Brown (ID 68348) v. McKune et al

Filing 23

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Petitioner's motions for reconsideration 20 and for continuance 21 are denied. A certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 02/11/15. Mailed to pro se party Corey Brown by regular mail. (smnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS COREY BROWN, Petitioner, v. CASE NO. 13-3078-SAC DAVID McKUNE, et al., Respondents. MEMORANDUM AND ORDER Petitioner system. is incarcerated in the Kansas correctional This case is now before the court upon petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The application shall be denied for the reasons which follow. I. CASE HISTORY Petitioner was charged in the state district court with two counts of attempted first-degree murder or, in the alternative, two counts officer. of aggravated battery against a law enforcement He was also charged with possession of marijuana, possession of cocaine, and criminal possession of a firearm. He was convicted of two counts of the lesser included offense of attempted second-degree of murder, a firearm. marijuana He was possession sentenced to and criminal possession 534 months. His convictions and sentence were affirmed upon direct appeal. Petitioner has filed two state habeas motions pursuant to K.S.A. 60-1507. Each one was denied at the state district court level and on state court appeal. II. PETITIONER’S CLAIMS FOR RELIEF Upon review of the original petition and the court’s order partially granting petitioner’s motion to amend the petition, the court has identified three claims for relief: 1) the charges of two counts of attempted first-degree murder or, in the alternative, two counts of aggravated battery against a law enforcement officer petitioner was were subject to identical a and “sentencing duplicative; inequity” upon 2) his convictions of attempted second degree murder; and 3) petitioner should have received a lesser sentence under the identical offense sentencing doctrine. The original petition also alleges ineffective counsel assistance of conviction proceedings. But, during collateral post- as the court indicated in the order partially granting petitioner’s motion to amend, under 28 U.S.C. § grounds.1 2254(i), habeas relief is not available on such Doc. No. 19, p.1 n.1. III. PETITIONER’S MOTION FOR CONTINUANCE SHALL BE DENIED. RECONSIDERATION AND MOTION FOR On August 26, 2014, the court granted in part petitioner’s motion 1 to amend the petition. Id. This action permitted Section 2254(i) provides: “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” petitioner to add the identical offense claim raised in the original petition. to the claims The court granted respondents time to file a supplemental response to the added claim and afforded petitioner time from the receipt of the supplemental response to file a supplemental traverse. by filing previous a motion denial seeking of Petitioner responded reconsideration petitioner’s motion of for this court’s appointment of counsel (Doc. No. 20) and a motion for continuance (Doc. No. 21). The motion for continuance requested either extra time for appointed counsel to address the court concerning the issues in the case, or, petitioner if to counsel react was to not the appointed, extra supplemental time response for from respondents. The court shall deny the motion for reconsideration for two reasons. First, petitioner offers inadequate grounds to reconsider the denial of petitioner’s request for appointment of counsel. To prevail upon petitioner must demonstrate: a motion for reconsideration, 1) an intervening change in the controlling law; 2) new evidence previously unavailable, and 3) the need to correct clear error or prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). of the These factors are not established here. original circumstances petition that is not a justifies the appointment The amendment significant of change of counsel. Petitioner also indicates that the “clerk” who has assisted him is being transferred to another institution. This does not persuade the court to appoint counsel because the issues raised by the petitioner, as amended, are straightforward and are sufficiently argued in the materials already before the court. Second, a refusal to appoint counsel is not an abuse of discretion when the claims made for habeas relief are meritless. Anderson v. Attorney General of Kansas, 425 F.3d 853, 861 (10th Cir. 2005). As explained below, petitioner’s claims lack merit. Petitioner’s request for additional time to reply to the response to the “identical offense” claim also shall be denied. As detailed later in this opinion, the “identical offense” claim is not relief. a constitutional claim and does not warrant habeas Permission to amend the original petition to add the claim could have been denied on the grounds of futility. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). For the same reason, the court shall deny petitioner’s motion for additional time to reply to the supplemental response. IV. STANDARDS OF REVIEW AND PROCEDURAL DEFAULT When reviewing matters which were decided in state court proceedings, the court may not grant a § 2254 petition unless petitioner shows 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.’” Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014)(quoting § 2254(d)(1)). application” A of state court decision Supreme Court is precedent an if “unreasonable the state court unreasonably applies the correct governing rule to the facts of the prisoner’s case; the application must be so unreasonable that “’there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)). standard to meet. This is an intentionally difficult Id. This court cannot grant a state prisoner’s habeas petition on the basis of a claim which has not been exhausted in state court. Id. at 1231 (citing § 2254(b)(1)). This means, the state prisoner “must give state courts ‘one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s (quoting There established O’Sullivan are two v. Boerckel, exceptions unexhausted claims: appellate to 526 the review U.S. process.’” 838, 845 procedural Id. (1999)). default of 1) if the prisoner has alleged sufficient cause for failing to raise the claim and resulting prejudice; and 2) if miscarriage denying of review justice would because result the credible showing of actual innocence. in petitioner Id. a fundamental has made a V. PETITIONER’S CLAIM OF DUPLICITOUS CHARGES DOES NOT WARRANT HABEAS RELIEF. Petitioner degree argues murder officer were and the aggravated duplicitous constitutional rights. two reasons. that and charges battery that of on this a attempted law violated first enforcement petitioner’s The court shall reject this argument for First, as respondent notes, petitioner has failed to raise this issue for review by the state appellate courts. Therefore, petitioner is procedurally barred from bringing this claim in an application under § 2254 unless he can demonstrate “cause and prejudice or a fundamental miscarriage of justice.” Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007) cert. denied, 554 U.S. 907 (2008)(interior quotation omitted). No such showing is evident here. Second, even if the duplicity claim was not procedurally defaulted, it should be denied because it lacks merit. Tenth Circuit has explained that: three-fold: (1) A jury may The “The dangers of duplicity are convict a defendant without unanimously agreeing on the same offense; (2) A defendant may be prejudiced in a subsequent double jeopardy defense; and (3) A court may evidence.” 1998). of have difficulty determining the admissibility of U.S. v. Trammell, 133 F.3d 1343, 1354 (10th Cir. Petitioner has not argued or demonstrated that even one these dangers was present during his trial. The jury instructions and the verdict form indicate clearly that the jury unanimously agreed upon two charges of attempted second degree murder which was a lesser included offense to attempted first degree murder. record. No threat of double jeopardy is shown on this And there was no evidentiary problem caused by the alternative charges raised in this case. In sum, petitioner suffered no unfairness or violation of his constitutional or federal law rights because of the alleged duplicitous charges. VI. PETITIONER’S CLAIM OF SENTENCING INEQUITY DOES NOT MERIT HABEAS RELIEF. Petitioner contends that he is entitled to habeas relief because under the state sentencing system existing at the time of his conviction and sentence, the crimes of attempted first degree murder and attempted second treated as level 1, person felonies. degree murder were both A year later, the Kansas Legislature changed the sentencing law to make attempted second degree murder a level 3, person felony. Petitioner’s trial counsel filed a motion for a durational departure and argued for such relief at the petitioner’s sentencing hearing. But, the arguments were rejected by the sentencing judge. Petitioner correct makes petitioner’s constitutional rights. the broad claim “inequitable that sentence” the failure violated to his But, petitioner does not specify what provision of the Constitution or of federal law was violated. The sentencing disputed. judge The followed court sentencing hearing. has the state reviewed law. the This not of transcript is the Petitioner received a fair hearing. The fact that a person convicted of attempted first degree murder could have received the same sentence and the fact that the State Legislature later changed the law to adjust the possible penalty, do not raise a constitutional claim. Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004)(there is no constitutional right to retroactive application of more lenient sentencing rules); Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000) cert. denied, 534 U.S. 887 (2001)(challenges to state trial court’s sentencing decision are not generally constitutionally cognizable, unless the sentence limits or unauthorized by law); 834 (10th Cir. (1991)(subsequent 1990) change imposed outside statutory Murray v. Cowley, 913 F.2d 832, cert. in is denied, Oklahoma 498 second U.S. degree 1098 murder statute does not entitle habeas petitioner to relief). A writ of habeas corpus may be issued only when a petitioner’s custody is in violation of the Constitution or laws of the United States. § 2254(a). Petitioner’s claim of sentencing inequity fails to show a constitutional or federal law violation. VII. PETITIONER’S HABEAS RELIEF. IDENTICAL OFFENSE CLAIM DOES NOT WARRANT Petitioner’s last argument for habeas relief is that his due process rights were violated when the sentencing court failed to sentence petitioner pursuant to the identical offense doctrine. Petitioner second-degree murder claims and that the aggravated charges battery of attempted against a law enforcement officer are identical and that under Kansas law the lesser penalty for the two crimes should have been applied. This argument shall be rejected for the following reasons. First, the state court of appeals held that attempted seconddegree murder and aggravated battery against a law enforcement officer are separate, not identical, crimes. Brown v. State, 2011 WL 3795475 *2 (Kan.App. 8/26/2011)(citing State v. Burke, 2009 WL 1858247 (Kan.App. 6/26/2009)). construction of state law. This is a reasonable The court has no authority to turn this aside upon an application for a writ of habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(federal habeas court may not reexamine state court determinations on state law questions); Dennis, 222 F.3d at 1257 (federal court is bound to accept state court’s construction of its statutes). Second, identical but related offense claim to the does first reason, not present constitutional or federal law violation. petitioner’s a federal In United States v. Batchelder, 442 U.S. 114, 123-25 (1979), the Court held that there was no constitutional right to a lesser penalty when two applicable statutes proscribe identical conduct. A claim for habeas relief was denied in Ellis v. Estep, 2010 WL 2692171 *20 (D.Colo. 7/6/2010) where the court held that the Equal Protection Clause was not violated when the state trial court chose a more severe penalty for conduct which transgressed two statutes that had different punishments. Similarly, in State v. Harp, 156 P.3d 1268, 1272 (Kan. 2007), the court rejected an identical offense argument construed as being made under the state habeas statute - K.S.A. 60-1507 - because the argument raised a nonconstitutional claim.2 This case authority persuades the court that the identical offense claim should be denied. VIII. CONCLUSION For the above-stated reasons, petitioner’s application for habeas relief petitioner’s shall motion be for denied. The reconsideration court (Doc. also No. denies 20) and petitioner’s motion for continuance (Doc. No. 21). IX. CERTIFICATE OF APPEALABILITY Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts instructs that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” U.S.C. 2 § 2253, the court may issue a Pursuant to 28 certificate of Relief was ultimately granted in Harp on state law grounds because the application for relief was treated as a direct appeal under Kansas case law providing exceptions to rules defining the timeliness of appeals. 156 P.3d at 1273-74. appealability “only if the applicant has made a substantial showing of the denial of a constitutional right,” and the court “indicates which showing.” A demonstrating specific issue petitioner that the or can issues issues satisfy raised satisfy that are [that] standard debatable by among jurists, that a court could resolve the issues differently, or that the questions McDaniel, 529 deserve U.S. 473, further 483-84 Nothing of appealability suggests that the Slack v. Barefoot (2000)(citing Estelle, 463 U.S. 880, 893 (1983)). certificate proceedings. v. The court concludes that a should court’s not issue ruling in this resulting dismissal of this action is debatable or incorrect. case. in the The record is devoid of any authority suggesting that the Tenth Circuit Court of Appeals differently. would resolve the issues in this case A certificate of appealability shall be denied. IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas corpus is dismissed and all relief is denied. IT IS reconsideration FURTHER and for ORDERED petitioner’s continuance (Docs. 20 motions for and are 21) denied. IT IS FURTHER ORDERED a certificate of appealability is denied. Copies of this order shall be transmitted to the parties. IT IS SO ORDERED. DATED this 11th day of February, 2015, at Topeka, Kansas. S/ Sam A. Crow SAM A. CROW U.S. Senior District Judge

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