Barber (ID 43901) v. McKune et al

Filing 19

MEMORANDUM AND ORDER: Petition for habeas corpus relief under 28 U.S.C. §2254 is denied. Signed by U.S. District Senior Judge Sam A. Crow on 6/11/14. Mailed to pro se party Robert E. Barber by regular mail (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT E. BARBER,
Petitioner,
v.

No. 13-3040-SAC

DAVID MCKUNE, et al.,
Respondents.

MEMORANDUM AND ORDER
This case comes before the Court on a petition for habeas corpus filed
pursuant to 28 USC § 2254. Petitioner was convicted in state court of one
count of attempted murder in the first degree and was sentenced to a term
of imprisonment for 620 months. Evidence showed that Petitioner had
pointed a .357 magnum pistol at the victim and had shot him once in the
back. Petitioner makes multiple challenges to his conviction.
I. Procedural History
The procedural history of this case has been established by the Kansas
Court of Appeals (KCOA) in Petitioner’s direct appeal, State v. Barber, 157
P.3d 6, 2007 WL 1309602 (Kan. Ct. App. May 4, 2007) (Case No. 95,038),
and by the KCOA in Petitioner’s K.S.A. § 60-1507 motion, Barber v. State,
264 P.3d 1060, 2011 WL 6385646 (Kan. Ct. App., December 16, 2011)
(Case No. 105,547). The Court adopts the facts stated in those 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
Habeas petitions are governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). AEDPA “erects a formidable barrier to
federal habeas relief,” Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 16, 187
L.Ed.2d 348 (2013), and “requires federal courts to give significant
deference to state court decisions” on the merits. Lockett v. Trammel, 711
F.3d 1218, 1230 (10th Cir. 2013); see also Hooks v. Workman, 689 F.3d
1148, 1162-63 (10th Cir. 2012) (“This highly deferential standard for
evaluating state-court rulings demands state-court decisions be given the
benefit of the doubt.” (quotations omitted)).
Under AEDPA, where a state prisoner presents a claim in habeas
corpus and the merits were addressed in the state courts, a federal court
may grant relief only if it determines that the state court proceedings
resulted in a decision (1) “that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “that was based on an
unreasonable determination of the facts in light of the evidence presented in
2

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).
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). “The question under AEDPA is not whether a federal court believes
the state court's determination was incorrect but whether that determination
was unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). In making this
assessment, the Court reviews the factual findings of the state court for
clear error, reviewing only the record that was before the appellate court.
Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557
(2011).
III. Issues
A. Prosecutorial Misconduct
Petitioner claims that he was denied due process when the prosecutor
misstated the law and injected his personal opinion during closing argument.
See R. Vol. 3, p. 119-20. Defense counsel did not object to the challenged
statements. The prosecutor allegedly stated his personal opinion of the act in
saying:
If Robert Barber had not planned on killing C.J. Dunn, then he
would have attempted to have resolved this matter without violence.
Instead, he chose to have a gun in his hand when he got out of the
vehicle to confront C.J. Dunn. Robert Barber did not say anything
3

except, “What’s up now?” And he fired the gun, striking C.J. in the
back.
The acts of Robert Barber in pointing a .357 magnum revolver at
C.J. Dunn and in pulling the trigger on that gun proved that he
intended to kill C.J. Dunn. You do not point a gun as powerful as this
.357 magnum at someone and pull the trigger, unless you intend to
kill that person. Robert Barber pointed the gun at C.J. Dunn and fired
it with the intent to kill him. Robert Barber’s actions were
premeditated.
R. Vol. 3, p. 119-120. The prosecutor allegedly misstated the law by telling
the jury that the element of premeditation was proved by Petitioner’s acts of
getting out of the car with a gun in his hand, pointing it at the victim, and
shooting it. Petitioner contends this statement contradicts Kansas law that
one cannot infer premeditation from the mere use of a deadly weapon, see
State v. Hamilton, 216 Kan. 559 (1975), and renders his trial fundamentally
unfair.1
Petitioner’s allegation of prosecutorial misconduct was not raised on
direct appeal so is procedurally defaulted. Federal habeas review is available
only where the petitioner has given the state courts “one full opportunity to
resolve any constitutional issues.” O’Sullivan v. Boerckel, 526 U.S. 838, 84548, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). This issue was presented to the
state courts only within the context of an ineffective assistance of counsel
claim.

1

Even if this issue were properly before this Court, Petitioner would not prevail as issues of
state law are not reviewed on habeas, see Estelle v. McGuire, 502 U.S. 62, and Kansas law
is not as definitive as Petitioner asserts. Hamilton states that use of a deadly weapon, the
lack of provocation, the nature of the weapon used, and the defendant’s conduct before and
after the act may be sufficient for a jury to infer premeditation. Id, at 567. All of those
factors were arguably present here, as shown by the prosecutor’s statements above.

4

Even though “[a] habeas petitioner who has defaulted his federal
claims in state court meets the technical requirements for exhaustion [since]
there are no state remedies any longer ‘available to him,” Coleman v.
Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991),
“there is a procedural default for purposes of federal habeas.” Id. at 735 n.
1. Accordingly, this claim is procedurally barred from federal habeas review
because it was not fairly presented to the Kansas Supreme Court and would
now be untimely under Kansas’s procedural rules. See O’Sullivan, 526 U.S.
at 848.
For the Court to reach the merits of this claim, Petitioner must show
cause for his default and prejudice as a result of the alleged violation of
federal law, or demonstrate that this Court’s failure to consider the claim will
result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S.
478, 488-89, 496, 106 S.Ct. 2639, 2645-46, 2649, 91 L.Ed.2d 397 (1986).
To show cause, petitioner must demonstrate that “some objective
factor external to the defense impeded [his] efforts to comply” with the state
law. Murray, 477 U.S. at 488. “Such an external factor might, for example,
be proven by a ‘showing that the factual or legal basis for a claim was not
reasonably available to counsel, ... or that some interference by officials
made compliance impracticable.” Scott v. Mullin, 303 F.3d 1222, 1228 (10th
Cir. 2002) (quoting Murray, 477 U.S. at 488). Although cause may be shown

5

by ineffective assistance of counsel, Petitioner fails to show cause here, as
addressed below in Section B.
To show prejudice, petitioner must show that he suffered “actual
prejudice as a result of the alleged violation of federal law.” Coleman, 501
U.S. at 750. Thus the petitioner must demonstrate “a reasonable probability
that, but for [the alleged] erro[r], the result of the proceeding would have
been different.” Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992) quoting Strickland v. Washington, 466 U.S. 668, 694,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“The “miscarriage of justice” exception to this general rule requires a
more substantial showing: The defendant must not simply demonstrate a
reasonable probability of a different result, he must show that the alleged
error more likely than not created a manifest miscarriage of justice.”
Sawyer, 505 U.S. at 364 (emphasis in original). This is “a narrow exception
to the cause requirement where a constitutional violation has probably
resulted in the conviction of one who is actually innocent of the substantive
offense.” Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d
659 (2004) (internal quotation marks omitted).
“[T]he fundamental miscarriage of justice exception seeks to balance
the societal interests in finality, comity, and conservation of scarce
judicial resources with the individual interest in justice that arises in
the extraordinary case.” Schlup v. Delo, 513 U.S. 298, 324 (1995). To
make a credible showing of actual innocence, a “petitioner must
‘support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
6

presented at trial.’” Cummings, 506 F.3d at 1223 (quoting Schlup, 513
U.S. at 324). This new evidence “must be sufficient to ‘show that it is
more likely than not that no reasonable juror would have convicted the
petitioner in the light of the new evidence.’” Id. (quoting Schlup, 513
U.S. at 327); accord House, 547 U.S. at 539-40 (reaffirming the
Schlup test after AEDPA). This standard is “demanding and permits
review only in the extraordinary case.” House, 547 U.S. at 538
(quotations omitted).
Frost, at 17.
Petitioner has failed to assert and to show either cause and prejudice,
or actual innocence, as is necessary to overcome this procedural default.
B. Ineffective Assistance of Trial Counsel
Petitioner contends that he received ineffective assistance of trial
counsel and was denied due process because counsel did not object to the
prosecutor’s statements noted above.
State Court Holding
In his 60-1507 motion, Petitioner contended that his trial counsel
provided ineffective assistance of counsel by not objecting to the
Prosecutor’s closing argument regarding the intent to kill. He argued that the
Prosecutor had “injected his personal opinion, when he stated in his closing
argument that, ‘you don't point a gun as powerful as this .357 magnum at
someone and pull the trigger, unless you intend to kill that person.’ “
The district court held an evidentiary hearing on the motion, at which
trial counsel testified that he had not found the closing argument
objectionable because the prosecutor was arguing facts and inferences from
them. The judge who heard the 60-1507 motion, who had also presided over
7

Petitioner’s criminal case, agreed that the closing argument was not
objectionable, stating: “I don't interpret Mr. Wilhoft's closing remarks as an
expression of his personal opinion. I think that what he was doing was
suggesting to the jury a logical conclusion that the jury should reach based
upon the facts, based upon the evidence admitted in the trial.” Accordingly,
the district court found that the prosecutor was not ineffective by failing to
object. The district court also found that he would have overruled any such
objection.
The KCOA applied the following law in reviewing this claim of error:
To show ineffective assistance of counsel, Barber must establish
that Maslen's “conduct (1) fell below an objective standard of
reasonableness and (2) resulted in prejudice to [him.]” Albright v.
State, 292 Kan. 193, 209, 251 P.3d 52 (2011). We review the district
court's findings of fact for substantial competent evidence, and we
determine whether those findings are sufficient to support the district
court's conclusions of law. Review of the district court's ultimate
conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 354–
55, 172 P.3d 10 (2007).
Barber v. State, 2011 WL 6385646 at 4. The Court then distinguished
Petitioner’s claims focused on premeditation from his claims focused on
intent. It then resolved the issue, finding:
The jury is presumed to have followed the district court's
instructions, State v. Reid, 286 Kan. 494, Syl. ¶ 18, 186 P.3d 713
(2008), and the premeditation instruction informed the jury that
“premeditation requires more than the instantaneous, intentional act
of taking another's life.” Thus, the jury knew that intent alone was not
enough to convict Barber of attempted murder in the first degree,
contrary to Barber's argument on appeal. Under all these
circumstances, Wilhoft's argument was not objectionable, and Maslen
was not ineffective for failing to object to it.
8

Moreover, Maslen's failure to object to Wilhoft's argument did
not prejudice Barber. As the district court found, had Maslen objected
to the argument on that basis, the court would have overruled the
objection. Accordingly, Barber has failed to meet his burden to prove
the prejudice prong of the ineffective assistance of counsel standard.
See Albright, 292 Kan. at 209, 251 P.3d 52.
Finally, we can affirm the district court's ruling for another
reason. Barber is essentially contending that Wilhoft committed
prosecutorial misconduct, and no objection is necessary during closing
argument to preserve the argument for appeal. See State v. King, 288
Kan. 333, 349, 204 P.3d 585 (2009). Thus, a lack of objection from
Maslen did not prevent Barber from raising this argument on direct
appeal. Barber did not raise this argument on direct appeal, but that is
not attributable to Maslen, who was no longer Barber's counsel. Yeager
was the appellate counsel, but Barber does not argue she was
ineffective on this basis, thereby waiving the issue on appeal. See
State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Barber v. State, 2011 WL 6385646 at 6.
Habeas Review
The Court reviews petitioner's claim of ineffective assistance of counsel
under the familiar framework laid out in Strickland v. Washington. Under
that standard, to prevail on a claim of ineffective assistance of counsel,
petitioner must show both that his counsel's performance “fell below an
objective standard of reasonableness” and that “the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687–88; accord Hooks v.
Workman, 606 F.3d 715, 723 (10th Cir. 2010).
This court's review of counsel's performance is “highly deferential.”
Hooks, 606 F.3d at 723. “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Byrd v. Workman, 645 F.3d 1159, 1168
9

(10th Cir. 2011) (quotation omitted). “To be deficient, the performance must
be outside the wide range of professionally competent assistance. In other
words, it must have been completely unreasonable, not merely wrong.”
Hooks, 606 F.3d at 723 (citations omitted) (internal quotation marks
omitted); accord Gardner v. Galetka, 568 F.3d 862, 874 (10th Cir. 2009),
cert. denied, 559 U.S. 993, 130 S.Ct. 1737, 176 L.Ed.2d 215 (2010). “The
Supreme Court requires [the court] to make ‘every effort ... to eliminate the
distorting effects of hindsight’ by indulging in a strong presumption counsel
acted reasonably.” Strickland, 466 U.S. at 689. Petitioner bears a heavy
burden of overcoming the presumption that counsel's actions were sound
trial strategy. Byrd, 645 F.3d at 1168.
Furthermore, because this is a § 2254 proceeding, the Petitioner faces
an even greater challenge, as this court defers not only to the attorney's
decision in how to best represent a client, but also to the state court's
determination that counsel's performance was not deficient. Byrd, 654 F.3d
at 1168. For that reason, this court's review of a defendant's habeas claim of
ineffective assistance of counsel is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251
(2009).
In denying Petitioner's claims of ineffective assistance of trial counsel,
the KCOA evaluated the evidence of record and applied the law from
Albright, which is consistent with the United States Supreme Court's
10

Strickland standard for ineffective counsel. See Albright v. State, 292 Kan.
193, 209 (2011) (citing Strickland, 466 U.S. at 687.) Additionally, the
KCOA’s factual findings were objectively reasonable. The prosecutor’s
argument, viewed in the light of the jury instructions, was not objectionable,
and the court would have overruled any objection, so Petitioner cannot show
any prejudice from counsel’s decision not to object. Thus no basis for habeas
relief has been shown.
C. Prosecutor’s Conflict of Interest
Petitioner contends that the prosecutor, Mr. Wilhoft, violated his due
process rights because approximately eight years earlier he had served as
Petitioner’s defense counsel in a “substantially related matter.” When in
private practice, Mr. Wilhoft defended the Petitioner in a jury trial on charges
of criminal possession of a firearm and aggravated assault with a firearm.
Petitioner, who denied both charges, was acquitted of the assault charge,
but was convicted of the criminal firearm charge, although that conviction
was reversed on appeal. Petitioner was concerned in this case that the
prosecutor would try to admit evidence of his prior case under K.S.A. § 60455, so raised that issue at trial. After a hearing in which the prosecutor
stated his intent not to use any such evidence, the district court found no
conflict of interest. Petitioner contends that the prosecutor had confidential
information which biased the prosecutor against him, that the prosecutor

11

had recused himself from other prosecutions involving Petitioner, and that
he should have been disqualified in this case.
State Court Holding
The KCOA found an insufficient record to support this claim of error.
Rule 1.9 of the Kansas Rules of Professional Conduct relates to
an attorney's representation of a client whose interest is adverse to
that of a former client. (2006 Kan. Ct. R. Annot. 421). Barber sought
the removal of the Labette County Attorney, Steven Wilhoft, based
upon the claim that Wilhoft had a conflict of interest under Rule 1.9.
The trial court heard and denied the motion. The record on appeal
does not contain a transcript of the hearing, nor does the journal entry
denying the motion elaborate on the trial court's reasoning. Once
again, we note that the burden is on the appellant to furnish a record
which affirmatively shows that prejudicial error occurred in the trial
court. Without such a record, we presume the action of the trial court
was proper. Holmes, 278 Kan. at 612.
State v. Barber, 2007 WL 1309602, 2-3 (May 4, 2007).
Habeas Review
A federal court may not review a habeas claim by a state prisoner if
the state court’s decision rests on a state law ground that is independent of
the federal question and adequate to support it. Coleman, 501 U.S. at 72930. “This rule applies whether the state law ground is substantive or
procedural.” Id. at 729. A state rule “is independent if it relies on state law
rather than federal law and is adequate if it is regularly followed and applied
evenhandedly.” Zimmer v. McKune, 87 F.Supp.2d 1153, 1158 (D. Kan.
2000) (citing Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998)).
The independent requirement is met if the last court that rendered a
judgment in the case clearly and expressly stated that its decision rested
12

upon a state procedural bar. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct.
1038, 103 L.Ed.2d 308 (1989). The adequate requirement is met if the state
procedural rule is a "firmly established and regularly followed state practice"
and applied to all similar claims in an evenhanded manner in the majority of
cases. Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir.1996) (citations
omitted).
Under well-established Kansas law, an appellant has the burden of
providing a record which affirmatively shows a prejudicial error occurred,
and in the absence of a sufficient record, the appellate courts must presume
the actions of the lower courts were proper. State v. Moncla, 262 Kan. 58,
68, 936 P.2d 727, 736 (1997). This is a firmly established and regularly
followed state practice, applied to similar claims in an evenhanded manner
in the majority of cases. See e.g. State v. Holmes, 278 Kan. 603, 612, 102
P.3d 406 (2004); State v. Bloom, 273 Kan. 291, 307, 44 P.3d 305, 317
(2002); State v. Albright, 271 Kan. 546, 556, 24 P.3d 103, 111 (2001).
Accordingly, this claim is procedurally barred from habeas review.
Nonetheless, this Court may review this procedurally defaulted claim if
the petitioner demonstrates cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrates that failure to
consider the claims will result in a fundamental miscarriage of justice. See
Coleman, 501 U.S. at 750. Petitioner contends that his ineffective assistance
of appellate counsel constitutes cause, and that he was prejudiced in the
13

following respects: 1) he was intimidated from testifying by the prosecutor’s
personal knowledge of him; the prosecutor did not act even-handedly but
instead opposed a reduction in bail, “confined” two material witnesses,
argued Petitioner’s shooting was intentional, delayed the preliminary hearing
and trial, and made a deal with the victim so that the victim identified
petitioner at trial even though he could not do so at the scene of the crime.
But prejudice requires petitioner to demonstrate more - a reasonable
probability that, but for the alleged error, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694. Petitioner does not show
the Court what testimony he would have offered that could have convinced
the jury he was not guilty, or show how his history with the prosecutor may
have led the jury to convict an innocent man. Further, the Court finds no
cause, because his appellate counsel was not constitutionally ineffective, as
addressed in detail below.
D. Ineffective Assistance of Appellate Counsel
Petitioner contends that his appellate counsel was ineffective for failing
to identify and provide a record on appeal sufficient to permit the KCOA to
review two key motions denied by the district court: his motion to remove
the prosecutor based on a conflict of interest, and his motion to continue the
jury trial in order to produce a ballistics expert. On direct appeal, petitioner’s
attorney failed to include relevant transcripts of the hearings on these
motions, leading the KCOA to presume the district court's denial was proper
14

given the lack of a sufficient record. State v. Barber, No. 95,038,
unpublished opinion filed May 4, 2007, at 6.
State Court Holding
The KCOA, in addressing Petitioner’s 60-1507 motion, first addressed
Petitioner’s motion to remove the prosecutor based on a conflict of interest.
After reviewing relevant documents not presented on direct appeal, it found
no error, stating:
Based upon our review of the motion, the transcript of the
hearing on Barber's Motion to Recuse, the trial proceedings and
briefing, we see no basis to conclude that Wilhoft used any information
he obtained through his prior representation in 1996 against Barber in
this later prosecution. Moreover, Barber provides us with no claim or
evidence that Wilhoft used any such information, including K.S.A. 60–
455 evidence, in the attempted murder prosecution. It was Barber's
burden to show that “counsel's errors were so serious as to deprive
defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 4267 (1984).
That burden has not been met.
Moreover, on appeal, Barber has failed to show how this particular
issue would have been meritorious had the transcript been included in
the record on direct appeal. In short, Barber has failed to show the
prejudice which is required for his K.S.A. 60–1507 motion to be
successful.
Barber v. State, at 7.
The KCOA separately addressed the claim of ineffectiveness of
appellate counsel for failure to create a proper record regarding denial of
Petitioner’s motion to continue trial in order to produce a ballistics expert. It
reviewed the facts, including the district court’s reasons for denying his 601507 motion on this basis, then found:
15

On appeal, Barber contends the “trial may have been much different
had he been allowed a continuance to obtain a ballistics expert.” “In a
criminal case, the decision to continue a case lies within the sound
discretion of the district court.” State v. Stevens, 285 Kan. 307, Syl. ¶
8, 172 P.3d 570 (2007). If this issue had been fully presented on
direct appeal, this court would not have disturbed the district court's
ruling absent a showing that “the [district] court abused its discretion
and prejudiced [Barber's] substantial rights.” State v. Ly, 277 Kan.
386, 389, 85 P.3d 1200, cert. denied 541 U.S. 1090, 124 S.Ct. 2822,
159 L.Ed.2d 254 (2004). “Judicial discretion is abused when no
reasonable person would adopt the position taken by the [district]
court. [Citation omitted.]” 277 Kan. at 389, 85 P.3d 1200.
Having reviewed the transcript of the motion for continuance, a
reasonable person could conclude Barber did not show “good cause”
for a continuance. K.S.A. 22–3401. In Ly, a district court properly
denied a motion for continuance made 4 days before trial where the
defendant had just received a report from the State's ballistics expert.
277 Kan. at 388–89, 85 P.3d 1200. Our Supreme Court noted the
defendant “chose to wait until he received the State's report before
requesting independent ballistics analysis.” 277 Kan. at 389, 85 P.3d
1200.
In the present case, Barber heard [the State’s expert] testify on the
ballistics evidence and viewed his report 4 months before trial.
Significantly, in the motion to continue the trial, [Petitioner’s counsel]
made clear that his expert had not even examined or analyzed the
firearms evidence at issue. When the delay is considered, together
with the inconvenience to the State's other expert witness, the filing of
the motion only 6 days before the scheduled trial, and the lack of any
showing that the defense expert would have any opinions helpful to
the defense, the district court's decision was reasonable.
Moreover, our Supreme Court noted in Ly, the defendant “could have
had independent testing done after his trial and presented any
contrary findings to the [district] court in a motion for new trial based
on new evidence.” 277 Kan. at 390, 85 P.3d 1200. Barber could have
done so as well, but he did not. Thus, his assertion that the trial “may
have been much different” is speculative and conclusory. Without such
evidence, Barber does not show prejudice from the district court's
ruling. See State v. Cook, 281 Kan. 961, Syl. ¶ 7, 135 P.3d 1147
(2006); Ly, 277 Kan. at 390, 85 P.3d 1200; City of Overland Park v.
Barnett, 10 Kan.App.2d 586, 595, 705 P.2d 564 (1985).
16

Barber v. State, at 8.
Habeas Review
The standard for assessing appellate counsel's performance is the
same as that applied to trial counsel. Smith v. Robbins, 528 U.S. 259, 285,
120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The KCOA essentially held that even
if counsel’s failure to include the relevant transcripts on appeal was
objectively unreasonable performance, Petitioner suffered no prejudice from
it because those transcripts showed no basis for relief. This was a reasonable
conclusion, in accordance with clearly-established federal law. See
Strickland, 466 U.S. at 687–88.
This Court has reviewed the record and finds that it does not show
that the prosecutor had an actual conflict of interest that made fair
treatment of petitioner unlikely, so as to deprive him of due process. Nor
does it show that the prosecutor’s prior representation of the Petitioner or
his knowledge gained during that representation had any effect upon the
result of Petitioner’s trial, or show that a different prosecutor may have
acted more favorably to the Petitioner in some way. And an appearance of a
conflict of interest is not sufficient to warrant recusal. See generally, United
States v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir. 1993). “Prosecutors need
not be empty vessels, completely devoid of any non-case-related contact
with, or information about, criminal defendants.” United States v. Lilly, 983
F.2d 300, 310, 310 (1st Cir. 1992).
17

As addressed below in Section E, Petitioner fails to show that the
denial of a continuance prejudiced him. To warrant federal habeas relief, a
denial of a continuance “ ‘must have been so arbitrary and fundamentally
unfair that it violates constitutional principles of due process.’ ” Case v.
Mondragon, 887 F.2d 1388, 1396 (10th Cir. 1989) (quoting Hicks v.
Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981)), cert. denied, 494 U.S.
1035, 110 S.Ct. 1490, 108 L.Ed.2d 626 (1990).
The KCOA reasonably found no ineffective assistance of appellate
counsel because Petitioner failed to show that any deficient performance
prejudiced his defense. Strickland, 466 U.S. at 687–88. Even if the omitted
records had been included in the record on appeal and the issues had been
addressed on the merits, Petitioner would not have prevailed.
E. Court’s Failure to Grant a Continuance
Petitioner contends that he was denied due process because the trial
court denied a continuance for Petitioner to obtain a ballistics expert which
was key to his defense, yet the court granted continuances to the state
without regard to the speedy trial requirements. Respondent contends that
this claim is procedurally defaulted, and that no exception permits this court
to reach its merits. To this, Petitioner replies that his ineffective assistance
of appellate counsel constitutes cause, and that his inability to rebut the
state’s ballistics evidence constitutes prejudice, permitting him to raise this
issue now, although he did not present it to the state courts.
18

State Court Holding
The KCOA found an insufficient record of this issue had been presented
on appeal.
Barber's final continuance request, made 6 days before trial, was
for the purpose of his counsel obtaining expert testimony to rebut the
State's ballistics evidence. There is nothing in the record to disclose
the court's reasons for denying the motion. We find no journal entry,
order, or transcript of proceedings relating to the motion.
Nevertheless, Barber argues that the court erred in denying the
motion. We review the trial court's ruling on this issue using the abuse
of discretion standard. See State v. Meeks, 277 Kan. 609, 616, 88
P.3d 789 (2004). Without knowing more, the many prior delays in the
case and the lateness of the motion in the face of a trial scheduled less
than a week away would certainly mitigate against further
continuances. Nevertheless we will not speculate on the trial court's
reasoning. The burden is on Barber to furnish a record which
affirmatively shows that the trial court abused its discretion in denying
his motion. Without such a record, we presume the action of the trial
court was proper. See State v. Holmes, 278 Kan. 603, 612, 102 P.3d
406 (2004).
State v. Barber, 2007 WL 1309602 at 2.
Habeas Review
A federal court may not review a habeas claim by a state prisoner if
the state court’s decision rests on a state law ground that is independent of
the federal question and adequate to support it. As noted above, the KCOA’s
finding (that the appellant had the burden of providing a record which
affirmatively shows prejudicial error) was based on Kansas law which is
independent and adequate.
But even if this Court were to reach the merits of this issue, Petitioner
has failed to meet his burden to show that the a denial of the continuance
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was “ ‘so arbitrary and fundamentally unfair that it violates constitutional
principles of due process.’ ” Case v. Mondragon, 887 F.2d 1388, 1396 (10th
Cir. 1989) (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th
Cir.1981)), cert. denied, 494 U.S. 1035, 110 S.Ct. 1490, 108 L.Ed.2d 626
(1990). The KCOA gave good reasons for finding no prejudice: Petitioner had
heard the State’s expert testify on the ballistics evidence and viewed his
report four months before trial, yet gave no reason for having waited until
the week before trial to prepare his own ballistics expert; Petitioner’s expert
had not yet examined or analyzed the firearms evidence at issue and would
need additional time to do so; the State had scheduled various expert
surgeons to testify and changing their schedules would be problematic; the
motion had been filed only six days before the scheduled trial; Petitioner
failed to show that the defense expert would have any opinions helpful to
the defense; and, after his trial Petitioner did not do independent testing or
present any contrary findings to the district court in a motion for new trial
based on new evidence. Under these circumstances, the KCOA’s holding that
petitioner failed to show prejudice was reasonable and in accordance with
federal law. See Haislip v. Attorney General, State of Kan., 992 F.2d 1085,
1088 (10th Cir. 1993).
F. Speedy Trial Violation
Petitioner contends that his Sixth Amendment right to a speedy trial
was violated because there was a nine-month delay (over 200 days)
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between his arrest and the date of his preliminary hearing. Petitioner states
that his counsel informally requested and received continuances which were
not reflected in the record and that when Petitioner complained about it, his
counsel moved to withdraw. He contends the prosecutor postponed the
preliminary hearing so he could serve subpoenas on two witnesses, then did
not call those witnesses at the preliminary hearing. Petitioner states he
suffered severe psychological stress and anxiety and was prejudiced by the
delay because it restricted his access to the one witness who testified where
the gun was found and who could have established his innocence.
State Court Holding
The KCOA found that Petitioner’s right to a speedy trial was not
violated because the trial court had properly applied the factors set forth by
the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 33
L.Ed.2d 101, 92 S.Ct. 2182 (1972).
We review de novo Barber's first claim, that he was denied his
constitutional right to a speedy trial. See State v. Rivera, 277 Kan.
109, 113, 83 P.3d 169 (2004). In doing so we consider the length of
the delay, the reasons for the delay of the trial, Barber's assertion of
his right to a speedy trial, any resulting prejudice to him, and any
other relevant circumstances. See Barker v. Wingo, 407 U.S. 514,
530, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972).
The State filed the complaint on January 21, 2004, and Barber was
arrested February 3, 2004. He was unable to make bail and remained
in jail during the remainder of the proceedings.
The scheduling of the preliminary hearing became a major obstacle in
the case. The preliminary hearing, originally set for April 21, 2004,
was continued to May 6, 2004, at the parties' joint request. It was
continued further at the State's request to July 16, 2004, due to the
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inability of the State to subpoena two material witnesses for the May
6, 2004, hearing. Barber did not object to this continuance. At Barber's
request the court again continued the preliminary hearing and
scheduled a status conference on July 26, 2004. At that status
conference the preliminary hearing was rescheduled for October 15,
2004. In the meantime, Barber's counsel moved for leave to withdraw,
which was granted on October 7, 2004. New counsel was appointed for
Barber, requiring another continuance of the preliminary hearing which
was only a week away. The court rescheduled the preliminary hearing
for November 17, 2004. In the interim Barber's second counsel was
replaced by a third attorney. Nevertheless, the preliminary hearing
went forward as scheduled on November 17, 2004, and Barber was
bound over for trial.
On November 22, 2004, Barber was arraigned and entered a not guilty
plea. Trial was scheduled for February 16, 2005. On December 13,
2004, Barber moved to dismiss for denial of his speedy trial and due
process rights. Barber's motion addressed the delay in his preliminary
hearing. At the hearing on the motion, the trial court determined that
the 9–month delay between Barber's arrest and the preliminary
hearing was for just cause and unavoidable. In denying Barber's
motion, the court found that except for the initial delay on July 16,
2004, due to the unavailability of the State's witnesses, all other
delays were either at the request of Barber or his counsel or agreed
upon or acquiesced to by Barber's counsel. Further, Barber never
asserted his speedy trial right until the December 13, 2004, motion.
Finally, Barber was not prejudiced by the delay. Barber's hypertension
was not caused by his incarceration while awaiting trial.
The trial court correctly applied the four factors adopted in Barker. The
delay due to the State's requested continuance did not violate Barber's
rights. Barber's right to a speedy trial was not violated by the delay
between his arrest and the preliminary hearing.
State v. Barber, 2007 WL 1309602 at 1-2.
Habeas Review
The Sixth Amendment to the United States Constitution guarantees an
accused the right to a speedy trial. Barker v. Wingo sets forth four factors to
consider in determining whether pretrial delays violate a defendant's right to
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a speedy trial: (1) the length of the delay, (2) the reason for the delay, (3)
whether the defendant asserted his right, and (4) any prejudice to the
defendant resulting from the delay. Id. at 530, 92 S.Ct. 2182. “The first
factor, length of delay, functions as a ‘triggering mechanism’.” Id. (citing
Barker, 407 U.S. at 530). “The remaining factors are examined only if the
delay is long enough to be presumptively prejudicial.” Id.
The nine–month delay between Petitioner’s arrest and his preliminary
hearing was not presumptively prejudicial. See Doggett v. United States,
505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (“[T]he
lower courts have generally found postaccusation delay ‘presumptively
prejudicial’ at least as it approaches one year.”); United States v. Dirden, 38
F.3d 1131, 1138 (10th Cir.1994) (declining to find seven-and-one-halfmonth delay between arraignment and trial presumptively prejudicial);
United States v. Kalady, 941 F.2d 1090, 1095–96 (10th Cir.1991) (finding
an eight-month delay between indictment and trial nonprejudicial). See
United States v. Lugo, 170 F.3d 996, 1002 (10th Cir. 1999) (seven month
delay not presumptively prejudicial).
It is not necessary for the record to show the exact reasons for each
continuance that lead to the nine-month delay between Petitioner’s arrest
and the date of his preliminary hearing. Cf, Tillman v. Kansas, 274
Fed.Appx. 706, 708, 2008 WL 1788838, 2 (10th Cir. 2008). Here, the KCOA

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applied the relevant federal law, Barker v. Wingo, and its factual findings
were reasonable. No basis for habeas relief has thus been shown.
G. District Court’s Failure to Follow Kansas Supreme Court Rule
Petitioner initially asserted that the district court, in denying his K.S.A.
60-1507 motion, violated a Kansas Supreme Court Rule by failing to make
sufficient findings of fact and conclusions of law. But in his traverse,
Petitioner admits that this is solely an issue of state law which is not
cognizable in this habeas petition. Dk. 18, p. 16. The Court agrees. See
Estelle, 502 U.S. at 67-68.
IV. Evidentiary Hearing
The court finds no need for an evidentiary hearing. (”[A]n evidentiary
hearing is unnecessary if the claim can be resolved on the record.)”
Anderson v. Attorney Gen. of Kansas, 425 F.3d 853, 859 (10th Cir. 2005)
Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing.”).
V. Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Proceedings states that
the court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. “A certificate of appealability may issue
... only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has
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rejected the constitutional claims on the merits, a petitioner makes that
showing by demonstrating that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). See United States v. Bedford, 628 F.3d
1232 (10th Cir. 2010). The Court finds that Petitioner has not met this
standard as to any issue squarely presented in this case, so denies a
certificate of appealability.
IT IS THEREFORE ORDERED that the petition for habeas corpus relief
under 28 U.S.C. § 2254 (Dk.1) is denied.
Dated this 11th day of June, 2014, at Topeka, Kansas.

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

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