Brown v. Roberts
Filing
16
MEMORANDUM AND ORDER ENTERED: The petition for a writ of habeas corpus is denied. Signed by Senior District Judge Sam A. Crow on 3/6/2013. (Mailed to pro se party Michael A. Brown by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL A. BROWN,
Petitioner,
v.
CASE NO. 11-3147-SAC
DAVID R. MCKUNE, et al.,
Respondents.
MEMORANDUM AND ORDER
Petitioner, a prisoner incarcerated in a Kansas correctional
facility, proceeds pro se and in forma pauperis on seeking a writ of
habeas corpus under 28 U.S.C. § 2254.
Petitioner was convicted by a jury of first-degree murder, for
which the district court imposed a hard 40 life sentence.
The murder
victim died as a result of blunt trauma to his head by a claw hammer.
The jury did not believe petitioner’s claim that he struck the victim
in self-defense.
The Kansas Supreme Court affirmed petitioner’s
conviction and sentence.
State v. Brown, 272 Kan. 809 (2001).
Petitioner thereafter filed a motion for post-conviction relief,
K.S.A. 60-1507, alleging ineffective assistance of his trial counsel.
The Kansas courts denied relief on all claims. Brown v. State, 2004
WL
2694255 (Kan.App. 2004)(unpublished),
rev.
denied
(2005).
Petitioner also filed a motion to correct an illegal sentence, K.S.A.
22-3504, which was denied. State v. Brown (Brown II), 2011 WL 1344637
(Kan.App.2011).
Petitioner now seeks federal habeas corpus on four claims.
Having reviewed the record which includes respondent’s answer and
petitioner’s traverse, the court denies the petition.
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 (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).
See Knowles v. Mirzayance, 556 U.S. 111, 114
(2009).
A state court decision is “contrary to clearly established
Federal law” when the state court “applies a rule that contradicts
the governing law set forth in [Supreme Court] cases,” or when “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.”
Williams v. Taylor, 529 U.S. 362, 405 (2000). 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.Id. 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).
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).
“The
question under AEDPA is not whether federal court believes the state
a
court's determination was incorrect but whether that determination
was unreasonable — a substantially higher threshold.”
Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). To obtain relief, a petitioner
must show that “the state court’s decision must have been not only
incorrect or erroneous but objectively unreasonable.”
Rompilla v.
Beard, 545 U.S. 374, 380 (2005)(internal quotation marks, brackets,
and citations omitted).
Discussion
Petitioner seeks federal habeas corpus relief on four claims.
Answer to Jury Question
Petitioner first alleges his constitutional right to a fair trial
was violated when the trial court answered a jury question without
petitioner being present.
During their deliberations, the jury sent
a question to the court asking for the definition of premeditation.
The district court judge responded with a written answer directing
the jury to the instructions which included definition of that term.
a
Petitioner was not present when the district court judge reviewed and
responded to the jury’s question, and contends this violated his
constitutional right to be present at all critical stages of his trial.
Petitioner raised this issue in his direct appeal. The Kansas
Supreme Court found any error in petitioner not being present was
harmless under the facts of the case.
It noted that referring the
jury to an approved pattern instruction already included in the jury
instructions was correct as a matter of Kansas law. Brown, 272 Kan.
at 813-14.
Additionally, court records established that defense
counsel was present in the judge’s chambers when the jury’s question
was reviewed, and lodged no objection to the district court’s written
response. Id.
The Supreme Court has established that a criminal defendant has
a fundamental right to be personally present at all critical stages
of his trial.
Rushen v. Spain, 464 U.S. 114, 117 (1983).
A jury
question is tantamount to a request for further instructions, and
thereby presents a critical stage at which a defendant has the right
to be present.
Rogers v. United States, 422 U.S. 35, 39 (1975).
However, the due process clause requires a defendant's presence “to
the extent that a fair and just hearing would be thwarted by his
absence, and to that extent only.” United States v. Gagnon, 470 U.S.
522, 526 (1985). “[A] defendant is guaranteed the right to be present
at any stage of the criminal proceeding that is critical to its outcome
if his presence would contribute to the fairness of the procedure.”
Kentucky v. Stincer, 482 U.S. 730, 745 (1987); Hale v. Gibson, 227
F.3d 1298, 1311 (10th Cir.2000)(quoting Stincer).
While the Kansas Supreme Court relied on harmless error and did
not specifically find petitioner’s absence during the district
court’s review and response to the jury’s question prevented a fair
and just hearing, the record makes clear that the state court’s
decision to deny relief on this claim did not involve an unreasonable
application of clearly established Supreme Court law.
See United
States v. Rosales-Rodriguez, 289 F.3d 1106, 1110 (9th Cir.2002)
(delivery of supplemental jury instruction is critical stage for which
defendant's
required).
presence or that of counsel is constitutionally
See also Mathis v. Bruce, 148 Fed.Appx 732, 738-39 (10th
Cir.2009)(state court presumed trial court’s formulation response to
a jury question had been a “critical stage” but found the defendant’s
absence was harmless error; federal habeas court correctly determined
this was not an unreasonable application of federal constitutional
law
where the defendant’s input would not have changed
outcome)(unpublished).
The court thus finds petitioner has made no showing that he is
entitled to relief on this claim.
Sufficiency of the Evidence
Petitioner next claims there
was insufficient evidence of
premeditation to support his conviction.
A criminal defendant has a federal due process right against
conviction "except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged."
Jackson
v. Virginia, 443 U.S. 307, 314 (1979)(citation omitted).
When
reviewing the sufficiency of the evidence in a habeas corpus action
"the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt."
Id. at 319.
In petitioner’s direct appeal, the Kansas Supreme Court restated
and
applied this constitutional standard, finding a rational
factfinder could have found beyond reasonable doubt that the killing
was premeditated.
Brown, 272 Kan. at 814-15.
In detailing the
evidence favorable to the prosecution, it noted evidence that would
allow a factfinder to reasonably infer that the victim was helpless
and that Brown had not acted from provocation.
The victim was
attacked with a hammer where he had been sleeping, there were no
defensive injuries or evidence that the victim had been able to ward
off the blows, and the final blow was delivered after Brown left the
house and returned to hit the victim one more time.
Id. at 815.
Having reviewed the record, the court finds this state court
determination was neither a contrary or unreasonable application of
Jackson, nor an unreasonable determination of the facts in light of
the evidence presented at trial.
Petitioner is thus entitled to no
relief on this claim.
Cautionary Jury Instruction – Informant Testimony
Petitioner next argues he was denied a fair trial because the
trial court judge did not give the jury a cautionary instruction
regarding informant testimony.
The Kansas Supreme Court rejected
this claim in petitioner’s direct appeal, finding there had been no
informant, within the meaning of pattern instruction, who testified
in petitioner’s trial.
Id. at 815.
Accordingly, respondents
contend petitioner is entitled to no relief on this claim.
In his reply to respondents’ answer, petitioner admits his use
of “informant” in regard to eyewitness testimony was in error, and
modifies his claim to assert that he was denied due process because
the trial judge failed to caution the jury about perjured testimony
and deals granting immunity in exchange for eyewitness testimony in
petitioner’s
case.
However, petitioner never presented this
modified claim to the state courts for review, and is now precluded
from doing so.
Accordingly, federal habeas review of petitioner’s
modified claim is barred by petitioner’s procedural default.
Coleman
v. Thompson, 501 U.S. 722, 749 (1991). See Woodford v. Ngo, 548 U.S.
81, 92 (2006)(if state court remedies are no longer available, the
prisoner's procedural default generally functions as a bar to federal
habeas review).
Hard 40 Life Sentence
For his final claim, petitioner contends there was insufficient
evidence to support his hard 40 life sentence.
A sentence of life imprisonment was imposed for petitioner’s
conviction.
Pursuant to Kansas law, the sentencing court determined
that petitioner would not be eligible for parole for 40 years because
the two aggravating circumstances found by the court (that Brown
knowingly or purposely killed or created great risk of death to more
than one person; and that Brown committed the crime in an especially
heinous, atrocious, or cruel manner) outweighed the one mitigating
circumstance in petitioner’s case (Brown’s lack of a significant
criminal history).1
The Kansas Supreme Court found that a rational factfinder could
have found by a preponderance of the evidence that Brown killed the
2
victim in an especially heinous, atrocious, or cruel manner. Brown,
272 Kan. at 817. There was evidence that Brown hit the victim in the
head with the claw end of a hammer eight or nine times, that two blows
broke the victim’s skull, and that one blow penetrated the victim’s
brain.
Id.
There also was witness testimony that while the victim
was conscious and crawling on the floor after being struck, Brown left
1
See K.S.A. 21-4635(b) (“If a defendant is convicted of murder in the first
degree based upon the finding of premeditated murder, the court shall determine
whether the defendant shall be required to serve a mandatory term of imprisonment
of 40 years…”)[now codified as K.S.A. 21-6620(b)].
2
See K.S.A. 21-4635(c) [now codified as K.S.A. 21-6620(c)]; State v. Spain,
263 Kan. 708 (1998)(State bears the burd of proving aggravating factors for ha
en
rd
40 sentence by preponderance of the evidence).
the house, came back in, tried to pick up the victim and verbally
encourage him, and then began hitting the victim with the hammer again
with more force.
Id.
While the Kansas Supreme Court found insufficient evidence
supported the second aggravating factor,id. at 818-22, it upheld the
hard 40 sentence because the sole mitigating circumstance clearly did
not outweigh the overwhelming disparity between it and the one
remaining aggravating circumstance.
Id. at 822.
Petitioner now challenges the state court’s determination that
that the crime was committed in an especially heinous, atrocious, or
cruel manner.
However, petitioner’s allegation of error by the state
court in construing and applying a noncapital state sentencing statute
presents no basis for federal habeas relief. See Estelle, 502 U.S.
at 67-68 (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
A
state trial court’s sentencing decision is to be afforded wide
discretion, and “challenges to that decision are not generally
constitutionally cognizable, unless it is shown the sentence imposed
is outside the statutory limits or unauthorized by law.” Dennis v.
Poppel, 222 F.3d 1245, 1258 (10th Cir.2000).
showing in this case.
Petitioner makes no such
The court thus finds petitioner is entitled
to no relief on this final claim.
Finding petitioner has not established any constitutional error
in his state conviction or sentence, the court denies the petition.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Proceedings states
that the court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant. “A certificate of
appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Where a district court has rejected the
constitutional claims on the merits, a petitioner makes that showing
by demonstrating that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
See United States v.
Bedford, 628 F.3d 1232 (10th Cir.2010). Petitioner has not met this
standard as to any issue presented, so no certificate of appealability
shall be granted.
IT IS THEREFORE ORDERED that the petition for a writ of habeas
corpus is denied.
IT IS SO ORDERED.
DATED:
This 6th day of March 2013 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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