeal, Washington’s appellate counsel did not
challenge the district court’s failure to give these
instructions. See Washington, 275 Kan. At 652-53, 68 P.3d
134 (stating Washington’s issues raised on direct appeal).
Washington III, 2009 WL 3082582 at *6.
The Kansas Court of Appeals determined that petitioner failed
to properly challenge the jury instruction by presenting it in his
direct appeal. And while a movant in a state post-conviction action
may present such a claim upon a showing of exceptional circumstances

excusing the failure to present the claim on appeal, the appellate
court found that petitioner did not make the requisite showing. The
court thus rejected the issue as abandoned. Id.
The Antiterrorism and Effective Death Penalty Act (AEDPA)
“strictly limits a federal court’s ability to consider issues on
habeas review that the state court deemed procedurally barred.” Hammon
v. Ward, 466 F.3d 919, 925 (10th Cir. 2006). The federal courts “do
not review issues that have been defaulted in state court on an
independent and adequate state procedural ground, unless the default
is excused through a showing of cause and actual prejudice or a
fundamental miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313,
1317 (10th Cir. 1998).
To demonstrate cause, petitioner must show that some objective
factor external to the defense prevented his compliance with the state
procedural rule. See Murray v. Carrier, 477 U.S. 473, 488 (1986). If
petitioner can demonstrate cause, he must then show “actual prejudice
as a result of the alleged violation of federal law.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
The fundamental miscarriage of justice is “implicated only in
an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Ballinger
v. Kerby, 3 F.3d 1371, 1375 (10th Cir. 1993)(internal quotation marks
omitted). The claim of actual innocence must be based upon solid
evidence that was not adduced at trial. Calderon v. Thompson, 523 U.S.
538, 559 (1998).

Here, the petitioner has not shown cause and prejudice for the
procedural default of this claim, nor does the record show that
petitioner is actually innocent. Petitioner was identified by a
witness to the shooting, the weapon and the car associated with the
crime were identified as belonging to the petitioner’s girlfriend,
and, most importantly, petitioner made a confession to police.
The record clearly shows that the claim was procedurally
defaulted in the state courts, and the petitioner has not met the high
threshold of either cause and prejudice or a fundamental miscarriage
of justice to excuse the default. Petitioner is not entitled to relief.
Issue 9: response to jury’s question during deliberations
Petitioner claims his right to be present at all critical stages
of the proceedings was violated when the district court addressed a
question by the jury during its deliberations.
The Kansas Court of Appeals summarized the facts:
After jury deliberations began at Washington’s trial, the
jury sent the district court a note which read: “‘Please
clarify premeditation. How long before the act?’” The note
further stated: “‘Expound on premeditation.’” When the
judge read the jury note, the prosecutor appeared in person
in the judge’s chambers, Washington’s counsel participated
by telephone, and Washington was not present at all. After
reading the note out loud, the judge stated he intended to
“tell [the jury] that they need to rely upon the
instructions they’ve been given.” Washington’s counsel
stated on the record that he had no objection to the judge’s
proposed response. The transcript does not record the
district court’s actual response in open court to the jury’s
question.
Washington III, 2009 WL 3082582 at *6.
The Kansas Court of Appeals found that while petitioner had no
right to be present during the trial court’s consideration of the jury

question, it was error under state law and federal constitutional law
to proceed outside his presence when the response was submitted to
the jury. The court applied a harmless error standard and determined
that under the circumstances, the error was harmless beyond a
reasonable doubt. Id. at *7-8.
The state appellate court applied the correct legal standard.
A constitutional error occurring at trial is harmless, and not grounds
for habeas corpus relief, unless the error “‘had a substantial and
injurious effect or influence in determining the jury’s verdict.’”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1987)(quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). See also Rogers v. United
States, 422 U.S. 35, 40 (1975)(a violation of Fed.R.Crim.P. 43,
protecting the defendant’s right to be present at trial, may be
harmless error).
In addition, the Kansas Court of Appeals reasonably applied the
federal standard in finding harmless error where the court referred
the jury to the instructions provided and where defense counsel was
present by telephone and able to lodge any objection. The court finds
no basis for habeas corpus relief on this claim.
Pending motions
Several motions filed by the parties are pending before the
court, namely, petitioner’s motion to file supplemental briefing
(Doc. 43), his combined, renewed motion to appoint counsel and to
submit certified question (Doc. 46), his motion for summary judgment
and respondents’ motion to strike (Docs. 48 and 49), petitioner’s

motion for evidentiary hearing (Doc. 51), and his motion to supplement
(Doc. 52).
The court grants petitioner’s motion to file supplemental
briefing (Doc. 43) and his motion to substitute a typewritten copy
(Doc. 52) and has considered the material submitted (Doc. 44) and
respondents’ response (Doc. 45).

The court denies petitioner’s

renewed motion for the appointment of counsel and for certification
of a question to the Kansas Supreme Court (Doc. 46).
Petitioner’s combined motion for judicial notice of undisputed
facts and for summary judgment (Doc. 48) is denied, and respondents’
motion to strike that pleading (Doc. 49) is granted. The matter was
fully briefed in accordance with the procedure described in the Rules
Governing Habeas Corpus Cases Under Section 2254.
Petitioner’s motion for evidentiary hearing (Doc. 51) is denied.
Generally, “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on its merits.”
Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1389 (2011). Here,
the court finds no basis to conduct an evidentiary hearing.
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 for order to file a
supplemental brief (Doc. 43) and his motion to supplement the record
with a typewritten copy of that brief (Doc. 52) are granted.
IT IS FURTHER ORDERED petitioner’s combined, renewed motion to
appoint counsel and to submit certified question (Doc. 46) is denied.

IT IS FURTHER ORDERED respondents’ motion to strike petitioner’s
motion for summary judgment (Doc. 49) is granted, and the motion for
summary judgment (Doc. 48) is denied.
IT IS FURTHER ORDERED petitioner’s motion for evidentiary
hearing (Doc. 51) is denied.
Copies of this Memorandum and Order shall be transmitted to the
parties.
IT IS SO ORDERED.
DATED:

This 30th day of March, 2015, at Topeka, Kansas.

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