Decker v. Roberts

Filing 17

MEMORANDUM AND ORDER. The petition for habeas corpus relief under 28 U.S.C. § 2254 (Dk.1) is denied. No certificate of appealability is granted. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 3/14/2013. Mailed to pro se party: Mr. Charles D. Decker, Reg. No. 83121, Hutchinson Correctional Facility, PO Box 1568, Hutchinson, KS 67504 by regular mail. (bmw)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
CHARLES D. DECKER,
Petitioner,
Vs.

No. 11-3069-SAC

RAY ROBERTS, Kansas
Secretary of Corrections,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the court on a petition for writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254 (Dk. 1). The petitioner,
Charles D. Decker, is incarcerated in Hutchinson Correctional Facility serving
a sentence of 246 months’ imprisonment. Decker’s petition claims his
constitutional right to a fair trial was denied by prosecutorial misconduct and
judicial misconduct, his constitutional right to effective assistance of counsel
at trial and on direct appeal was denied, his constitutional right to due
process during post-conviction proceedings was denied by ineffective
counsel, and he is actually innocent of the offenses of conviction.
In response to the court’s show cause order (Dk. 2), the
respondents filed their answer and return (Dk. 10) and forwarded for the
court’s review the relevant state court records (Dk. 11). The petitioner then

filed a traverse (Dk. 14), a brief in support (Dk. 15) and a supplement
challenging the constitutionality of 28 U.S.C. § 2254(j) (Dk. 16).
PROCEDURAL HISTORY
Following a jury trial in the District Court of Sedgwick County,
Kansas, the petitioner was convicted of two counts of aggravated criminal
sodomy against a 9-year old girl and one count of aggravated indecent
liberties with a child. The trial court sentenced Decker to consecutive terms
of 123 months’ imprisonment for each aggravated sodomy conviction and a
concurrent term of 61 months for the aggravated indecent liberties
conviction. The resulting sentence was 246 months. On direct appeal, the
petitioner argued insufficient evidence to sustain convictions, the improper
admission of rebuttal evidence, and the denial of a departure sentence. His
conviction was affirmed by the Kansas Court of Appeals. State v. Decker,
140 P.3d 452, 2006 WL 2440004 (Kan. App. Aug. 18, 2006) (unpub. op.),
rev. denied, 282 Kan. 793 (Dec. 19, 2006).
On December 17, 2007, the petitioner filed pro se a motion for
relief under K.S.A. 60-1507 in Sedgwick County District Court. His motion
was approximately 40 pages. (Rec. 07-CV-4710, pp. 8-48). The petitioner
was appointed counsel in January of 2008, but in June, the petitioner moved
to dismiss this counsel. The district court appointed new counsel for
petitioner who appeared before the court on December 8, 2008. Counsel
summarized and argued the many issues set out in the 1507 motion and
2

concluded that these issues could not be resolved without an evidentiary
hearing, and so he requested one. From the bench, the district court found
“that the motions, files and records conclusively show that the movant is not
entitled to the relief requested” and so “dismiss[ed] the case for the reasons
set forth in the State’s response.” (Rec. Vol. 8, Trans. of 1507 Hearing, p.
30). The district court later filed its order denying the motion. (Rec. 07-CV4710, pp. 66-70).
The petitioner appealed and the Kansas Court of Appeals
affirmed the denial of the 1507 motion. Decker v. State, 242 P.3d 1281,
2010 WL 4977152 (Nov. 19, 2010), rev. denied, 291 Kan. No. 3 (xvii) (Jan.
18, 2011). The Kansas Court of Appeals found the petitioner to have waived
or abandoned many of the allegations found in his pro se 1507 motion:
On December 17, 2007, Decker filed a pro se K.S.A. 60-1507
motion. He made four general allegations: prosecutorial misconduct,
judicial misconduct, ineffective assistance of trial counsel, and
ineffective assistance of appellate counsel. On appeal, however,
Decker raises only ineffective assistance of trial counsel. As a result,
the remaining allegations are deemed waived or abandoned. See State
v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied, ---U.S.---,
129 S.Ct. 192, 172 L.Ed.2d 138 (2008).
With regard to ineffective assistance of trial counsel, Decker’s
pro se motion alleged 20 instances of ineffectiveness by Cooper. On
appeal, however, Decker argues only some of these instances, leaving
the majority of complaints he raised at the district court level
unaddressed. These unaddressed ineffective assistance of trial counsel
allegations are also deemed waived or abandoned. 285 Kan. at 998,
179 P.3d 457.
2010 WL 4977152 at *1. The Kansas Court of Appeals also found that as to
Decker’s remaining ineffective assistance of counsel claims, he had
3

presented only conclusory arguments that did not justify an evidentiary
hearing, and the state court records conclusively show that he was not
entitled to any relief. Id. at *2-*4.
Petitioner then filed this pending petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254.
FACTS
The court is to presume the state court’s factual determinations
are correct, unless the petitioner rebuts the presumption with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The petitioner has not carried
that burden nor proffered any evidence even approaching that burden. Thus,
the court adopts the following facts as taken from the Kansas Court of
Appeals’ opinion affirming his conviction:
Decker was charged with one count of aggravated indecent
liberties with a child and two counts of aggravated criminal sodomy
with a 9-year-old victim, C.B.S. Decker and Jamie, C.B.S.'s mother,
dated for a while. When he lost his job and could not afford his own
apartment, Decker moved in with Jamie and her children.
In January 2004, Jamie started taking Monday night classes at
Baker University, and Decker offered to babysit the children. Until
then, C.B.S. had been a straight-A student. Sometime after January
2004, her teacher called for a parent-teacher conference and told
Jamie that C.B.S.'s grades were plummeting, she was having difficulty
in school, and she had stolen something at school. Even though Jamie
saw big changes in C.B.S.'s behavior, she never suspected there were
any problems with Decker.
A babysitter informed Jamie that C.B.S. had told her that Decker
was having sex with her; Jamie rushed home and talked privately with
C.B.S. in a bedroom. C.B.S. then told Jamie that Decker had been
having sex with her and said that Decker had licked her breasts and
had anal sex with her, which hurt “really, really bad.”
Jamie found Decker asleep on the back porch and started kicking
his legs, asking how long he had been having sex with her 9-year-old
4

daughter. Decker initially stated he did not know what she was talking
about but eventually admitted he had licked C.B.S., had anal sex with
her with his finger, and had rubbed his penis over her genitals. Decker
begged Jamie for forgiveness and told her that he would get help and
he would never touch C.B.S. again. Jamie told him to leave her house.
Decker called Jamie several times after he had left, saying he
was embarrassed, telling her not to tell his family, and admitting he
was addicted to pornography. Decker also tried to blame the incidents
on C.B.S., stating she sat on his lap and touched herself.
Diana Schunn, a sexual assault nurse examiner examined C.B.S.
in September 2004. Schunn stated C.B.S. called her vaginal area her
“thingy” and her anus or anal opening her “bottom.” During her
examination, C.B.S. told Schunn that Decker had touched her breasts
with his lips, her vagina with his penis and mouth, and her anus with
his hand and penis on more than one occasion. C.B.S. stated she had
pain once to her anus. C.B.S. also told Schunn that she was relieved
when she found that she was not pregnant. Schunn found no acute or
healed trauma to her genital area or to her anus at the time of the
examination, but she stated it was rare to find physical injuries in
pediatric patients of sexual abuse cases.
Ginny Hall, an officer at the Derby Police Department, obtained
and served a search warrant for Jamie's house. Hall seized Decker's
computer and boxes of computer disks containing pornography.
The case was tried to the jury in March 2005. On the first day of
the trial, C.B.S. testified that Decker touched her vagina and anus with
his hand over her clothes in her mother's bedroom. C.B.S. stated that
Decker touched her breasts over clothes one time in the office. C.B.S.
also stated that Decker touched her anus in the office, but she had
trouble talking about it. C.B.S. stated that Decker placed her on his
lap, unzipped his pants, and her anus hurt when he put his penis it.
She stated “water stuff” came out of his penis while she was still on
his lap.
On the second day of the trial, C.B.S. testified that Decker
touched her vagina and anus with his mouth in her mother's bedroom.
C.B.S. stated that her jeans were down around her knees, but she did
not remember how that happened. C.B.S. stated that Decker put his
penis in her mouth more than once in her mother's room. C.B.S.
stated that these incidents happened a lot on Monday nights while her
mother was gone. Decker showed C.B.S. pictures of people having sex
on his computer. Decker made C.B.S. promise that she would not to
tell anyone about the sex.
Decker's cross-examination brought out from C.B.S. that she did
not want him to be part of her family, and she wanted to move back in
with her father. Jamie testified that while she was separated from her
5

husband and in the process of divorce, C.B.S. was upset when she
found out Decker stayed overnight at her house.
Decker testified on his own behalf. He moved in with Jamie in
October 2003, and at that time he was trying to start his own business
helping people with their computers. After his business failed to take
off, he sought employment in various places, including a car
dealership, a cable company, and a mortgage broker. However,
Decker always made sure that he was off work on Monday nights so
that he could take care of the children after Jamie had started
schooling.
Decker denied that he was ever alone with C.B.S. in the
bedroom without Jamie present. Decker stated that C.B.S. became
upset when she found out he stayed overnight with Jamie. Decker
never asked C.B.S. to come into his office or showed her any pictures
on his computer. Although the rule was that children should be
supervised while they got on the computers, Decker found C.B.S. on
the computer without his permission. Decker denied all of the sex act
allegations and responded that the thought of someone who would do
such an act made him sick to his stomach.
On the night of their confrontation about these allegations, he
said he and Jamie talked at the kitchen table. Decker said he was
“rather astonished” at the accusations because it was something he
never expected anybody to ever say to him. He told Jamie he had no
idea what she was talking about and that he had never been involved
in anything of that nature. Decker stated Jamie was not angry and she
did not yell or kick him on the back porch. Decker denied admitting to
Jamie that he put his finger inside C.B.S.'s anus or used his tongue to
penetrate her vagina. Decker stated he never begged Jamie not to kick
him out of the house or asked her to give him money.
Decker testified that he was not aware of the content of the
boxes or CDs found in the garage of the house when the prosecutor
told him that the CDs showed young adult women dressed as
babysitters and cheerleaders engaging in sexual acts. Decker stated he
had no boxes containing pornographic CDs and he had not regularly
viewed pornography on his computer.
The State called Officer Hall as a rebuttal witness. Hall described
how she found seven boxes containing hundreds of CDs showing
young adult women dressed in childlike garments with ponytails and
pigtails and with props such as baby bottles and lollipops. Hall stated
these boxes had computer printout labels indicating not to open the
boxes. In turn, Jamie testified those boxes did not belong to her, her
children, or her mother; she assumed they were Decker's. Decker
testified that he did not pack the boxes containing the CDs, and he
had no idea to whom the boxes belonged.
6

The jury convicted Decker of one count of aggravated indecent
liberties and two counts of aggravated criminal sodomy.
2006 WL 2440004 at *1-*3.
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
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
7

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, 529
U.S. 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
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.
When factual issues are raised in the § 2254 proceeding, the
habeas court shall not grant relief unless the state court decision “was based
on an unreasonable determination of the facts in light of the evidence
8

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Pursuant
to § 2254(e)(1), the habeas court must presume the state court’s factual
determinations are correct, and the petitioner bears “the burden of rebutting
the presumption of correctness by clear and convincing evidence.” “The
standard is demanding but not insatiable . . . [because] ‘[d]eference does
not by definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 240
(2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
PETITION
The petitioner sets out seven grounds for relief: (1) numerous
allegations of prosecutorial misconduct at trial; (2) allegations of judicial
misconduct by the trial and sentencing court; (3) ineffective assistance of
trial counsel; (4) ineffective assistance of counsel on direct appeal; (5)
ineffective assistance of counsel appointed for post-conviction proceedings
before district court; (6) ineffective assistance of counsel appointed for postconviction proceedings before appellate courts; and (7) actual innocence.
The petitioner raised the first four grounds in his pro se motion
for relief under K.S.A. 60-1507 filed in Sedgwick County District Court on
December 17, 2007. (Rec. 07-CV-4710, pp. 8-48). Before the district court,
his appointed counsel orally argued the substance of all four grounds as
presented in the pro se 1507 motion. He referred to most, if not all, of the
individual arguments and also mentioned the petitioner’s numerous citations
to the record. Counsel encouraged the district court to take the matter under
9

advisement, as the pro se motion raised at least 41 separate arguments and
the record citations justified further review. (Rec. Vol. 8, pp. 21-22). Counsel
also argued that several issues raised questions of fact that could not be
resolved without an evidentiary hearing. The district court denied the motion
from the bench and filed a written order further explaining its decision. Id. at
28-30; No. 07-4710, pp. 66-70).
Counsel was appointed to represent the petitioner on his appeal
from the denial of his 1507 motion. Appointed counsel filed the petitioner’s
brief on November 25, 2009, and the state filed its brief on March 10, 2010.
The case was assigned to the appellate court’s summary calendar on April 2,
2010. Mr. Decker then filed a motion to file a pro se supplement brief on
May 24, 2010, or nearly six months after his original brief and nearly eight
weeks after the state’s response. His motion was promptly denied. In its
eventual decision filed on November 19, 2010, the Kansas Court of Appeals,
in part, found:
On December 17, 2007, Decker filed a pro se K.S.A. 60–1507
motion. He made four general allegations: prosecutorial misconduct,
judicial misconduct, ineffective assistance of trial counsel, and
ineffective assistance of appellate counsel. On appeal, however,
Decker raises only ineffective assistance of trial counsel. As a result,
the remaining allegations are deemed waived or abandoned. See State
v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied ––– U.S. -––,
129 S.Ct. 192, 172 L.Ed.2d 138 (2008).
Decker v. State, 2010 WL 4977152 at *1.

10

PROCEDURAL DEFAULT
Based on the above ruling by the Kansas Court of Appeals that
the petitioner had waived certain claims by not raising them in his 1507
appeal, the respondent argues that the petitioner has procedurally defaulted
his claims of prosecutorial and judicial misconduct and ineffective assistance
of appellate counsel. This state court ruling, according to the respondent,
finds the petitioner to have defaulted these claims on an independent and
adequate state ground as to bar them from a federal habeas court’s review.
Respondent denies the petitioner can show any exception to apply here.
A federal habeas court may not review a state court decision
that rests on a state law ground which “is independent of the federal
question and is adequate to support” the decision. Barker v. McKune, 2013
WL 100127 at *4 (D. Kan. 2013) (citing Coleman v. Thompson, 501 U.S.
722, 729-30 (1991). The Tenth Circuit recently summarized this procedural
bar:
“[F]ederal habeas review ... is barred” in any case “in which a state
prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule[,] . . . unless the
prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991).
“If a particular claim was ‘defaulted in state court on an
independent and adequate state procedural ground,’ we recognize the
state courts' procedural bar ruling and do not address the claim on the
merits ‘unless cause and prejudice or a fundamental miscarriage of
justice is shown.’” Johnson v. Champion, 288 F.3d 1215, 1223 (10th
Cir. 2002) (quoting Maes v. Thomas, 46 F.3d 979, 985 (10th Cir.
11

1995)). To be independent, the procedural ground must be based
solely on state law. English v. Cody, 146 F.3d 1257, 1259 (10th Cir.
1998). To be adequate, the procedural ground “must be strictly or
regularly followed and applied evenhandedly to all similar claims.”
Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999).
Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012), cert. denied, 133
S. Ct. 878 (2013).
For “cause,” the petitioner must show some “some objective
factor external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “Such
an external factor might, for example, be proven by a ‘showing that the
factual or legal basis for a claim was not reasonably available to counsel, ...
or that some interference by officials made compliance impracticable.” Scott
v. Mullin, 303 F.3d 1222, 1228 (10th Cir. 2002) (quoting Murray, 477 U.S.
at 488). “’Ineffective assistance of counsel [at trial or on direct appeal], ...,
is cause for procedural default.’” United States v. Challoner, 583 F.3d 745,
749 (10th Cir. 2009) (quoting Murray, 477 U.S. at 488). Before a petitioner
may assert “ineffective assistance of trial or appellate counsel to establish
cause for his procedural default, he must first present this argument as an
independent claim to the state court.” Gonzales v. Hartley, 396 Fed. Appx.
506, 508-509 (10th Cir. 2010) (citing Murray, 477 U.S. at 488-89).
For “prejudice,” the petitioner must show “not merely that the
errors at this trial constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire trial with error
12

of constitutional dimensions.” United States v. Frady, 456 US. 152, 170
(1982). A petitioner cannot establish prejudice when there is strong
evidence of petitioner’s guilt. Id. at 172.
For a “fundamental miscarriage of justice,” petitioner must
present both a constitutional claim and a colorable showing of factual
innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). To fall within this
extremely narrow exception, it must be shown that “’a constitutional
violation has probably resulted in the conviction of one who is actually
innocent.’” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quoting
Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999)); see Dretke v.
Haley, 541 U.S. 386, 393 (2004).
While Decker did include in his pro se 1507 motion his claims of
prosecutorial and judicial misconduct and his allegations of over 20 instances
of ineffective trial counsel, these same claims and all but three of these
ineffective assistance allegations were not included as issues on his 1507
appeal. In finding these claims and allegations to have been waived or
abandoned, the Kansas Court of Appeals employed an independent and
adequate state procedural ground that is regularly followed. See Livingston
v. Kansas, 407 Fed. Appx. 267, 2010 WL 4318817 at *2-*3 (10th Cir.
2010); Soriano-Garcia v. McKune, 2012 WL 405524 at *3-*4 (D. Kan.
2012). Thus, these claims are barred by procedural default unless this is
excused by a showing of cause and prejudice or a miscarriage of justice.
13

Decker first asserts cause in the ineffectiveness of his appointed
counsel on the 1507 appeal. Decker, however, cannot rely on the
ineffectiveness of his 1507 appellate counsel:
The trouble is Coleman v. Thompson, 501 U.S. 722, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991), which holds that habeas petitioners
have no constitutional right to post-conviction counsel in the first
instance and so deficient performance by whatever counsel they may
have ordinarily does not excuse procedural default. Id. at 752, 111
S.Ct. 2546; see also Fleming v. Evans, 481 F.3d 1249, 1255–56 (10th
Cir. 2007). We say “ordinarily” because the Supreme Court has
recently articulated a “limited qualification” to this previously
unwavering rule. In Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309,
1318–19, 182 L.Ed.2d 272 (2012), the Court held that when state law
prohibits a defendant from presenting a claim of ineffective assistance
of trial counsel on direct appeal, post-conviction counsel's deficient
performance in failing to assert the claim on collateral review can
serve as cause for the default. Central to the Court's rationale was that
the defendant would have been constitutionally entitled to the aid of
counsel to help him prepare his ineffective assistance of trial counsel
claim on direct appeal. Id. at 1317. . . .
But Martinez was equally clear about what it did not hold, and
these limitations make clear the case provides no help to Mr. Banks.
The Court said in no uncertain terms that “[t]he rule of Coleman
governs in all but the limited circumstances recognized here.” Id. at
1320. Martinez applies only to “a prisoner's procedural default of a
claim of ineffective assistance at trial,” not to claims of deficient
performance by appellate counsel. Id. at 1315 (emphasis added).
Banks v. Workman, 692 F.3d 1133, 1147-1148 (10th Cir. 2012). The
petitioner’s claims for prosecutorial and judicial misconduct and ineffective
assistance of appellate counsel do not come within the limited circumstances
of Martinez. Even assuming that Martinez applied, the other reason for
denying cause is “that an ineffective-assistance claim used to establish
cause must itself be properly exhausted in the state courts.” McIntyre v.
McKune, 480 Fed. Appx. 486, 489 n.3 (10th Cir.) (citing Edwards v.
14

Carpenter, 529 U.S. 446, 451-52 (2000)), cert. denied, 133 S. Ct. 673
(2012). Thus, the petitioner is unable to show cause for his procedural
default of these claims based on the ineffectiveness of his 1507 appellate
counsel.
Alternatively, the petitioner argues cause for his default in that
his motion to file a supplemental brief was denied by the Kansas Court of
Appeals. The petitioner recognizes such an argument was rejected in
Livingston v. Kansas, 407 Fed. Appx. 267, 273 n.5, 2010 WL 4318817 at *3
n.5 (10th Cir. 2010):
In the alternative, Mr. Livingston argues that this issue actually is fully
exhausted, as he raised it in a pro se supplemental brief that he
submitted to the KCOA and in the Rule 6.09 Letter of Supplemental
Authority submitted by his attorney. The district court considered this
argument and found it unpersuasive. We agree that it misses the
mark. Mr. Livingston's attorney raised a single argument in the
collateral proceedings—a decision that Mr. Livingston is bound by. See
Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975) ( “[W]hen a defendant chooses to have a lawyer manage
and present his case, law and tradition may allocate to the counsel the
power to make binding decisions of trial strategy in many areas.”); see
also Gripe v. City of Enid, Okla., 312 F.3d 1184, 1189 (10th Cir.2002)
(noting the myriad of circumstances in which clients can be bound by
the omission or inaction of their counsel). While Mr. Livingston did
attempt to file a pro se brief with the state appellate court during the
pendency of his post-conviction appeal, the KCOA denied the motion to
supplement, and thus any arguments raised therein were not properly
before the court.
The court is aware that “[s]ome courts have suggested that petitions [to
supplement] like this are sufficient to give the state court fair notice of the
federal claims, and that the problem (if any) arising from the state court’s
refusal to consider the brief is one of procedural bar.” McCormick v. Schmidt,
15

469 Fed. Appx. 661, 662, 2012 WL 938599, at *2 (10th Cir.), cert. denied,
133 S. Ct. 578 (2012). The court is convinced for several reasons that
Decker has not shown cause from this attempted filing before the Kansas
Court of Appeals. First, while appellate counsel was appointed for Decker, he
could have filed a motion to remove counsel and asked to represent himself.
Kan. Sup. Ct. Rule 5.01. Instead, the petitioner tacitly accepted his counsel’s
representation, and these circumstances favor binding the petitioner to his
counsel’s tactical decision. The Supreme Court recently reiterated in
Martinez:
Coleman held that “[n]egligence on the part of a prisoner’s
postconviction attorney does not qualify as ‘cause.’” Maples v.
Thomas, 565 U.S. ---, ---, 132 S. Ct. 912, 922 (2012). Coleman
reasoned that “because the attorney is the prisoner’s agent . . . under
‘well-settled principles of agency law,’ the principal bears the risk of
negligent conduct on the part of his agent.” Maples, supra, at 922.
132 S. Ct. at 1316. Second, Decker has not shown he acted timely and
diligently in seeking leave to file a supplemental brief. Upon the filing of his
appellate counsel’s original brief, the petitioner did not seek either to remove
his appointed counsel or to receive leave to file a supplemental brief. But
rather, he waited to seek leave until nearly six months after his counsel’s
original brief was filed and nearly eight weeks after the state’s response was
filed. Third, the record in this case does not show that Decker raised these
abandoned claims in his attempted supplemental filing with the court of
appeals or in any filing before the Kansas Supreme Court on review. It is
Decker’s burden to show cause, and he has not carried that burden by
16

simply alleging or averring the substance of matters that are not part of the
record. Alternatively, the court finds no plausible showing of prejudice. The
court has reviewed Decker’s abandoned claims, his citations to the record,
and his conclusory arguments. They do not demonstrate that the claimed
errors, individually or together, worked to his actual and substantial
disadvantage and so infected his entire trial with error of constitutional
dimensions.
As Decker explains, he is asserting actual innocence as “a
gateway issue” through which he wants to pass in order to have otherwise
barred constitutional claims considered on the merits. (Dk. 14, p. 17).
“[P]risoners asserting innocence as a gateway to defaulted claims must
establish that, in light of new evidence, it is more likely than not that no
reasonable juror would have found [the prisoner] guilty beyond a reasonable
doubt.” Woodward v. Cline, 693 F.3d 1289, 1294 (10th Cir.) (quoting House
v. Bell, 547 U.S. 518, 536–37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006))
(internal quotation marks omitted), cert. denied, 133 S. Ct. 669 (2012).
Thus, it falls on Decker to show this narrow exception for fundamental
miscarriages of justice applies here by demonstrating that a constitutional
violation has probably resulted in his conviction of a crime for which he is
actually innocent. This exception is rare and will “only be applied in the
extraordinary case.” Schlup v. Delo, 513 U.S. 298, 322 (1995). Decker
“must identify evidence that affirmatively demonstrates his innocence,”
17

Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999) (citing Schlup v.
Delo, 513 U.S. at 327), and “that does more than simply ‘undermine the
finding of guilt against’ him,” id. (quoting Ballinger v. Kerby, 3 F.3d 1371,
1375 (10th Cir. 1993)).
Decker’s presentation is no more than his continuing profession
of innocence and his repeated characterization of this case as a credibility
call between him and the nine-year old victim who he alleges was coerced.
The court has reviewed the record and concurs with the state appellate
court’s assessment on the sufficiency of the evidence. 2006 WL 2440004 at
*4. The victim’s mother testified that Decker had admitted to her the
allegations of sexual contact with the victim and her testimony certainly
supports the victim’s allegations. Id. Decker’s testimony at trial was little
more than a blanket denial of any admissions to the mother. Decker has not
alleged any “new evidence.” From its review of the trial record and the
Decker’s current array of conclusory arguments, the court concludes the
petitioner has not presented evidence that would make it more likely than
not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt. Thus, the petitioner’s claim of actual innocence fails to
open the gate for this court to reach his defaulted constitutional claims and
fails to provide an independent basis for granting habeas corpus relief. The
court finds that reasonable jurists could not debate the court’s rejection of
the procedurally defaulted claims on the well-established precedent set forth
18

above. Thus, the petitioner is not entitled to a certificate of appealability
(“COA”) on these rulings.
CLAIMS OF INEFFECTIVE POST-CONVICTION COUNSEL
“The ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for
relief in a proceeding under section 2254.” 28 U.S.C. § 2254(i). “[M]ost
naturally read, § 2254(i) prohibits a court from granting substantive habeas
relief on the basis of a lawyer’s ineffectiveness in post-conviction
proceedings.” Martel v. Clair, ---U.S.---, 132 S. Ct. 1276, 1287 n.3 (2012).
Thus, it is plain that a § 2254 petitioner “cannot claim ineffective assistance
or incompetence of post-conviction counsel.” Pecci v. Sloan, 414 Fed. Appx.
180, 183 (10th Cir.), cert. denied, 132 S. Ct. 267 (2011).
The petitioner challenges the constitutionality of § 2254(i)
arguing that it permits the Kansas courts to appoint attorneys who simply go
through the motions and deny § 2254 litigants a fair presentation of their
claims. He also argues that § 2254(i) is unconstitutional in assuming a
defendant’s Sixth and Fourteenth Amendments rights to counsel end with
post-conviction proceedings. None of these arguments appear in Decker’s
original petition. He raises this argument for the first time in a separate
pleading filed more than six months after his traverse. This filing “is not a
proper vehicle to raise a new issue.” United States v. Moya-Breton, 439 Fed.
Appx. 711 (10th Cir. 2011) (citing in part Jackson v. Duckworth, 112 F.3d
19

878, 880 (7th Cir. 1997)), cert. denied, 132 S. Ct. 1775 (2012).
Consequently, the court need not address this issue. Assuming it did,
however, there is no basis for habeas corpus relief on this claim. “The
Constitution does not guarantee counsel on collateral review, see
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539
(1987).” Brooks v. Bobby, 660 F.3d 959, 965 (6th Cir.), cert. denied, 132 S.
Ct. 607 (2011). “There is no right to effective assistance of counsel under
the Sixth and Fourteenth Amendments to the U.S. Constitution in collateral,
post-conviction, state-court proceedings, and as such, the failures or
infirmities of counsel at this stage generally are not attributable to the
state.” Wooten v. Norris, 578 F.3d 767, 778 (8th Cir. 2009)(citing Coleman,
501 U.S. at 754 (“There is no constitutional right to an attorney in state
post-conviction proceedings.”). The Supreme Court in “Martinez did not
create a constitutional right to effective assistance of counsel in PCR
proceedings.” Dicksons v. Ryan, 688 F.3d 1054, 1073 (9th Cir. 2012).
Petitioner presents no viable challenge to the constitutionality of § 2254(i).
The court finds that reasonable jurists could not debate the court’s plain
application of the federal statute and rejection of the petitioner’s ungrounded
constitutional challenge. The court denies the petitioner a COA on this claim.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
The third claim for relief in his § 2254 petition asserts his trial
counsel provided ineffective assistance and lays out 17 separate paragraphs
20

of alleged deficiencies. On his 1507 appeal, the Kansas Court of Appeals
found:
With regard to ineffective assistance of trial counsel, Decker's
pro se motion alleged 20 instances of ineffectiveness by Cooper. On
appeal, however, Decker argues only some of these instances, leaving
the majority of complaints he raised at the district court level
unaddressed. These unaddressed ineffective assistance of trial counsel
allegations are also deemed waived or abandoned. 285 Kan. at 998,
179 P.3d 457.
Decker v. State, 2010 WL 4977152 at *1. Thus, the appellate court
considered only the following complaints of ineffectiveness: (1) failure to
investigate information to the prejudice of Decker’s investigation and
presentation of witnesses, (2) failure to use the order of discovery and to
provide Decker with a copy of the discovery and the case file to the
prejudice of Decker’s defense and preparation, and (3) failure to object to
hearsay and to testimony concerning documents that were never admitted.
Id.
The court finds that the ineffective assistance allegations that
were not presented to the state appellate are procedurally defaulted and
barred from federal habeas review for the same reasons discussed above
and with this extended discussion of Martinez exception. As noted above,
Martinez established a “limited qualification” to the rule from Coleman that
the deficient performance of post-conviction counsel “ordinarily does not
excuse procedural default.” Banks, 692 F.3d at 1147-48. This limited
qualification to the Coleman rule applies only when (1) there is a procedural
21

default of a claim of ineffective assistance at trial and (2) the state bars a
defendant from raising the ineffective assistance claims on direct appeal. Id.
There is another limiting circumstance that the Supreme Court noted in
Martinez that applies here:
Coleman, however, did not present the occasion to apply this
principle to determine whether attorney errors in initial-review
collateral proceedings may qualify as cause for a procedural default.
The alleged failure of counsel in Coleman was on appeal from an
initial-review collateral proceeding, and in that proceeding the
prisoner’s claims had been addressed by the state habeas trial court.
See 501 U.S., at 755, 111 S. Ct. 2546.
As Coleman recognized, this marks a key difference between
initial-review collateral proceedings and other kinds of collateral
proceedings. When an attorney errs in initial-review collateral
proceedings, it is likely that no state court at any level will hear the
prisoner’s claim. . . . And if counsel’s errors in an initial-review
collateral proceeding do not establish cause to excuse the procedural
default in a federal habeas proceeding, no court will review the
prisoner’s claims.
The same is not true when counsel errs in other kinds of
postconviction proceedings. While counsel’s errors in these
proceedings preclude any further review of the prisoner’s claim, the
claim will have been addressed by one court, whether it be the trial
court, the appellate court on direct review, or the trial court in an
initial-review collateral proceeding. See, e.g., Coleman, supra, at 756,
111 S. Ct. 2546.
132 S. Ct. at 1316. Thus, according to Martinez, when the State requires a
prisoner to wait for a post-conviction proceeding to raise an ineffectiveness
of trial counsel claim, then a prisoner may establish cause for a default of
this claim by showing either that “the state courts did not appoint counsel in
the initial-review collateral proceeding” or that the “appointed counsel in the
initial-review collateral proceeding . . . was ineffective under the standards
of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 1029 (1984).” 132 S.
22

Ct. at 1318. Because Decker here is arguing cause based on his counsel’s
conduct on the 1507 appeal and not on a different counsel’s conduct in the
initial-review collateral proceeding before the trial court, the limited
qualification in Martinez does not apply. Decker cannot show cause under
the narrow limitation established in Martinez.
To prevail on a claim of ineffective assistance of trial counsel,1
Decker “must show both: (1) constitutionally deficient performance, by
demonstrating that his counsel’s conduct was objectively unreasonable; and
(2) resulting prejudice, by demonstrating a reasonable probability that, but
for counsel’s unprofessional error(s), the result of the proceeding . . . would
have been different.” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)
(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). On the first
prong, the courts recognize “a strong presumption that counsel’s
performance falls within the wide range of professional assistance” and
require the defendant to prove “that counsel’s representation was
unreasonable under prevailing professional norms and that the challenged
actions was not sound strategy.” Boyle v. McKune, 544 F.3d 1132, 1138
(10th Cir. 2008) (internal quotation marks and citations omitted), cert.
denied, 129 S. Ct. 1630 (2009). “’A particular decision not to investigate

In arguing this claim, the petitioner summarily complains that the state
courts erred in denying a hearing on his petition. “The state courts are, of
course, the final arbiters of when and how a state prisoner can obtain an
evidentiary hearing in their courts.” Boyle v. McKune, 544 F.3d at 1135.
Nothing that Decker argues elevates his concerns to a constitutional claim.
1

23

must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.’” Id.
(quoting Strickland, 466 U.S. at 691).
State Court Holding—Failure to Investigate
The 1507 trial court found that Decker had not identified
specifically what his counsel failed to investigate and had not explained how
any such material or witnesses could have changed the outcome. The
Kansas Court of Appeals noted that Decker had listed witnesses and various
documents and summarily claimed his trial counsel, Cooper, had failed to
investigate them. Nonetheless, the appellate panel agreed:
We agree that Decker’s claim was conclusory. Decker provided
no reason or factual basis to believe that any of these materials should
have been investigated or considered by Cooper [defense counsel] as
relevant or material to this sex crimes case. Moreover, without some
claim of relevance or materiality, Decker also failed to show the result
of his trial would have been different had Cooper investigated these
materials. See Harris [v. State], 288 Kan. [414] at 416, 204 P.3d 557
[(2009)].
2010 WL 4977152 at *3.
Habeas Review—Failure to Investigate
The court finds that the Kansas Court of Appeals’ decision was
based on a reasonable determination of the record and reading of the
petitioner’s filing and was consistent with the Strickland standard. Simply
listing possible documents and records and identifying witnesses by name or
profession utterly fail to make arguable showings of either Strickland prong.
For an ineffectiveness challenge based on failure to investigate, Decker must
24

establish that his counsel’s decision was unreasonable from counsel’s
perspective at the time the decision was made. See Anderson v. Attorney
Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005). Decker’s arguments do
not even purport to make such a showing. Moreover, without some claim of
materiality and relevance to the possible evidence, Decker has not shown
how any alleged deficiencies with his counsel’s investigation prejudiced his
defense.
Decker does not articulate what expert witness testimony should
have been presented on his behalf. “Strickland does not require ‘for every
prosecution expert an equal and opposite expert from the defense.’” Hughes
v. Kansas Attorney General, 2013 WL 101583 at *5 (D. Kan. 2013) (quoting
Harrington v. Richter, ---U.S. ---, 131 S. Ct. 770, 791 (2011)). Decker’s trial
counsel effectively cross-examined the state’s expert and established that
nothing from the physical examination corroborated the victim’s account.
(Rec. Vol. 5, pp. 81-82). In short, conclusory allegations, like Decker’s, will
not suffice on the prejudice prong. Kidwell v. Martin, 480 Fed. Appx. 929,
934, 2012 WL 1825185 (10th Cir. 2012) (citing in part Stafford v. Saffle, 34
F.3d 1557, 1564-65 (10th Cir.), cert. denied, 514 U.S. 1099 (1994)). The
court finds that reasonable jurists could not debate the court’s rejection of
this claim for federal relief and that the petitioner is not entitled to COA on
this claim.

25

State Court Holding--Failure to Use Discovery Order and To Provide
Defendant with Copy
The 1507 trial court found that petitioner failed to identify what
“discovery” his counsel did not request though the defendant was entitled to
it. (Rec. No. 07-4710, p. 67). The Kansas Court of Appeals agreed and
added:
Moreover, to show ineffectiveness it was also incumbent for Decker to
assert that this discovery was not known or obtained through other
means and was relevant material to his defense. Decker made no such
allegations. Decker also fails to show it was ineffective for Cooper to
refuse to provide him with copies of discovery and the case file. We
know of no such general legal requirement and Decker does not point
us to any case law in support of this claim. Finally, once again, we
note that Decker also failed to show how these claimed discovery
failures somehow prejudice him in the preparation of his defense or in
assisting Cooper at trial.
2010 WL 4977152 at *3.
Habeas Review—Failure to Use Discovery Order and to Provide Defendant
with Copy
The court finds the state court decisions are “well within the
bounds of a reasonable judicial determination.” Harrington v. Richter, 131 S.
Ct. at 789. Decker failed to identify what evidence that his counsel failed to
obtain and how this omitted evidence was relevant or material to his
defense. Decker has not articulated how the lack of his own copy of the
evidence impaired his counsel’s performance, his ability to assist his counsel,
or his capacity for making informed decisions at trial. Decker offers no
authority for the proposition that counsel is ineffective unless the client is
provided a full personal copy of all discovery. Finally, Decker comes forward
26

with no substantive, meaningful allegations on how the trial would have
gone differently if Decker had a copy of the evidence. The vague and
conclusory allegations offer no tenable argument on either Strickland prong.
Because reasonable jurists could not debate the court’s rejection of this
claim, the court denies a COA on it.
State Court Holding—Failure to Object
The 1507 trial court found that Decker did “not explain what
counsel should have objected to or how the objections would have changed
the outcome.” (Rec. No. 07-4710, p. 67). The Kansas Court of Appeals held:
Decker did provide, in his pro se motion, extensive lists of
transcript citations and tangible items. On appeal Decker makes
general arguments based on these lists, maintaining for example that
he “cited no less than twenty-five instances where hearsay testimony
in violation of the best evidence rule were [ sic ] allowed to pass by
trial counsel.” This argument differs from Decker's summary argument
below, where he claimed the same citations showed Cooper's failure
“to enter objections to the presentation of real/physical evidence by
testimony only.”
Whatever the legal basis for his argument, Decker simply cited
the transcript without explaining how specific testimony violated the
rules of evidence. This deficiency is fatal to Decker's claim. Some
citations were to as many as 20 pages of transcript, and others, while
more limited, were not obviously objectionable. For example, Decker
cited the following as a discrete instance of objectionable testimony:
“Q. Miss Phillips, were you present when the Derby Police Department
came and served the search warrant on September 1st? A. Yes.” We
see no reason why Cooper was ineffective for failing to object to this
question or answer, and Decker does not explain any ineffectiveness.
In sum, Decker has wholly failed to correlate his attorney's
ineffectiveness in failing to object to certain testimony (for whatever
reason) with specific references to the trial record. We will not
speculate as to trial counsel's ineffectiveness or how such
ineffectiveness prejudiced Decker's trial.
2010 WL 4977152 at *3.
27

Habeas Review—Failure to Object
This court has reviewed Decker’s numerous record citations that
he groups under arguments as “unlawful evidence,” “vouching,” lack of
“physical evidence to corroborate,” and “inflammatory testimony.” (Dk. 15,
pp. 6-7). The court finds that the Kansas Court of Appeals’ conclusion that
the petitioner’s arguments wholly fail to support this claim is “well within the
bounds of a reasonable judicial determination.” Harrington, 131 S. Ct. at
789. Other than citing pages of testimony and grouping them under vague
titles, Decker does not identify specifically the testimony he considers
objectionable and the evidentiary basis for the objection. Such conclusory
allegations are insufficient, and it is not the court’s responsibility to act as
petitioner’s advocate and fashion the factual and legal arguments to support
them. See Snow v. Sirmons, 474 F.3d 693, 724-25 (10th Cir. 2007);
Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir. 2001)
(“[C]onclusory allegations, . . . , are insufficient to warrant habeas relief.”).
It is the petitioner’s “burden of showing that counsel's action or inaction was
not based on a valid strategic choice.” Bullock v. Carver, 297 F.3d 1036,
1047 (10th Cir.), cert. denied, 537 U.S. 1093 (2002), and Decker’s filings do
not even attempt any such showing. From its review of the record citations,
the court has found no examples of counsel’s failure to object that were so
unreasonable as to be constitutionally deficient legal representation. For that
matter, Decker makes no showing of how any purported errors in not
28

objecting were so serious as to deprive him of a fair trial such that there is a
reasonable probability but for counsel’s errors, the result of the proceeding
would have been different. Not only is the Kansas Court of Appeals’ decision
reasonable, but no reasonable jurists could debate the denial of habeas relief
here. The petitioner is denied a COA on this claim.
EVIDENTIARY HEARING
Because all claims and arguments here have been resolved on
the record, there is no need for an evidentiary hearing. Anderson, 425 F.3d
at 859. “[I]f the record refutes the applicant's factual allegations or
otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The
court denies any request for an evidentiary hearing.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Proceedings states
that the court must issue or deny a COA 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
29

1232 (10th Cir. 2010). When a claim is denied on procedural grounds, “the
petitioner seeking a COA must show both ‘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 its procedural ruling.’” Gonzalez v. Thaler,
--- U.S. ---, 132 S. Ct. 641, 648 (2012) (quoting Slack, 529 U.S. at 484).
Petitioner has not met these standards as to any issue presented, so no
certificate of appealability shall be granted.
IT IS THEREFORE ORDERED that the petition for habeas corpus
relief under 28 U.S.C. § 2254 (Dk.1) is denied.
Dated this 14th day of March, 2013, Topeka, Kansas.

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

30