Griffin v. Scnurr et al

Filing 9

MEMORANDUM AND ORDER ENTERED: Petitioner's filing entitled "Motion for Traverse" 7 is construed as a motion to file traverse and is dismissed as moot because the traverse was filed upon receipt. Petitioner's filing entitled &q uot;Motion for Citation of Supplemental Authorities" 8 is construed as a motion to supplement traverse and is granted. Respondents are granted thirty (30) days in which to submit respondents' brief on the questions set forth herein; and petitioner is granted twenty (20) days after respondents' brief is filed in which to submit petitioner's brief on the same qusetions. Signed by Senior District Judge Sam A. Crow on 9/18/2013. (Mailed to pro se party James W. Griffin by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES W. GRIFFIN,
Petitioner,
v.

CASE NO.

12-3146-SAC

DAN SCNURR,Warden, et al.,
Respondents.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed by
a state inmate pursuant to 28 U.S.C. § 2254.

Respondents filed

an Answer and Return, and petitioner filed his Traverse as well
as a “Motion for Citation of Supplemental Authorities.”
considered

these

filings,

the

court

rules

upon

Having

petitioner’s

motions and requires additional briefing by both parties.

CLAIMS IN FEDERAL PETITION
In

his

federal

petition,

Mr.

Griffin

claims:

(1)

the

“Aid/Abet instruction” impermissibly lowered the State’s burden
on

the

element

of

intent;

(2)

ineffective

assistance

of

appellate counsel in that she abandoned 7 of the 10 claims that
had

been

presented

direct appeal

to

to

the

Kansas

Court

of

Appeals

the Kansas Supreme Court (KSC)

(KCA)

on

against his

wishes and thereby “sabotaged” his exhaustion efforts; and (3)
prosecutorial misconduct in misrepresenting the law of aiding
1

and abetting in a manner that shifted the State’s burden of
persuasion.

PROCEDURAL HISTORY
In 2005, Mr. Griffin was convicted in the District Court of
Shawnee County, Kansas of attempted second-degree

intentional

murder

K.S.A.

(K.S.A.

21-3402(a)(K.S.A.

2006

Supp.)

and

21-

3301), attempted aggravated robbery (K.S.A. 21-3427 and K.S.A.
21-3301), and conspiracy to commit aggravated robbery (K.S.A.
21-3427 and K.S.A. 21-3302).
(Kan.App.

Mar.

16,

2007)(hereinafter

2007),

Griffin

months in prison.

State v. Griffin, 153 P.3d 570, *1
rev.denied

DIRAPP).

He

(Kan.

was

Sept.

sentenced

27,

to

296

These offenses arose out of an attempted

robbery of a Carlos O’Kelly’s restaurant in Topeka in 2002.1

See

Griffin v. Kansas, 260 P.3d 1250, *1 (Kan.App. Oct. 7, 2011),
rev.denied,

(Kan.

Mar.

16,

2012)(hereinafter

Griffin

PC2).

“Griffin was alleged to have been the driver of the vehicle from
which the shooter exited to shoot the general manager of the
restaurant.”

Id.

The manager was seriously and permanently

injured as a result of the shooting.
Mr. Griffin
indicated

that

directly appealed.
Griffin,

represented

1

The opinion of the KCA
by

appointed

appellate

The full factual background of the crimes is set forth in the opinion
of the KCA on direct appeal, Griffin DIRAPP at *1-*2 and need not be repeated
here.

2

counsel, raised 10 different issues in this initial step of his
direct appeal: (1) district court erred in failing to give a
jury

instruction

on

informant

testimony;

(2)

prosecutorial

misconduct during trial and closing by use of improper cliché
and references to facts not in evidence; (3) the evidence was
insufficient
intentional
defective

to

convict

murder

and

complaint

Griffin

of

attempted

failed

to

attempted
aggravated

provide

second-degree
robbery;

sufficient

notice

(4)
of

charges; (5) Batson challenge to jury selection; (6) district
court

erred

in

failing

to

instruct

the

jury

on

reckless

attempted second-degree murder as a lesser included offense; (7)
district
denied

court

fair

erred

trial;

in

(9)

trial

sentencing;
jury

(8)

misconduct

counsel.

See

excessive
and

Griffin

(10)

publicity

ineffective

assistance

of

DIRAPP.

The

KCA

affirmed.

Appellate counsel filed a Petition for Review,2 which

the Kansas Supreme Court (KSC) summarily denied on September 27,
2007.
Mr.

Griffin

then

pursued

pro

se

challenges

convictions by way of state collateral proceedings.

to

his

On April 1,

2008, he filed his first state post-conviction motion pursuant

2

Years later, the KCA noted in its unpublished opinion on subsequent
collateral review that in his direct-appeal Petition for Review Mr. Griffin’s
counsel had “argued erroneous jury instructions on alibi testimony,
prosecutorial misconduct, and denial of constitutional right to jury
selection.”
See Griffin v. State, 260 P.3d 1250, *1 (Oct. 7, 2011),
rev.denied, (Kan. Mar. 16, 2012)(hereinafter PC1).
However, this is not a
complete picture of the issues raised in that Petition for Review.

3

to K.S.A. 60-1507.

This motion was denied, and the denial was

affirmed by the KCA on March 12, 2010.

Griffin PC1.

The KCA

summarized petitioner’s claims as: (1) ineffective assistance of
trial counsel “for failing to move to dismiss the attempted
second-degree murder charge because the charging document was
defective in that it did not allege that Griffin was an aider
and abettor of the charged attempted second-degree murder” and
(2) failure of trial court “to instruct the jury on aggravated
battery as a lesser included offense of attempted second-degree
murder.”

Griffin PC1 at *1.3

The KSC denied review on May 18,

2010.
On June 15, 2010, petitioner filed a pro se “motion for
relief

from

judgment”

under

K.S.A.

60-260

in

Shawnee

County

District Court in which he sought a new trial on the count of
Attempted Murder, Intentional Second-Degree, K.S.A. 21-3402(a).4
He argued that the giving of Jury Instructions No. 7 and No. 8
3

The KCA preliminarily noted “that Griffin has submitted four Rule
6.09(b) . . . letters” in addition to his (appellate) brief in this first
collateral appeal.
They found that “the letters fail to comply with Rule
6.09(b) by setting forth a citation or a brief (emphasis in original)
statement concerning application of the citation,” that “Rule 6.09(b) letters
are not to be used as another briefing opportunity,” and “we do not consider
those parts of a Rule 6.09(b) letter that fail to comply with the rule.”
Griffin PC1 at *1.
No mention is made of what issues were raised in these
letters, and the court has not located them in the records.
4

In this motion, Mr. Griffin claimed that the collateral-appeal Petition
for Review “contained a Sup.Ct.Rule 6.09 letter” which complained about jury
instructions No. 7 and No. 8.
He also claimed that it was clear error for
his trial attorney not to object to these instructions.
In support of his
arguments, he cited State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (Kan.
2009). Petition (Doc. 1-1) at 13. He stated that the KSC denied review on
direct appeal because “it was not properly before the court” and that the
issue had never been ruled upon in state court.

4

together impermissibly lowered the State’s burden on the element
of intent.
60-1507

On November 19, 2010, the state district court found

was

the

exclusive

remedy

for

petitioner’s

claims,

construed the motion as another 60-1507 motion challenging his
convictions, and denied it as successive.

The State alleges

that Mr. Griffin did not appeal this denial.
On February 14, 2011, Mr. Griffin filed another pro se 601507 motion in Shawnee County District Court, which was denied.
Griffin PC2.
counsel

was

In this motion, he claimed that his appellate
ineffective

in

that

she

“sabotaged”

his

direct

appeal by abandoning several issues in his Petition for Review.
The KCA affirmed, and the KSC denied review on March 16, 2012.
Id.
Mr. Griffin filed his pro se § 2254 petition in federal
court on June 19, 2012.

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM
Petitioner

presents

Ground

Two

in

his

petition

as:

“Ineffective Assistance of appellate counsel: (Joyce Yeager).”
In support of this claim,5 he alleges that his appellate counsel

5

Following his statement of this claim in his federal petition, Mr.
Griffin adds “(see motions filed).”
He does not otherwise describe the
motions or pinpoint their location.
This court is not required to search
every motion filed by petitioner in state court in an attempt to ascertain
what factual basis and arguments he might be making to support this claim.
It was the petitioner’s responsibility to set forth the facts and arguments
in his federal petition.

5

raised 10 issues on direct appeal to the KCA, then without his
permission

and

contrary

to

his

“clearly

identified”

desire,

abandoned 7 of those claims by failing or refusing to present
them to the KSC in his Petition for Review.

In addition, he

complains that appellate counsel failed to raise the claim of
ineffective assistance of trial counsel as he requested.

He

alleges that appellate counsel thereby “sabotaged” his ability
to bring the abandoned claims in a 60-1507 motion and in a
federal habeas petition.
Petitioner first raised this claim in state court in his
second 60-1507 motion.

The state district judge found that this

claim could have been but was not raised in Mr. Griffin’s first
60-1507 motion and that he provided no excuse for his failure to
assert

it

there.

They

held

that

this

motion

was

“clearly

successive” as well as untimely, and that manifest injustice was
not shown.

Griffin PC2 at *3.

In addition, the judge found

“nothing to support the Petitioner’s conclusory allegation that
his appellate counsel was ineffective.”
that

petitioner

assistance

on

had
appeal

“failed
was

The judge concluded

to

establish

deficient

or

that

that

deficiency prejudiced his rights to a fair trial.”
at

*1.

The

KCA

reasoned

required or obligated to

that

“[a]pellate

counsel’s

any

alleged

Griffin P2

counsel

is

not

raise all the issues the defendant

requests,” and that “[c]ounsel should only raise issues that in
6

his or her reasonable professional judgment have merit.”
*2.

In

addition,

they

Griffin’s counsel did.”

found

that

this

was

Id. at

“precisely

what

Id.

Petitioner argues again before this court that on direct
appeal he had a right to have all the claims that were argued in
his brief to the KCA presented in his Petition for Review to the
KSC and that the record shows he is reiterating what appellate
counsel

abandoned

on

review

to

the

KSC.

He

specifically

mentions his claims that the essential element of intent was not
proven and that his trial counsel was ineffective as important
claims that were abandoned by appellate counsel.
Because Mr. Griffin did not raise this claim in his first
60-1507 motion, he did not fully and properly exhaust state
court

remedies

established
court

when

that

remedies

they

were

exhaustion

is

a

available.

of

available

prerequisite

petition in federal court.

to

It
and

filing

has

long

been

adequate
a

state

habeas

corpus

Granberry v. Greer, 481 U.S. 129

(1987); Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b).
Under

normal

available

circumstances,

and

limitations,

time
a

is

federal

where

left

on

court

state
the

remedies
one-year

dismisses

are

still

statute

unexhausted

of

claims

without prejudice so that the petitioner can pursue available
state-court remedies.

See Demarest v. Price, 130 F.3d 922, 939

(10th Cir. 1997).
7

However, respondents assert in their Answer and Return that
this claim

was procedurally defaulted in state court and is

therefore barred from federal habeas corpus review.

In support,

they point to the facts that petitioner did not raise this claim
in his first 60-1507 motion, and when he tried to present it in
his second 60-1507 motion the KCA found it was successive and
procedurally defaulted.
defaulted

his

federal

When a state prisoner has procedurally
claim

in

state

court

pursuant

to

an

independent and adequate state procedural rule, federal habeas
review of the claim is barred unless the prisoner demonstrates
either:

(1)

procedure

good

and

cause

actual

for

failure

resulting

to

follow

prejudice;

or

the
(2)

rule
that

of
a

fundamental miscarriage of justice will result if the merits of
the claims are not addressed in the federal habeas proceeding.
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Wainwright v.
Sykes, 433 U.S. 72 (1977); House v. Bell, 547 U.S. 518, 522
(2006)(“Out of respect for the finality of state-court judgments
federal habeas courts, as a general rule, are closed to claims
that state courts would consider defaulted.”).
In his Traverse, petitioner makes no real attempt to allege
facts showing cause and prejudice for his failure to raise this
claim in his first 60-1507 motion.
to

establish

that

a

fundamental

Nor does he allege any facts
justice

will

result if this claim is barred from federal habeas review.

His

8

miscarriage

of

allegation in his Traverse that it would be a miscarriage of
justice not to “notice” his right to effective assistance of
counsel

is

completely

conclusory.

Petitioner

instead

baldly

claims that Respondents are “piece-mealing” his constitutional
rights and “skipping the facts” of his claims, and continues to
argue the merits of his claims.

He generally refers to the

“record on all pro se motions filed” prior to and on direct
appeal, and claims they “are still consider(ed) pending.”6
Months after filing his Traverse, petitioner has submitted
the statement of a witness recanting trial testimony and asserts
actual innocence based thereon.

The court finds, for reasons

discussed later herein, that this filing is not sufficient to
establish

the

default.

The

defaulted
counsel

miscarriage-of-justice

his

and

court
claim

has

concludes
of

that

exception
petitioner
assistance

to

failed

ineffective

the

overcome

to

procedural

procedurally
of

procedural

appellate
default.

Accordingly, this claim is barred from federal habeas review.
Even

if

this

court

were

to

consider

petitioner’s

regarding appellate counsel, it would find that it
entitle him to relief.

claim

does not

Petitioner has alleged no facts here or

in state court to establish that the professional decision on
6

Petitioner also asks this court to “take notice of entire record of
(his) constitutional claims and (his) pro se pleadings.”
While the court
ultimately will consider all relevant state court records provided with this
case when necessary, it reiterates that petitioner does not adequately
present his claims or facts in support by baldly referring to all pro se
pleadings previously filed by him in state court.

9

the part of his appellate counsel to advance only the stronger
of his claims to the KSC amounted to deficient performance under
prevailing professional norms.
466 U.S. 668, 687 (1984).
establish

how

he

was

See Strickland v. Washington,

Nor has he alleged any facts to

prejudiced

by

counsel’s

decision.

Petitioner exhibits a letter from appellate counsel dated July
20, 2007, in which Ms. Yeager explained the following to him:
On a Petition for Review, you bring your best
arguments and limit the number of issues to five or
less. . . .
It was and is my professional opinion
that the Petition for Review is stronger because it is
limited to the strongest issues.
Petition

(Doc.

1-1)

at

6.

Thus,

it

is

plain

that

counsel

exercised her professional judgment in determining what claims
to

present

single
counsel

fact

in

the

has

acted

Petition

been
to

for

alleged

Review.

to

“sabotage”

suggest

Mr.

Furthermore,
that

his

Griffin.

not

a

appellate

Petitioner’s

conclusory presentation of this claim was one of two grounds for
its

dismissal

by

the

state

courts.

This

court

finds

that

petitioner has failed to state sufficient facts to support this
claim in his federal petition as well.
Furthermore, the court finds for reasons that follow that
the

other

claims

in

this

federal

petition,

the

alleged

abandonment of which underlies petitioner’s claim of ineffective
appellate counsel, were in fact presented by appellate counsel
in

the

Petition

for

Review

to
10

the

KSC

on

direct

appeal.

Therefore,

the

other

claims

that

Mr.

Griffin

considered

important enough to raise in his federal petition were neither
abandoned by appellate counsel nor procedurally defaulted.

ERRONEOUS JURY INSTRUCTIONS CLAIM
Petitioner

that

together

instruction”

claims

the

with

giving

the

of

the

“reasonable

“Aid/Abet

foreseeable”

instruction to the jury at his trial was erroneous and violated
his right to a fair trial and to due process.7

In support, he

alleges that the crimes of which he was convicted were specificintent

crimes.

impermissibly

He

argues

that

the

State’s

lowered

the

challenged

burden

on

instructions

the

element

of

intent8 and that, as a consequence, the element of intent was not
proven

by

findings

the
of

Overstreet,
Traverse,

State

intent
288

he

and
were

Kan.
alleges

1,

the

options

taken
200

that

away.

for

the
He

P.3d

427

(Kan.

his

appellate

jury

cites

to
State

make
v.

2009).

In

his

counsel

clearly

presented this ground to the KCA and that he is “reiterating
what appellate counsel abandoned.”

He specifically refers to

the argument that there was insufficient evidence of his intent
7

Respondents summarize this claim as “jury instructions numbers 7 and 8,
when given together, denied him a right to a fair trial by impermissibly
lowering the State’s burden of proof on the element of intent.”
8

In his supporting facts for this claim, petitioner again baldly alleges
that his trial counsel was ineffective, and again alleges no facts to support
this claim.

11

to

commit

either

aggravated

robbery

or

attempted

intentional

second-degree murder.
Jury Instructions 7 and 8 were not objected to at trial.
Moreover, when the basis for this claim was presented to the KCA
on direct appeal, it was not characterized as a challenge to
jury

instructions.

However,

it

is

also

not

disputed

that

petitioner presented the substance of this claim to the KCA on
direct appeal in his argument that “his attempted second-degree
intentional murder conviction was based on insufficient evidence
because it was not established that there was an intent to kill
the victim.”

Griffin DIRAPP at *6.9

9

The Brief of Appellant submitted by Griffin’s counsel on direct appeal
is provided with the state court records and shows the arguments made to the
KCA by appellant on direct appeal.
In support of this claim, appellate
counsel argued that:
There was, however, no instruction clearly defining intent.
Rather . . . Instruction number 7 stated that a person who
intentionally aids and abets another to commit a crime with
intent to promote the crime is guilty or responsible regardless
of the extent of the accused’s involvement (Vol. 1, 106) and the
Instruction in number 8 stated that a person who intentionally
aids and abets another to commit a crime is responsible for the
crime if the other crime was reasonably foreseeable (Vol. 1,
107).
The jury was left to conclude that any crime committed
demonstrated intent to commit intentional second degree murder.
When the jury is instructed, instead, that “intentional” is
defined as “willful and purposeful”, the jury can determine
whether or not mere association is adequate to convict. Without
the intent definition for murder, the instruction directing that
intent is willful and purposeful, the jury was allowed to find
that intent for murder was established by promoting robbery or
aiding robbery. Kansas, however, does not recognize the crime of
attempted second degree felony murder. (citation omitted).
Properly instructed, the jury would have been (sic) to determine
that, although there might have been witness testimony that
Appellant had a car similar to the vehicle described by the press
and witnesses, any mere association with the car or with the
gunman alleged by witness statements was insufficient to

12

establish
criminal
responsibility
for
intentional
murder
(emphasis in original).
(Citation omitted).
The jury was not
allowed the option to make a finding for the defense offered,
that there was no evidence of intent for the count of attempted
intentional murder.
K.S.A. 21-3301 establishes three essential elements for an
attempt: (1) the intent to commit the crime; (2) an overt act
toward the perpetration of the crime; and (3) a failure to
consummate it.
“The State, to convict a defendant of a crime,
must show the commission of an overt act plus the actual intent
to commit the particular crime.” State v. Garner, 237 Kan. 227,
238, 699 P.2d 468 (1985).
“Consequently, an attempted crime
requires specific intent, as opposed to general intent.”
State
v. William, 248 Kan. 389, 401, 807 P.2d 1292, cert. denied, 502
U.S. 837, 112 S.Ct. 120, 116 L.Ed.2d 89 (1991). “One element of
an attempt is intent to commit the crime and it is the intent of
the accused to attempt to commit the crime that is at issue.”
(citation omitted).
There was no evidence that Appellant
intended to commit intentional attempted second degree murder.
The evidence was insufficient to support the original charge (and
the conviction).
Brief of Appellant, Case No. 05-95346, pgs. 14-16 (KCA)(filed Feb. 24, 2006).
In connection with petitioner’s claim of prosecutorial misconduct, it was
also argued that there was no evidence of intent to support the finding that
Mr. Griffin was guilty of intentional attempted second-degree murder.
In its Brief of Appellee, the State also
regarding the sufficiency of the evidence:

discussed

this

claim

as

Appellant is under the mistaken belief that in order to convict
Griffin of attempted intentional second-degree murder, the State
had to prove Griffin intended to kill Fraser. . . .
However,
Appellant’s belief is mistaken in that according to Kansas law,
the State was only required to prove that Griffin intentionally
aided or abetted Franklin in committing the attempted aggravated
robbery, and that (Franklin) shot Fraser while carrying out that
foreseeable intended crime.”
Kansas law is clear that not only is the one who aids and abets
another in the commission of a crime criminally responsible for
the crime committed, but he is also criminally responsible for
any other crime committed by that other person in carrying out or
attempting to carry out the intended crime, if that other crime
was reasonably foreseeable. K.S.A. 21-3205(1)&(2).
Here, sufficient evidence was presented to establish Griffin
intentionally aided and abetted Franklin in committing the
attempted aggravated robbery, by driving the “get-a-way” car. As
such, he is not only criminally responsible for the attempted
aggravated robbery, but also for the foreseeable attempted murder
that took place while Franklin was carrying out the aggravated
robbery. . . .
.

.

.

Attempted

intentional

second-degree

13

murder

pursuant

to

one

The KCA found this insufficient evidence argument was “not
persuasive,” and reasoned as follows:
The unlawful venture in our case was aggravated
robbery. There was overwhelming evidence that Griffin
and Franklin planned the robbery, Griffin drove
Franklin to the Carlos O'Kelly's restaurant, waited
outside while Franklin went in, used a gun to demand
money, and then Griffin drove Franklin from the scene
of an attempted aggravated robbery. “One who stays in
a car, in which he knows the main participants in the
crime plan to make their getaway, has been held to
intentionally aid and abet in the commission of the
crime. [Citations omitted.]” Huff, 235 Kan. at 641;
see Burton, 235 Kan. at 478; Wilson & Wentworth, 221
Kan. at 366. The evidence, viewed in a light most
favorable to the prosecution clearly supports the
conclusion that a rational factfinder could have found
Griffin guilty of attempted aggravated robbery on an
aiding and abetting theory.
* * *
As we have earlier said, all participants are equally
guilty,
regardless
of
the
extent
of
their
participation. Turner, 193 Kan. at 196. Under K.S.A.
21–3205(2), a person is liable under subsection (1)
“for any other crime committed in pursuance of the
intended crime if reasonably foreseeable by such
person or a probable consequence of committing or
attempting to commit the crime intended.”
* * *
“‘If a crime is inherently dangerous to human life, it
would be foreseeable that an aggravated felony might
occur.’
[Citations omitted.]”
State v. Warren, 252
K.S.A. 21-3402(a) and K.S.A. 21-3301 is a recognized crime in
Kansas and that is the crime Appellant was charged with and
convicted of based on his overt actions of aiding and abetting
Franklin.
In this final portion of Appellant’s argument, he
completely ignores the law of aiding and abetting and focuses
only on attempted felony murder, which is not at issue in this
case.
Brief of Appellee, Case No. 05-95346, pgs. 18-20 (June 19, 2006).

14

Kan. 169, 173, 843 P.2d 224 (1992).
The intended
crime of aggravated robbery—in this case, pointing a
loaded gun at a person seated 2 feet away and
demanding money—is undoubtedly inherently dangerous to
human life. See State v. Giddings, 226 Kan. 110, 595
P.2d
1115
(1979)
(holding
robbery
is
a
crime
inherently dangerous to human life).
Griffin’s attempt to require him to have an intent to
kill must fail as the attempted intentional seconddegree murder is clearly a reasonably foreseeable
consequence of the attempted aggravated robbery.
State v. Griffin, 153 P.3d 570, *5-*6 (Table)(Kan. App. 2007).
Respondents

allege

in

the

Answer

and

Return

that

Mr.

Griffin could have, but did not, raise this claim on direct
appeal to the KSC; and that he raised it only in his motion for
relief from judgment pursuant to K.S.A 60-260, which was denied
and

not

appealed.

Petitioner

complains

that

his

appellate

counsel did not present his claim of erroneous jury instructions
to the highest state court on direct appeal because she did not
include it in the Petition for Review.
his

first10

claim.

post-conviction

motion,

When Mr. Griffin filed

he

failed

to

raise

this

As a result, respondents argue that this claim is deemed

waived because it was not raised at trial or on direct appeal,
and that petitioner is prevented from raising this claim in a
collateral proceeding.
Based

on

the

record

before

it,

this

court

rejects

the

position of both parties that this claim was not fully exhausted
10

In his first 1507 motion, petitioner made an argument regarding jury
instructions, but it was failure to instruct on a lesser included offense.

15

and has been procedurally defaulted as a result.

The state

court records provided by respondents include the “Petition for
Review”

that

was

prepared

by

Ms.

Yeager

Griffin’s behalf on direct appeal to the KSC.
No. 00003).

and

filed

on

Mr.

(Record Vol. XIV,

Issue 2 in this Petition was: “Did the prosecutor

engage in prosecutorial misconduct when he repeatedly referred
to Appellant’s guilt in terms of ‘in for a penny in for a pound’
. . . ?”

Counsel’s one-sentence statement of this issue in the

Petition for Review admittedly does not reflect that it is the
same issue under consideration here.

Nonetheless, a reading of

the underlying arguments made to the KSC under Issue 2 plainly
reveals that they are essentially the same as those made in
Appellant’s Brief to the KCA under the issues of insufficiency
of

the

evidence

and

prosecutorial

herein in a prior footnote.

misconduct,

as

set

forth

See Petition for Review, pgs. 5-11

(KSC Apr. 16, 2007).
One of the main arguments made by petitioner’s appellate
counsel in briefs to both the KCA and the KSC, and several times
in state court by petitioner though not always in correct form
or by proper procedure, was that the jury instructions on aiding
and abetting and foreseeability together with the arguments made
by the prosecutor to explain these instructions diminished or
negated the State’s burden of proving the essential element of
intent.

The KSC summarily denied the Petition for Review in
16

2007.
Over a year later, the KSC decided State v. Overstreet, 288
Kan. 1, 200 P.3d 427 (Kan. 2009).

In June 2010, Overstreet was

cited by Mr. Griffin in his Motion for Relief from Judgment that
followed

the

denial

of

his

first

60-1507

motion.11

In

Overstreet, the KSC held:
giving the aiding and abetting instruction in this
case–-which included language from both K.S.A. 213205(1) and (2)--was clearly erroneous because there
was “a real possibility that the jury, following this
instruction and the prosecutor’s subsequent comments .
. , convicted Overstreet of the attempted premeditated
murder not because the defendant aided or abetted in
the attempted premeditated murder but because the
murder was a reasonably foreseeable consequence of the
aggravated assault.
Id.

The KSC cited the 2005 case of State v. Engelhardt, 280

Kan. 113, 132 (Kan. 2005), as holding that under K.S.A. 213205(1), a person guilty of aiding and abetting a premeditated
first-degree murder must be found, beyond a reasonable doubt, to
have had the requisite premeditation to murder the victim.”12

In

Overstreet, the KSC noted that “numerous other cases decided by
this court” have held “that for a defendant to be convicted of a
specific-intent crime on an aiding and abetting theory, that
11

It is not clear that this was not actually a motion for relief from the
judgment entered in the first 1507 proceedings rather than another 1507
motion. It is clear that petitioner was trying to raise a claim similar to
that raised in Overstreet, but did not have this particular case to cite
prior to this time.
12

It has been held by the KCA in an unpublished opinion that Overstreet
was not an “intervening change in the law” due to Engelhardt decided in 2005.
Coleman, 283 P.3d at *6.

17

defendant must have had the same specific intent to commit the
crime as the principal.”

Overstreet, 288 Kan. at 13. (citations

omitted); see also Coleman v. State, 283 P.3d 840 (Kan. App.
2012)(Table); State v. Garner, 286 P.3d 239, *2-*3 (In this case
it

was

error

included
K.S.A.

when

crime

of

a

human

specific-intent

jury

attempted

21-3402(a),

killing

“the

which

was

second-degree

defines

being;”

and

crime;”

instructed

the

on

murder

crime

as

“[s]econd-degree

then

in

the

“closing

lesser-

pursuant

to

intentionally
murder

is

arguments,

a
the

prosecutor told the jury that it could find Garner guilty” by
finding that the principal “was the gunman and Garner aided and
abetted
Douglas,

him.”),
261

rev.denied

P.3d

979,

*9

(Kan.

May

(Kan.App.

22,

2013);

State

v.

2011)(Table)(instruction

clear error where aiding and abetting instruction indicated to
the jury that it could convict Douglas of the attempted capital
murder

if

foreseeable

the

attempted

consequence

of

capital
aiding

murder
and

was

a

abetting

reasonably
Garner

in

committing another crime.), rev.denied (Kan. May 4, 2012); State
v. Hayes, 270 Kan. 535, 543, 17 P.3d 317 (2001); but cf., State
v. Garner, 286 P.3d 239, *16 (Kan.App. 2012)(Table)(The rule in
Overstreet

does

not

apply

to

Garner’s

aggravated

robbery

conviction because that rule applies only to a conviction for a
specific-intent

crime

using

an

aiding

and

abetting

theory.);

State v, McDaniel & Owens, 228 Kan. 172, Syl. ¶ 3, 612 P.2d 1231
18

(1980)(Aggravated

robbery

is

a

general

intent

crime,

not

a

specific-intent crime.); State v. Barnett, 2013 WL 4729219, *4
(Kan.App. Aug. 30, 2013)(“Recently, a panel of this court noted
that the holding in Engelhardt relates only to the element of
premeditation, suggesting that the instruction is appropriate
when limited to other charges, such as aggravated robbery.”);
Coleman,

283

P.3d

840,

at

*3–4

(foreseeability

instruction

appropriate in first-degree murder trial when properly limited
to

aggravated

robbery

counts).

They

further

found

that

“confusion between these conflicting instructions,” referring to
the

“aiding

and

abetting

foreseeability

“exacerbated by the prosecutor’s comments.”

instruction,”

was

The comments of the

prosecutor in Overstreet might be viewed as similar to those
challenged by Mr. Griffin herein.

The court finds that this

claim was fully exhausted in state court, and federal review is
not barred by the procedural default doctrine.

PROSECUTORIAL MISCONDUCT CLAIM
Petitioner claims prosecutorial misconduct.

In support of

this claim, he alleges that the prosecutor “misstated facts and
encouraged the jury to incorrectly apply the laws of conspiracy
and the aiding/abetting law as to (attempts).”

He claims this

resulted in denial of his “right to have a jury decide every
element of an offense beyond a reasonable doubt.”
19

He further

claims that the prosecutor used the cliché, “in for a penny, in
for a pound” throughout his trial; and told the jury “no matter
how little evidence of defendant’s remotest connection supported
a conviction.”
persuasion

to

He argues that this “shift[ed] the burden of
believe

reasonable doubt.”

a

fact

without

being

proven

beyond

a

In his Traverse, he argues that he has a

constitutional right to have every element of a charge proved
beyond a reasonable doubt.
was

exhausted

in

state

Respondents admit that this claim

court

and

do

not

challenge

it

as

claims

of

procedurally defaulted.
This

court

erroneous

jury

liberally

construes

instructions

and

petitioner’s
prosecutorial

misconduct

together as one claim that the instructions and arguments of the
prosecutor

presented

to

the

jury

at

Mr.

Griffin’s

trial

diminished or negated the State’s burden of proof on the element
of intent.

Coleman, at *4.

Because the State believed petitioner’s claim presented as
erroneous jury instructions

was procedurally defaulted, there

has not been adequate briefing on the relevant legal authority,
whether or not that authority was violated under the facts of
this case and the error was not harmless, and whether or not the
state courts’ adjudication of petitioner’s claim was contrary to
any established Supreme Court precedent.

The court cautions

however, that even if the jury instructions in petitioner’s case
20

were erroneous under state case law, errors of state law are not
sufficient grounds, standing alone, to entitle a state prisoner
to federal habeas corpus relief.

Instead, petitioner’s claims

must evince the violation of a federal constitutional right to
state a claim for relief in this court.

“MOTION FOR CITATION OF SUPPLEMENTAL AUTHORITIES”
Several
submitted

months

a

after

pleading

he

filing

his

entitled

Supplemental Authorities” (Doc. 8).

Traverse,

“Motion

for

Mr.

Griffin

Citation

of

In this motion, he cites

one Tenth Circuit case and asserts that this court “must weigh
the evidence of perjured testimony.”
has

attached

the

letter/affidavit

To this brief filing, he
of

Lametrius

Crutchfield

stating that Crutchfield testified falsely at petitioner’s trial
because he feared incarceration if he did not cooperate with
prosecutors.

He has also attached 53 pages of the transcript of

Mr. Crutchfield’s trial testimony.

Petitioner alleges in his

motion that he “has recently been made aware” of this retraction
by the “prosecution’s main witness” and that this evidence was
voluntarily supplied.

The affidavit is dated in March 15, 2013.

Petitioner

court

asks

the

to

consider

this

retraction

as

evidence of his “actual innocence.”
This motion is misrepresented in its title as nothing more
than one to cite supplemental authorities.
21

Instead, it is a

request

for

the

court

to

consider

a

new

allegation

that

petitioner is actually innocent based upon the alleged witness
recantation.
request

to

assertion

The court liberally construes this “motion” as a
present

a

late

counter

argument

to

respondents’

in the Answer and Return that two of petitioner’s

three claims are procedurally defaulted.

The motion is granted

to the extent that the filing of these materials is allowed as
supplemental to petitioner’s Traverse.13
The court has considered petitioner’s supplemental counter
argument to respondents’ argument of procedural default.
argument

is

superfluous

with

respect

to

petitioner’s

This
claims

regarding jury instructions, because the court has found herein
that this claim was not procedurally defaulted.

With respect to

petitioner’s claims regarding counsel, these materials do not
provide the missing factual basis for claims against appellate
counsel.14

13

Nothing in this motion indicates that petitioner proffered these
materials as a freestanding claim of entitlement to release based on actual
innocence.
The motion is not one to amend the federal petition with a
complete Amended Petition attached that is upon court-approved forms and
contains all petitioner’s claims and allegations.
Nor is there any attempt
in this motion to show that this claim has been exhausted in the state
courts. Petitioner presents no basis for allowing an amendment at this late
stage after a response has already been filed herein, and he alleges no facts
showing that this new claim would relate back and not be time-barred.
The
court does not construe this motion as a motion to amend petition because it
is presented as something else, and would be completely inadequate had it
been presented as a motion to amend.
14

In any event, to take advantage of the “actual innocence” gateway, a
habeas petitioner must present “evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error. . . .”

22

ADDITIONAL BRIEFING ORDERED
The parties are ordered to submit additional briefs on the
following issues:15
1.
and

Did the jury instructions regarding aiding and abetting

foreseeability

together

with

arguments

made

by

the

prosecutor to the jury at petitioner’s trial negate or diminish
the State’s burden of proving the element of intent.
2.

If the instructions and arguments were erroneous in

this manner, were they error as a matter of state law only, or
did they also violate any clearly established federal law, as
promulgated by the Supreme Court?

See Cannon v. Gibson, 259

F.3d 1253, 1270 n.15 (10th Cir. 2001), cert. denied, 535 U.S.

Schlup v. Delo, 513 U.S. 298, 316 (1995).
The petitioner must “support his
allegations of constitutional error with new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence-that was not presented at trial.”
Id. at 324.
This new
evidence must be sufficient to “show that it is more likely than not that no
reasonable juror would have convicted [the petitioner] in light of the new
evidence.”
Id. at 327.
Generally, recantation of trial testimony years
after a trial has concludes is viewed with a great deal of skepticism. See
generally Herrera v. Collins, 506 U.S. 390, 417, 423 (1993)(because posttrial affidavits are “obtained without the benefit of cross-examination,”
they “are to be treated with a fair degree of skepticism.” (O’Connor, J.,
concurring)); Lopez v. Trani, 628 F.3d 1228 (10th Cir. 2010)(concluding that
Petitioner’s claim of actual innocence, supported by an affidavit from the
victim recanting her trial testimony and averring that the sex was
consensual, did not state a valid claim of the denial of a constitutional
right).
Mr. Griffin’s recantation evidence does not meet these standards.
He does not discuss any of the other evidence or witness testimony presented
against him at trial. Nor is Mr. Crutchfield’s statement shown to be either
new, reliable, or the type of evidence required under Schulp. See Cummings
v. Sirmons, 506 F.3d 1211, 1223-24 (10th Cir. 2007).
Furthermore, Mr.
Crutchfield obviously knew of his own false testimony at the time he uttered
it eight years before he dated this statement, and no reason is provided as
to why this “evidence” could not have been discovered sooner.
15

The caption of this case and the case number (12-3146) must be written
at the top of the first page of petitioner’s brief, and it should be entitled
“Brief of Petitioner in Response to Court Order.”

23

1080 (2002))(“[T]he Due Process Clause requires the prosecution
to prove beyond a reasonable doubt all of the elements included
in

the

definition

charged.”)(citing
(1977;

see

of

the

offense

Patterson

also

Jackson

v.

of

New

v.

which

York,

Virginia,

the

432
443

defendant

U.S.

is

197,
307,

U.S.

210
318

(1979)(“[Under our case law] the critical inquiry on review of
the sufficiency of the evidence to support a criminal conviction
must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could
reasonably

support

doubt.”);

finding

of

guilty

v.

Johnson

a

Gibson,

254

F.3d

beyond
1155,

a

reasonable
(10th

1164

Cir.

2001)(Petitioner “cannot state a federal habeas claim unless he
can

establish

that

the

erroneous

instruction

so

tainted

the

trial as to deprive him of due process.)(citing see Estelle v.
McGuire, 502 U.S. 62, 71-72 (1991)).
3.

If

the

instructions

were

erroneous

as

a

matter

of

clearly established Supreme Court precedent, was the error in
any event harmless based on the state court record?
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

petitioner’s

filing entitled “Motion for Traverse” (Doc. 7) is construed as a
motion to file traverse and is dismissed as moot because the
Traverse was filed upon receipt.
IT

IS

FURTHER

ORDERED

that

petitioner’s

filing

entitled

“Motion for Citation of Supplemental Authorities” (Doc. 8) is
24

construed as a motion to supplement traverse and is granted.16
IT IS FURTHER ORDERED that respondents are granted thirty
(30) days in which to submit Respondents’ Brief on the questions
set forth herein; and that petitioner is granted twenty (20)
days

after

respondents’

brief

is

filed

in

which

to

submit

Petitioner’s Brief on the same questions.
IT IS SO ORDERED.
Dated this 18th day of September, at Topeka, Kansas.

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

16

It appears that Mr. Griffin mistakenly included “motion” in the titles
of these two documents, and that they are not actually motions but his
traverse and supplemental materials.

25