Elnicki (ID 66357) v. Kansas, State of et al
Filing
16
ORDER dismissing 1 the Petition for Writ of Habeas Corpus filed by Laurance L. Elnicki and denying all relief. Signed by District Judge Sam A. Crow on 5/5/2015. Mailed to pro se party Laurance L. Elnicki by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAURANCE L. ELNICKI,
Petitioner,
v.
CASE NO. 14-3082-SAC
REX PRYOR,
Respondent.
O R D E R
This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254. Petitioner seeks relief on the ground that his trial
counsel provided ineffective assistance by failing to advise him that
he had a constitutional right to testify at trial.
Procedural background
Petitioner was convicted in the District Court of Shawnee County,
Kansas, of aggravated kidnapping, in violation of K.S.A. 21-3421;
kidnapping, in violation of K.S.A. 21-3420(b); aggravated robbery,
in violation of K.S.A. 21-3427; and aggravated burglary, in violation
of K.S.A. 21-3716. He was sentenced to a term of 500 months in prison.
The Kansas Court of Appeals (KCOA) affirmed petitioner’s
convictions but vacated and remanded the matter on the issue of
assessment of attorney fees.
The Kansas Supreme Court denied
petitioner’s petition for review on June 23, 2010.
On August 27, 2010, petitioner filed a motion for post-conviction
relief pursuant to K.S.A. 60-1507. The state district court denied
relief, and the KCOA affirmed that action. Elnicki v. State, 301 P.3d
788 (Table), 2013 WL 2321032 (Kan.App. May 17, 2013)(unpublished
order). The Kansas Supreme Court denied review on October 38, 2013.
Petitioner filed this matter on May 21, 2014.
The KCOA summarized the factual basis for petitioner’s
convictions as follows:
On December 28, 2004, the defendant and his girlfriend,
Summer Cole, arranged to trade a set of car tires in exchange
for an older set of car tires and a cell phone from Corey
Cozzi. Cozzi was dating Darla Caudle and the two lived
together in a trailer in Shawnee County, Kansas. The parties
arranged to make the trade at the house of a mutual
acquaintance, Mike Reisinger. The parties swapped two tires
at Reisinger’s house and then moved to Cozzi’s and Caudle’s
trailer to complete the trade.
The defendant and Cole left the trailer after the trade was
complete but returned to the trailer about an hour later
with another unidentified man and a shotgun. When Caudle
opened the door, they demanded she let them in to see Cozzi.
Caudle said Cozzi was asleep but the three entered the
trailer anyway and went to the bedroom where Cozzi was
sleeping. One of the three struck Cozzi on the head and then
they hog tied Cozzi and Caudle, although there is some
dispute as to who hit Cozzi and who did the tying. The
defendant then assisted either Cole or the other man in
carrying Caudle to the bathroom and putting her in the
bathtub.
The three proceeded to remove a variety of items from the
trailer, including a television, stereo equipment, a DVD
player, and credit cards. Cole demanded the pin numbers for
the credit cards. They also searched the trailer for money.
When the three left, Cole stole a car Cozzi was planning
to buy from Caudle’s son-in-law.
After the three intruders left the trailer, Caudle was able
to free herself and Cozzi. Cozzi’s forehead was bleeding
from being struck, so Caudle and Cozzi when to the hospital
where Cozzi received 7 stitches in his head.
The defendant and Cole were apprehended by law enforcement
several hours later while they were moving items between
Cozzi’s car and yet another car Cole had stolen. Officers
found Caudle’s credit cards and driver’s license in the
defendant’s pocket. A loaded shotgun was found in the trunk
of one of the cars.
Standard of review
This matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA), which establishes a deferential standard of
review in habeas corpus. Specifically, when a state court has
adjudicated a claim on its merits, a federal habeas court may grant
relief only if determines the state-court decision was “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States”
or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).
A state court decision is “contrary to” established Supreme Court
precedent if the state court decision either contradicts a governing
precedent or reaches a decision that is different from Supreme Court
precedent on materially indistinguishable facts. Williams v. Taylor,
529 U.S. 362, 405-406, 413 (2000).
The court determines whether the state court’s decision was
reasonable by considering the record that was available to the state
appellate court. See Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct.
1388 (2011)(“review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.”)
A state court’s findings of fact are presumed to be correct and
are given deference. 28 U.S.C. § 2254(e)(1).
Application
Petitioner properly exhausted his claim of ineffective
assistance of counsel by presenting it in a post-conviction action
and by pursuing relief in the Kansas appellate courts.
The state district court appointed counsel, conducted an
evidentiary hearing, and issued written findings and conclusions of
law. The court’s order explained:
This is another matter in which the Court must weigh the
testimony of the witnesses and determine who is more
credible. From observing the witnesses and listening to
their testimony, this Court finds that trial counsel is a
more credible witness than Elnicki on the issue of whether
Elnicki was advised it was his decision about whether to
testify. As previously noted, trial counsel has no personal
interest, benefit or detriment in the outcome of this case.
Elnicki clearly does. This Court does not put much stock
in Elnicki’s testimony. It is not clear to this Court
whether [petitioner’s wife] and [petitioner’s mother]
really saw the specific words reportedly mouthed to them
as they testified, or whether they are just helping out a
loved one. If they did see it done, the source of the
information is still Elnicki, whom the Court does not
believe. The Court finds that Elnicki was aware of his right
to testify. Both Elnicki and trial counsel testified that,
in some form, trial counsel advised Elnicki not to testify.
It was Elnicki’s decision.
There is not sufficient evidence upon which this Court can
find trial counsel’s performance fell below an objective
standard of reasonableness – the first prong of the two-part
test. Further, there is not sufficient evidence that
Elnicki was prejudiced by trial counsel’s performance.
There is no evidence that but for counsel’s performance,
the result in this case would have been different. Elnicki
v. State, 2013 WL 2321183 at *2.
The KCOA applied the correct legal precedent in its review of
this claim, citing Strickland v. Washington, 466 U.S. 668 (1984).
Under the Strickland standard, a party claiming ineffective
assistance must establish both that “counsel’s representation fell
below an objective standard of reasonableness” 466 U.S. at 688, and
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different,” id. at 694.
The KCOA also reasonably applied that standard to the record
before it, finding that “[t]he record contains substantial competent
evidence supporting the district court’s factual findings that
[counsel] advised Elnicki of his right to testify and that Elnicki
understood that the decision was his to make”, Elnicki, 2013 WL
2321183, *4. The KCOA also noted that petitioner had exercised the
right to testify in an earlier trial. Id.
In considering a claim of ineffective assistance of counsel, a
federal habeas court may grant relief only if the petitioner can
surmount the “doubly deferential” combination of standards imposed
by § 2254(d) and Strickland.
Pinholster, 131 S.Ct. at 1403. After
consideration of the record and the arguments of the parties, the court
finds petitioner has not met this burden and concludes habeas corpus
relief must be denied.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed and all relief is denied.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:
This 5th day of May, 2015, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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