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)
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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