Hollingshead v. Kansas, State of et al

Filing 16

MEMORANDUM AND ORDER ENTERED: This petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254 is denied and a certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 02/24/15. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN HOLLINGSHEAD,
Petitioner,
v.

CASE NO. 13-3148-SAC

STATE OF KANSAS, et al.,
Respondents.
MEMORANDUM AND ORDER
Petitioner
system.

This

is

incarcerated

case

is

before

in
the

the

Kansas

court

upon

correctional
petitioner’s

application for a writ of habeas corpus pursuant to 28 U.S.C. §
2254.
I.

ISSUES BEFORE THE COURT
Petitioner was convicted of attempted first-degree murder

and aggravated burglary.

His first trial ended in a mistrial.

The mistrial was requested by petitioner’s trial counsel after
the prosecutor introduced into evidence and played for the jury
a recording of petitioner’s interrogation which was not redacted
in the manner

ordered prior to trial.

Petitioner’s counsel

asked that a second trial be barred on double jeopardy grounds.
This

request

was

denied.

Petitioner

conclusion of the second trial.

was

convicted

the

In his application for a writ

of habeas corpus, petitioner raises two issues:

1

at

1) that his

rights against double jeopardy under Oregon v. Kennedy, 456 U.S.
667 (1982) were violated; and 2) that during closing argument at
the second trial the prosecutor improperly urged the jury to
consider petitioner’s post-Miranda silence in violation of Doyle
v. Ohio, 426 U.S. 610 (1976).1
II.

STATE TRIAL COURT PROCEEDINGS
A.

Proceedings before the first trial

Prior to the first trial, petitioner moved to suppress a
recording of petitioner’s interview by the police on the basis
of State v. Elnicki, 105 P.3d 1222 (Kan. 2005).
Kansas

Supreme

Court

held

that

it

was

error

In Elnicki, the
to

admit

into

evidence a recording of an interview with a criminal defendant
in

which

credibility

a

police

of

the

detective

defendant.

repeatedly

Petitioner’s

denigrated

trial

the

counsel

set

forth in his motion the parts of the interview which he claimed
should be redacted pursuant to the Elnicki case.
agreed

to

redact

those

parts

of

the

ordered that the redactions be made.
2007.

The prosecutor

interview.

The

court

This occurred in July

Late on a Friday, before the Monday start to petitioner’s

first trial in November 2007, the prosecutor supplied a copy of
the

redacted

recording

to

petitioner’s

defense

counsel.

Petitioner’s counsel asked if the Elnicki redactions had been
made

and

the

prosecutor

responded

1

affirmatively.

Petitioner has voluntarily dismissed a third issue he
petition, regarding newly discovered evidence. Doc. No. 3.

2

raised

Defense
in

his

counsel, however, did not review the recording prior to it being
played at trial.
B.

First trial proceedings

During
victim

in

the
this

first

trial,

matter,

Patrick

testified

Metsinger,

that

he

was

the

alleged

ambushed

and

attacked by petitioner in the apartment where he was living at
approximately 9:00 a.m. on September 13, 2006.

He stated that

his father leased the apartment and allowed Metsinger to stay
there.

Metsinger’s father was not in the apartment every night,

but he was there on the night before the incident in question in
this case.

About Labor Day 2006, a friend named Clayton Adams

brought a woman named Nicole Golden to the apartment.
staying

at

the

apartment

and

she

and

She began

Metsinger

shared

methamphetamine and sexual relations over a period of several
days.

According to Metsinger, around midnight or during the

early morning hours of September 13, 2006, he grew tired of how
Golden was acting and told Golden that she had to take her
things and leave the apartment.
up.

She called someone to pick her

Metsinger testified that around 9:00 a.m. he was awakened

by his cell phones ringing.

When he walked from his bedroom, he

saw Golden in the hallway of his apartment.

As he walked by

her,

and

he

asked

what

she

was

doing

there

immediately

thereafter he was attacked by petitioner with a small ax and a
machete.

Metsinger testified that petitioner had been crouched
3

in the kitchen hidden from his view and that petitioner wore a
ski mask.

They struggled for some time.

Metsinger’s

head

petitioner

with

fireplace tool.
a knife.

with
a

the

cast

ax.

iron

Petitioner struck

Metsinger

ladle

was

to

may

which

able

hit

have

been

a

During the fight Golden stabbed Metsinger with

Petitioner’s ski mask came off as the two men battled.

Eventually, Metsinger was able to flee the apartment and receive
help.
Metsinger told the jury that he was in custody at the time
of

the

first

trial.

He

also

admitted

to

several

criminal

incidents in his past, including aggravated battery, forgery,
theft, and disorderly conduct.
methamphetamine

addict

and

He further admitted to being a
to

selling

methamphetamine

on

occasion.
Golden testified that she had been living with petitioner
for months before she starting staying with Metsinger.

She and

petitioner also shared illegal drugs and sexual relations.
continued
Metsinger,

to
but

see
she

petitioner
tried

Metsinger from petitioner.

to

while

she

conceal

her

was

She

staying

with

relationship

with

At some point in time on the day

before the fight in this case, Golden and petitioner had a brief
skirmish

when

petitioner

attempted

to

prevent

leaving a vehicle to walk to Metsinger’s apartment.

4

Golden

from

Golden testified that she called petitioner to pick her up
at a nearby supermarket when Metsinger kicked her out of the
apartment.

She

testified

that

Metsinger

assaulted her when he told her to leave.

had

physically

According to Golden,

when she told this to petitioner and as it became clear to
petitioner that she and Metsinger had had a sexual relationship,
petitioner

talked

about

killing

Metsinger.

Golden

testified

that she and petitioner used cocaine and methamphetamine and
then planned to go to Metsinger’s apartment after his father had
left to go to work.

She said they entered the apartment when

petitioner easily kicked in a back door which had previously
been

broken.

Metsinger.
kitchen

She

that

their

plan

was

to

kill

Petitioner was wearing a ski mask and hid in the

area

petitioner.

testified

of

the

apartment

while

Golden

yelled

for

According to Golden, petitioner attacked Metsinger

with a small ax when Metsinger walked into the living room area
and toward the kitchen.

Golden indicated that she participated

in the attack somewhat halfheartedly.
Golden

was

in

custody

at

the

time

of

the

first

trial,

serving a sentence after pleading guilty to aggravated burglary
and aggravated battery in connection with the incident in this
case.
as

Her plea bargain and sentence were described to the jury

well

as

her

criminal

history

and

personal

history.

She

described extensive drug use and stated that she and Metsinger
5

had been awake and using methamphetamine for several days.

She

also described a drug sale she conducted while Metsinger was
along on the night before the incident.

She further mentioned

shoplifting with Metsinger the same night.

Additionally, Golden

admitted to committing perjury in an earlier statement to law
enforcement.
The prosecutor decided to play the redacted recording on
the third day of trial.

Prior to doing so, the prosecutor

represented to the court that the recording had been redacted to
take care of the Elnicki problems.
recording

was

completed,

defense

Before the playing of the
counsel

agreed redactions had not been made.

objected

that

During a conference with

the trial judge, the prosecutor said:
“[E]verything … redacted in this DVD was under my
direction, whatever was taken out. Everything left in
was my direction.
My recollection to the Court’s
ruling was that all Elnicki was to be taken out, if I
was going to play the … video, that I was to give
[petitioner’s trial counsel] a copy to review.”
The prosecutor later said:
“When I was getting ready for trial, I was operating
[with] the plan of making my redacted version[,]
giving it to verify and seeing if there are any
objections.
I tried to start that early.
We had
technical problems downstairs, which isn’t anybody’s
fault but our own, and I didn’t get that [done] until
almost the close of the business day on Friday.
As
for the motion for mistrial, I agreed to redact
everything that was [specified] in July … Although I
would argue that what has come in is not in violation
of Elnicki, … I understand that we didn’t have an

6

the

opportunity to litigate that before because I agreed
to take it out.”
The trial judge determined that the prosecutor had agreed
in July 2007 to redact portions of the recording which were not
redacted
trial.

when

the

recording

was

played

in

November

2007

at

He granted petitioner’s motion for a mistrial.

C.

Proceedings before the second trial

Prior to the second trial, petitioner filed a motion to
dismiss arguing that a second trial would violate petitioner’s
rights against double jeopardy.
hearing.

The

undisputed.

facts

argued

The trial court conducted a
at

the

hearing

were

largely

The conclusions to be drawn from the facts were

disputed.
Petitioner’s
intentionally

when

counsel
he

argued

played

a

that

the

portion

prosecutor
of

the

acted

improperly

redacted video and that a mistrial was inevitable after the
video was played.

Petitioner’s counsel also asserted that the

case was not going well for the prosecution at the time the
video was played because there had been disclosures by Metsinger
and Golden during the trial that had not been made prior to
trial, such as that they had been high on methamphetamine for
six days straight and that Golden had committed perjury in a
sworn statement to the police.

7

The prosecutor stated that he had not planned on playing
the video in trial, but changed his mind.

He said he had

forgotten about the stipulated deletions outlined in the motion
to suppress in July, but endeavored to take out the portions
that obviously violated Elnicki.

He said he provided a copy of

the video to petitioner’s trial counsel five days before the
video was played.
The prosecutor further commented:
“We had problems with redaction.
That’s why we sent
it as soon as we got them done because I knew if there
were other things I needed to take out, it would take
time for our office to do that.
We had a lot of
problems getting that DVD to play after redactions
were made.
In response to his argument about how well the case
was going… this [was] the first time [Golden]
participated.
I do believe my case was going better
than I anticipated.
I did not attempt to goad them
into a mistrial.
I took out everything I thought I
needed to take out. I thought I did from the request
from [petitioner’s counsel] in July.”
The

trial

essentially
grounds
mistrial

is

judge

acknowledged

orchestrated,
appropriate.

justifies

a

that

dismissal

But,

dismissal.

he
The

where
upon

recognized
trial

a

mistrial

double
that

judge

is

jeopardy
not

every

appeared

to

consider all the circumstances and remarked that the rule in
Elnicki was difficult to apply because there was no bright line.
In the end, the trial judge concluded that the prosecutor “made
a mistake, and it wasn’t a small one, but Oliver Wendell Holmes
knows the difference between being kicked and tripped over.
8

In

this case, the dog was tripped over, it wasn’t kicked.”

Thus,

finding that the prosecutor did not intend to goad petitioner
into

asking

for

a

mistrial,

the

court

denied

the

motion

to

dismiss.
D.

Second trial proceedings

At the second trial, the testimony of Metsinger and Golden
was

largely

the

same

as

at

the

first

trial.

Petitioner

testified that he picked up Golden around 4:00 a.m. on September
13, 2006 at a supermarket near Metsinger’s apartment.

He stated

that Golden wanted to return to the apartment to pick up some
items

she

reluctantly.

had

left

When

there,

they

did

and

that

this,

he

accompanied

according

to

her

petitioner’s

testimony, Metsinger threw out a lamp and a phone belonging to
Golden.

After that, petitioner and Golden drove to petitioner’s

apartment and a short while later Golden asked to return to
Metsinger’s apartment to retrieve more items.
reluctantly agreed to drive her there.
that

Golden

had

them

stop

at

a

Petitioner again

Petitioner testified

restaurant

apartment where petitioner and Golden worked.

near

Metsinger’s

Petitioner stated

that Golden left their vehicle and returned with a hatchet which
she gave to petitioner.

Petitioner said he was apprehensive of

Metsinger who he described as a loose cannon.

According to

petitioner, Golden knocked on one door of Metsinger’s apartment
and when no one answered, they went around to another door which
9

Golden

forced

open.

Petitioner

recounted

that

Metsinger

appeared and attacked petitioner, first with a bar stool and
then later using an unidentified instrument to hit petitioner on
the

head.

Petitioner

fought

with

struck some blows with the hatchet.

Metsinger

and

eventually

Petitioner stated that the

fight lasted about a minute and a half and then Metsinger left
the apartment.
Petitioner admitted that he spoke with a police detective
following his arrest in this case and that what he told the
detective was completely different from his trial testimony.

He

did not claim self-defense when he spoke with the detective and
told the detective that he never hurt Metsinger.
During
prosecutor

the

closing

referred

to

argument
petitioner

of

the

making

second
a

trial,

statement

to

the
the

police on the day of his arrest and then “16 months later”
testifying in court when he knew various details of the evidence
gathered by the prosecution.

The prosecutor also made these

statements:
There’s only three witnesses, three people that
truly know that happened inside that apartment.
You
heard testimony from all three of them. … I want you
to keep in mind … that they also spoke with the police
on September the 13th of 2006.
And there’s an old
saying that the water is purest at its source.
And now suddenly [petitioner] wants to claim
self-defense, admitting many of the facts that
[Metsinger] has been saying all along, and [Golden]
has been saying all along.
But he wants to claim
10

self-defense. You have to decide who is going to get
the credibility in this case. Out of the three
witnesses in that apartment, there’s only one who has
diabolically changed their story in front of you this
week.
Keven Hollingshead has had since September 13th,
2006 to prepare for what he was going to tell you
yesterday about what happened.
III.

HABEAS STANDARDS
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,
1222-23 (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
11

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).
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

12

remedy.” Titlow, 134 S.Ct. at 16 (quoting Richter, 131
S.Ct. at 786).
(footnote omitted).
“Factual

determinations

by

state

courts

are

presumed

correct absent clear and convincing evidence to the contrary, §
2254(e)(1), and a decision adjudicated on the merits in state
court

and

based

on

a

factual

determination

will

not

be

overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding, §
2254(d)(2).”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

IV.
PETITIONER’S DOUBLE JEOPARDY CLAIM DOES NOT MERIT HABEAS
RELIEF.
The Double Jeopardy Clause of the Fifth Amendment to the
Constitution

protects

a

criminal

prosecutions for the same crime.
667, 671 (1982).
a

defendant,

narrowly

prosecutor

from

repeated

Oregon v. Kennedy, 456 U.S.

When a mistrial is ordered upon the request of

the

applied.

defendant

proscription
Id.

intended

to

at

673.

provoke

against

double

A

must

the

court

defendant

jeopardy
find

to

that

move

is
the

for

a

mistrial, before it may find that a retrial is barred by the
Double Jeopardy Clause.

U.S. v. Tafoya, 557 F.3d 1121, 1126

(10th Cir.) cert. denied, 557 U.S. 928 (2009).

Carelessness or a

mistake by the prosecution is insufficient to bar a retrial.
U.S. v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992).

13

A.
Petitioner’s attack upon the
findings does not support habeas relief.

state

courts’

factual

Petitioner first argues that habeas relief is justified on
double

jeopardy

grounds

because

the

state

courts

erred

in

finding that the prosecutor’s action in playing the improperly
redacted

video

was

a

mistake

and

defendant into moving for a mistrial.

not

intended

to

provoke

This is a factual finding

to which the Tenth Circuit has applied a clear and convincing
evidence standard.

Housley v. Fatkin, 148 Fed.Appx. 739, 743

(10th Cir. 9/23/2005) cert. denied, 547 U.S. 1024 (2006); Rudolph
v. Galetka, 111 Fed.Appx. 565, 572 (10th Cir. 9/28/2004) cert.
denied, 544 U.S. 906 (2005); Brown v. Lytle, 2000 WL 350224 *2
(10th Cir.) cert. denied, 531 U.S. 885 (2000).

Petitioner had

the burden of proving the intent to provoke a mistrial.

See

Earnest v. Dorsey, 87 F.3d 1123, 1130 (10th Cir. 1996)(citing
U.S. v. Borromeo, 954 F.2d 245, 247 (4th Cir.), cert. denied, 505
U.S. 1212 (1992)); see also, U.S. v. Barnard, 318 Fed.Appx. 143,
145 (3rd Cir. 2009); U.S. v. Benson, 1993 WL 460960 *3 (9th Cir.
1993) cert. denied, 510 U.S. 1204 (1994).
Petitioner contends that the prosecutor’s actions were an
intentional

effort

to

provoke

a

mistrial

because:

the

prosecutor was aware of the judge-ordered and agreed-to Elnicki
redactions in July but failed to make all of them when he was
preparing

the

DVD

prior

to

the

14

November

5,

2007

trial;

the

prosecutor told petitioner’s trial counsel and the court that he
had made the Elnicki redactions; petitioner’s trial counsel, not
the prosecutor, objected and interrupted the playing of the DVD
when objectionable remarks were broadcast; the prosecutor made
inconsistent explanations for the failure to make all of the
agreed-to

redactions;

the

prosecutor

falsely

suggested

that

there was not a clear agreement as to what redactions were to be
made;

the

Elnicki

violations

were

not

fully

redacted;

the

prosecutor tried to blame petitioner’s trial counsel for failing
to check the DVD when the prosecutor only delivered the DVD late
on a Friday before a trial set the start the following Monday;
and

the

trial

was

“devolving

into

a

shambles”

for

the

prosecution before the DVD was entered into evidence.
The court has carefully considered the arguments and the
record in this case.
demonstrate
prosecutor

with

We conclude that petitioner has failed to

clear

intentionally

improperly redacted DVD.
prosecutor

acted

and

convincing

provoked

a

evidence

mistrial

by

that

playing

the
the

The state court’s finding that the

mistakenly

and

not

intentionally

is

not

objectively unreasonable.
A reasonable judge could determine that the prosecutor when
preparing

for

the

November

trial

remembered

that

Elnicki

redactions needed to be made on the DVD but forgot that the
prosecution had agreed to make the exact redactions listed by
15

petitioner’s counsel in July.
prosecutor

the

court

that

the

especially

given

that

the

Elnicki case does not set forth a bright-line standard.

It

Elnicki

telling

This would be consistent with the

redactions

opposing

counsel

had

made,

been

and

would also be consistent with the prosecutor not reacting first
to interrupt the playing of the DVD.

Contrary to petitioner,

the court does not read the prosecutor’s explanations of his
actions to be inconsistent or false.

The prosecutor appeared to

take responsibility for the errors made in redacting the DVD.
We

further

reject

the

assertion

that

the

prosecutor

equivocated as to whether an agreement had been made in July
regarding the proper redactions.

The prosecutor admitted that

he “agreed that I would take out what [petitioner’s counsel]
requested,” but later “forgot about the things about Elnicki
[petitioner’s counsel] outlined in July.”

The court is not

convinced by petitioner’s assertions that the Elnicki redactions
which the prosecutor did make were so inadequate that it proves
the prosecutor intended to provoke a mistrial.

Further, the

court believes the prosecutor’s effort to supply the DVD for
advance viewing by petitioner’s trial counsel is evidence that
the prosecutor did not intend to provoke a mistrial.
Finally, the court is not convinced that the trial had
become a shambles for the prosecution when the DVD was admitted.
The evidence was not substantially different between the first
16

and second trials.

The key witnesses for the prosecution were

Metsinger and Golden.

It was well-known to the prosecution that

Metsinger

had

and

Golden

criminal

issues that could be problematic.
had changed her account of
statements.

Some

histories

and

drug

abuse

It was also known that Golden

what happened in different sworn

aspects

of

the

testimony

regarding

shoplifting, drug sales and the extent of the drug abuse may not
have been anticipated during the first trial.

But, these bits

of evidence did not substantially change the landscape of the
case.
Recently in U.S. v. Burciaga, 2015 WL 150344 (10th Cir.
1/13/2015), the Tenth Circuit illustrated the narrowness of the
exception

to

the

rule

that

a

retrial

following

a

mistrial

ordered at a defendant’s request does not risk double jeopardy.
In Burciaga, the court refused to overturn a finding that a
prosecutor did not intend to provoke a mistrial even though the
prosecutor

asked

a

question

which

was

“highly

improper”

and

“careless,” revealing “poor judgment” and “negligent disregard”
for

the

defendant’s

rights.

The

question

mentioned

the

defendant’s attorney’s attempt to engage in plea negotiations.
In spite of the obvious error, the court found support in the
record to conclude that the nature of the question did not show
an

intention

to

cause

a

mistrial.

For

the

reasons

just

outlined, here we find that the state courts’ determination that
17

the prosecutor did not intend to provoke a mistrial was not
clearly erroneous.
B.
applied
relief.

Petitioner’s claim that the state courts improperly
federal constitutional law does not support habeas

Petitioner’s

second

argument

in

support

of

his

double

jeopardy claim is that the state courts unreasonably applied the
clearly established federal law standard in Oregon v. Kennedy,
supra, for determining a double jeopardy violation.

Petitioner

contends that while the Kennedy case requires proof that the
prosecutor

intentionally

acted

to

provoke

a

mistrial,

Kansas

courts in State v. Dumars, 154 P.3d 1120 (Kan.App. 2007) and
State

v.

additional

Morton,
evidence

153

P.3d

532

(Kan.

of

“bad

faith,”

2007)

“egregious

have

required

prosecutorial

misconduct,” and substantial prejudice to the right to a fair
trial.
The Kansas Court of Appeals rejected this argument upon
direct appeal on the grounds that “the record does not support
and [petitioner] does not allege, that the district court in
this

case

standard.”
transcript

departed

from

Kennedy

by

2010 WL 5490723 at *4.
of

the

hearing

upon

the

applying

heightened

The court has reviewed the
motion

to

conclude that the Kansas Court of Appeals made
finding.

a

dismiss.

We

a reasonable

We note that the trial judge did not mention the

18

additional

factors

alleged

by

petitioner

in

the

judge’s

of

Appeals,

discussion of the motion.
Petitioner
itself,

applied

asserts
the

that

the

so-called

Kansas

Court

heightened

Dumars

and

Morton

standards on direct appeal because the court cited Dumars and
Morton soon after finding that it did not need to decide the
heightened standard argument.

We reject this contention.

Yes,

the Kansas Court of Appeals did refer to Dumars and Morton, but
not

to

claim.

support

a

heightened

standard

for

a

double

jeopardy

The cases were cited merely for the undisputed position

that there must be proof that the prosecutor intended to provoke
the

defense

to

move

for

a

mistrial.

Id.

Petitioner

also

asserts that the court should find that the alleged heightened
standard was applied by the trial court because it is presumed
that

a

Kansas

court

applies

the

law

of

Kansas.

The

court

believes the transcript of the motion to dismiss is sufficient
to overcome any presumption which might exist that a heightened
standard was applied in this instance.
Finally, we reject petitioner’s contention that the Kansas
courts in Dumars and Morton applied a heightened standard for
finding a double jeopardy violation.

The references to “bad

faith” or “egregious prosecutorial misconduct” or “substantial
prejudice” seem to be descriptive as opposed to prescriptive.
Such conduct might be more likely to support a finding that a
19

prosecutor’s

misconduct

intended

seeking a court-ordered mistrial.2

to

goad

a

defendant

into

But, the Kansas courts were

not requiring that such conduct be shown in every case.
C.
Petitioner’s remaining arguments do not support relief
upon double jeopardy grounds.
Petitioner’s

third

attack

upon

the

state

courts’

double

jeopardy findings asserts that the decisions were based upon an
unreasonable determination of the facts.

This argument is more

or less a repeat of the prior contention that the facts show the
prosecutor
mistrial.

intended

to

provoke

petitioner’s

motion

for

The court has reviewed the facts and the record.

a
We

reiterate that a reasonable factfinder could decide that the
prosecutor did not intentionally goad petitioner into asking for
a mistrial.

Petitioner’s claim to the contrary is not supported

by clear and convincing evidence.
V.
PETITIONER’S
HABEAS RELIEF.

CLAIM

OF

A

DOYLE

VIOLATION

DOES

NOT

MERIT

Petitioner contends that he is entitled to habeas relief
because
which

the

prosecutor

improperly

in

commented

his
upon

closing

argument

petitioner’s

made

right

to

remarks
remain

silent, contrary to Supreme Court precedent.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court
held that a prosecutor may deprive a criminal defendant of his
2

In Kennedy, the Court actually rejected “bad faith” as being too broad of a
standard of prosecutorial misconduct to apply to double jeopardy claims. 456
U.S. at 674-76.

20

right to due process by making improper comments about his postMiranda silence.

The Court held that it was unfair, when an

accused invoked his right to remain silent after receiving a
Miranda

warning,

for

the

prosecution

to

use

the

accused’s

silence to impeach his testimony at a later trial.

426 U.S.

In Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir.

619.

2001), the Tenth Circuit said

that “the question is whether the

language used by the 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).

The comments petitioner attacks are described in section
II(D) of this opinion.
the

closing

argument

The Kansas Court of Appeals decided that
did

not

violate

Doyle

because

the

prosecutor was merely attacking the credibility of petitioner’s
testimony with inconsistent statements petitioner had previously
made.
habeas

2010 WL 5490723 at *6.
review

unless

it

is

This decision must be upheld upon
“contrary

to,

or

involved

an

unreasonable application of clearly established Federal law, as
determined

by

the

Supreme

Court

of

the

United

States.”

§

2254(d)(1).
Upon review, the state court’s holding appears reasonable.
The prosecutor contrasted petitioner’s statements when he was
arrested with his testimony at trial and with the statements
21

other witnesses made when they were arrested and then testified
later

at

trial.

Petitioner

highlights

the

prosecutor’s

references to the time when statements were made or the time
which

elapsed

arrested

and

between
when

he

petitioner’s
testified

at

statements
trial.

when

he

was

Petitioner

also

emphasizes that the prosecutor stated that petitioner had time
to prepare his testimony taking into account the other evidence
that had been gathered.

It is reasonable to conclude, however,

that a jury would not consider these statements to be a comment
upon petitioner’s right to remain silent.

Rather, as the Kansas

Court of Appeals determined, the comments could reasonably be
considered a reference to petitioner’s statements (which were
inconsistent), not to petitioner’s failure to make a statement.
As

made

clear

in

Anderson

v.

Charles,

447

U.S.

404,

407-08

(1980), such remarks do not violate the holding of Doyle.

It is

also reasonable to consider a reference to a defendant’s ability
to consider other evidence before testifying, as a comment upon
credibility and the normal elements of case management and trial
procedure, not as a comment upon the exercise of the right to
remain

silent.

See

Portuondo

v.

Agard,

529

U.S.

61,

75

(2000)(remark that defendant had a “big advantage” of listening
to other testimony before testifying does not deprive defendant
of a fair trial by penalizing him for exercising his right to
attend his trial).

In sum, it was reasonable, and not contrary
22

to established Supreme Court precedent, to conclude that the
prosecutor’s closing argument was proper.3
VI. CONCLUSION
For the above-stated reasons, petitioner’s application for
habeas relief shall be denied.
VII.

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.

§

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
petitioner

that

the

issue
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

3

proceedings.

Slack

v.

The remarks highlighted by petitioner are not unlike those challenged in
U.S. v. Mora, 845 F.2d 233, 234-35 (10th Cir.) cert. denied, 488 U.S. 995
(1988) where a Doyle claim was denied.
In Mora, the prosecutor in closing
argument stated:
“Consider also the fact that Sharlene Fischer [a coconspirator
who had pleaded guilty] gave her statement after she was
arrested. She didn’t wait two months and talk to her attorney .
. . She told what she knew right after she was arrested and
Buckey Buckmaster [another coconspirator who had pleaded guilty]
did so within a month … So when you view their credibility,
consider the fact that they’ve entered a plea agreement but
consider whether or not they’re corroborated and consider when
they gave those statements or whether they waited months and
months to think up a story and come in here and tell you.”

23

McDaniel,

529

U.S.

473,

483-84

(2000)(citing

Estelle, 463 U.S. 880, 893 (1983)).
certificate
Nothing

of

appealability

suggests

that

the

v.

The court concludes that a

should
court’s

Barefoot

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 that this petition for
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is
denied and a certificate of appealability is denied.
IT IS SO ORDERED.
Dated this 24th day of February, 2015, at Topeka, Kansas.

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

24