Haddock v. McKune et al

Filing 16

MEMORANDUM AND ORDER ENTERED: 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 12/29/14. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH E. HADDOCK,
Petitioner,
v.

CASE NO.

13-3038-SAC

RAY ROBERTS, Secretary
of Corrections, et al.,
Respondents.
MEMORANDUM AND ORDER
This case is before the court upon petitioner’s application
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
For the reasons explained in this order, the requested relief
shall be denied.
I.

PRIOR PROCEEDINGS
In 1993, a Kansas state court jury found that petitioner

killed

his

degree

murder.

Supreme

wife

Barbara
His

Court.

Haddock

conviction

State

1995)(“Haddock I”).

v.

and

convicted

was

affirmed

Haddock,

897

him

of

first

by

the

Kansas

P.2d

152

(Kan.

After this decision, petitioner filed a

petition for state habeas relief, pursuant to K.S.A. 60-1507,
and

also

filed

at

least

two

motions

for

postconviction

testing and for relief pursuant to such testing.
concerned testing of:

DNA

One motion

hair found in the victim’s hand; the

victim’s eyeglasses; and fingernail scrapings from the victim.
1

A second motion concerned testing of blood found on the shoes,
slacks and a shirt belonging to petitioner.
The postconviction testing of the hair revealed that it was
from

a

female

fingernail
victim’s

other

scrapings
DNA;

than

the

victim;

that

the

testing

the

showed

of

the

the

testing

the

contained

scrapings

of

the

eyeglasses

showed

DNA

consistent with the victim and from a male source inconsistent
with petitioner.
“inconclusive”

The trial court found that these results were

and

order a new trial.

therefore

refused

petitioner’s

request

to

The trial court further found that there was

no issue before it as to the testing of the shoes, shirt and
slacks because the petitioner had refused to submit to further
DNA testing.
On the appeal of these postconviction rulings, the Kansas
Supreme Court held that the trial court had committed an error
in

the

analysis

of

both

postconviction

DNA

test

motions.

Haddock v. State, 146 P.3d 187 (Kan. 2006)(“Haddock II”).

The

court

glasses

and

petitioner,

not

found

fingernail

that

the

scrapings

analysis
were

of

the

“favorable”

hair,
to

“inconclusive,” and that the trial court erred by not making a
finding as to the results of the testing on the shoes, shirt and
slacks.

The court remanded the case back to the trial court for

further

consideration

of

whether
2

the

additional

DNA

testing

warranted a new trial, although the court observed that the end
result could depend upon whether petitioner chose to proceed
with further DNA testing on the shoes and shirt because the
evidence at trial from the testing of the slacks found blood
belonging to the victim.
whether

to

order

The trial court was directed to decide

a

new

trial

by

determining

if

the

postconviction DNA testing evidence was of such materiality that
a

reasonable

probability

existed

different outcome at trial.
Court

also

affirmed

the

that

it

would

result

in

a

In Haddock II, the Kansas Supreme

trial

court’s

rejection

petitioner’s

arguments for state habeas relief under K.S.A. 60-1507.

Some of

these arguments are raised again in this action.
On remand, the trial court denied petitioner’s request for
a new trial based upon the postconviction DNA testing.

The

court found that some of the testing results were favorable to
petitioner, some confirmed evidence at trial, and some results
were inconclusive.

It concluded that there was not a reasonable

probability that the new evidence would have changed the outcome
of the trial.

Using an abuse of discretion standard, the Kansas

Supreme

reviewed

Court

reasonable
affirmed

probability
the

trial

the
of

finding
a

court’s

of

different
result.

whether
outcome.
It

there
The

concluded

was

a

court
that

“reasonable people could agree that the postconviction DNA test
3

evidence was not so material as to make it reasonably probable
there would be a different outcome.”

State v. Haddock, 286 P.3d

837, 839 (Kan. 2012)(“Haddock III”).
II.

EVIDENCE AT TRIAL
The

following

completely
Haddock

from

III.

review

the

of

opinion

Petitioner

the

of

has

facts

is

the

Kansas

Supreme

expressed

no

taken

almost

Court

objection

to

in
the

Kansas Supreme Court’s review of the facts 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).
In November 1992, Barbara Haddock’s body was discovered by
her daughters under a pile of firewood in the garage of her
Johnson

County,

Kansas

home.

The

evidence

indicated

Barbara Haddock had been beaten with a blunt object.

that

She had

defensive wounds on her hands and arms, bruises and lacerations
on her face, and other wounds on her head.

It appeared that the

crime scene had been orchestrated by the perpetrator.
evidence

showed

that

the

victim’s

body

was

moved

Blood

from

location in the garage to the woodpile in the garage.

one
Her

wounds were not consistent with wounds which would be suffered
4

if

a

woodpile

had

fallen

splattered on the floor.

on

her.

Tomatoes

had

also

been

Blood spatter evidence taken from her

car indicated that the car was in the garage when the murder
occurred.

But, when the victim was discovered, the car was

parked in the driveway.

Thus, it appeared that the perpetrator

moved but did not steal the car.

There was no evidence of theft

or burglary.
On the day of the murder, petitioner had been at the house
after the noon hour and into the early afternoon.

He testified

that he left the house around 2:00 p.m. and travelled to the
Olathe Public Library to do research related to a federal bank
fraud case.

Petitioner had been convicted in that case and was

sentenced to prison.

But, he was released on an appeal bond and

was awaiting a resentencing hearing at the time of the murder.
He testified that he left the library and travelled to a Wendy’s
where he purchased some food around 3:18 p.m. according to a
receipt

from

the

restaurant.

Petitioner

stated

that,

after

stopping at Wendy’s, he drove to look at some property which he
was considering as an investment purchase.
the fact that property had already been sold.
to

his

office.

His

secretary

had

been

But, he overlooked
He then travelled
requested

to

tell

petitioner to go home immediately because his wife had been in

5

an accident.

Upon his arrival at the office, which was around

4:20 p.m., petitioner received this message.
The police found two fresh scratches on petitioner’s right
wrist.

Petitioner’s shoes had wood chips in them.

A shirt and

slacks belonging to petitioner was found on the floor near the
laundry room and close to a door to the garage.
slacks had blood on them.
wearing.

The shirt and

So did the shoes petitioner was

The pattern of the blood indicated that the blood was

spattered onto the slacks and shoes at the time of the beating
as opposed to some point after petitioner returned home from the
office.
The prosecution also presented evidence that the woodpile
in the Haddocks’ garage had fallen some time before the murder
and that petitioner, his son and a few neighbors were the only
ones who knew about it.

There was evidence that petitioner

continued to advance the idea to relatives and friends that the
victim’s death was caused by firewood falling upon

her even

after he was told by police that the death appeared to be a
homicide.
Petitioner argued in support of his alibi that the victim’s
watch was damaged during the beating and was stopped at 3:16
p.m.

As mentioned, petitioner claimed he was at Wendy’s at 3:18

p.m.

and

before

that

was

at

the
6

library.

The

prosecution

presented evidence that the hands of the watch could have been
manipulated and that the front desk clerks of the library did
not

recall

seeing

petitioner

or

anyone

petitioner on the afternoon of the murder.

who

looked

like

Also, the victim’s

daughters arrived home around 3:20 p.m. or shortly thereafter,
but saw nothing alarming until they discovered their mother, 30
to 40 minutes later.

There was also evidence that around 2:00

p.m. a neighbor heard noise that she compared to the sound of
wood being moved around and that the victim did not answer the
phone when called at about 3:00 p.m.
As

for

evidence

of

motive,

the

prosecution

proved

that

petitioner had been convicted in federal court of bank fraud,
had appealed his prison sentence and convictions, and was on
bond

awaiting

resentencing

at

the

time

of

the

murder.

Originally, petitioner had been sentenced to 42 months in prison
upon

ten

counts

of

conviction.

The

case

was

remanded

for

resentencing because two counts of conviction had been reversed
and an issue of monetary loss required decision.

There was

testimony from a friend of the victim that Barbara Haddock would
become upset and emotional when discussing the future, that she
was worried about the expense of defending the case, and that
she

would

get

angry

with

petitioner

dragging on.
7

because

the

case

kept

III.

POSTCONVICTION DNA TESTING
As mentioned, there was postconviction DNA testing on six

items.
hand.

One of the items was a hair found in the victim’s right
At the time of trial there was some testimony regarding a

relatively inexact DNA test which indicated that the hair was
consistent with the blood of petitioner and inconsistent with
the blood of the victim.

Postconviction, a more discriminating

DNA test on the hair indicated that the hair came from a female
and that it was inconsistent with the victim’s DNA.
Postconviction DNA testing upon the fingernail scrapings
showed the victim’s DNA and no indication of any other source.
Postconviction DNA testing upon a pair of eyeglasses showed DNA
consistent with that of the victim, but also some extraneous
DNA, possibly from a male source not consistent with petitioner.
Postconviction DNA testing upon petitioner’s shoes showed a
mixture of DNA with the victim as the primary donor.

The minor

donor could not be identified but the DNA was consistent with
petitioner.

Postconviction DNA testing upon petitioner’s shirt

was not conclusive.

The victim could not be excluded as the

major donor of DNA found on the shirt.
upon

the

shirt

Postconviction

were
DNA

positive
testing

for

upon

consistent with a female source.

the

Other tests conducted
presence

petitioner’s

of

blood.

slacks

was

Haddock II, 146 P.3d at 202.
8

IV.

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):
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).
9

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
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
10

[state appellate court]. Cullen v. Pinholster,
U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d
(2011).

–––
557

(footnote omitted).
V.
PETITIONER’S CLAIM OF A
WARRANT FEDERAL HABEAS RELIEF.

DUE

PROCESS

VIOLATION

DOES

NOT

Petitioner’s first claim for federal habeas relief is that
his

due

process

rights

were

violated

by

the

Kansas

Supreme

Court’s interpretation and application of the postconviction DNA
testing statute, K.S.A. 21-2512. Petitioner supports this claim
with three arguments.
District

Attorney’s

In doing so, petitioner makes citation to
Office

for

the

Third

Judicial

Dist.

v.

Osborne, 557 U.S. 52 (2009) wherein the Court recited a limited
standard of review.
procedures
that:

for

There, when examining the State of Alaska’s

postconviction

DNA

testing,

the

Court

stated

“the question is whether consideration of Osborne’s [due

process] claim within the framework of the State’s procedures
for postconviction relief ‘offends some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked

as

fundamental,’

or

‘transgresses

any

principle of fundamental fairness in operation.’”
69

(quoting

Medina

v.

California,

505

U.S.

recognized
557 U.S. at

437,

446,

448

(1992)).
A.
The Kansas Supreme Court’s application of K.S.A. 212512 does not violate principles of fundamental fairness
established by the United States Supreme Court.
11

Petitioner’s first argument in support of his claim of a
due

process

violation

is

that

the

Kansas

Supreme

improperly applied the provisions of K.S.A. 21-2512.

Court

Petitioner

claims that once it was determined that the postconviction DNA
testing results were “favorable” to petitioner, then the statute
required that affirmative relief be ordered.

The plain language

of the statute, however, did not mandate this result, according
to

the

Kansas

Supreme

Court.

The

statute

has

since

been

amended, but at the time of the Kansas Supreme Court’s opinion
it read in part as follows:
If the results of DNA testing conducted under this
section are favorable to the petitioner, the court
shall: (A) Order a hearing . . . ; and (B) enter any
order that serves the interests of justice, including,
but not limited to, an order: (i) Vacating and setting
aside the judgment; (ii) discharging the petitioner if
the petitioner is in custody; (iii) resentencing the
petitioner; or (iv) granting a new trial.
Thus, the statute allowed for an order of affirmative relief
when the results of postconviction DNA testing were favorable to
a petitioner, but it did not require such an order.

It mandated

a hearing and “any order that serves the interests of justice.”
There
petitioner

is

no

principle

of

fundamental

which

requires

a

court

to

fairness
construe

cited
the

by

term

“including, but not limited to” as legally limiting a court to
ordering

affirmative

relief.

When
12

“favorable”

DNA

testing

results are not so favorable under all of the circumstances of a
case as to justify a new trial or other affirmative relief, then
such

relief

is

not

“in

the

interests

of

justice.”

If

affirmative relief does not serve the interests of justice, then
it should not be ordered.

We find that this interpretation of

K.S.A. 21-2512 is within the plain language of the statute and
is

not

contrary

fairness.

to

any

recognized

principle

of

fundamental

See generally U.S. v. Ramos, 695 F.3d 1035, 1040 (10th

Cir. 2012)(“including” implies a non-exclusive list).
B. The application of the abuse of discretion standard of
review is not a clearly settled violation of due process.
Petitioner’s second argument in support of his due process
claim is that the Kansas Supreme Court violated petitioner’s
rights

by

applying

an

abuse

of

discretion

standard

when

reviewing the trial court’s finding that the postconviction DNA
test

results

were

material,

but

not

so

favorable

that

a

reasonable probability existed that they would cause a different
outcome at trial.
found

to

be

Petitioner contends that if the evidence is

material

(and,

we

presume,

“favorable”

to

petitioner), “that is the end of the analysis and Mr. Haddock is
entitled to relief.”

Doc. No. 6 at p. 22.

Petitioner further

asserts that:
In order to get relief under the abuse of discretion
standard, Mr. Haddock would have to show that the
state district court acted in an arbitrary and
13

capricious manner and that no reasonable person could
believe that Mr. Haddock would be found guilty again.
That standard seems to require . . . new evidence to
exonerate Mr. Haddock, which is explicitly not
required either by statute or by the Kansas Supreme
Court. Using an abuse of discretion standard deprives
Mr. Haddock of his right to vindicate his innocence
and will significantly and unconstitutionally limit
the ability of the wrongfully convicted to demonstrate
their actual innocence.
Id.
In order to justify affirmative relief, the Kansas Supreme
Court required that the postconviction DNA evidence create a
reasonable

probability

of

a

different

outcome.

Reversing

a

trial court’s application of this standard only when there is an
abuse of discretion does not violate a recognized principle of
fundamental fairness.
In federal court and Kansas state court, one of the factors
which must be shown in order to obtain a new trial on the basis
of newly discovered evidence is that “the new evidence would
probably produce an acquittal if a new trial were granted.”
U.S. v. Orr, 692 F.3d 1079, 1099 (10th Cir. 2012) cert. denied,
133 S.Ct. 1300 (2013); State v. Laurel, 325 P.3d 1154, 1160
(Kan. 2014).

An abuse of discretion standard is applied to

these decisions upon appellate review.

U.S. v. Hill, 737 F.3d

683, 687 (10th Cir. 2013) cert. denied, 134 S.Ct. 1905 (2014);
State v. Laurel, supra.

In the Tenth Circuit, if a new trial

motion is made on the basis of an alleged Brady violation, then
14

a de novo standard of review is applied to the determination of
whether there is a reasonable probability that the result of the
proceeding

would

have

been

different

cert. denied, 135 S.Ct. 235 (2014).
court

the

evidence

been

See U.S. v. Reese, 745 F.3d 1075, 1083 (10th Cir.)

disclosed.

the

had

recognized

in

Haddock

In Kansas state court, as

III,

a

de

novo

standard

is

applied to the decision of whether the undisclosed evidence is
material (and thus whether there was a Brady violation), but an
abuse of discretion standard is applied to determining whether
the Brady violation entitled the defendant to a new trial.
P.3d

at

853

2012)).

(citing

State

v.

Warrior,

277

P.3d

1111

286
(Kan.

This is consistent with case law from several circuit

courts, as reviewed in Warrior, 277 P.3d at 1129.

But, it may

not be consistent with Tenth Circuit law.
In

any

event,

the

standard

of

review

announced

by

the

Kansas Supreme Court is consistent with the standard of review
for

motions

evidence.

for

new

Applying

trial

on

the

basis

of

that

well-established

newly

discovered

standard

in

this

situation does not appear to violate a principle of fundamental
fairness

or

to

be

fundamentally

inadequate

to

vindicate

petitioner’s rights, particularly when the United States Supreme
Court has held that the due process framework for determining
Brady

violations

does

not

necessarily
15

translate

to

the

postconviction procedures for DNA testing.

Osborne, 557 U.S. at

69.
Petitioner’s citations to Kyles v. Whitley, 514 U.S. 419,
434-39 (1994) and Trammell v. McKune, 485 F.3d 546, 552 (10th
Cir. 2007) are not persuasive because, first, they involve Brady
violations,

not

claims

of

postconviction DNA testing.

new

evidence

resulting

from

Second, in this case and in Kyles

and Trammell, a de novo review standard was applied to the issue
of materiality.

So, one could argue that neither case clearly

commands a different approach in this case.
between

this

case

and

Kyles

and

Trammell

different standards of materiality.

One

is

difference

that

there

are

In this case, materiality

was determined upon the basis of whether the postconviction DNA
test results would have favorable probative value to a finder of
fact.

Haddock III, 286 P.3d at 853 & 856.

For a Brady claim,

materiality is demonstrated by proof that there is a reasonable
probability
different

that
result.

the

undisclosed
Kyles,

514

evidence
U.S.

at

would
434.

produce
While

a

this

difference exists and a difference also exists as to whether a
de novo or an abuse of discretion standard is applied to the
determination of whether a reasonable probability of a different
outcome

has

been

proven,

there

has

been

no

clear

authority

presented to this court to support a claim that the approach of
16

the

Kansas

Supreme

Court

is

unreasonable

or

fundamentally

unfair.
Petitioner asserts that in practice the abuse of discretion
standard requires that he present evidence which exonerates him
in order to obtain a new trial.

In the court’s opinion, this is

not the standard announced by the Kansas Supreme Court.

The

problem with the postconviction DNA evidence in this case was
not

that

it

failed

to

exonerate

petitioner,

it

was

that

it

failed to substantially diminish the great amount of evidence
indicating that petitioner orchestrated the crime scene in order
to lead investigators away from the conclusion that he murdered
his wife.

As the Kansas Supreme Court stated after a thorough

review of the evidence:
At trial and now, the State maintains that the
key to the case is the orchestrated crime scene
combined with evidence that only the family knew the
wood pile had previously fallen, Haddock’s insistence
to police and his neighbors that the death was
accidental and caused by the wood falling, and the
movement of the car from the garage to the driveway
after the beating.
The other compelling evidence
includes Haddock’s reaction to the crime, the wood
chips in his shoes, the timeline, and the blood
spatter evidence, which postconviction DNA testing
reaffirms was formed by Barbara’s blood.
. . . .
[H]ere only one piece of physical evidence that
was relied on at trial, the hair, was discredited
through postconviction DNA testing.
And, there is a
significant amount of other evidence establishing
Haddock’s identity as the killer . . .
While the evidence that the hair and eyeglasses
had the DNA of two unknown people – one male and one
17

female – could be used to suggest others may have also
been present when Barbara was murdered, that evidence
does
not
dispute
the
overwhelming
evidence
of
Haddock’s guilt to which the State and district court
point. . .
In light of the evidence adduced at trial and
through Haddock’s second motion for DNA testing, we
conclude that a reasonable person could agree with the
district court’s ruling that it is not reasonably
probable the postconviction DNA testing results would
change the jury’s verdict that Haddock premeditated
the murder of Barbara.
286 P.3d at 858-59.

This discussion does not suggest that the

Kansas Supreme Court required evidence exonerating petitioner in
order to find an abuse of discretion.
Finally, even if a de novo review were applied, the court
would find, for the reasons explained in Haddock III, that the
postconviction DNA results were not so favorable to petitioner
as to create a reasonable probability of a different outcome at
trial.
C. Considering an amended theory of the case was not a
clearly established violation of petitioner’s due process
rights.
Petitioner’s third argument in support of his claim of a
due process violation is that the prosecution should have been
precluded from arguing a new or amended theory of the case in
postconviction
unfair

for

litigation.

the

prosecution

Petitioner
to

asserts

contend,

in

that

it

was

light

of

the

postconviction DNA testing upon the hair in the victim’s hand,
that the hair evidence was unimportant.
18

Petitioner argues:

the court should not require more than that Mr.
Haddock call into question the State’s original case
and the evidence it used – in other words, to
“undermine the confidence in the outcome.” Nor should
the court require more than the validation of Mr.
Haddock’s theory of defense that another person
committed this crime, especially when he was denied
the opportunity at trial.
Doc. No. 6, p. 24.

Petitioner further contends that it is

unfair for the prosecution to present “an ‘amended’ version of
the case in a venue where Mr. Haddock is at a disadvantage both
as to the availability of resources to defend the amended case
and the legal standards that are brought to bear in reviewing
the amended case.”

Id.

This argument must be rejected, first, because it does not
provide grounds to find that the procedures followed in this
case were contrary to fundamental fairness or were fundamentally
inadequate
relief.

to

protect

petitioner’s

rights

to

postconviction

The approach followed in this case is not any different

from the approach followed where a motion for new trial is made
upon

a

claim

of

newly

discovered

evidence

or

assistance of counsel or prosecutorial misconduct.

ineffective
In these

situations, the prosecution is permitted to argue that there is
no reasonable probability that the outcome of the case would
have been different if the newly discovered evidence had been
presented or the alleged mistakes of defense counsel had not
been made or the alleged mistakes of the prosecutor had not
19

occurred.

The issue is not simply whether the evidence was

favorable to the defense or whether the alleged mistakes were
detrimental.
Second, petitioner does not identify what disadvantages he
has faced which prevent him from “defending” the “amended case.”
Nothing is argued to convince the court that his situation is
fundamentally unfair.
Finally, the Kansas Supreme Court carefully considered the
DNA evidence (preconviction and postconviction) and the other
evidence in the case.

It disagreed with petitioner’s contention

that the postconviction hair analysis “significantly weakened
the State’s case . . . and require[d] the State to develop a new
‘central theme.’”

Haddock III, 286 P.3d at 857.

The court

stated that the central theme of the prosecution remained the
same,

but

that

it

was

weakened

by

the

postconviction

evidence regarding the hair in the victim’s hand.

DNA

Nevertheless,

the court concluded that “reasonable people could agree with the
district

court’s

assessment

that

this

new

evidence

was

reasonably probable to change the outcome of the trial.”

not
Id.

The court reached this decision in part because the evidence at
trial left open the possibility that the hair was the victim’s
or belonged to a third party, and that the prosecution did not
emphasize the hair analysis during the trial or during closing
20

argument.

The

state

court’s

consideration

and

rejection

of

petitioner’s argument is not unreasonable factually or legally.
Therefore,

it

does

not

provide

grounds

for

federal

habeas

relief.
VI. PETITIONER’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL DO
NOT WARRANT HABEAS RELIEF.
A.
claims.

Standards governing ineffective assistance of counsel

In Bledsoe v. Bruce, 569 F.3d 1223, 1231 (10th Cir.) cert.
denied, 558 U.S. 1081 (2009), the Tenth Circuit set forth the
standards for considering an ineffective assistance of counsel
claim:
The
Sixth
Amendment
guarantees
criminal
defendants the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 684–
86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim of
ineffective assistance of counsel “is an attack on the
fundamental fairness of the proceeding.” Id. at 697,
104 S.Ct. 2052. To establish an ineffective assistance
of counsel claim, the defendant must show (1) “that
counsel's performance was deficient,” and (2) “that
the deficient performance prejudiced the defense.” Id.
at 687, 104 S.Ct. 2052.
In determining if counsel's performance was
deficient, we “judge the reasonableness of counsel's
challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct.” Id.
at 690, 104 S.Ct. 2052. Additionally, “a court must
indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689, 104 S.Ct. 2052.
In determining prejudice, “[t]he defendant must
show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
21

confidence in the outcome.” Id. at 694, 104 S.Ct.
2052. “When a defendant challenges a conviction, the
question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Id. at 695, 104
S.Ct. 2052.
B.
Petitioner has not shown ineffective assistance
counsel with regard to the physical evidence at trial.

of

Petitioner’s first argument in support of his ineffective
assistance

of

counsel

claim

addresses

investigation of physical evidence.1

his

trial

counsel’s

Petitioner asserts that his

counsel did not read and review the DNA report of Dr. Giles and
that he did not fully investigate the exculpatory information
contained in the report.

In addition, petitioner claims that

his counsel should have consulted his own DNA expert.
The Kansas Supreme Court held that petitioner presented no
evidence that his trial counsel failed to read the Giles report.
In addition, the court concluded that petitioner’s trial counsel
probably did read the report.
of

counsel’s

filing

of

a

This conclusion was drawn because
motion

in

limine

regarding

DNA

evidence, his cross-examination of Dr. Giles, and his closing
argument regarding the DNA evidence.

1

Haddock II, 146 P.3d at

The petition mentions as part of this claim that petitioner’s trial counsel
was ineffective because he failed to hire a shoeprint expert and failed to
submit fingernail scrapings for DNA analysis.
Doc. No. 1 at p. 6.
These
contentions are not argued in petitioner’s memorandum in support of the
petition. Because of the absence of legal and factual argument in support of
the claims, they shall be denied.

22

215.

Petitioner has failed to dispute the reasonableness of

this analysis.
The Kansas Supreme Court further held that the decision not
to seek independent DNA testing was a reasonable tactical choice
and not ineffective assistance of counsel.
arbitrary

judgment.

Petitioner’s

trial

Id.

This is not an

counsel

was

able

to

argue to the jury that the DNA hair analysis was not the most
exact procedure and, instead, a “one in twenty method.”

Id.

Counsel could not have known in advance what the results of
independent testing would be.
the

results

would

inculpatory,

be

the

Counsel could have feared that

inculpatory.

prosecution

If

could

the

results

always

were

diminish

not

their

importance by noting that the victim was found in a garage and
that

her

body

had

been

handled

by

neighbors

and

emergency

medical personnel who attempted to resuscitate her before the
police arrived at the scene.

The risk/reward calculation made a

decision to forego independent DNA investigation a reasonable
tactical choice.

See Cummings v. Sirmons, 506 F.3d 1211, 1223

n.2 (10th Cir. 2007) cert. denied, 554 U.S. 907 (2008)(failure to
request DNA testing upon hair was not ineffective assistance of
counsel);

Thompson

1998)(failure
ineffective

to

v.
do

assistance

Cain,

161

independent
of

F.3d

813-14

ballistics

counsel);
23

802,

Battle

v.

tests
Delo,

(5th

Cir.

was

not

19

F.3d

1547, 1556-57 (8th Cir. 1994)(failure to obtain blood and saliva
samples from a possible suspect was not ineffective assistance);
Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997)(failure to
have blood on a carpet tested was not ineffective assistance);
Garner v. Harry, 2006 WL 3371128 *13 (E.D.Mich. 2006)(failure to
obtain

DNA

test

on

semen

was

not

ineffective

assistance

in

defending a rape charge).
In addition, the Kansas Supreme Court determined that a
reasonable

person

could

conclude

analysis probably would not
trial.
the

that

conduct
prejudice

to

find

independent

that
DNA

petitioner’s

any

DNA

at

It is reasonable to extend

alleged

analysis

case

postconviction

have altered the outcome of the

We agree with this finding.

analysis

the

error

prior

trial

to

in

failing

trial

because

it

to

did

not

does

not

undermine confidence in the trial’s result.
C.
Petitioner has not shown that his trial counsel was
ineffective when he failed to impeach Sherry Benn’s testimony.
Petitioner

argues

that

his

trial

counsel

was

constitutionally ineffective because he failed to impeach Sherry
Benn’s testimony with her statements to the police.

Ms. Benn

testified that she called the victim between 1:30 and 2:00 p.m.
on the day of the murder and spoke with her for no more than
five minutes.

She further testified that the victim told Ms.

Benn that petitioner had come home for lunch, but she did not
24

say whether he had left before Ms. Benn called.

There is a

police report, however, that Ms. Benn told a Detective Pike on
the day after the murder that the victim said petitioner had
left

just

counsel

before

asked

Ms.

Ms.

Benn

Benn

called.

whether

she

At

trial,

made

this

Detective Pike and Benn denied doing so.

petitioner’s
statement

to

Petitioner’s counsel

did not attempt to impeach Ms. Benn’s testimony by introducing
the report as evidence.
The Kansas Supreme Court found that any error committed by
petitioner’s

trial

counsel

by

failing

to

impeach

testimony did not make a difference in the trial.
146 P.3d at 221.

Ms.

Benn’s

Haddock II,

The court reasoned that Ms. Benn was vague as

to the time of her call.

The court also noted that one witness

saw petitioner getting mail at the community mailbox around 2:00
p.m. and another witness said petitioner’s van was parked in the
driveway around 2:00 p.m.

The court suggested that, if Benn’s

alleged statements to Detective Pike were accurate, the victim
could have meant that petitioner left to get the mail, but later
he returned.

We find the state court’s evaluation of possible

prejudice to be reasonable.

A reasonable jurist could decide

that any inconsistency in Benn’s statements was minor and that
the failure to impeach Benn on the witness stand did not cause
petitioner prejudice.
25

D.
Petitioner has not shown that his trial counsel’s
failure to object to closing argument was ineffective assistance
of counsel.
Petitioner

contends

that

his

trial

counsel

rendered

ineffective assistance of counsel because he failed to object to
the prosecutor’s closing argument when the prosecutor told the
jury that petitioner had lied about the clothes he wore on the
day of the murder.2

The Kansas Supreme Court determined that the

prosecutor’s comments were improper under Kansas law and that
petitioner’s counsel was deficient in failing to object to the
improper comments at trial.

2

Haddock II, 146 P.3d at 220.

The alleged improper comments, as set forth in petitioner’s brief, were:
Why, ladies and gentlemen, why would you lie about that sort of
thing?
I would contend to you that we had one very bright,
intelligent defendant, who has sat here throughout the entirety
of this case, listened to every witness that has come through the
door, and weighed and gauged, just so he could weave his story to
fit the facts in this case, and he’s had to change his story in a
way that he feels is going to be most palatable to you as jurors.
Why are we lying about the sweater?
Well, again, the clothes,
ladies and gentlemen, are the key to this case. The clothes are
the key to this case.
The reason
trying to
about the
the notion

that he’s lying about the clothing and the reason he’s
play a confusion game with you, ladies and gentlemen,
clothes is because he wants like heck for you to buy
that he did not wear those pants on November the 20th.

You can alter a watch.
You can
pull a vehicle out, and you can
try to cover your tracks, but you
the pair of pants and you cannot
shoes.

alter a pile of logs.
You can
do a lot of lying afterward to
can’t alter what’s contained on
alter what’s contained on those

Doc. No. 6 at p. 30.

26

But, the court also found that the comments reflected “a
miniscule part of a 5-day trial and were likely to have little
weight

in

the

minds

of

the

jury.”

Id.

This

was

because

“whether the jury believed the defendant’s reasons for changing
clothes over the lunch hour or not, this did not change the
overwhelming circumstantial evidence of the defendant’s guilt
presented at trial, even if we exclude the DNA evidence from our
consideration.”
reach

the

Id.

result

We conclude that a reasonable jurist could

set

forth

in

these

findings

by

the

Kansas

Supreme Court.
In addition, we note that habeas relief has been denied in
similar

cases

misconduct.

where

there

have

been

claims

of

prosecutorial

In Bland v. Sirmons, 459 F.3d 999, 1025 (10th Cir.

2006) the court denied relief where the prosecution referred to
defendant

as

a

liar

on

account

of

differences

defendant’s testimony and other evidence in the case).

between
Also, in

Donaldson v. Roberts, 2009 WL 1158668 *8-11 (D.Kan. 4/28/2009),
this court held that a prosecutor’s stated opinions at trial as
to the petitioner’s veracity did not warrant habeas relief.
in

those

cases,

petitioner’s

trial

counsel’s

As

alleged

deficiencies in this case were not so severe as to undermine a
reasonable

person’s

confidence

in

27

the

outcome

of

the

trial.

Therefore,

the

court

shall

reject

this

argument

for

federal

habeas relief.
E. Considered cumulatively, counsel’s alleged errors were
not so prejudicial as to warrant habeas relief.
At

the

counsel

close

argument,

of

petitioner’s

petitioner

ineffective

claims

that,

assistance

when

of

considered

cumulatively, that his trial counsel’s errors were prejudicial
to his defense.
carefully.

The court has considered petitioner’s arguments

We conclude that, absent the alleged errors, there

is not a reasonable probability that the result of the trial
would have been different.
VII.
PETITIONER’S
CLAIM
THAT
THE
PROSECUTION
IMPROPERLY
COMMENTED UPON HIS EXERCISE OF HIS RIGHT TO REMAIN SILENT DOES
NOT WARRANT HABEAS RELIEF.
Petitioner
relief

because

argues
the

that

he

trial

is

court

entitled

to

improperly

postconviction
permitted

the

prosecution to comment upon his exercise of his right to remain
silent

after

occurred

receiving

when

the

a

Miranda

prosecutor

asked

warning.
petitioner

This

allegedly

during

cross-

examination whether he had told the police or neighbors that he
had taken his shirt off when he was home for lunch.

This was in

response to petitioner’s testimony on direct examination that he
had taken his shirt off at lunchtime so his wife could replace a
missing button.
The question to which petitioner refers is:
28

Would you agree, sir, that this is the first time this
week that we’ve heard you indicate to anybody that you
took that shirt off while you were home, because your
wife thought there was a button missing, and she
wanted to take care of it for you?
Doc. No. 6 at p. 32.
The Kansas Supreme Court rejected petitioner’s argument on
direct

appeal

of

his

conviction

on

the

grounds

that

the

prosecution was referring to petitioner’s statements made before
he was in custody and before he was given a Miranda warning.
The court explained:
We do not think the jury likely or necessarily
would have interpreted the prosecutor’s question as a
comment on Haddock’s silence.
Rather, the statement
was likely interpreted as a reference to prior
witnesses’ testimony heard earlier that week [at
trial]. . . [D]uring the State’s case, several people
including Frank Hartley, Officer Ridley, and Detective
Larue, had testified about statements they heard
Haddock make about his clothing on the night of the
murder. . . .
In the present case, Haddock talked to police and
others at length.
The challenged question by the
prosecutor was a reference to Haddock’s failure to
tell police and others the same explanation that he
gave at trial.
Haddock I, 897 P.2d at 161.

In support of this finding the

court noted that the prosecutor said in response to petitioner’s
objection at trial that petitioner had made several statements
to people and that when the prosecutor repeated his inquiry he
phrased the question as follows:
My question was:
neighbors, Frank

Did you ever mention to any of the
Hartley, Joenne [sic] Bate, or
29

anybody else or Sergeant Ridley, who asked you about
your clothing situation, anything about having removed
that shirt because your wife wanting to do some work
on it?
Id. at 160.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court
held that a prosecutor may deprive a criminal defendant of his
right to due process by making improper comments about his postMiranda silence.

In Battenfield v. Gibson, 236 F.3d 1215, 1225

(10th Cir. 2001), the Tenth Circuit said
whether

the

language

used

by

the

that “the question is

prosecutor

was

manifestly

intended or was of such character that the jury would naturally
and necessarily take it to be a comment on the defendant’s right
to remain silent.”

(interior quotations omitted).

Unlike Doyle and Battenfield, in this instance the Kansas
Supreme

Court

held

that

the

prosecutor’s

statements

referring to petitioner’s pre-Miranda silence.

were

Upon review of

the trial transcript, the court finds that this is a reasonable
position.

Consequently,

the

petitioner’s right to due process.
23

(closing

argument

which

prosecutor

did

not

violate

See Bland, 459 F.3d at 1022-

questioned

why

defendant

did

not

claim self-defense prior to trial when he made statements to his
mother and law enforcement referred only to pre-Miranda silence
and did not violate due process).

30

Petitioner further contends that the prosecutor improperly
referred to petitioner’s post-Miranda silence in a series of
questions relating to whether petitioner expressed concern for
his children’s safety during the evening after the murder when
he

spoke

arrest.

with

investigators

or

later

that

week

before

his

The prosecutor made a similar comment during closing

argument.
Respondent argues that this claim must be rejected because
petitioner failed to object to the questions and comments at
trial.

This was one reason the Kansas Supreme Court rejected

petitioner’s claim on direct appeal.

Haddock I, 897 P.2d at

161.
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

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
31

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 Cir. 2012) cert. denied, 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.
v.

Roberts,

preservation

253
rule

Fed.Appx.
is

an

783,

(10th

787

independent

and

Cir.

See Torres
2007)(Kansas

adequate

state

law

ground to default claims); Carr v. Koerner, 120 Fed.Appx. 772,
775-76 (10th Cir. 2005)(same, citing K.S.A. 60-404).
exception

to

the

denial

of

review

of

procedurally

The only
defaulted

claims is when 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 questions or closing argument
at trial; or 2) that the state procedural rule requiring an
objection to preserve an issue on appeal is not an independent
and adequate state procedural requirement.

Further, petitioner

does not argue that there is cause or prejudice excusing the
failure to object at trial or that a review of petitioner’s

32

argument is necessary to prevent a fundamental miscarriage of
justice.
For the above-mentioned reasons, the court shall refuse to
grant

relief

upon

petitioner’s

claims

that

the

prosecutor

improperly commented upon his exercise of the right to remain
silent.
VIII. PETITIONER’S CLAIM THAT THE TRIAL COURT SHOULD HAVE
GRANTED HIS MOTION TO SUPPRESS THE ENTIRETY OF HIS STATEMENTS TO
THE POLICE DOES NOT JUSTIFY HABEAS RELIEF.
Petitioner’s
trial

court

final

erred

by

argument
refusing

for
to

relief
suppress

petitioner’s custodial interrogation.

asserts
the

that

entirety

the
of

According to the facts

recited in Haddock I, petitioner was interrogated by the police
from 7:40 p.m. until 1:25 a.m. at the police station.

There

were at least two breaks during the interrogation which served
to

divide

it

admissible.
were

ruled

into

three

parts.

The

first

part

was

ruled

Most of the second part and all of the third part
inadmissible

on

the

grounds

that

petitioner

had

invoked his right to an attorney.
At the start of the interrogation, petitioner was warned
that he had the right to talk to a lawyer and to have a lawyer
present while he was being questioned.

Petitioner responded by

stating that he understood and asking “is there any reason for
me to?”

The officer replied, “Not at this point, I don’t.”
33

Petitioner then said, “Okay.”

According to the Kansas Supreme

Court in Haddock I, 897 P.2d at 162, petitioner was advised that
if he could not afford to hire a lawyer, one would be appointed
to represent him during questioning if he wished.

Petitioner

was also advised that he could decide at any time to exercise
his rights under Miranda.

Petitioner said that he understood.

The police further told petitioner that he was not in custody
and

could

leave

at

any

time.

At

the

conclusion

interview, petitioner did leave the police station.

of

the

He was not

arrested until several days later.
In this federal habeas challenge, petitioner advances two
arguments for suppression.

First, petitioner asserts that the

detective made a misleading response to his question of whether
there was a reason to talk to a lawyer.

Petitioner, however,

does not explain why he was misled by the detective’s answer or
why the trial court erred by finding that the response was not
misleading.

Upon review, the court concludes that petitioner

has not shown that the trial court’s findings were unreasonable.
If petitioner was not threatened or deceived into waiving his
rights to self-incrimination, then he rendered a knowing and
voluntary waiver of his Miranda rights.
Petitioner’s second argument for relief is that the police
did not honor the guarantees made in the Miranda warning.
34

In

essence, petitioner asserts that although the police promised
petitioner that he had a right to have an attorney present, they
did not respect this promise during the interrogation.
argument must fail for the following reasons.

This

First, the police

were not bound to consider petitioner’s question at the start of
the interview as an invocation of his right to counsel.
Court explained in

As the

Berghuis v. Thompkins, 560 U.S. 370,

381

(2010):
In the context of invoking the Miranda right to
counsel, the Court in Davis v. United States, 512 U.S.
452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), held
that a suspect must do so “unambiguously.” If an
accused makes a statement concerning the right to
counsel “that is ambiguous or equivocal” or makes no
statement, the police are not required to end the
interrogation, ibid., or ask questions to clarify
whether the accused wants to invoke his or her Miranda
rights, 512 U.S., at 461–462, 114 S.Ct. 2350.
Second, petitioner was not in custody when his interview
was initiated, therefore, he had no constitutional right to stop
the

questioning

until

counsel

could

be

appointed.

U.S.

v.

Bautista, 145 F.3d 1140, 1149 (10th Cir.) cert. denied, 525 U.S.
911

(1998).

circumstances

Petitioner
suggests

whenever he wanted.

asserts

that

that

the

totality

petitioner

was

not

of

free

to

the
go

But, the state trial and appellate courts

have concluded otherwise and, upon review, their holdings are
not

unreasonable.

Cf.,

Oregon

v.

Mathiason,

429

U.S.

492

(1977)(interview in a police office of a suspect who is told he
35

is not under arrest is noncustodial); U.S. v. Cota, 953 F.2d 753
(2nd Cir. 1992)(interview after a 6-hour stay at a police station
following a traffic stop where the suspect’s car was seized and
the

suspect

was

initially

handcuffed,

was

considered

noncustodial because suspect was told she was not under arrest
and it was her choice not to leave); U.S. v. Ellison, 791 F.2d
821 (10th Cir. 1986)(interview in a U.S. Attorney’s office of a
suspect who had been driven to the interview by the police and
told he was not under arrest and was informed that he did not
have to answer questions and had the right to have an attorney
present, was not custodial).
Finally, petitioner cites no clear and controlling legal
authority to support his claim that he invoked his right to
counsel prior to making the statements that were admitted at
trial, and that he did so effectively, given that he was not in
custody.
For

these

reasons,

the

court

rejects

petitioner’s

final

contention for habeas relief.
IX. CONCLUSION
Upon due consideration, the petition for relief pursuant to
28 U.S.C. § 2254 shall be denied.
XI.

CERTIFICATE OF APPEALABILITY

36

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

in

this

case.

Nothing

suggests that the court’s rulings resulting in the dismissal of
this action for failure to state a claim for federal habeas
corpus relief are 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.
certificate of appealability shall be denied.

37

A

IT IS THEREFORE ORDERED BY THE COURT 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 29th day of December, 2014, at Topeka, Kansas.

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

38