Harms (ID 37064) v. Cline et al
MEMORANDUM AND ORDER: The petition for habeas corpus relief under 28 U.S.C. § 2254 (Dk.1) is denied. Signed by U.S. District Senior Judge Sam A. Crow on 6/13/14. Mailed to pro se party John R. Harms by regular mail (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAM CLINE, STEPHEN SIX
and DEREK SCHMIDT,
MEMORANDUM AND ORDER
This case comes before the Court on a petition for habeas corpus filed
pursuant to 28 USC § 2254. Petitioner pled no contest to two counts of
attempted aggravated robbery in state court, and was sentenced to 128
months imprisonment. Petitioner contends that the trial court violated the
plea agreement and due process, that the district court deprived him of his
Sixth and Fourteenth Amendment rights by violating the rule of Apprendi v.
New Jersey, and that the State violated the ex post facto doctrine in
applying a statute of limitations which was not in effect when his crimes took
I. Procedural History
The procedural history of this case has been established by prior
decisions including the following: the Kansas Court of Appeals (KCOA)
decision in Petitioner’s direct appeal of his sentence, State v. Harms, No.
97,680, 2008 WL 1868632 (Kan.Ct.App., April 25, 2008) (Unpublished
Opinion); the KCOA’s denial of Petitioner’s motion to correct illegal sentence,
State v. Harms, No. 102,896, 2010 WL 5490734 (Kan.Ct.App., Dec. 23,
2010); and the KCOA’s denial of Petitioner’s K.S.A. 60-1507 motion. Harms
v. State, No. 104,129, 2011 WL 3795472 (Kan.Ct App., August 26, 2011).
In 2004, Petitioner was charged in federal court with bank robbery of
the Commerce Bank in Garden City, Kansas, on March 30, 2004. He entered
a plea agreement and was sentenced on September 1, 2004, to 63 months
of imprisonment and two years’ supervised release.
In February of 2006, the State filed a complaint against the defendant
charging the following counts: (1) aggravated robbery at Western State
Bank on March 3, 2004; (2) aggravated robbery at Commerce Bank on
March 30, 2004; (3) attempted aggravated robbery at Western State Bank
on March 29, 2004; (4) conspiracy to commit aggravated robbery at
Western State Bank on March 3, 2004; and (5) conspiracy to commit
aggravated robbery at Commerce Bank on March 30, 2004. Count 2 was
charged by the State based upon its dual sovereignty, as it was based on
the same offense to which Petitioner had already entered a guilty plea in
The State later filed an amended complaint which dropped all counts
related to the Commerce Bank robbery and charging Petitioner with only the
following counts: (1) attempted aggravated robbery at Western State Bank
on March 3, 2004, and (2) attempted aggravated robbery at Western State
Bank on March 29, 2004. Petitioner entered a no contest plea to those
counts and the State dismissed the remaining Counts of the original
In the plea agreement, the State agreed to recommend a presumptive
52–month sentence if Petitioner’s criminal history score was as anticipated.
If Petitioner’s criminal history score were higher, the State agreed to
recommend a downward departure that would arrive at the same 52–month
sentence. The PSIR later reflected Petitioner’s criminal history score as
higher than the parties had anticipated because it included Petitioner’s 2004
federal bank robbery conviction which had been charged in Petitioner’s
original state complaint based on dual sovereignty. The PSIR stated a 114month mitigated sentence, a 120–month standard sentence and a 128month aggravated sentence for the primary offense of attempted aggravated
robbery. R. Vol. I, p. 16.
Petitioner objected to his criminal history score and moved for a
downward durational departure sentence of 52 months' imprisonment. At
sentencing, the State did not object to that motion but asked that the
sentence run consecutively to Petitioner’s federal sentence. The sentencing
court denied Petitioner’s motion and classified the defendant's criminal
history as “B” based in part on his federal conviction. On count 1, the court
sentenced the defendant to 128 months in prison, the aggravated number
within the presumptive sentencing range. On count 2, the defendant was
sentenced to 34 months in prison, the aggravated number within the
presumptive sentencing range, to run concurrently to count 1. The court
ordered his state sentence to run consecutively to his federal sentence for
robbery of Commerce Bank.
This Court adopts other facts stated in the prior opinions and shall not
repeat them except as necessary to the analysis of this petition. See 28
U.S.C. § 2254(e)(1) (a court presumes that the factual findings of the state
court are correct unless the petitioner rebuts that presumption by “clear and
convincing evidence.”); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004).
II. AEDPA Standard
The habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). AEDPA “erects a formidable barrier to
federal habeas relief,” Burt v. Titlow, __ U.S. __ , 134 S.Ct. 10, 16, 187
L.Ed.2d 348 (2013), and “requires federal courts to give significant
deference to state court decisions” on the merits. Lockett v. Trammel, 711
F.3d 1218, 1230 (10th Cir. 2013); see also Hooks v. Workman, 689 F.3d
1148, 1162–63 (10th Cir. 2012) (“This highly deferential standard for
evaluating state-court rulings demands state-court decisions be given the
benefit of the doubt.” (quotations 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 also Harrington v.
Richter, __ U.S. __, 131 S.Ct. 770, 783–84, 178 L.Ed.2d 624 (2011).
“Clearly established law is determined by the United States Supreme
Court, and refers to the Court's holdings, as opposed to the dicta.” Lockett,
711 F.3d at 1231 (quotations omitted). A state court decision is “contrary
to” the Supreme Court's clearly established precedent “if the state court
applies a rule different from the governing law set forth in [Supreme Court]
cases, or if it decides a case differently than [the Supreme Court has] done
on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685,
694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quotations omitted).
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 v.
Taylor, 529 U.S. 362, 407–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).
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
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, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.”). “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, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). In making this
assessment, the Court reviews the factual findings of the state court for
clear error, reviewing only the record that was before the appellate court.
Cullen v. Pinholster, –––U.S. ––––, ––––, 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011).
A writ of habeas corpus may issue only when the petitioner shows
“there is no possibility fairminded jurists could disagree that the state court's
decision conflicts with [the Supreme] Court's precedents.” Id. at 786
(emphasis added). “Thus, “even a strong case for relief does not mean that
the state court's contrary conclusion was unreasonable.” Id. “ ‘If this
standard is difficult to meet’—and it is—‘that is because it was meant to be.’
” Titlow, 134 S.Ct. at 16 (quoting Richter, 131 S.Ct. at 786). See Frost v.
Pryor, __ F.3d __, 2014 WL 1647013 (10th Cir. April 25, 2014).
A. Sentence Longer than in Plea Agreement
Petitioner first contends that the trial court violated due process by
sentencing him to a term of imprisonment longer that that stated in his plea
State Court Holding
On direct appeal, the KCOA analyzed Petitioner’s claim of error under
state law, then concluded:
The district court did not err by including the defendant's federal
conviction in his criminal history. The definition of “prior conviction”
set forth in K.S.A. 21–4710(a) does not exclude the defendant's
federal conviction because the federal conviction was not obtained in
the current case and the state charges based on the federal conviction
were dismissed. Furthermore, because the federal conviction was not
an element the State was required to prove for the attempted
aggravated robbery conviction, K.S.A. 21–4710(d)(1) is inapplicable.
State v. Harms, 2008 WL 1868632, 2-3.
The KCOA addressed the broader issue in reviewing the denial of
Petitioner’s 60-1507 motion. It found that the State had not breached the
plea agreement, that the district court was not bound by the parties’ plea
agreement or sentencing recommendations, that Kansas courts have no duty
to permit a defendant to withdraw a plea if the court departs from the
sentencing recommendation in the plea agreement, and that Petitioner had
intentionally and voluntarily relinquished his known trial rights. 2011 WL
3795472 at 1-2. See McGoldrick v. McKune, 2006 WL 1302197 at 3 (D. Kan.
May 10, 2006).
This court is bound by a state court's interpretation of its own law. See
Estelle, 502 U.S. at 67-68. Thus to the extent the KCOA’s decisions rested
on its interpretation of state law, no habeas review is possible.
But Petitioner also raises due process concerns. That clause requires
state courts to follow established legal procedures and the law before
depriving an individual of his life, liberty, or property. Romero v. Janecka,
209 Fed. Appx. 746, 748 (10th Cir. 2007). The court assumes, in an
abundance of caution, that Petitioner’s claims of error below included
Petitioner asserts that clearly-established federal law in Boykin v.
Alabama held that Fed. R. 11 applies to states. But Petitioner misreads that
case. Rule 11 does not apply in Kansas state court proceedings. Beavers v.
Anderson, 474 F.2d 1114, 1117 (10th Cir. 1973); Miles v. Dorsey, 61 F.3d
1459, 1467 (10th Cir. 1995); Rosa v. Williams, 422 Fed.Appx. 730, 734
(10th Cir. 2011); Warren v. Gartman, 297 Fed.Appx. 767, 769 (10th Cir.
2008). Boykin does, however, hold that principles of due process apply to
the procedure of accepting a plea.
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d
418, a federal court rule was held to require that the sentencing
federal court not accept a plea of guilty until and unless the defendant
was addressed personally by the court, that the federal court had
determined there was a factual basis for the plea and that the
defendant understood the nature of the charge and the consequence
of the plea.
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274,
this federal rule in McCarthy was fastened on the states as a
requirement of due process through the Fourteenth Amendment.
In Kansas, statutory requirements [to K.S.A.1971 Supp. 22-3210]
acknowledge the thrust of these federal cases.
Widener v. State, 210 Kan. 234, 237-38 (1972). In Kansas, K.S.A. § 223210 embodies the due process requirements as interpreted by the Supreme
Court in Boykin. See State v. Moses, 280 Kan. 939, 946 (2006) (“K.S.A. 22–
3210 was enacted to ensure compliance with the due process requirements
set out by the Court in Boykin. State v. Heffelman, 256 Kan. 384, 391, 886
P.2d 823 (1994); Trotter v. State, 218 Kan. 266, 268, 543 P.2d 1023
Petitioner appears to believe that because some of the due process
requirements reflected in Rule 11 apply to the states through Boykin, Rule
11(c)(1)(C) also applies to the states. That rule permits the parties to “agree
that a specific sentence or sentencing range is the appropriate disposition of
the case,” and “binds the court [to the agreed-upon sentence] once [it]
accepts the plea agreement.” Freeman v. United States, __ U.S. __, 131
S.Ct. 2685, 2687, 180 L.Ed.2d 519 (2011).
Federal Rule of Criminal Procedure 11(c)(1)(C) states that, in
structuring a guilty plea, the parties may “agree that a specific
sentence or sentencing range is the appropriate disposition of the
case, ... (such a recommendation or request binds the court once the
court accepts the plea agreement).”
United States v. Silva, 413 F.3d 1283, 1284 (10th Cir. 2005). Petitioner
asserts that he and the State bargained for a specific sentence, and once the
court stated that it accepted Petitioner’s pleas of no contest, it was bound to
honor the parties’ agreement as to the length of sentence.
But Petitioner’s plea agreement was not an 11(c)(1)(C) plea because it
was not made in federal court and this rule does not apply in Kansas state
courts. See Miles, 61 F.3d at 1467. Under Kansas law, plea agreements and
sentencing recommendations do not bind the sentencing court. See State v.
Chetwood, 38 Kan.App.2d 620, 624–25 (2007), rev. denied 286 Kan. 1181
(2008); K.S.A. 21–4713 (permitting a prosecutor to recommend a sentence
in a plea agreement, and prohibiting any agreement to exclude a prior
conviction from defendant’s criminal history); State v. Ford, 23 Kan.App.2d
248, 253, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997),
overruled in part on other grounds by State v. Schow, 287 Kan. 529, 541,
197 P.3d 825 (2008) (parties to a plea agreement cannot contract for
specific sentence); State v. Hill, 247 Kan. 377, 385 (1990). Parties in Kansas
state court are not permitted to contract for a specific sentence or stipulate
to a certain criminal history in a plea agreement, and the sentencing court is
required to apply the actual criminal history score, not a score to which the
parties may have agreed. See State v. Boley, 279 Kan. 989, 993, 113 P.3d
248 (2005); Ford, 23 Kan.App.2d at 253. The court is free to ignore the
parties’ agreement and impose any lawful sentence, including the
aggravated grid-box sentences consecutively. State v. Holmes, 2005 WL
2951424, 5 (Kan.App. 2005).
Similarly, the Tenth Circuit has repeatedly found that a sentencing
judge is not bound by the terms of a plea agreement, and may consider
counts dismissed as a result of a plea bargain. See United States v. Trujillo,
537 F.3d 1195, 1201-02 (10th Cir. 2008) (stating that “a plea agreement
cannot preclude the court from considering the facts underlying a dismissed
count”); see also United States v. Pinson, 542 F.3d 822, 836 (10th Cir.
2008) (“[W]e have repeatedly stated that ‘[n]o limitation shall be placed on
the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence.’
”) (quoting United States v. Magallanez, 408 F.3d 672, 684 (10th Cir.
Petitioner does not allege that his attorney rendered ineffective
assistance in counseling him about the plea agreement, and a mere
inaccurate prediction by counsel of the sentence a defendant might receive
does not constitute ineffective assistance of counsel. The United States
Supreme Court has held: “Waiving trial entails the inherent risk that the
good-faith evaluations of a reasonably competent attorney will turn out to be
mistaken either as to the facts or as to what a court's judgment might be on
given facts.” McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970). Similarly, the Tenth Circuit holds that “ ‘[a]n erroneous
sentence estimate by defense counsel does not render a plea involuntary....
And a defendant's erroneous expectation, based on his attorney's erroneous
estimate, likewise does not render a plea involuntary.’ ” Fields v. Gibson,
277 F.3d 1203, 1214 (10th Cir. 2002) (quoting Wellnitz v. Page, 420 F.2d
935, 936-37 (10th Cir. 1970)). See also State v. Solomon, 257 Kan. 212,
Syl. ¶ 7, 891 P.2d 407 (1995).
Nor do the facts show that the prosecutor breached the plea
agreement. Compare White v. Gaffney, 435 F.2d 1241 (10th Cir. 1971)
(granting habeas petition to permit defendant to withdraw his guilty plea
where the prosecution breached the agreement regarding his
recommendation of a term of imprisonment).
Instead, Petitioner contends that the district court judge should have
told him that he might decide to reject the recommended sentence after
reviewing the presentence report or other matters, as he believes
Fed.R.Crim.P. Rule 11(c)(5) requires. But that rule is inapplicable in Kansas
state courts, and applies only when the court rejects certain plea
Petitioner generally contends that he did not understand the direct
consequence of his plea because he thought he would be sentenced to only
52 months. This Court has reviewed the transcript of the plea hearing and
finds that the sentencing court found there was a factual basis for the plea,
and secured Petitioner’s understanding of the following facts: that if he were
to be convicted of the crime he could be required to serve, depending on his
criminal history, not less than 31 months and not more than a hundred and
thirty-six months in custody, p. 16-18; that if he were convicted of both
charged offenses, at the time of sentencing the Court had the discretion to
order that the sentences run consecutively rather than concurrently, p. 18;
that Petitioner understood the difference between consecutive and
concurrent sentences, p. 18; “that when it comes to sentencing, … th[e]
Court is not bound by the bargain or any recommendations that may be
made in relation to sentencing,” p. 23; that no one had promised Petitioner
that the Court would be lenient with him or grant him probation or parole in
return for his pleas of no contest to either or both of the counts charged, p.
23-24; and that a presentence investigation report would be done before
sentencing, p. 31.
Having reviewed the facts of record and the law in detail, the court
finds that the defendant understood the nature of the charge and the
consequence of the plea, so his plea was knowing and voluntary. That the
sentence was longer than what Petitioner reasonably expected does not
violate due process or other clearly established federal law or render his plea
B. Aggravated Sentence
Petitioner next contends that the district court violated his Sixth and
Fourteenth Amendment rights by sentencing him to the upper range of the
presumptive grid block for his convictions, because the facts warranting the
aggravated sentence were not proven to a jury beyond a reasonable doubt.
Petitioner contends his sentence is thus contrary to clearly established
federal law as expressed in Cunningham v. California, 549 U.S. 270, 127
S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Apprendi held that “ ‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’ ” Apprendi, 530 U.S. at 490. Cunningham found California’s
determinative sentencing law unconstitutional because it permitted the
judge to increase the middle-term sentence to an upper-term sentence
based only on judge-found facts, and precluded the judge’s exercise of
discretion. Based upon the language of the state statute, the court found the
prescribed “ ‘statutory maximum’ ” sentence described by Apprendi to be the
middle term in California’s presumptive sentencing grid block.
Respondent counters that Petitioner’s within-the-guidelines sentence is
not reviewable under Kansas law, as found in State v. Johnson, 286 Kan.
The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701
et seq., … , provides that “the appellate court shall not review: (1) Any
sentence that is within the presumptive sentence for the crime.” K.S.A
21–4721(c)(1). KSGA defines “presumptive sentence” as “the
sentence provided in a grid block for an offender classified in that grid
block by the combined effect of the crime severity ranking of the
current crime of conviction and the offender's criminal history.” K.S.A.
Johnson, 286 Kan. at 219-220. Thus under Kansas law, when a defendant is
sentenced to any term within the presumptive grid block for his convictions,
the appellate court lacks jurisdiction to review that sentence. Johnson, 286
Kan. at 851-52 (distinguishing the relevant Kansas statutes from the
California statutes found unconstitutional in Cunningham).
Petitioner replies that Kansas law may preclude review of this issue on
direct appeal, but poses no procedural bar when this issue is raised in a 601507 motion, as here. This view holds some support in Kansas law.
Kansas case law … plainly holds that constitutional challenges to
presumptive sentences under the KSGA cannot be reviewed on direct
appeal and must be raised in post-conviction proceedings under K.S.A.
§ 60–1507. Id. at 7–8 (citing State v. Lewis, 27 Kan.App.2d 134, 140–
42, 998 P.2d 1141 (Kan.Ct.App.) (“[B]ecause the issue is not one that
could have been presented on direct appeal, it necessarily is one
whose only chance of review is by collateral attack, i.e., a K.S.A. 60–
1507 motion.”), rev. denied, 269 Kan. 938 (Kan. 2000).
Hopper v. Cline, 2011 WL 6372960, 3 (D.Kan. 2011). See State v. Mitchell,
45 Kan.App.2d 592, 605 (2011); State v. Lewis, 27 Kan. App.2d 134 (2000)
(holding defendant's claim that the presumptive sentence was cruel and
unusual punishment was statutorily barred from being considered on direct
appeal, but could be raised in a post-sentence collateral attack). And here,
the KCOA addressed this claim on the merits, instead of applying the
statutory bar, when Petitioner appealed his 60-1507 decision. Harms v.
State, 2011 WL 3795472 at 2. This court shall do the same.
State Court Holding
On appeal from the denial of Petitioner’s 60-1507 motion, the KCOA
rejected this claim on the merits, stating:
With respect to Harms' constitutional claim under Cunningham,
the Kansas Supreme Court has since addressed the issue and rejected
Harms' position in State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207
(2008). The court in Johnson held that K.S.A. 21–4704(e)(1) grants a
judge discretion to sentence a criminal defendant to any term within
the presumptive grid block as determined by the conviction and the
defendant's criminal history. Accordingly, the sentencing judge need
not conduct any fact-finding or state factors on the record.
We are duty bound to follow Kansas Supreme Court precedent, absent
some indication the court is departing from its previous position.
Buchanan v. Overley, 39 Kan.App.2d 171, 175–76, 178 P.3d 53, rev.
denied 286 Kan. 1176 (2008). We perceive no indication that the court
is departing from Johnson. The district court did not err in denying
relief based on this contention.
Harms v. State, 2011 WL 3795472 at 2.
Johnson held that the prescribed “ ‘statutory maximum’ ” sentence
described by Apprendi is the upper term in the presumptive sentencing grid
… we conclude K.S.A. 21–4704(e)(1) grants a judge discretion to
sentence a criminal defendant to any term within the presumptive grid
block, as determined by the conviction and the defendant's criminal
history. The judge need not conduct any fact finding or state factors
on the record. Consequently, the prescribed “ ‘statutory maximum’ ”
sentence described by Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, is
the upper term in the presumptive sentencing grid block. K.S.A. 21–
4704(e)(1) is constitutional under the Sixth and Fourteenth
Amendments to the United States Constitution and does not violate
the holdings in Apprendi or Cunningham.
Johnson, 286 Kan. at 851.
The federal habeas court “is bound, in the absence of any violation or
misapplication of clearly established federal law, by a state court's
interpretation of its own law.” See Hobbs v. McKune, 332 F. App'x 525, 531
(10th Cir. 2009) (citing Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct.
475, 116 L.Ed.2d 385 (1991)); Montez v. McKinna, 208 F.3d 862, 865 (10th
Cir. 2000) (challenges to the Kansas courts' interpretation of Kansas laws
and claims of violation of state laws are simply not cognizable in a federal
habeas action.). The KCOA reasonably distinguished the relevant Kansas
statutes from the California statutes found unconstitutional in Cunningham.
See Johnson, 286 Kan. at 851-52.
Petitioner contends that when his offenses were committed, the
relevant statute required a middle-range sentence, in stating:
The sentencing court has discretion to sentence at any place within the
sentencing range. The sentencing judge shall select the center of the
range in the usual case and reserve the upper and lower limits for
aggravating and mitigating factors insufficient to warrant a departure.
But this very language, including the argument that “shall” is mandatory,
was examined in depth and was reasonably rejected by the Kansas Supreme
Court. See Johnson, 286 Kan. at 824, 190 P.3d 207. See also Winfield v.
Mckune, 2011 WL 4688854 (D.Kan. 2011); Hopper v. Cline, 2011 WL
6372960 (D.Kan. 2011) (rejecting the same federal constitutional arguments
made by Petitioner). The Court finds that Johnson is neither contrary to, nor
an unreasonable application of, Apprendi or Cunningham. Thus neither the
state court's interpretation of K.S.A. § 21–4705 (now repealed) nor
Petitioner’s sentence thereunder violates the clearly established Supreme
Court precedent of Apprendi or Cunningham.
C. Ex Post Facto Doctrine
Petitioner contends that the statute of limitations for his crime had
expired by the time he was tried, and that the State applied a longer statute
of limitations which had been enacted after his crime was committed, in
violation of the ex post facto doctrine.
State Court Holding
In ruling on the appeal from Petitioner’s 60-1507 motion, the KCOA
addressed this claim of trial error, finding:
Finally, Harms argues that the statute of limitations for his crime
had expired by the time he was tried. He acknowledges that a
complaint was timely filed. However, he contends that a warrant was
not timely served, meaning that the prosecution did not officially
commence within the limitations period. Harms admits that he did not
raise the issue in district court.
This claim is a claim that the district court erred at trial. Trial
errors are to be corrected by direct appeal, not in collateral K.S.A. 60–
1507 proceedings. Harms does not argue that any exception to this
rule applies. Further, he attempts to predicate error by the district
court on a matter that was never submitted to the district court for its
consideration. Having failed to raise the issue before the district court,
the issue is now waived. See In re Care & Treatment of Miller, 289
Kan. 218, 224–25, 210 P.3d 625 (2009).
Harms v. State, 2011 WL 3795472 at 2.
It is well established that a federal court may not review a habeas
claim by a state prisoner if the decision by the state court rests on a state
law ground that is independent of the federal question and adequate to
support it. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546,
2553-2554, 115 L.Ed.2d 640 (1991). The KCOA relied on established Kansas
law that issues not raised before the district court cannot generally be raised
on appeal. That rule is independent from the federal law that governs
Petitioner’s constitutional claims, and Kansas appellate courts apply that rule
evenhandedly and often. See, e.g., In re Miller, 289 Kan. 218, 224-25
(2009); Miller v. Bartle, 283 Kan. 108, 119 (2007); Board of Lincoln County
Comm'rs v. Nielander, 275 Kan. 257, 268 (2003) (applying the “fundamental
rule of appellate procedure that issues not raised before the trial court
cannot be raised on appeal.”).
Therefore, this court cannot reach the merits of this issue on habeas
review unless the petitioner shows cause for the default and actual prejudice
resulting from the alleged violation of federal law. Coleman, 501 U.S. at 751.
That procedural bar can be overcome in exceptional cases if the petitioner
makes a compelling claim of actual innocence, House v. Bell, 547 U.S. 518,
522, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), but Petitioner makes no such
showing in this case. Given that Petitioner pled no contest to the two
charged offenses and admitted that the state could prove their elements, no
credible claim of actual innocence could succeed.
But ineffective assistance of counsel can be cause for procedural
default, Murray v. Carrier, 477 U.S. 478, 488 (1986), and Petitioner
contends that his trial counsel was ineffective in not moving to dismiss the
complaint based on its untimeliness. This claim was not raised in state court,
however, and claims not raised in state court usually cannot establish
“cause” for petitioner's default. See Murray, 477 U.S. at 488 (claim for
ineffective assistance of counsel cannot constitute cause if it was not fully
presented in the state courts); Sherrill v. Hargett, 184 F.3d 1172, 1176
(10th Cir. 1999). But Petitioner contends that the court should have
appointed counsel to represent him in his § 60-1507 motion, and that his
failure to raise this claim in his § 60-1507 proceeding should be overlooked
since he acted pro se.
As support, Petitioner cites Martinez v. Ryan, __ U.S. __, 132 S.Ct.
1309, 1316-19, 182 L.Ed.2d 272 (2012), which reasoned:
Allowing a federal habeas court to hear a claim of ineffective
assistance of trial counsel when an attorney's errors (or the absence of
an attorney) caused a procedural default in an initial-review collateral
proceeding acknowledges, as an equitable matter, that the initial20
review collateral proceeding, if undertaken without counsel or with
ineffective counsel, may not have been sufficient to ensure that proper
consideration was given to a substantial claim. From this it follows
that, when a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a prisoner
may establish cause for a default of an ineffective-assistance claim in
two circumstances. The first is where the state courts did not appoint
counsel in the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where appointed counsel
in the initial-review collateral proceeding, where the claim should have
been raised, was ineffective under the standards of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To
overcome the default, a prisoner must also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (describing standards for certificates of
appealability to issue).
Martinez, __ U.S. __, 132 S.Ct. at 1318-1319. The Supreme Court thus
allows a federal habeas court to find “cause,” excusing a defendant's
procedural default, where the following conditions are met: (1) the claim of
“ineffective assistance of trial counsel” was a “substantial” claim; (2) the
“cause” consisted of there being “no counsel” or only “ineffective” counsel
during the state collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to the “ineffectiveassistance-of-trial-counsel claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim] ... be raised in an initial-review
collateral proceeding.” Martinez, supra, at ––––, 132 S.Ct., at 1318–1319,
Petitioner has not shown that Kansas law requires a prisoner to raise
an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, as
Martinez commands. But the Supreme Court has recently expanded the
Martinez exception, applying it to those states in which collateral review
normally is the preferred procedural route for raising ineffective assistance
of trial counsel claims. Trevino v. Thaler, __ U.S. __, 133 S.Ct. 1911 (2013).
Thus where a state’s procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will
have a meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal, the Martinez holding applies. Id., __ U.S. __,
133 S.Ct. 1921.
The Court believes that Petitioner falls within Trevino’s provisions.
Kansas courts have held that “[a] 60-1507 motion is a proper method for
raising an ineffective assistance of counsel claim,” Barker v. State, 2009 WL
1212515 (Kan.App. 2009); Bledsoe v. State, 283 Kan. 81, 88–89, 150 P.3d
868 (2007), and that “[o]rdinarily, an ineffective assistance of trial counsel
claim is not suitable for resolution on direct appeal.” Rowland v. State, 289
Kan. 1076, 219 P.3d 1212 (2009). And the same practical considerations
which led to the Trevino holding, such as the need for a new lawyer, the
need to expand the trial court record, and the need for sufficient time to
develop the claim, argue strongly for initial consideration of Petitioner’s
claim during collateral, rather than on direct, review. But Kansas does
permit a claim of ineffective assistance of trial counsel which becomes
apparent during the pendency of a direct appeal to be raised on direct
appeal and remanded for the trial court to determine allegations of
ineffective assistance of counsel as “an alternative remedy to K.S.A. 60–
1507.” State v. Van Cleave, 239 Kan. 117, 120–21, 716 P.2d 580 (1986).
See generally United States v. Oviedo-Tagle, 529 Fed.Appx. 944, 946 947 (10th Cir. 2013) (holding that “a defendant must generally raise claims
of ineffective counsel in a collateral proceeding, not on direct review.”).
Petitioner may thus establish cause under Martinez, but only if he
shows that his ineffective-assistance-of-trial-counsel claim is “substantial.”
Martinez, 132 S.Ct., at 1318–1319, 1320–1321. Kansas law does not ensure
that counsel is appointed for all § 60-1507 motions, but requires the court to
appoint counsel if it finds that the motion presents substantial questions of
law or triable issues of fact. Kan. Stat. Ann. § 22–4506 (2007). Here, the
trial court did not appoint counsel for Petitioner, so it necessarily found that
Petitioner’s claims were not substantial.
In an abundance of caution, the court examines de novo the merits of
the ineffective assistance of counsel claim, which is tied to the merits of the
underlying issue. See Strickland v. Washington, 466 U.S. 668, 691–96, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring a showing that counsel's
performance was objectively unreasonable and a reasonable probability that
the outcome would have been different).
Ex Post Facto Clause
The ex post facto clause only prohibits enactment of statutes that (1)
criminalize an act previously committed that was innocent when committed;
(2) enhance the penalties for a crime after its commission; or (3) deprive a
defendant of any defense available according to law when the act was
committed. Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718,
111 L.Ed.2d 30 (1990).
Petitioner committed his offenses in March of 2004, when the statute
of limitations for his crimes was two years. K.S.A. 21-3106 (2001). In 2005,
the statute of limitations was changed to five years. K.S.A. 2005 Supp. 213106. Petitioner was charged with these crimes in February of 2006, within
the original two-year statute, but was not arrested for them until June of
2006, outside that two-year period. Petitioner contends that because of
undue delay between the charge and the arrest, his prosecution was not
actually “commenced” as defined under state law until he was arrested; by
that date, the two-year limitations period had expired so the five-year
statute of limitations was retroactively applied to him in violation of the
constitutional prohibition against ex post facto laws.
Clearly established federal law holds that a State law enacted after the
expiration of a previously-applicable limitations period violates the Ex Post
Facto Clause when it is applied to revive a previously time-barred
prosecution. Stogner v. California, 539 U.S. 607, 619, 123 S.Ct. 2446,
2454 (2003). But that rule does not apply to unexpired statutes of
limitations. Stogner, 539 US at 618. Thus application of a statute of
limitations extended before the original limitations period has expired, as
here, does not violate the ex post facto clause. See United States v.
Taliaferro, 979 F.2d 1399, 1402 (10th Cir. 1992) (holding that the
“application of an extended statute of limitations to offenses occurring prior
to the legislative extension, where the prior and shorter statute of limitations
has not run as of the date of such extension, does not violate the ex post
facto clause,” citing United States v. Powers, 307 U.S. 214, 217-18, 59 S.Ct.
805, 807, 83 L.Ed. 1245, reh'g denied, 308 U.S. 631, 60 S.Ct. 66, 84 L.Ed.
The Tenth Circuit explained that the rationale for this distinction is a
matter of fundamental fairness:
We are, however, concerned with a statute which increases the statute
of limitations from five to ten years for an offense committed prior to
the enactment of the increased limitation where the prior five-year
statute had not already run. In this regard, we are in accord with the
rationale in Falter where Judge Learned Hand, speaking for the court,
Certainly it is one thing to revive a prosecution already dead,
and another to give it a longer lease of life. The question turns
upon how much violence is done to our instinctive feelings of
justice and fair play. For the state to assure a man that he has
become safe from its pursuit, and thereafter to withdraw its
assurance, seems to most of us unfair and dishonest. But, while
the chase is on, it does not shock us to have it extended beyond
the time first set, or, if it does, the stake forgives it.
Taliaferro, 979 F.2d at 1403, quoting Falter v. United States, 23 F.2d 420,
425-26 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003
(1928). Cf. Commonwealth v. Duffy, 96 Pa. 506, 514, 1880 WL 13543
(1881) (“[I]n any case where a right to acquittal has not been absolutely
acquired by the completion of the period of limitation, that period is subject
to enlargement or repeal without being obnoxious to the constitutional
prohibition against ex post facto laws”). Thus lengthening the period of
limitations before the original time period expires does not violate the ex
post facto clause of the Constitution. Taliaferro, 979 F.2d at 1403. Such is
the case here.
An ineffective assistance of counsel claim based on this issue would
therefore lack merit. Petitioner cannot show that his appellate counsel's
performance was objectively unreasonable because counsel cannot be found
ineffective for failing to raise meritless claims. See Strickland, 466 U.S. 668,
691–96. Thus no cause avoids the procedural bar, and the ex post facto
claim fails on its merits as well.
IV. Motion to File Long Traverse
Petitioner has moved to file a traverse longer than the stated page
limits. This request (Dk. 24, Att. 1) is granted.
V. Evidentiary Hearing
The court finds no need for an evidentiary hearing. (”[A]n evidentiary
hearing is unnecessary if the claim can be resolved on the record.)”
Anderson v. Attorney Gen. of Kansas, 425 F.3d 853, 859 (10th Cir. 2005)
Schriro, 550 U.S. at 474 (“[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.”).
VI. 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). The Court finds that Petitioner has not met this
standard as to any issue squarely presented in this case, so denies a
certificate of appealability.
IT IS THEREFORE ORDERED that the petition for habeas corpus relief
under 28 U.S.C. § 2254 (Dk.1) is denied.
Dated this 13th day of June, 2014, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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