Manning (ID 51070) v. Deere

Filing 18

MEMORANDUM AND ORDER: The second amended petition for habeas corpus relief under 28 U.S.C. § 2254 (Dk. 9) is denied. Signed by U.S. District Senior Judge Sam A. Crow on 9/23/14. Mailed to pro se party Everett Manning by regular mail.(mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EVERETT MANNING,
Petitioner,
v.

No. 12-3254-SAC

REX PRYOR1,
Respondent.

MEMORANDUM AND ORDER
This case comes before the Court on a petition for habeas corpus filed
pursuant to 28 USC § 2254.
I. Procedural History
A jury found Petitioner guilty in state court of one count of aggravated
battery against one victim and one count of battery against another victim.
The court sentenced Petitioner to a term of 154 months imprisonment. The
Kansas Court of Appeals affirmed Petitioner’s convictions and sentence in
State v. Manning, Case No. 98,051, 2008 WL 4291504 (Kan.Ct.App., Sep.
19, 2008) (Unpublished Opinion), and the Kansas Supreme Court denied
review.

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Respondent’s request to substitute Rex Pryor, Warden of the Lansing Correctional Facility,
for Deputy Warden Kyle Deere as a party defendant is granted. See 28 U.S.C. §§ 2242,
2243; Rumsfeld v. Padilla, 542 U.S. 426, 447, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004)
(construing the statutes to require that federal habeas proceedings be brought against the
warden of the facility in which the petitioner is held).

Petitioner filed for post-conviction relief in the District Court of
Wyandotte County, Kansas, pursuant to K.S.A. 60-1507, but the district
court denied that motion. Petitioner appealed, but the Kansas Court of
Appeals (KCOA) affirmed the denial of Petitioner’s K.S.A. 60-1507 motion.
Manning v. State, No. 105,699, 2012 WL 3289951 (Kan.Ct.App. Aug. 10,
2012) (Unpublished Opinion). Petitioner then timely filed this petition for
habeas corpus relief.
This Court previously reviewed Petitioner’s claims and ordered him to
file an amended petition presenting only exhausted claims. Dk. 8. Petitioner
responded by filing a Second Amended Petition for Writ of Habeas Corpus
alleging that he was denied due process by omitting a lesser included
offense instruction at trial, and by using his prior juvenile adjudications to
enhance his sentence. Dk. 9.
This Court adopts the underlying facts stated in these 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
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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
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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
(10th Cir.2008).
In reviewing state criminal convictions in federal habeas corpus
proceedings, a federal court does not sit as a super-state appellate court.
See Estelle v. McGuire, 502 U.S. 62, 67–68, 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
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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).
III. Failure to Instruct on Lesser Included Offense
Petitioner contends that the trial court's failure to instruct on
aggravated battery’s lesser included offense of misdemeanor battery denied
him a fair trial.
A. State Court Proceedings
On direct appeal, the KCOA rejected this claim on the merits, finding
that a reasonable jury could not have convicted Manning of misdemeanor
battery because the harm inflicted on the victim was not slight, trivial,
minor, or moderate:
The uncontroverted evidence of bodily harm included the
following: the victim's nose was fractured in several different places
and required surgery to repair; lacerations on her eyebrow and nose
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required stitches; her injuries have caused breathing difficulties; and
she wakes up in the middle of the night struggling to breathe.
“Great bodily harm” under K.S.A. 21–3414 requires harm that is
not slight, trivial, minor, or even moderate harm. State v. Dubish, 234
Kan. 708, 675 P.2d 877 (1984). In this present appeal, the harm
inflicted on the victim was most certainly not slight, trivial, minor, or
moderate. She required surgery and has had lasting difficulties as a
result of the battery. Under the evidence, a jury could not have
reasonably convicted the defendant of misdemeanor battery.
Consequently, the district court did not err in refusing to give a lesser
included instruction to the jury. See State v. Boone, 277 Kan. 208, 83
P.3d 195 (2004). Manning's argument that State v. Brice, 276 Kan.
758, 80 P.3d 1113 (2003), requires such an instruction is not correct.
In Brice, the district court erred by telling the jury a through and
through bullet wound was great bodily harm. Removing a factual issue
of the crime is a far different issue than deciding whether a lesser
included offense instruction is necessary. See 276 Kan. at 773–74.
Here, it was entirely reasonable for the jury to be left with two
alternatives: guilty or not guilty of aggravated battery.
Manning, 192 P.3d at 184, 2008 WL 4291504 at 1.
B. Habeas Review
This court cannot review the merits of this state law issue. The
Supreme Court has never recognized a federal constitutional right to a lesser
included offense instruction in non-capital cases. See Beck v. Alabama, 447
U.S. 625, 638 n. 14, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). And Tenth
Circuit precedent establishes a rule of ‘automatic non-reviewability’ for
claims based on a state court's failure, in a non-capital case, to give a lesser
included offense instruction. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.
2004). This was a non-capital case, thus Petitioner is not entitled to habeas
relief on this ground. See Johnson v. Keith, 726 F.3d 1134, 1135 n. 2 (10th
Cir. 2013).
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IV. Using Juvenile Adjudications in Sentencing
Petitioner next contends that using his prior juvenile adjudications to
enhance his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Blakely v. Washington, 542 U.S. 296 (2004).
A. State Court Proceedings
The KCOA on direct appeal summarily dismissed this claim of error,
stating:
Finally, the Kansas Supreme Court has rejected Manning's sentencing
arguments. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002);
State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002). We have no reason
to believe the Kansas Supreme Court would rule differently today, and
we are duty bound to follow its decisions.
…
We need not further analyze Manning's sentencing issues because
Ivory and Hitt control.
Manning, 192 P.3d at 184, 2008 WL 4291504 at 1, 2.
B. Habeas Review
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.” 530 U.S. at 490. Apprendi and Blakely both approved the judge's
use of prior convictions as a sentence-enhancing factor. Apprendi, 530 U.S.
at 490; see Blakely, 124 S.Ct. at 2536.
The sole legal issue presented is whether juvenile adjudications should
be equated with convictions, for sentencing purposes. That issue has not
been decided by the Supreme Court, but the Kansas Supreme Court has
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ruled that juvenile adjudications count as prior convictions for purposes of
Apprendi, so do not need to be submitted to a jury. See State v. Hitt, 273
Kan. 224, 236 (2002), cert. denied, 537 U.S. 1104, 123 S.Ct. 962, 154
L.Ed.2d 772 (2003); State v. Fischer, 288 Kan. 470, 475, 203 P.3d 1269
(2009) (reaffirming Hitt for all juvenile adjudications that were final as of the
decision in In re L. M., 286 Kan. 460, 469–70 (2008), which gave juveniles a
constitutional right to a jury trial); State v. Ivory, 273 Kan. 44 (2002)
(holding Apprendi does not apply to presumptive sentence that was based in
part on defendant's criminal history score). See also State v. Hollis, 2011 WL
2637441, 6 (Kan.App. 2011).
The Tenth Circuit has not yet decided this question. Gardner v.
McKune, 242 Fed.Appx. 594, 598 (10th Cir. 2007) (unpublished), cert.
denied, 553 U.S. 1023, 128 S.Ct. 2093, 170 L.Ed.2d 826 (2008). It has,
however, ruled in unpublished decisions that given the narrow standard of
review in habeas cases, enhancement of a petitioner's sentence based on
prior juvenile convictions is neither contrary to, nor an unreasonable
application of, clearly established Supreme Court precedent. See Harris v.
Roberts, 485 Fed.Appx. 927 (10th Cir. 2012); Gardner v. McKune, 242
Fed.Appx. 594 (10th Cir. 2007).
Other federal circuit courts disagree whether juvenile proceedings
count as “prior convictions” for purposes of Apprendi's application. The Ninth
Circuit stands alone in having held that the state court's use of prior juvenile
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adjudications to enhance a sentence violates Apprendi. United States v.
Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001). The Eighth Circuit has held that
juvenile adjudications can properly be characterized as “prior convictions” for
the Apprendi exemption, because “juvenile adjudications, like adult
convictions, are so reliable that due process of law is not offended by such
an exemption.” United States v. Smalley, 294 F.3d 1030, 1032–33 (8th
Cir.2002), cert. denied, 537 U.S. 1114 (2003). The Third Circuit agreed,
holding that a “prior nonjury juvenile adjudication that was afforded all
constitutionally-required procedural safeguards can properly be
characterized as a prior conviction for Apprendi purposes.” United States v.
Jones, 332 F.3d 688, 696 (3d Cir. 2003), cert. denied, 540 U.S. 1150
(2004). The Eleventh Circuit has followed the Eighth and Third Circuit
decisions. United States v. Burge, 407 F.3d 1183, 1190 (11th Cir.), cert.
denied, 546 U.S.981, 126 S.Ct. 551 (2005). After these contrary circuit
decisions, even the Ninth Circuit concluded that a state court's use of prior
juvenile adjudications as a sentencing enhancement could not be held
contrary to, or an unreasonable application of, current United States
Supreme Court precedent. Boyd v. Newland, 467 F.3d 1139, 1151-52 (9th
Cir. 2006).
Courts in this district have held in unpublished decisions that given the
narrow standard of review in habeas cases, enhancement of petitioner's
sentence based on prior juvenile conviction is neither contrary to, nor an
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unreasonable application of, clearly established Supreme Court precedent.
See Glynn v. Heimgartner, 2013 WL 2449545 (D.Kan. June 5, 2013); Davis
v. Roberts, 2012 WL 1059863 (D.Kan. Mar. 28, 2012); Yates v. McKune,
2007 WL 2155652, *7 (D.Kan. July 26, 2007) (“Without express guidance
from Supreme Court precedent, this court does not find that the trial court's
decision to use prior juvenile adjudications as a sentence enhancement was
either ‘contrary to’ or an ‘unreasonable application of federal law.’ ”); Jones
v. Roberts, 2006 WL 2989237, *5 (D.Kan. Oct. 19, 2006) (same).
Given the status of the law, this court finds that the trial court's
decision to use prior juvenile adjudications as a sentence enhancement was
neither contrary to nor an unreasonable application of clearly-established
federal law.
IT IS THEREFORE ORDERED that the second amended petition for
habeas corpus relief under 28 U.S.C. § 2254 (Dk. 9) is denied.
Dated this 23rd day of September, 2014, at Topeka, Kansas.

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

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