Thompson (ID 84607) v. McKune et al

Filing 20

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Petitioner's motion 18 for an extension of time to file a reply is denied as moot; petitioner subsequently filed a traverse. Signed by Senior District Judge Sam A. Crow on 1/18/2013. (Mailed to pro se party Marc J. Thompson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARC J. THOMPSON,
Petitioner,
v.

CASE NO. 12-3016-SAC

DAVID McKUNE, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254. Petitioner challenges his conviction in the District
Court of McPherson County, Kansas, of Aggravated Indecent Liberties
with a Child in violation of K.S.A. 21-3504(a)(3)(A).
Background
Petitioner was convicted in January 2004, following a jury trial.
He was sentenced in May 2004 to a term of 94 months. The Kansas Court
of Appeals (KCOA) affirmed the conviction on August 5, 2005. State
v. Thompson, 116 P.3d 770, 2005 WL 1868919 (Kan. App. 2005 ). The Kansas
Supreme Court denied review on November 1, 2005.
On November 2, 2006, petitioner filed a state post-conviction
action pursuant to K.S.A. 60-1507. The district court conducted a
hearing and denied relief on January 30, 2008. The KCOA affirmed the
denial of relief. Thompson v. State, 208 P.3d 808, 2009 WL 1692244
(Kan. App. 2009). The Kansas Supreme Court granted review and affirmed
the denial of relief on December 30, 2011. Thompson v. State, 270 P.3d
1089 (Kan. 2011). Petitioner timely filed this action on January 11,

2012.
The facts were summarized by the KCOA as follows:
In the fall of 2002, S.T., Thompson’s daughter lived in
Citrus Heights, California, where she was questioned by
local law enforcement officers during an investigation to
determine if her personal safety was at risk. Because of
her responses about possible sexual activity she was placed
in the custody of the California child protective services.
Shortly after her placement, forensic interview specialist
Stephanie Linka interviewed S.T. at a center specially
designed for videotaped interviews with children. During
the interview, S.T. answered questions and marked on
anatomical drawings as she described her sexual activity
with Thompson when their family lived in McPherson, Kansas,
during July 2002. At trial, Linka testified that frequent
breaks – every 10 minutes or so – are necessary during such
an interview because it is difficult for small children to
sit in a chair for long periods. During these breaks, S.T.
was kept in a separate play area away from all other persons
while Linka conferred with the detective assigned to the
case. S.T. was not a party to any conversation with anyone
during these breaks.
In due course, the McPherson County District Attorney’s
office filed a complaint and issued an arrest warrant for
Thompson; at the time, Thompson was in a California prison
on an unrelated charge. Thompson later returned to Kansas
to stand trial. S.T.’s mother, L.T., Stephanie Linka, and
the investigating detective testified for the State. Social
worker and child therapist Ruth Porisch appeared as an
expert and the only witness for the defense. The jury
convicted Thompson of aggravated indecent liberties with
his 4-year-old daughter. State v. Thompson, 2005 WL 1868919
at*1.

Petitioner seeks relief from the conviction on the grounds that
he was denied effective assistance of counsel by both trial and
appellate counsel, that the jury was biased and improperly influenced
by the trial judge, that there was prosecutorial misconduct, and that
cumulative error rendered the trial fundamentally unfair.

Discussion
Standard of review
This matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). Under the AEDPA, where a state court has
adjudicated a claim, habeas corpus relief may be granted only if the
state

decision

“was

contrary

to,

or

involved

an

unreasonable

application of clearly established Federal law, as determined by the
Supreme Court of the United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.” See 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 404-05 (2000).
When the state court has applied the appropriate federal law,
the federal court may consider only whether the law was applied in
an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699
(2002); Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). To meet
the “unreasonable application” standard set out in the statute, there
must be more than clear error. See House v. Hatch, 527 F.3d 1010, 1019
(10th Cir. 2008)(“[O]nly the most serious misapplications of Supreme
Court precedent will be a basis for relief under § 2254.” (citations
omitted)).
A federal court conducting a review of state criminal proceedings
in habeas corpus is not a super-state appellate court. See Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991). “The question under AEDPA is
not whether a federal court believes the state 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 decision is “objectively unreasonable.” Williams v. Taylor, 529

U.S. 362, 409 (2000)(O’Connor, J., concurring). “[A] decision is
‘objectively unreasonable’ when most reasonable jurists exercising
their independent judgment would conclude the state court misapplied
Supreme Court law.” Maynard v. Boone, 468 F.3d 665, 671 (10th Cir.
2006).
A factual determination by a state court is presumed to be
correct. The habeas petitioner has the burden of rebutting that
presumption

“by

clear

and

convincing

evidence.”

28

U.S.C.

§2254(e)(1).
Ineffective assistance of trial counsel
In order to establish this claim, petitioner must show both that
his attorney’s performance was deficient and that the deficiency
prejudiced his defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). A petitioner may show that counsel’s performance was
deficient by showing that the attorney performed below the level
expected from a reasonably competent attorney in criminal cases. Id.
at 687-88. The standard is deferential, and there is a “strong
presumption

that

counsel’s

conduct

falls

within

the

range

of

reasonable professional assistance.” Id. at 688. To show prejudice,
petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
A federal court reviewing a claim of ineffective assistance of
counsel may grant relief only if the petitioner overcomes the “doubly
deferential” threshold imposed by the standards in § 2254(d) and
Strickland. Cullen v. Pinholster, ___ U.S. ___,___, 131 S.Ct. 1388,
1403 (2011).

Petitioner identifies five errors by trial counsel, namely, (1)
the failure to provide a proper expert witness; (2) the failure to
challenge the videotaped evidence; (3) the failure to call the victim
to the stand; (4) countless trial errors, and (5) the failure to
provide a full voir dire. Respondents contend that only the first three
claims are preserved for habeas corpus review.
Expert witness
Petitioner alleges his counsel provided ineffective assistance
by failing to seek an independent psychological evaluation of the
victim. The Kansas Supreme Court, while rejecting the explanation
offered by counsel, namely, that the victim resided in another state
and was under the control of her mother, concluded that a motion for
such a psychological evaluation would have failed under state law.
Thompson v. State, 270 P.3d 1089, 1098-99 (Kan. 2011).

The Kansas

Supreme Court reviewed the six factors to be considered by a court
in

determining

whether

to

order

an

independent

psychological

evaluation and concluded that petitioner had not shown that these
factors applied to the victim. Id. at 1099 (applying State v.
Berriozabal, 243 P.3d 352 (Kan. 2010)).
A

federal

habeas

court

does

not

review

a

state

court’s

interpretation or application of state law. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). Thus, this court accepts the determination that
a motion for an independent evaluation of the victim would have failed
under state law. Accordingly, there was no error and petitioner’s
counsel did not provide ineffective assistance by failing to secure
an expert witness. See United States v. Orange, 447 F.3d 792, 797 (10th
Cir. 2006)(attorney’s failure to present meritless issue is not
ineffective assistance).

Challenge to videotaped evidence/right to confrontation
Petitioner’s

counsel

stipulated

to

the

admission

of

the

videotaped interview with the victim, petitioner’s then four-year-old
daughter. The parties informed the trial court that all agreed to
present the videotape, and petitioner stated on the record that he
agreed to the use of the videotape.1 Petitioner now asserts this was
ineffective assistance.
During a hearing conducted on petitioner’s state post-conviction
motion, counsel testified that the decision to stipulate to the
videotape was made to avoid placing the child victim on the stand.
Counsel testified that he had concerns about the reliability of the
interview due to off-camera breaks taken during the interview and that
he called Ruth Porisch, a social worker and child therapist, to testify
about the interview procedure. Counsel elicited her testimony to
suggest that the victim had been coached, although the trial court
ruled that Ms. Porisch could not testify directly to that point. Trial
counsel also testified that he discussed with petitioner the decision
whether to place the victim on the stand, and petitioner did not want
the child to feel responsible for her father’s incarceration.
In contrast, petitioner testified at the evidentiary hearing
that counsel had refused to call the child victim to testify, thereby
depriving him of the right to confrontation.
Following the hearing, the trial judge found that trial counsel’s
testimony was more credible than petitioner’s testimony and denied
relief. The Kansas Supreme Court found no error, noting both that
counsel developed a strategy to attack the videotaped interview
without directly attacking the young victim and that petitioner had
1

Rec. Vol. XII, p. 27.

acknowledged his agreement with the stipulation on the record at
trial. The Kansas Supreme Court correctly noted that it was bound by
the credibility determination of the trial judge, and it found no error
by trial counsel.
This court finds no error. The Kansas Supreme Court considered
the record and reasonably applied the Strickland standard.
Claims of multiple errors and voir dire error
Respondent asserts these claims are procedurally defaulted. If
a petitioner “failed to exhaust state remedies and the court to which
the petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims procedurally
barred…there is a procedural default.” Coleman v. Thompson, 501 U.S.
722, 735 n. 1 (1991). Under the doctrine of procedural default, 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 establish cause for a procedural default, petitioner must show
that an objective factor external to the defense impeded his ability
to comply with the governing procedural rule. See Murray v. Carrier,
477 U.S. 478, 488 (1986). In addition, petitioner must show “actual
prejudice as a result of the alleged violation of federal law.”
Coleman, 501 U.S. at 750.
Finally,

to

avoid

the

procedural

default

bar

under

the

fundamental miscarriage of justice exception, petitioner must present
a “colorable showing of factual innocence.” Kuhlmann v. Wilson, 477
U.S. 436, 454 (1986); Brecheen v. Reynolds, 41 F.3d 1343, 1356 (10th

Cir. 1994), cert. denied, 515 U.S. 1135 (1995).
The court has studied the record and finds no evidence that the
claims of jury bias, improper judicial influence, inadequate voir dire
examination, and improper evidence were exhausted in the state
courts.2 Petitioner’s failure to properly exhaust these claims bars
them from consideration in habeas corpus.
Cumulative error
Petitioner asserted in his action under K.S.A. 60-1507 that the
multiple errors committed by his trial counsel caused a cumulative
effect that denied him a fair trial. The Kansas Supreme Court rejected
this argument, finding the state cumulative error rule did not apply
because no error was found in the case.
The Tenth Circuit has summarized the framework for analyzing a
claim of cumulative error as follows:
“In the federal habeas context, a cumulative-error
analysis aggregates all constitutional errors found to be
harmless and analyzes whether their cumulative effect on
the outcome of the trial is such that collectively they can
no longer be determined to be harmless.” Alverson v.
Workman, 595 F.3d 1142, 1162 (10th Cir. 2010)(internal
quotation marks and brackets omitted). “[A]s the term
‘cumulative’ suggests,…we undertake a cumulative-error
analysis only if there are at least two errors.” Hooks [v.
Workman, 698 F.3d 1148] at 1194-95 (10th Cir. 2012). Lott
v. Trammell, ___ F.3d ___, ___ 2013 WL 142067,*54 (10th Cir.
Jan. 14, 2013).
The court has found no constitutional error in this matter, and
there is no basis to support a claim of cumulative error. This claim
is without merit.

2

These claims are distinct from petitioner’s assertion of cumulative error, which
was presented in petitioner’s action under K.S.A. 60-1507.

Claims of ineffective
prosecutorial misconduct
Petitioner

sought

assistance
to

add

by

appellate

claims

including

counsel

and

prosecutorial

misconduct and ineffective assistance of appellate counsel in a motion
to amend his action brought under K.S.A. 60-1507. The state district
court dismissed these claims because the amended motion was filed
outside the statute of limitations.
The Kansas Court of Appeals upheld the dismissal of these claims
under state case law, and the Kansas Supreme Court, undertaking a
detailed examination of the governing state statutes, upheld the
refusal of the trial court to consider certain claims contained in
the amended motion.
These claims are procedurally barred. The state courts determined
that he failed to present them in a timely manner, and petitioner has
not established either cause and prejudice or a fundamental
miscarriage of justice.
Conclusion
For the reasons set forth, the court concludes petitioner is not
entitled to habeas corpus relief.
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 an extension to
file a reply (Doc. 18) is denied as moot; petitioner subsequently filed
a traverse.
Copies of this order shall be transmitted to the parties.

IT IS SO ORDERED.
DATED:

This 18th day of January, 2013, at Topeka, Kansas.

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