Miller (ID 70471) v. Mitchell et al

Filing 29

MEMORANDUM AND ORDER ENTERED: Petitioner's motions 27 & 28 for appointment of counsel are denied. The petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254 is denied. A certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 11/18/14. Mailed to pro se party Saul A. Miller by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAUL A. MILLER,
Petitioner,
v.
CASE NO.

12-3245-SAC

ELLEN MITCHELL, Saline
County Attorney, et al.,
Respondents.
MEMORANDUM AND ORDER
Petitioner

is

currently

incarcerated

in

the

District

of

Kansas upon convictions by a jury, after an initial mistrial, of
rape,

aggravated

criminal

sodomy

and

aggravated

indecent

liberties with a child.

He appealed these convictions to the

Kansas

and

Court

of

Appeals

appeals were turned aside.

the

Kansas

Supreme

Court.

His

This matter is now before the court

upon petitioner’s request for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254.

For the reasons set forth below, the court

shall deny the petition for habeas relief.
I.

STANDARDS OF REVIEW
The

standards

this

court

must

apply

when

reviewing

petitioner’s § 2254 challenge to matters decided in state court
proceedings were set forth in Frost v. Pryor, 749 F.3d 1212,
1222-24 (10th Cir. 2014):

1

Our review is . . . governed by AEDPA, which “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, we may not grant a state prisoner’s
petition under § 2254 with respect to “any claim that
was
adjudicated
on
the
merits
in
State
court
proceedings” unless the prisoner can show that the
state court’s adjudication of the claim “resulted in a
decision that was contrary to, or involved an
unreasonable
application
of,
clearly
established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); 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
is
an
“unreasonable
application” of Supreme Court precedent if “the state
court identifies the correct governing legal rule from
[the] Court’s cases but unreasonably applies it to the
facts of the particular state prisoner’s case.”
Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000)(opinion of O’Connor, J.);
accord Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003). “Evaluating whether a
rule application was unreasonable requires considering
2

the rule’s specificity. The more general the rule . .
. the more leeway [state] courts have in reaching
outcomes in case-by-case determinations.” Richter, 131
S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). An
“unreasonable application of federal law” is therefore
“different from an incorrect application of federal
law.” Id. at 785 (quoting Williams, 529 U.S. at 410,
120 S.Ct. 1495 (opinion of O'Connor, J.)).
We may “issue the writ” 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). Indeed, AEDPA stops just
“short of imposing a complete bar on federal court
relitigation of claims already rejected in state
proceedings.” Richter, 131 S.Ct. at 786. Accordingly,
“[w]e will not lightly conclude that a State's
criminal justice system has experienced the ‘extreme
malfunction’ for which federal habeas relief is the
remedy.” Titlow, 134 S.Ct. at 16 (quoting Richter, 131
S.Ct. at 786).
In making this assessment, however, “we review the
district court's legal analysis of the state court
decision de novo” and its factual findings, if any,
for clear error. Byrd v. Workman, 645 F.3d 1159, 1165
(10th Cir. 2011)(quotations omitted). Finally, our
review is “limited to the record that was before” the
[state appellate court]. Cullen v. Pinholster, –––
U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557
(2011).
(footnote omitted).
II.

FACTUAL BACKGROUND AND HISTORY OF PROCEEDINGS
The

following

review

of

the

facts

is

taken

almost

completely from the opinion of the Kansas Supreme Court in the

3

direct appeal of the underlying prosecution, State v. Miller,
264 P.3d 461 (Kan. 2011).

Petitioner has expressed no objection

to the Kansas Supreme Court’s review of the facts1 and the court
finds no grounds to stray from it after reviewing the record in
this case.

See Stouffer v. Trammell, 738 F.3d 1205, 1211 (10th

Cir. 2013)(fact findings of the state court are presumed correct
unless habeas petitioner presents clear and convincing evidence
otherwise).
A. Evidence presented during the two trials
There were two trials in this matter.

The first trial

ended when a mistrial was declared during the closing argument
of

the

prosecution.

The

trials was very similar.

evidence

presented

during

the

two

The following recitation of evidence

presented at the second trial also describes evidence presented
at the first trial.
The victim of the crimes in this matter has been referred
to as “N.A.”

N.A. was four years old on July 19, 2005, when

petitioner stopped by her family’s home in the early evening.
Petitioner was a trusted family friend who visited often and
occasionally

spent

the

night.

N.A.

watched

movies

with

petitioner in the living room that evening and petitioner ended
up sleeping on a loveseat in the living room while N.A. slept on
1

As discussed later, petitioner does contend that the Kansas Supreme
Court failed to acknowledge legal objections petitioner’s counsel registered
at trial.
4

the living room couch.

Other members of the family, including

N.A.’s mother and her fiancé, were also in the home.
The next morning, petitioner left and that evening N.A.’s
mother asked N.A. if she wanted petitioner (“Uncle Saul”) to
spend more time watching movies at the home.

N.A. said “no,”

and explained that petitioner had “hurt her.”

N.A. pointed to

her

vaginal

area

and

told

her

mother

that

“touched her with his thingy and his fingers.”

petitioner

had

N.A. also stated

that petitioner had held her arms down and her mouth shut during
the assault.

When asked why she did not say something to her

mother before, N.A. said that petitioner told her not to tell
her

parents.

N.A.’s

mother

and

grandmother

examined

N.A.’s

vaginal area and determined that it was very red and irritated.
Law enforcement was contacted and N.A. was taken to the
hospital

where

she

Examiner

was

(“SANE”).

The

examined

by

examination

a

Sexual

found

Assault

several

Nurse

tears

and

abrasions on N.A.’s vagina and anus, but no signs of handprints,
bruising, discoloration or scraping on N.A.’s arms or mouth.
Photographs of the injuries were admitted into evidence.
Law enforcement decided to interview petitioner.
petitioner

did

not

eventually

agreed

admit
to

tell

exchange for a cigarette.

to

any

police

inappropriate
“what

really

At first,

touching,
happened”

but
in

Petitioner then admitted, orally and

in writing, to touching N.A.’s vagina with his hand, both on top
5

of and underneath her underwear and to inserting his finger into
N.A.’s

vagina.

He

did

not

admit

to

penetration or to any anal penetration.

using

his

penis

for

Petitioner said this

occurred while N.A.’s mother was nearby using a computer and her
fiancé was upstairs.
Petitioner testified that he was pressured into making a
confession and denied all of the charges against him.
B. Pretrial rulings before the first trial
Before the first trial, a pretrial hearing was conducted to
determine whether N.A.’s statements to her mother, grandmother
and

the

SANE

were

admissible,

assuming

unavailable to testify at the trial.
N.A.’s

statements

to

her

that

N.A.

would

be

The trial judge found that

mother

and

grandmother

nontestimonial and, therefore, could be admitted.

were

As for N.A.’s

statements to the SANE, the trial judge held that the SANE could
testify as to N.A.’s statements of “what happened” because such
statements related to the examination and treatment of injuries.
This

testimony

was

considered

medically

relevant.

But,

the

trial judge ruled that the SANE could not testify as to N.A.’s
statements regarding who caused her injuries, the location of
the alleged assault, or when the alleged assault occurred.
ruling

apparently

N.A.’s

alleged

was

intended

assailant

as

to

“he”

6

prevent
when

the

any
SANE

This

reference

to

referred

to

N.A.’s statements, although this was not expressly stated by the
trial judge when he made his ruling.
C. First trial proceedings
During the first trial, which started on February 28, 2007,
N.A. was called to the witness stand but was nonresponsive to an
oath to tell the truth and responded negatively when asked if
she knew what it meant to tell the truth and whether she would
answer some questions.

So, the trial judge ruled that N.A. was

unavailable to testify.
The prosecutor stated during her opening statement at the
first trial that:

“N.A. told the nurse he put his thingy in her

private, he put his finger in her butt, took it out, licked it,
and

the

nurse,

examination.”

based

on

information

conducted

an

There was no objection by petitioner’s counsel

when the statement was made.
judge

that

indicated

that

he

But, later in the trial, the trial
believed

the

prosecutor’s

remark

violated his pretrial ruling that statements from N.A. to the
SANE could not be used to identify who allegedly assaulted N.A.
Also during the first trial, when the prosecutor asked the
SANE what N.A. told her, the SANE testified that N.A. said she
was watching TV with a man and that he had held her arms tight.
At that point, petitioner’s counsel objected and asked for a
mistrial.
covered

the

The prosecutor told the trial judge that she had
judge’s

admonition
7

with

the

SANE

prior

to

the

testimony that she had not expected the testimony.

The trial

judge agreed that this testimony violated his pretrial ruling,
but denied the mistrial motion and, instead, ordered that the
SANE’s statement be stricken and disregarded by the jury.2
Petitioner

made

a

second

mistrial

motion

during

closing

statements after the prosecutor stated:
“[T]he State contends that the prohibited or illegal act was
anal penetration, however slight, by any body part or object,
and, again, [N.A.] told [the SANE] that the defendant stuck his
finger in her butt, pulled it out and licked it.”
The trial judge granted the second mistrial motion, noting
that this was the third time that the prosecutor had violated
the

court’s

rulings

–

the

first

time

being

during

opening

statements, even though no objection was lodged at that time.
D. Proceedings leading to the second trial
Prior to the second trial, the court heard arguments upon
petitioner’s motion to dismiss on double jeopardy grounds.
trial

court

actions

did

denied
not

the

motion

finding

intentionally

goad

that

the

petitioner

The

prosecutor’s

into

deciding

whether he had to either request a mistrial or proceed along
with inadmissible evidence and improper commentary.

2

The SANE later testified at the first trial that N.A. said “a person
had slid her underwear aside and put his thingy on her privates and then he
put his finger in her butt and took it out and licked it afterwards.” There
was no objection to this testimony.
8

Also prior to the second trial, which was a month or two
after the end of the first trial, the trial court took judicial
notice

of

witness.

the

prior

ruling

that

N.A.

was

unavailable

as

a

In other words, the trial court ruled that N.A. would

not testify at the second trial without conducting a hearing to
determine if N.A. would be willing and capable to testify under
oath.

Petitioner’s attorney did not object to this finding.

E. Second trial proceedings
The

evidence

described.

during

the

second

trial

was

as

previously

The SANE testified that N.A. told her that “a person

had held her arms and at times put his hand on her mouth and
that he had moved, she had on a shirt and underwear and that the
person had moved her underwear aside and put his thingy on her
private, that he had put his finger in her butt and took it out
and licked it.”

There was no specific objection registered to

this testimony.
The

jury

found

petitioner

guilty

of

rape,

aggravated

criminal sodomy and two counts of aggravated indecent liberties
with a child.
III.

THE COURT SHALL REJECT PETITIONER’S ARGUMENTS FOR HABEAS

RELIEF.
A. The Kansas Supreme Court’s denial of petitioner’s double
jeopardy claim is not unreasonable.

9

Petitioner’s first argument for habeas relief is that his
constitutional right against double jeopardy was violated by the
decision to permit a second trial after a mistrial was declared.
The

Double

Jeopardy

Constitution

Clause

protects

a

of

the

criminal

prosecutions for the same crime.
667, 671 (1982).
a

defendant,

narrowly

Amendment

defendant

from

to

the

repeated

Oregon v. Kennedy, 456 U.S.

When a mistrial is ordered upon the request of

the

applied.

prosecutor

Fifth

proscription
at

Id.

intended

to

673.

provoke

against

double

A

must

the

court

defendant

jeopardy
find

to

that

move

is
the

for

a

mistrial, before it may find that a retrial is barred by the
Double Jeopardy Clause.

U.S. v. Tafoya, 557 F.3d 1121, 1126

(10th Cir.) cert. denied, 557 U.S. 928 (2009).

Carelessness or

a mistake by the prosecution is insufficient to bar a retrial.
U.S.

v.

Powell,

982

F.2d

1422,

1429

(10th

Cir.

1992)

cert.

denied, 507 U.S. 946 (1993).
It appears clear from the Kansas Supreme Court’s opinion
that the court thought the prosecutor was credible in asserting
that she did not intend to provoke a mistrial.

The prosecutor

had presented evidence against petitioner from N.A.’s mother and
grandmother, as well as petitioner’s confession.

There were no

rulings against the prosecution or other setbacks which would
have

motivated

trial.

a

prosecutor

to

attempt

to

provoke

a

second

The court reviewed the specific violations of the trial
10

court’s

in

prosecutor

limine
did

order.

not

The

intend

to

court
violate

determined
the

that

trial

the

court’s

restrictions in her opening statement because the trial judge’s
statements were somewhat vague and the prosecutor stated that
she

had

written

conformed

to

out

the

her

trial

opening

court’s

statement

order.

and

thought

for

the

As

it

second

violation – the testimony of the SANE – the Kansas Supreme Court
remarked that it was unclear whether the reference to N.A.’s
statement that she watched television with a “man” violated the
trial

court’s

order.

The

court

further

noted

that

the

prosecutor asserted that she had discussed the trial court’s
order

with

violation.

the
As

SANE
for

prior
the

to

final

her

testimony

violation

–

to

the

avoid

any

prosecutor’s

closing argument – the Kansas Supreme Court held that it was not
an

intentional

effort

to

goad

defendant

into

asking

for

a

mistrial because the prosecutor seemed satisfied with the course
of the trial at that point.

The evidence and the rulings of the

trial court appeared to be leading to a result favorable to the
prosecutor.
The

state

court’s

findings

as

to

double

jeopardy

are

neither contrary to clearly established federal law or based on
an unreasonable determination of the facts.

A reasonable jurist

could decide on this record that there was no intent to goad the
petitioner into asking for a mistrial and, therefore, there was
11

no violation of the Double Jeopardy Clause when the case was
retried.

Accordingly,

the

court

rejects

petitioner’s

first

argument for relief.
B. Petitioner’s claims of prosecutorial misconduct
reasonably rejected by the Kansas Supreme Court.

were

1.
Petitioner’s claim that the prosecutor elicited
improper testimony from the SANE was not preserved for review
and would not have been successful if he had been reviewed.
Petitioner’s

second

argument

prosecutorial misconduct in two ways.

for

relief

alleges

First, petitioner asserts

that the prosecutor elicited improper testimony from the SANE.
Petitioner

alleges

that,

although

the

trial

court

prohibited

testimony from the SANE that N.A. identified petitioner as the
person who committed the alleged crimes, the SANE gave such
testimony

during

specifically

the

identify

second
what

trial.

the

Petitioner

testimony

was,

and

does

not

does

not

indicate that petitioner objected to the testimony when it was
given.
The

Kansas

Supreme

Court

referred

to

the

following

testimony from the SANE during the second trial when it examined
petitioner’s appeal.
She [N.A.] told me that a person had held her arms and
at times put his hand on her mouth and that he had
moved, she had on a shirt and underwear and that the
person had moved her underwear aside and put his
thingy on her privates, that he had put his finger in
her butt and took it out and licked it.

12

264 P.3d at 472.
right

to

appeal

The court held that petitioner waived his
on

this

issue

by

failing

to

object

to

the

testimony at the time of trial.
While petitioner may point to standing objections he was
granted as to hearsay testimony which might violate his rights
under

the

Confrontation

Clause,

those

objections

are

not

pertinent here because, as the Kansas Supreme Court explained,
petitioner was

granted

statements to the SANE.

his objection to a portion of N.A.’s
Now, petitioner claims that the order

granting his objection was violated, but he failed to claim that
violation

during

the

trial.

To

proceed

with

that

claim

on

appeal, petitioner needed to object to the testimony during the
second trial as he did at the first trial.

Miller, 264 P.3d at

472-73 (citing State v. Crum, 184 P.3d 222, 234 (Kan. 2008));
see also, State v. Decker, 66 P.3d 915, 920 (Kan. 2003); State
v. Moncla, 936 P.2d 727, 735 (Kan. 1997).
The United States Supreme Court has stated that “a state
prisoner’s habeas claims may not be entertained by a federal
court
claims

when

(1)

because

procedural

a

state

the

court

prisoner

requirement,

and

has

declined

had

failed

(2)

the

state

to
to

address
meet

judgment

independent and adequate state procedural grounds.”

a

those
state

rests

on

Maples v.

Thomas, 132 S.Ct. 912, 922 (2012)(interior quotations omitted).
In

this

instance

the

state

procedural
13

rule

requiring

an

objection to preserve an issue for appeal is an “independent”
ground because it is based upon state law and it was relied upon
by the state supreme court.

See McCracken v. Gibson, 268 F.3d

970, 976 (10th Cir. 2001) cert. denied, 537 U.S. 841 (2002).
State procedural grounds are “adequate” if the state procedural
rule is strictly and regularly followed and applied evenhandedly
to all similar claims.

Banks v. Workman, 692 F.3d 1133, 1145

(10th

denied,

Cir.

2012)

cert.

133

S.Ct.

2397

(2013).

In

Kansas, the rule requiring a timely objection to evidence in
order to overturn a verdict is strictly and evenly applied.
Torres

v.

Roberts,

253

Fed.Appx.

783,

787

See

(10th

Cir.

2007)(Kansas preservation rule is an independent and adequate
state

law

ground

to

default

claims);

Carr

v.

Koerner,

120

Fed.Appx. 772, 775-76 (10th Cir. 2005)(same, citing K.S.A. 60404).

The

only

exception

to

the

procedurally defaulted claims is when

denial

of

review

of

petitioner demonstrates

cause for the default and actual prejudice, or alternatively
demonstrates a fundamental miscarriage of justice.

McCracken,

268 F.3d at 976.
Petitioner has offered no grounds for the court to find
that either 1) he objected to the testimony at trial; or 2) that
the state procedural rule requiring an objection to preserve an
issue

on

appeal

is

not

procedural requirement.

an

independent

and

adequate

state

Further, petitioner does not argue that
14

there is cause or prejudice excusing the failure to object at
trial or that a review of petitioner’s argument is necessary to
prevent

a

fundamental

miscarriage

of

justice.

For

these

reasons, the procedural default doctrine precludes relief upon
petitioner’s first claim of prosecutorial misconduct.
Finally, even if it were determined that petitioner had
properly objected to the testimony, the court does not believe
that the testimony given by the SANE at the second trial denied
plaintiff his right to confront witnesses at trial because the
particular statement from N.A. to the SANE was nontestimonial as
explained by the Kansas Supreme Court and discussed in section
III(C) of this opinion.
2. Petitioner’s claim of prosecutorial misconduct
during the closing statement does not warrant habeas relief.
Petitioner’s second claim of prosecutorial misconduct asserts
that the prosecutor made improper remarks during the closing
argument of the second trial.

These remarks asked the jury to:

[T]hink how frightened four-year-old [N.A.] was that
night, when an adult family friend begins to touch
her.
Is it too much to believe that she was so
terrified that she didn’t cry out, or that she didn’t
do anything, and that she didn’t run?
Is it so hard
to believe that maybe she didn’t even understand what
was happening to her? . . . And is it so hard to
believe that she didn’t do anything about it until the
defendant left the house, and she didn’t tell until
mom suggests, “Hey, should we have Uncle Saul come
back again and watch some movies?”

15

Petitioner asserts that these comments constituted an improper
appeal for compassion for N.A.
The

Tenth

prosecutorial

Circuit

has

misconduct

stated

that

are

reviewed

“[a]llegations

under

a

due

of

process

analysis” and that “[c]ourts must examine alleged misconduct in
the context of the entire proceeding, including the strength of
the evidence against the petitioner.”
F.3d

1205,

1221

(10th

quotations omitted).
was

able

to

Cir.

Stouffer v. Trammell, 738

2013)(internal

citations

and

“The ultimate question is whether the jury

fairly

prosecutors' conduct.”

judge

the

evidence

in

light

of

the

Wilson v. Sirmons, 536 F.3d 1064, 1117

(10th Cir.2008) (quotations omitted).

“A prosecutor’s improper

statement is reversible only if it ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’”

Stouffer,

738

F.3d

at

1221

(quoting

Darden

v.

Wainwright, 477 U.S. 168, 181 (1986).
The

Kansas

Supreme

Court

found

that

the

prosecutor’s

remarks were responsive to defense counsel’s closing argument
which questioned why no one heard or saw anything in N.A.’s
house while N.A. allegedly was being assaulted.
reasonable

finding.

The

court

is

This was a

confident

that

the

prosecutor’s closing argument would not cause a jury to unfairly
evaluate

the

evidence.

Therefore,

the

court

petitioner’s second claim of prosecutorial misconduct.
16

rejects

C. Petitioner’s arguments relating to the
Clause and hearsay do not warrant habeas relief.
Petitioner’s
constitutional

third

and

argument

state

law

for

Confrontation

habeas

arguments.

The

relief

makes

constitutional

argument is based upon the Confrontation Clause inside the Sixth
Amendment.

Petitioner

petitioner’s

Sixth

claims

that

Amendment

the

rights

trial
by

court

violated

admitting

N.A.’s

statements at trial without providing petitioner an opportunity
to confront and cross-examine N.A. regarding those statements.
This

argument

appears

confined

to

the

admission

statements through the testimony of the SANE.3

of

N.A.’s

Petitioner also

mentions the admission of hearsay and alleges a violation of
“K.S.A. 60-460(d).”

We assume that petitioner means K.S.A. 60-

460(dd) because that is the provision involving child witnesses
which was argued in the state court proceedings.4

Petitioner

further claims that the district court should have ordered N.A.
to testify via closed circuit television.
3434,

allows

a

child

victim

to

State law, K.S.A. 22-

testify

via

closed-circuit

television if the court finds that testifying in the courtroom

3

If the court construed the petition as making a Sixth Amendment
challenge to the admission of N.A.’s statements through the testimony of
N.A.’s mother and grandmother, the court would not grant habeas relief on the
basis of that argument. The trial court made a correct judgment that N.A.’s
statements to her mother and grandmother were nontestimonial and therefore
did not trigger the right to cross-examination extended by the Sixth
Amendment’s Confrontation Clause.
4

K.S.A. 60-460(d)
hearsay rule.

involves

the

excited

17

utterance

exception

to

the

would traumatize the child to the extent that the child would be
prevented from reasonably communicating with the jury.
1.
Petitioner’s
Confrontation
reasonably decided by the state court.

Clause

claim

was

The Kansas Supreme Court’s decision to affirm the admission
of N.A.’s statements to the SANE was reasonable and not contrary
to clearly established federal law.

The Kansas Supreme Court

engaged in a thorough discussion of petitioner’s Sixth Amendment
claim as it related to the SANE’s testimony that N.A. told her:
a person had held her arms and at times put his hand
on her mouth and that he had moved, she had on a shirt
and underwear and that the person had moved her
underwear aside and put his thingy on her privates,
that he had put his finger in her butt and took it out
and licked it.
The court explained that under Crawford v. Washington, 541 U.S.
36 (2004), whether the admission of hearsay statements violated
the

Confrontation

whether

the

Clause

statements

“non-testimonial.”

of

were

the

Constitution

categorized

264 P.3d at 476.

as

depended

upon

“testimonial”

or

The court looked at four

factors to determine whether the N.A.’s statements to the SANE
were testimonial:
the

statements

1) whether an objective witness would believe
would

later

be

available

for

use

in

the

prosecution of a crime; 2) whether the statements were made to a
law enforcement officer or to another government official; 3)
whether the primary purpose of the interview was to develop
facts relevant to a later prosecution; and 4) whether the level
18

of

formality

of

the

inherently testimonial.

statement

was

sufficient

to

make

it

Id. at 477-478.

The court analyzed the role and actions of the SANE and
concluded

that

she

acted

for

the

treatment and evidence collection.

dual

purpose

of

medical

The court concluded that

there was no emergency when N.A. made her statements to the SANE
but there was an injury or a concern of injury which provided a
medical purpose to the interview.

The absence of an emergency

allowed for a more formal environment for an interview than is
sometimes the case, but the court held that the formality was
not inconsistent with a medical purpose.

When considering the

“primary purpose” of N.A. and her mother, the court stated:
Objectively a parent of a small child who reported
rape and sodomy would be concerned and would want a
physical examination to determine if treatment was
necessary, especially if, as in this instance, the
child reported she was “hurting down in her vagina.”
It is also significant that the reporting officer had
already
conducted
interviews.
Under
those
circumstances, objectively the person consenting to
and
providing
information
to
a
health
care
professional would consider the purpose of statements
to be to assist in medical diagnosis and treatment.
N.A.’s mother may have understood there would be
collection of physical evidence, but it is unlikely
she would have understood that any statements N.A.
made
to
the
SANE
were
primarily
for
criminal
prosecution.
Objectively, we conclude N.A.’s and her mother’s
purpose in answering the SANE’s questions was to
direct the SANE to N.A.’s injuries, not to provide
evidence for the prosecution of Miller.

19

Id. at 489.
she

The court acknowledged that the SANE testified that

performed

consistent

with

certain
the

tasks

sexual

in

order

assault

to

evidence

collect

evidence

collection

kit.

But, given the clear evidence of N.A.’s pain and injury and that
a follow-up examination was conducted the next week, the court
concluded

that

N.A.’s

statements

categorized as testimonial.

to

the

SANE

could

not

be

The court summarized its analysis

was follows:
An objective evaluation of the totality of the
circumstances leads us to the conclusion that N.A.’s
statements in response to the SANE’s inquiry about
what
happened
were
nontestimonial.
These
circumstances include N.A.’s age, her complaint that
she was “hurting,” the mother’s decision to seek
medical treatment independent of any request to do so
by law enforcement officers, the SANE’s action of
asking questions common to all medical examinations,
and the SANE’s action of providing some medical
treatment.
Id. at 490.
The Kansas Supreme Court’s conclusion is consistent with
the results reached in other cases considering this question.
Goza v. Welch, 2011 WL 9686905 *9-13 (N.D.Ohio 2011)(statements
by child victim to a SANE and a social worker); United States v.
Squire, 72 M.J. 285 (C.A.A.F. 2013)(statements by child victim
to a doctor); State v. Arnold, 933 N.E.2d 775, 784-86 (Ohio
2010)(statements
diagnosis
(Ariz.App.

and

by

child

treatment);

2014)(statement

victim
State
to

a
20

for
v.

purpose

Hill,

forensic

2014

nurse

of

medical

WL

5586810

in

emergency

room); Williams v. State of Texas, 2014 WL 895506 *2-3 (Tex.App.
2014)(statements to a SANE);

Herrera v. State of Texas, 2013 WL

4859311 *2-4 (Tex.App. 2013)(statements by elderly victim to a
SANE and a psychologist); Fino v. State, 2013 WL 1639256 *3-6
(Tex.App.

2013)(statements

made

to

SANE

by

child

victim’s

mother); see also, Dorsey v. Banks, 749 F.Supp.2d 715, 749-52
(S.D.Ohio

2010)(on

statements

to

a

habeas
SANE

review,

was

finding

possibly

that

admission

of

but

an

erroneous

not

unreasonable application of the Confrontation Clause); McLaury
v. State of Wyoming, 305 P.3d 1144 (Wyo. 2013)(statement made to
SANE

by

adult

victim

satisfies

Wyoming

state

law

hearsay

exception for statements for purposes of medical diagnosis).
There

is

contrary

authority

as

discussed

by

the

Supreme Court and in some of the above-listed cases.

Kansas
Indeed,

the Kansas Court of Appeals viewed the statements to the SANE to
be testimonial in petitioner’s underlying appeal.5
Miller, 208 P.3d 774, 783-87 (Kan.App. 2009).
upon

review

of

the

record

and

other

case

State v.

Our conclusion

authority

is

that

petitioner has failed to show that the Kansas Supreme Court’s
decision is contrary to a rule set forth in Supreme Court cases
or

otherwise

Therefore,

the

an

unreasonable

court

shall

application
deny

5

relief

of
on

federal
the

basis

law.
of

The court concluded, however, that the admission of the “testimonial”
statements was harmless error.
21

petitioner’s

claim

that

his

Sixth

Amendment

rights

were

violated.
2. Petitioner’s state law claims do not warrant habeas
relief.
Petitioner’s

claims

that

the

trial

court

misapplied

the

hearsay rule or should have ordered N.A. to testify via closed
circuit television are state law arguments which do not provide
a basis for habeas corpus relief.

See Lewis v. Jeffers, 497

U.S. 764, 780 (1990)(habeas relief does not lie for errors of
state law); Wilson v. Jones, 544 Fed.Appx. 814, 816 (10th Cir.
2013)(habeas

court

had

no

general

authority

to

review

state

court’s evidentiary ruling on hearsay); Danner v. Motley, 448
F.3d 372, 375-76 (6th Cir. 2006)(decision to allow child victim
testify by closed circuit television was a state law issue not
subject to habeas review); see also, Bullock v. Carver, 297 F.3d
1036,

1055

(10th

(2002)(alleged

Cir.)

cert.

misapplication

denied,

of

state

537

U.S.

evidentiary

1093
rules

permitting hearsay testimony of child sexual abuse victims is
insufficient to grant habeas relief).
the

error

in

evidentiary

An exception is made if

decisionmaking

is

“so

grossly

prejudicial that it fatally infected the trial and denied the
fundamental

fairness

that

is

the

essence

of

due

process.”

Bullock, 297 F.3d at 1055 (interior quotations omitted).
are no good grounds to apply that exception on this record.

22

There

D. Petitioner’s claim that the state court overlooked
contemporaneous objections to testimony does not warrant habeas
relief.
Petitioner’s fourth and final argument for relief is that
the

Kansas

opinions
make

Court

of

incorrectly

Appeals
found

contemporaneous

asserts

that

evidence,

his

and

first and second trials.
detail

how

this

that

made

the

Kansas

petitioner’s

objections

counsel

testimony,

and

to

“counsel

testimony.”

the

opposing

Supreme

same

didn’t

Petitioner

objections

counsel’s

Court

comments

to

the

in

the

Petitioner does not articulate in any

alleged

error

was

detrimental

to

his

constitutional rights and does not specify what objection was
made, but overlooked by the Kansas Supreme Court.

The court

assumes that petitioner is referring to his general objections
to the trial court’s analysis of the Confrontation Clause and
hearsay

issues,

and

perhaps

to

the

finding

that

N.A.

was

unavailable to testify.
There is nothing on the record, however, to suggest that
petitioner’s constitutional rights to confront and cross-examine
witnesses or to a fair trial were deprived by the trial court or
the state appellate courts.
counsel

during

the

first

The objections made by petitioner’s
trial,

when

applied

to

the

second

trial, do not serve to identify an unreasonable application of
federal law.
IV.

CONCLUSION
23

For

the

reasons,

above-stated

the

petition

for

habeas

corpus relief shall be denied.
V.

MOTIONS
The

court

Motions

for

haa

considered

Appointment

of

petitioner’s
Counsel

second

(Docs.

determined that they should be denied.

27

and
&

third

28)

and

This matter was decided

upon the record, and an evidentiary hearing was not found to be
necessary.
V.

CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Cases in the

United States District Courts, instructs that “[t]he district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
U.S.C.

§

2253,

appealability

the

“only

if

court
the

may

issue

applicant

a

has

Pursuant to 28
certificate

made

a

of

substantial

showing of the denial of a constitutional right,” and the court
“indicates

which

showing.”

A

demonstrating

specific

issue

petitioner
that

the

can

issues

or

issues

satisfy
raised

satisfy

that
are

[that]

standard

debatable

by

among

jurists, that a court could resolve the issues differently, or
that

the

questions

deserve

further

proceedings.

Slack

v.

McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)).
of

appealability

should

The court concludes that a certificate
not

issue
24

in

this

case.

Nothing

suggests that the court’s ruling resulting in the dismissal of
this action is debatable or incorrect.

The record is devoid of

any authority suggesting that the Tenth Circuit Court of Appeals
would resolve the issues in this case differently.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

petitioner’s

Motions for Appointment of Counsel (Docs. 27 & 28) are denied,
and that this petition for writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that a certificate of appealability
is denied.
IT IS SO ORDERED.
Dated this 18th day of November, 2014, at Topeka, Kansas.

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

25