LaPointe v. Oliver et al

Filing 28

MEMORANDUM AND ORDER granting in part and denying in part 26 Motion to Strike. Petitioner's application for habeas corpus 1 is DENIED. See Order for further details. Signed by District Judge John W. Broomes on 10/31/2019. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACK R. LAPOINTE,
Petitioner,
v.

Case No. 14-3161-JWB

DEREK SCHMIDT,
KANSAS ATTORNEY GENERAL,
et al.,
Respondents.

MEMORANDUM AND ORDER
This case comes before the court on Petitioner’s application for a writ of habeas corpus
under 28 U.S.C. § 2254. (Doc. 1.) The matter has been fully briefed and is ripe for decision.
(Docs. 21, 25.) The court has reviewed those portions of the state court record which are pertinent
to the issues raised in the application and finds that an evidentiary hearing is not warranted.
Petitioner’s application is DENIED for reasons set forth herein.
Petitioner was convicted of aggravated robbery and aggravated assault following a jury
trial in state court and sentenced to 245 months in prison. In a federal habeas proceeding, the state
court’s factual findings are presumed correct and petitioner bears the burden of rebutting that
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, Petitioner does not
challenge the state court’s findings.1 Accordingly, the court incorporates the Kansas Court of
Appeal’s version of the facts:
The Robbery
Around 8 p.m. on October 30, 2000, Carrie Wellman was checking out customers
at the Payless store when a man walked in with a gun and proceeded to rob the
1

Although Petitioner includes a recitation of the facts from the record, Petitioner’s recitation of the facts includes the
facts set forth herein and Petitioner does not assert that the state court’s factual recitation was erroneous. (Doc. 25.)

1

store. Monica Ortiz was shopping in the Payless store with her three children and
was completing her purchase when the robber walked in the store. The robber
pointed the gun in Ortiz' face and instructed her not to look at him. The robber also
pushed Ortiz' 5–year–old daughter to the ground when she tried to run to her
mother. After Wellman gave the robber approximately $1,000 in a plastic shopping
bag, he ran from the store. Wellman then called the police.
Carrie Delaney and Brandy Loveall had been shopping at a store in the strip mall
and were driving out of the parking lot when Loveall spotted a man carrying a gun
and walking fast on the sidewalk. Loveall made eye contact with the man before he
passed her and ran between two buildings. According to Loveall, Delaney was
driving the car when Loveall saw the man.
When the police arrived at the scene, several officers went to a nearby apartment
complex after learning that the robbery suspect had been seen there. Upon arriving
at the apartment complex, Officer Eric Thompson saw a woman in the parking lot
holding cash in her hand. The woman told Thompson that a Caucasian man had just
run through the breezeway and had dropped the money on his way up the stairs.
Thompson took the money, which was $138, from the woman and asked her to
remain there. Thompson ran through the breezeway to look for the robber but was
unable to find him. When Thompson returned to his patrol car, the woman was no
longer there.
During their search of the apartment complex area, officers found a plaid shirt and
hat in a breezeway and a pair of cloth gloves in the front of one of the buildings. In
addition, a police dog that had been brought to the apartment complex to track the
suspect's scent pulled a blue and white bandana from underneath a car parked at the
complex.
Eyewitnesses' Description of Suspect
Detective Karen Borstelman interviewed Loveall on November 1, 2000, and
completed a composite sketch of the man she saw carrying a gun on the evening of
October 30, 2000. Loveall described the man as Caucasian and standing
approximately 6 feet tall, wearing a blue and white bandana on his head, with blond
hair sticking out from underneath the bandana. The man was wearing a blue and
white flannel shirt and was carrying a double-barreled sawed-off shotgun. Loveall
further described the man as being in his early 30's and having a slender build. By
the time of trial, Loveall had forgotten some of the details she had given Borstelman
and described the man she saw as Caucasian and wearing a bandana on his head,
wearing a coat, and carrying a gun. Moreover, Loveall could not recall whether the
headlights of Delaney's car were illuminating the shadowy area in which the man
was walking. Nevertheless, at trial, Loveall identified LaPointe as the man she had
seen on the evening of October 30, 2000.

2

The other witnesses' descriptions of the robber differed somewhat from Loveall's
description. According to Wellman, the man was Caucasian, was in his mid- to
late–20's, stood about 6 feet tall, wore a plaid jacket and a bandana over part of his
face, and had blond spikey hair with dark roots. Ortiz described the robber as a
Caucasian man who was in his mid–20's and of slender build. Ortiz testified that
the robber was wearing a cap and had put a handkerchief over his face when he
came into the store. Ortiz' 11–year–old daughter, Monserrat Santos, described the
robber as a Caucasian man with blue eyes and a muscular build. According to
Santos, the robber had blond spikey hair, stood about 6 feet tall, had placed a
bandana over his nose and mouth shortly after he had entered the store, and had not
been wearing a hat.
Delaney was also interviewed by a detective and gave a description of the man, but
she was unable to make a composite sketch. Delaney described the man as
Caucasian and standing 5′10″ tall, having a skinny build, wearing nothing on his
head, wearing a blue flannel-type shirt, and carrying a white plastic trash bag.
Delaney did not see the man carrying a weapon. According to Delaney, she was
shown a photo lineup but was unable to make a positive identification. Delaney
testified that she had suffered a stroke, which had affected her short-term memory,
during the first part of October 2000.
During the investigation of the robbery, one of the officers had commented that an
individual named Joseph Seeber seemed to match the suspect's description and
lived in the apartment complex just north of the Payless store. A photo lineup was
then put together with Seeber's picture.
Wellman's Eyewitness Identification
On November 9, 2000, Detective Scott Atwell showed Wellman the photo lineup.
In looking at the photographs, Wellman used her hand to cover up the lower half
of each of the faces. After approximately 5 minutes, Wellman identified the suspect
in photograph number 1 as the robber. Nevertheless, according to Atwell, Wellman
indicated that the person depicted in photograph 1 had a fatter face and longer hair
than the robber. At trial, Wellman acknowledged that she was unsure of her pick in
the photo lineup. Moreover, Wellman testified that she would not recognize the
man who robbed her if she saw him again. The person in photograph 1 was Seeber,
the target suspect in that photographic lineup.
Loveall's Failure to Identify Suspect in First Lineup
On November 15, 2000, Atwell showed the same photo lineup to Loveall.
Nevertheless, Loveall immediately stated that all the individuals in the photos were
“way too young.”
Atwell's Testimony Concerning Eyewitness Identifications

3

Despite Wellman's identification of Seeber in the photo lineup, the police did not
attempt to contact Seeber to question him about the robbery. When questioned at
trial about why he had not investigated Seeber further, Atwell testified that he had
“absolutely no confidence in the way” Wellman picked out photograph 1.
Moreover, Atwell explained that he had received a laboratory report stating that
Seeber's fingerprints were not those on the latent fingerprint cards collected at the
Payless store. Atwell acknowledged, however, that the latent prints did not match
LaPointe's fingerprints either. Atwell further testified that he had confidence in
Loveall's identification “because she had observed the suspect under no stress
whatsoever” and had seen the suspect bare-faced.
Norton's Interviews With FBI Agents
During November 2000, Michael Norton was taken into FBI custody on suspicion
of bank robbery. During his interview, Norton told FBI agents that he had been told
by LaPointe that LaPointe had robbed the Payless store in Roeland Park. Norton
stated that he believed that LaPointe had used a shotgun during the robbery and had
thrown the shotgun on the roof of a nearby building after the robbery.
After Norton pled guilty to federal bank robbery charges, FBI agents interviewed
Norton on January 4, 2001, regarding the Payless robbery. During that interview,
Norton admitted that he had been involved with LaPointe in the Payless robbery.
Norton stated that he had driven LaPointe to the Payless store and had parked at a
nearby apartment complex while LaPointe went to commit the robbery using a
shotgun. Norton told the FBI agents that when LaPointe had returned to the car,
LaPointe said that he had thrown the shotgun onto the roof of the Fashion Bug,
which was a store in the same strip mall as the Payless store.
Recovery of Sawed-off Shotgun
Based on this information, FBI Agent Jeffrey Harris contacted Atwell and then met
him in the parking lot of the Fashion Bug. With the fire department's help, a 12–
gauge sawed-off shotgun was recovered from the roof of the Fashion Bug.
Loveall's Identification of LaPointe in Second Photo Lineup
On January 22, 2001, Atwell showed Loveall a second photo lineup with LaPointe's
picture in it. According to Atwell, as soon as the photo lineup hit Loveall's hand,
she pointed to photo 4 and said “that's the guy.” LaPointe was the individual in
photograph 4. The ages of the other individuals depicted in the photo lineup were
21, 21, 20, 19, and 25, while LaPointe was 31. This second photo lineup was never
shown to Wellman.
LaPointe's Trial

4

LaPointe went to trial on charges of one count of aggravated robbery and one count
of aggravated assault. The State's main evidence against LaPointe at trial was
Loveall's identification of LaPointe and Norton's statements and testimony that
LaPointe had committed the robbery. Although Norton implicated himself in the
Payless robbery during his testimony at trial, he had been given immunity in
exchange for his testimony against LaPointe. Norton had not received any reduction
in his federal sentence for his cooperation in LaPointe's criminal case.
Norton's Testimony
During his testimony at trial, Norton stated that he and LaPointe had known each
other since 1998. Moreover, both Norton and LaPointe had worked for Norton's
father during 2000.
According to Norton, on October 30, 2000, he and LaPointe had planned to do a
robbery in a low-key area that had a quick get-away to the highway. Norton testified
that he was supposed to get 3/4 of the money that LaPointe got from the robbery
because LaPointe owed him money. Once LaPointe decided to rob the Payless
store, Norton pulled into the parking lot behind the Fashion Bug to wait for
LaPointe.
Norton testified that he brought a sawed-off shotgun that he had obtained from
LaPointe. Norton further testified that when LaPointe got out of the car, he took the
shotgun and placed it up the sleeve of his sweater. According to Norton, LaPointe
was wearing jeans, a pull-over sweater, a ball cap, and a bandana when he got out
of the car.
Norton testified that LaPointe came running to the car approximately 15 to 20
minutes later without the gun. LaPointe told Norton that there was a Hispanic
woman in the store that was trying to leave, but he had forced her back and told her
that no one was leaving. According to Norton, he heard a thump before he saw
LaPointe and assumed that LaPointe had probably thrown the gun in a dumpster or
on the roof of a building. When LaPointe returned to the car, he told Norton that he
had thrown the gun on the roof of the building.
According to Norton, he dropped LaPointe off at the home of LaPointe's girlfriend,
Deanna Burch, about 45 minutes after the robbery. Norton testified that Burch's car
was parked outside when he dropped off LaPointe. Nevertheless, Burch testified
that she was working at an event at Wal–Mart on October 30, 2000, and did not get
home until around 9:30 that night. According to Burch, LaPointe did not have a key
to her home, and he was not there when she got home that evening. Norton testified
that he later disposed of LaPointe's bandana and gloves in a dumpster at his
apartment complex. Norton testified that he has been bald on top of his head since
he was 20, and his hair is brown but turns semi-blond with a lot of sunlight.

5

During his testimony at trial, Norton admitted that he had 10 prior convictions for
dishonesty or false statement. His criminal history included several convictions for
armed robbery and auto theft, which dated back to when he was a juvenile.
Seeber's Testimony
The State called Seeber as a witness at trial. Seeber testified that he was not the
individual who had robbed the Payless store with a sawed-off shotgun. Seeber
further testified that he did not have a car and did not know Norton or LaPointe. At
the time of trial, Seeber was 22 years old, 5′9″, and 170 pounds.
Loretta LaPointe's Testimony
Loretta LaPointe, who married Jack LaPointe on March 15, 2001, testified that she
had seen LaPointe pull a sawed-off shotgun out of the trunk of her car around the
beginning of October 2000. Loretta immediately told LaPointe that the gun was not
staying there, and she never saw it again. LaPointe told Loretta that he had gotten
the shotgun from one of their friends to compensate Norton for a pistol that Loretta
had thrown in the river after she had found it in her car.
Forensic Evidence
Lila Thompson, a latent print examiner, testified that she was unable to develop any
latent prints on the gun that was found on the roof of the Fashion Bug store.
Thompson was able to find latent fingerprints on the latent print cards recovered
from the Payless store. Thompson compared these latent fingerprints against
Seeber's fingerprints, but they did not match. Another latent fingerprint examiner
compared the fingerprints on three of the latent print cards with the fingerprints of
LaPointe and Norton, but they did not match. He also tested the money recovered
from the woman at the apartment complex for fingerprints, but no prints of
sufficient value for comparison purposes were obtained.
Sally Lane, a forensic chemist at the Johnson County crime lab, examined the shirt,
cap, gloves, and bandana recovered from the apartment complex for DNA
evidence. Lane found two hairs on the bandana and additional hairs on the shirt,
cap, and gloves. Lane sent the hairs to the Kansas City, Missouri, police crime lab.
Lane attempted to obtain additional DNA evidence from the items submitted to her,
but she was unable to obtain a sufficient DNA sample.
Robert Booth, the chief criminalist at the Kansas City, Missouri, police crime lab,
examined four head hairs and microscopically compared them against LaPointe's
hair. Booth compared the hairs with 34 of LaPointe's hairs, which were taken from
the top, sides, and front of his head. Booth testified that none of the four head hairs
matched LaPointe. According to Booth, his comparison testing did not definitively
establish that the head hairs did not come from LaPointe because he had only a
representative sample of LaPointe's hair or because LaPointe could have changed
6

his hair since the hairs were deposited. Nevertheless, Booth testified that those two
explanations were “rather remote in occurrence” and that the explanation that the
hairs were not LaPointe's was “the most likely outcome.” Booth did not compare
the hairs to any from Seeber or Norton.
Alibi Evidence
LaPointe's alibi presented at trial was that he had been at the home of Loretta
LaPointe, his girlfriend and later his wife, on the evening of October 30, 2000.
According to LaPointe, he had broken up with Burch by that time and was living
with Loretta. Loretta testified that on October 30, 2000, she received a call from
work at 7:35 p.m. that she needed to report for the night shift that evening.
According to Loretta, she left her home around 9:45 p.m. to work the 10:30 p.m.
shift. Loretta testified that she remembered LaPointe being home that evening and
eating Halloween candy with her daughter. Loretta further testified that LaPointe
was at home from the time she received the call at 7:35 p.m. until she left for work
and that he also babysat her children while she was at work.
The State presented rebuttal evidence from Detective Atwell that when he went to
Loretta's home on December 18, 2003, she never told him that LaPointe was at
home on October 30, 2000. According to Atwell, he served Loretta with a subpoena
on March 18, 2004, and asked her then where LaPointe was on the day of the
robbery. At that time, Loretta told Atwell that LaPointe had been at home on
October 30, 2000, eating Halloween candy with her daughter while she was
preparing for work.
LaPointe's Testimony
LaPointe testified that he did not see Norton on October 30, 2000, and he did not
go to the Payless store. LaPointe further testified that he did not commit the armed
robbery and aggravated assault. According to LaPointe, he weighed approximately
240 pounds in October 2000 and was 6 feet tall. During Loretta's testimony, a
picture was admitted that was taken of LaPointe around October 28, 2000, which
showed him having short dark brown hair.
Conviction and Sentencing
The jury found LaPointe guilty of both the aggravated robbery and aggravated
assault charges. LaPointe was sentenced to 245 months in prison with his sentence
to run consecutive to his sentences in three other cases. His convictions were
affirmed on appeal by this court. See State v. LaPointe, Case No. 93,709,
unpublished opinion filed October 13, 2006. Our Supreme Court denied LaPointe's
petition for review on February 14, 2007.
LaPointe v. State, 42 Kan. App. 2d 522, 525–32, 214 P.3d 684, 688–92 (2009) (“LaPointe II”).

7

The Kansas Court of Appeals affirmed Petitioner’s conviction on direct appeal. State v.
LaPointe, No. 93,709, 143 P.3d 701, 2006 WL 2936496 (Kan. Ct. App. Oct. 13, 2006) (“LaPointe
I”). The Kansas Supreme Court denied review on February 14, 2007. Petitioner then sought postconviction relief under K.S.A. 60-1507. The state district court denied his petition. The Kansas
Court of Appeals remanded the case for an evidentiary hearing. See LaPointe II, supra. The
Kansas Supreme Court denied review on the State’s petition and Petitioner’s cross-petition on
September 9, 2010. The case was then returned to the district court for a hearing. Following the
evidentiary hearing, the district court denied relief. The Kansas Court of Appeals affirmed the
denial of relief. LaPointe v. State, No. 106,492, 285 P.3d 1044, 2012 WL 4372995 (Kan. Ct. App.
Sept. 21, 2012) (“LaPointe III”). The Kansas Supreme Court denied review on October 1, 2013.
On February 27, 2014, Petitioner filed a motion in the district court seeking post-conviction
DNA testing pursuant to K.S.A. 2014 Supp. 21-2512. On September 2, 2014, Petitioner filed this
application for relief under 28 U.S.C. § 2254. (Doc. 1.) Following favorable DNA testing,
Petitioner filed a motion in state district court seeking relief from judgment. On April 1, 2015, the
district court denied relief. This court stayed proceedings on Petitioner’s application pending
exhaustion of his state court proceedings on his motion for relief from judgment. (Doc. 5.) On
November 23, 2016, the Kansas Court of Appeals affirmed denial of Petitioner’s motion. State v.
LaPointe, No. 113,580, 384 P.3d 1030, 2016 WL 6910200 (Kan. Ct. App. Nov. 23, 2016)
(“LaPointe IV”). The Kansas Supreme Court affirmed the denial of relief. State v. LaPointe, 309
Kan. 299, 434 P.3d 850 (2019) (“LaPointe V”).
After the state court proceedings concluded, this court ordered the filing of a response and
a traverse. (Doc. 12.) Both a response and traverse were filed. (Docs. 21, 25.) Respondent has
moved to strike Petitioner’s traverse (Doc. 26) on the basis that it is improper because Petitioner

8

included legal arguments that were not included in the Petition and inserted a new claim. (Doc.
26.) Petitioner asserts that the legal arguments are in response to Respondent’s arguments and do
not raise new legal arguments. Petitioner acknowledges that the new claim of error, cumulative
error, “may be properly stricken.” (Doc. 27 at 2.) The court will strike the new claim as it was
not included in the petition and Petitioner did not seek leave to amend. See Vanderlinden v.
Koerner, No. 03-3488-CM, 2006 WL 1713929, at *5 (D. Kan. June 21, 2006) (citing Loggins v.
Hannigan, 45 F. App’x 846, 849 (10th Cir. 2002)).
Petitioner asserts that a lengthy traverse was necessary due to the fact that the state court
proceedings had not concluded at the time he filed his application. Because Petitioner’s arguments
were based on arguments previously raised in the state court and as a result of the new DNA test
results, the court will not strike the remainder of the traverse. Respondent’s motion to strike is
therefore granted in part and denied in part. Respondent’s new claim of cumulative error is
stricken from the traverse.
I. Analysis
This court’s ability to consider collateral attacks on state criminal proceedings is governed
by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under the highly deferential standard contained in AEDPA, if Petitioner’s claim has
been decided on the merits in state court, this court may only grant relief under two circumstances:
1) if 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," 28 U.S.C. §
2254(d)(1); or 2) if the state court decision “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Id. § 2254(d)(2).

9

A state court decision is ‘contrary to’ Supreme Court precedent in two circumstances: (1)
when ‘the state court applies a rule that contradicts the governing law set forth in [the
Court’s] cases’; or (2) when ‘the state court confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and nevertheless arrives at a result different
from’ that reached by the Court. Williams v. Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000). A state court decision constitutes an ‘unreasonable application’
of Supreme Court precedent if ‘the state court identifies the correct governing legal
principle from [the] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.’ Id. at 413, 120 S. Ct. 1495. Thus, ‘[u]nder § 2254(d)(1)’s
‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.’ Id. at 411, 120 S. Ct. 1495; see also Thomas v.
Gibson, 218 F.3d 1213, 1219-20 (10th Cir. 2000) (discussing Williams).
Hamilton v. Mullin, 436 F.3d 1181, 1186 (10th Cir. 2006).
The AEDPA standard ‘“erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court’ and requires the petitioner to show ‘that the
state court's ruling on the claim being presented in federal court was so lacking in justification that
there was an error beyond any possibility for fairminded disagreement.’” Ryder ex rel. Ryder v.
Warrior, 810 F.3d 724, 738–39 (10th Cir. 2016) (quoting Burt v. Titlow, 571 U.S. 12, 19-20 (2013)
(internal quotation marks omitted); see also Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)
(“Under the [fairminded jurists] test, if all fairminded jurists would agree the state court decision
was incorrect, then it was unreasonable and the habeas corpus writ should be granted. If, however,
some fairminded jurists could possibly agree with the state court decision, then it was not
unreasonable and the writ should be denied.”) (brackets in original). Under this standard, the state
court decision must “be given the benefit of the doubt.” Id. at 739 (citing Cullen v. Pinholster,
563 U.S. 170, 181 (2011)).
This court will only consider alleged violations of federal law in reviewing Petitioner’s
application. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Moreover, the federal questions must
ordinarily have been first presented to the state courts to be considered by this court. Picard v.
10

Connor, 404 U.S. 270, 277-78 (1971); but see 28 U.S.C. § 2254(b)(2) (permitting denial on the
merits, despite failure to exhaust state remedies).
Petitioner’s application states three grounds for relief related to ineffective assistance of
trial counsel: 1) failing to investigate DNA testing of hairs found at the crime scene; 2) incorrectly
identifying the address in the notice of alibi and 3) failing to object to the testimony of Detective
Atwell regarding the eyewitnesses’ testimony.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment requires
Petitioner to show that 1) his counsel's performance fell below an objective standard of
reasonableness; and 2) but for his counsel's unreasonable errors, there is a reasonable probability
that the outcome of the proceeding would have been different. Williams v. Taylor, 529 U.S. 362,
390-91 (2000); Strickland v. Washington, 466 U.S. 668, 688 (1984). “These two prongs may be
addressed in any order, and failure to satisfy either is dispositive.” Grant v. Royal, 886 F.3d 874,
903 (10th Cir. 2018) (quoting Hooks v. Workman, 689 F.3d 1148, 1186 (10th Cir. 2012)).
In evaluating the performance of counsel, the Supreme Court provided the following:
A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.
...
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel's challenged conduct on the facts of the particular case, viewed as of the time of
counsel's conduct. A convicted defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then determine whether, in light of all
the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance. In making that determination, the court should keep
in mind that counsel's function, as elaborated in prevailing professional norms, is to make
11

the adversarial testing process work in the particular case. At the same time, the court
should recognize that counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 689-90 (internal citations omitted).
In this matter, the state trial court conducted an evidentiary hearing on the issues relating
directly to trial counsel’s performance when considering Petitioner’s motion. Therefore, the court
finds that an evidentiary hearing is not warranted. Petitioner has not identified what testimony
would be presented at a hearing nor has he raised any issue which may be addressed that was not
already covered in the evidentiary hearing held by the state trial court. See Davis v. Workman, 695
F.3d 1060, 1076-77 (10th Cir. 2012) (“We have said that district courts are not required to hold
evidentiary hearings in collateral attacks without a firm idea of what the testimony will encompass
and how it will support a movant's claim.”) (citation omitted).
A. Right to Conflict-free Counsel and Failure to Investigate DNA Testing of Hairs
Petitioner contends that his trial counsel was ineffective for failing to perform DNA testing
on the hairs at the crime scene. Petitioner claims that trial counsel’s reason for not testing the hairs
was because trial counsel believed that Petitioner was guilty. Petitioner asserts that this belief
operated as an actual conflict of interest. The Kansas Court of Appeals determined that Petitioner
was not denied the right to conflict-free counsel at trial and that the decision to not test the DNA
was a tactical decision by trial counsel.
In support of his claim, Petitioner cites to the hearing testimony of Mr. Smith, Petitioner’s
trial counsel, in which he stated that he was convinced Petitioner was guilty. (Doc. 25 at 29-30.)
The quoted testimony was not the entirety of the testimony regarding the DNA testing. The Kansas
Court of Appeals summed up the testimony as follows:
At the evidentiary hearing following the LaPointe II remand, Smith testified
that his decision not to request further testing of the clothes was part of his trial
12

strategy. He stated, “Given our strategy and the desire to raise reasonable doubt, I,
quite frankly, was afraid of what those results might show and how that might alter
my defense.” Smith was concerned that hiring a DNA expert could result in
information that would hurt, rather than help, LaPointe's defense. DNA test results
could affect Smith's ability to put LaPointe on the stand to testify on his own behalf.
Smith testified, “I believed that we could establish that it wasn't Jack without
finding out information that we may not have wanted to know.” Smith stated that
his review of the facts of this case caused him to believe that information obtained
as a result of further DNA testing was far more likely to “cause a problem rather
than create a solution.”
Smith did not specifically recall discussing the DNA testing issue with
LaPointe. While Smith said he would have taken LaPointe's opinion into
consideration, “I don't think it would have changed my thoughts.” According to
Smith, a “big part” of why he did not request DNA testing was because he was
convinced that LaPointe was guilty of the robbery. Smith based this belief on the
facts of the case, as well as his knowledge of LaPointe's relationship with Norton
and LaPointe's extensive criminal history. Smith did not believe that his opinion
regarding LaPointe's involvement crippled the defense.
LaPointe III, 2012 WL 4372995 at *11.
Petitioner does not assert that the court of appeals incorrectly cited the transcript.
Essentially, Petitioner argues that Smith’s belief of Petitioner’s guilt over Petitioner’s claim of
innocence resulted in a conflict of interest because Smith declined to test the DNA due to his
beliefs. The court of appeals determined it was not a conflict of interest because “Smith still
zealously defended LaPointe and vigorously pursued a theory of defense that LaPointe was not
properly identified and did not commit the robbery. Smith's refusal to conduct the independent
DNA testing was a tactical decision intended to help LaPointe's defense, not a judgmental decision
that invaded the province of the jury.” Id. at *12.
Petitioner argues that there was an actual conflict of interest, citing to United States v.
Gambino, 864 F.2d 1064 (3rd Cir. 1988) and Cuyler v. Sullivan, 446 U.S. 335 (1980). In Cuyler,
the Supreme Court held that a petitioner “must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance.” Cuyler, 446 U.S. at 348. Petitioner cites Gambino

13

for the proposition that not taking a particular defense strategy can be an actual conflict if the
“alternate defense was inherently in conflict with or not undertaken due to the attorney’s other
loyalties or interests.” 864 F.2d at 1070; Doc. 25 at 28-29. The Gambino case discussed an alleged
conflict arising from representation of another client. Gambino, 864 F.2d at 1070-72. That is not
the case here.
The typical conflict of interest case usually involves the representation of multiple
defendants. Hale v. Gibson, 227 F.3d 1298, 1312 (10th Cir. 2000). There can, however, be
instances where “a lawyer's self-interest is adverse to the interest of his client.” Id. To establish
such a conflict of interest, “the interest of counsel and defendant must be divergent in the current
litigation, such that the attorney has an interest in the outcome of the particular case at issue that
is adverse to that of the defendant.” Id. at 1313. Further, “a defendant who argues that an actual
conflict prevented his attorney from providing effective assistance must ‘show that his counsel
actively represented conflicting interests.’” United States v. Soto Hernandez, 849 F.2d 1325, 1329
(10th Cir. 1988) (quoting Cuyler, 446 U.S. at 350) (emphasis in original).
Petitioner asserts that there is a conflict because of trial counsel’s belief that Petitioner had
committed the crimes. There is no evidence, however, that trial counsel had an interest in the
outcome of the trial that was in conflict with Petitioner’s interest. The fact that Smith believed
Petitioner was guilty, after reviewing all of the evidence including Petitioner’s prior criminal
history and relationship with Norton, does not rise to the level of a conflict of interest. This type
of “conflict” is more akin to a personality conflict or a lack of trust in that Smith did not believe
Petitioner’s claims of innocence. Hale, 227 F.3d at 1313 (“The fact that [trial counsel] did not like
Hale or did not trust him does not rise to the level of a conflict of interest.”) (citing Morris v.
Slappy, 461 U.S. 1, 13 (1983)); see also United States v. Kelly, No. CR 97-692 MV, 2001 WL

14

37125023, at *11 (D.N.M. May 1, 2001) (no conflict because trial counsel was “convinced” of the
defendant’s guilt). “Personality conflicts are not conflicts of interest.” Id. (citing Morris, 461 U.S.
at 13). Petitioner cites no authority for the proposition that an attorney who believes that his client
committed a crime after reviewing all the evidence, even when his client denies doing so, is
operating under an actual conflict of interest.
Moreover, the Kansas Court of Appeals found that trial counsel zealously defended
Petitioner at trial. The court agrees. Smith continued to vigorously contend that Petitioner did not
commit the crimes charged. Petitioner’s defense included attacking the eyewitness testimony, the
lack of DNA evidence, and the deficiencies in the police investigation. LaPointe III, 2012 WL
4372995 at *12.
Furthermore, the determination that Smith’s decision not to obtain DNA testing was part
of his trial strategy is supported by the record. Smith testified that he was concerned that the
testing could harm, rather than help, Petitioner’s defense. Although the testing ultimately was
favorable to Petitioner, the question is “not whether counsel made a strategic choice but whether
the investigation supporting counsel's decision was itself reasonable.” Ryder ex rel. Ryder v.
Warrior, 810 F.3d 724, 743 (10th Cir. 2016) (internal quotations omitted). Strickland “calls for
an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective
state of mind.” Harrington v. Richter, 562 U.S. 86, 110 (2011). A complete failure to investigate
could amount to a constitutionally deficient performance, but that is not what the court of appeals
determined occurred. Ryder, 810 F.3d at 743. Rather, Petitioner merely asserts that Smith failed
to discuss the testing with him and that he would have wanted that testing. While Smith does not
recall discussing the DNA testing with Petitioner, Smith did consult with Petitioner “on numerous
occasions before choosing not to pursue the independent DNA testing.” LaPointe III, 2012 WL

15

4372995 at *12. Smith also testified that he would have made the same decision even if he had
obtained Petitioner’s input on the testing. Id. “Strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable.” Ryder, 810 F.3d at
743 (quoting Anderson v. Sirmons, 476 F.3d 1131, 1145 (10th Cir. 2007)). To rise to the level of
a constitutional violation, Smith’s decisions must have been “completely unreasonable, not merely
wrong, so that [they] bear no relationship to a possible defense strategy.” Fox v. Ward, 200 F.3d
1286, 1296 (10th Cir. 2000) (internal quotations omitted).
In this case, the state had not conducted DNA testing. Moreover, Booth testified that the
hairs found at the crime scene were not a match to Petitioner. Although Booth testified that he
could not affirmatively eliminate Petitioner, he did not believe that the hairs were a match.
Therefore, this is not a case where the state was arguing that the hairs found at the crime scene
belonged to Petitioner. (See R. Vol. VIII, p. 147) (Prosecutor stated in closing that the hairs
appeared not to be those of Petitioner.) Moreover, although Booth testified that it was more likely
than not that the hairs belonged to the last person wearing the items, there was no evidence that
affirmatively stated that the hairs belonged to the robber. See LaFevers v. Gibson, 182 F.3d 705,
722 (10th Cir. 1999) (trial counsel not ineffective for failing to test DNA when favorable DNA
test results would not have proved he was not at crime scene). Given the facts presented to the
jury, Smith’s decision not to test the hairs does not rise to the level of constitutional ineffectiveness.
See Harrington, 562 U.S. at 108 (“Even if it had been apparent that expert blood testimony could
support Richter's defense, it would be reasonable to conclude that a competent attorney might elect
not to use it.”) “Reliance on the harsh light of hindsight to cast doubt on a trial that took place
now more than 15 years ago is precisely what Strickland and AEDPA seek to prevent.” Id. at 107
(internal quotations omitted).

16

The court further finds that the court of appeals’ determination that Petitioner was not
deprived of conflict-free counsel was an objectively reasonable application of Strickland and
Cuyler. Therefore, Petitioner’s application for relief on this ground is denied.
B. Incorrectly Identifying the Address in the Notice of Alibi
Petitioner also contends that his trial counsel was ineffective for including the incorrect
address in the notice of alibi defense and attacking the credibility of Loretta LaPointe, the alibi
witness, for failing to cooperate by ignoring trial counsel’s attempts to contact her. The record
shows that trial counsel was required to file a pre-trial notice of alibi in order to rely on the defense
at trial. Smith filed a notice of alibi that stated that Petitioner was at an address in Tonganoxie,
Kansas, at the time of the crime. The problem with the notice of alibi was that Loretta (and
Petitioner) had never resided at that address in Tonganoxie. They were living together at the time
of the crime at an address in Kansas City, Kansas. Loretta testified that she had lived at the Kansas
City address for eight years. Smith’s secretary had obtained the Tonganoxie address by using the
internet to search for an address that was connected to Loretta’s phone number.
At trial, the incorrect address came up during the prosecutor’s cross examination of Loretta.
After a conference outside the presence of the jury, the court allowed the notice of alibi to be
offered into evidence. Loretta testified that Petitioner was at home on the night of the crime.
Loretta testified that she was called into work that evening and the Petitioner watched her children
while she went to work. Besides identifying that the Tonganoxie address was incorrect, the
prosecutor did not spend much time questioning Loretta about the notice of alibi. On re-direct,
Smith questioned Loretta about the Tonganoxie address to which Loretta agreed that she had never
provided the Tonganoxie address to Smith’s office. Smith then questioned Loretta about her
cooperativeness and Loretta agreed that she was not as cooperative with Smith in the few months

17

prior to trial. Smith then called his secretary, Courtney Beck, to testify how she obtained the
address from the internet. During closing argument, Smith apologized to the jury for the mistake
in the notice. Smith again stated that there were things going on between Loretta and Petitioner
and he wanted to make sure that she was at trial. LaPointe III, 2012 WL 4372995 at *9. He also
brought up the cooperation problems. At the evidentiary hearing, Smith testified that he did not
recall asking Petitioner if the address was correct. He further testified that he did not believe that
he attacked Loretta’s credibility but that it could have enhanced her “credibility because it's
showing she had, quite frankly, had changed sides and wasn't certain which side she would be on
and came into court and testified to the best of her ability.” Id. The trial court determined that
there was no prejudice.
Judge Bennett found that Smith gave the wrong address in the notice of alibi
and admitted his mistake. Regarding the claims that the address error undermined
Loretta's credibility, the judge stated:
“Mr. Smith's handling of the issue after it was made known could
cut both ways. He decided to fully expose his reasons for the
mistake. Was this wrong? Should he have just let it go? Using
hindsight, perhaps it would have been better not to have bothered to
explain it. But the court finds that the mistake did not deprive
[LaPointe] of a fair trial. The court cannot find that but for Mr.
Smith's error in listing the address there was a reasonable probability
that the result of the trial would have been different.”
Id.
The court of appeals agreed:
The prosecutor argued in closing that Loretta's alibi testimony was scripted
and should not be believed. The evidence of Loretta's lack of cooperation indicates
otherwise. It is not unusual for alibi testimony to come from a mother, wife, or
girlfriend who is eager to assert that the defendant could not have done it because
he was with her at the time. The inherent bias behind such testimony is readily
apparent, and such testimony is often rejected by the jury. But here, Loretta's lack
of cooperation served to vitiate, to some extent, that inherent bias. Given her rocky
relationship with LaPointe, it is certainly understandable that she would not be
willing to concoct an alibi to come to his rescue. As Smith testified, rather than
18

undermining Loretta's testimony, the evidence of her waning cooperation tended to
enhance it. Ultimately, the jury did not believe that LaPointe was babysitting
Loretta's children on the night of the robbery. It is apparent that the jury found
Loveall's eyewitness identification of LaPointe more persuasive. But, LaPointe has
not demonstrated that the alibi notice error or the questioning of Loretta's
cooperation led to this outcome.
***
We find substantial evidence to support the district court's findings, and we
find no error in the district court's legal conclusion. Smith admitted the error in
listing Loretta's address, but LaPointe failed to show the necessary element of
prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2042, 80 L.Ed.2d
674, reh. denied 467 U.S. 1267 (1984).
Id. at *9, 10.
Petitioner argues that Smith’s error falls below the objective standard of reasonableness
because it was a complete failure to make a reasonable investigation and Petitioner was prejudiced
by the error. (Doc. 25 at 32.) Petitioner first argues that the court must review this argument de
novo because the court of appeals incorrectly applied the Strickland test. (Doc. 25 at 35.)
Petitioner points to language in the opinion in which the court states that Petitioner did not
demonstrate that this error or the questioning of Loretta’s cooperation “led to this outcome.”
LaPointe III, 2012 WL 4372995 at *9. While the court did use that language in the opinion, the
court quotes the district court judge’s legal conclusion correctly. In that decision, the district court
judge stated that “the court cannot find that but for Mr. Smith's error in listing the address there
was a reasonable probability that the result of the trial would have been different.” Id. At the end
of the court of appeals’ discussion, the court states that it finds no error in the trial court’s decision
and Petitioner failed to show prejudice, citing to Strickland. LaPointe III, 2012 WL 4372995 at
*10. Therefore, while the court of appeals indicated that Petitioner did not show that this error
“led to this outcome,” the court of appeals cited the correct standard in the opinion. Moreover, the
court of appeals’ ultimate holding was that the district court’s legal conclusion was correct.
Accordingly, the court finds that the court of appeals used the correct standard in evaluating
19

Petitioner’s claim. Moreover, under either standard of review, de novo determination under
Strickland or the highly deferential AEDPA standard, this court would come to the same
conclusion.2
Petitioner spends significant time arguing that the conclusion in LaPointe III is erroneous
because it is contrary to the conclusion of the judges on the panel in LaPointe II. LaPointe II,
however, was decided prior to the evidentiary hearing in which Smith testified regarding his
representation of Petitioner. Moreover, LaPointe II did not address whether Petitioner was
prejudiced by this error because the issue before the court was whether the case should be
remanded for a hearing. See LaPointe II, 42 Kan. App. 2d at 543 (“In his appellate brief, LaPointe
is asking this court to remand the case for an evidentiary hearing on his ineffective assistance of
counsel claims. As with the previous issues, the parties have not been given the opportunity to
present witnesses on this claim. Based on LaPointe's K.S.A. 60–1507 motion, along with the files
and the records of the case, we determine that a substantial issue was presented as to whether
LaPointe's trial counsel was deficient in including the wrong address on the notice of alibi.”)
Clearly, LaPointe III reviewed the entire record, including the evidentiary hearing, prior to
making its decision under Strickland and it is that decision, as it is the final decision of the state
court, that this court is reviewing. Therefore, the court is not persuaded by Petitioner’s arguments
regarding the LaPointe II decision. Turning to the issue before the court, as the court of appeals
did not explicitly rule on the performance prong in deciding this issue, the court will move directly
to determining whether trial counsel’s error in the notice of alibi and the discussion of Loretta’s
lack of cooperation prejudiced Petitioner. See Grant, 886 F.3d at 903 (court may proceed to
consider either prong under Strickland).

2

In a de novo review, the standard for judging trial counsel’s performance remains “most deferential” under
Strickland. Harrington, 562 U.S. at 105.

20

Petitioner essentially argues that trial counsel’s error in failing to determine the correct
address for the notice of alibi and then questioning Loretta’s cooperation prejudiced Petitioner by
calling into question his sole alibi witness. Petitioner cites to Henry v. Poole, 409 F.3d 48 (2nd
Cir. 2005), in support of his argument. Petitioner asserts that Henry stands for the proposition that
an erroneous notice of alibi undermines an alibi defense and suggests a consciousness of guilt.
(Doc. 25 at 37.) In Henry, the defense presented an alibi witness that said the defendant had been
with the witness during the day on a Thursday and into the early morning of Friday. 409 F.3d at
64. The problem with this alibi, however, was that the crime was committed in the late evening
Wednesday and into the early morning on Thursday. The Second Circuit held that trial counsel’s
performance was deficient for presenting a false alibi. Essentially, the alibi testimony was
completely “irrelevant to show Henry's innocence and instead suggested his consciousness of
guilt.” Id. at 67. As a result, the prosecutor argued that the alibi defense was fabricated and, on
closing argument, the prosecutor “proceeded to hammer home the fact that [the alibi witness] gave
Henry an alibi only for the wrong time period.” Id. at 66.
Henry does not support a finding of prejudice in this matter. Although the notice of alibi
included an incorrect address, that fact was not hammered on during trial. Rather, the jury knew
that the incorrect address was the result of a mistake made by Smith and not due to the witness.
Additionally, the prosecutor in this case did not attack Loretta’s credibility as a result of Smith’s
questioning regarding her lack of cooperation. Rather, her credibility was attacked due to evidence
that Loretta did not tell the investigator until right before trial that Petitioner was with her on the
date of the crimes. The relevant portion of the prosecutor’s closing argument was as follows:
Now, there’s the evidence that you have heard these past three days, coming
up on three days, the only person, in addition to the defendant, who can absolutely
say, No, he was not there, is the defendant’s wife, Miss Loretta LaPointe. I want
to talk to you for just a minute about the version of events she gave.
21

She testified that she knew these charges were pending from the summer of
2001. She had married Mr. LaPointe just a couple of months before March 2001.
She testified today she doesn’t know whether she’s going to continue the marriage
but then it’s just a couple of months or three or four months old. Yet, she waits,
she defers, she doesn’t do anything to try and find out where she was, where he was
on the date this occurred until just a couple of weeks ago when Mr. Smith asked
her to try and figure that out. That’s unbelievable. That’s incredible. She made no
attempt to figure that out.
(R., Vol. VIII at 150-151.)
Unlike in Henry, the prosecutor did not hammer the incorrect address or assert that the alibi
was false because of the address or due to Loretta’s lack of cooperation. Although the prosecutor
asserted the alibi was scripted, the prosecutor made this remark and then stated that Petitioner and
Loretta’s version of events were identical. (R., Vol. VIII. at 174.) The prosecutor also criticized
the alleged delay in learning about the alibi. (Id.) (“My husband was with me…. She can come
forward at any time. Huh-uh, she didn’t. She waited literally a week or two before this trial to
come up with that one.”)
Ultimately, the court of appeals determined that Petitioner was not prejudiced by the wrong
address in the notice of alibi and Loretta’s lack of cooperation. The court of appeals agreed with
Smith that the lack of cooperation may have actually enhanced her credibility. LaPointe III, 2012
WL 4372995 at *9. The question for this court is whether the court of appeals’ finding that
Petitioner did not establish prejudice was an unreasonable application of Strickland. Strickland
requires Petitioner to show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Williams, 529 U.S.
at 391. Petitioner asserts that because of the state’s weak case, “the verdict in this case could have
been affected by counsel’s deficient performance.” (Doc. 25 at 38.) “It is not enough to show that
the errors had some conceivable effect on the outcome of the proceeding. Counsel's errors must

22

be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Harrington,
562 U.S. at 104 (internal citations and quotations omitted).
Petitioner contends that his defense was undermined by the error. But, reviewing the
transcript, it is clear that the prosecutor challenged the alibi testimony on different grounds.
Moreover, there were other witnesses that named Petitioner as the individual who committed the
robbery. Based on the court’s review of the record, the court of appeals’ decision that Petitioner
was not prejudiced by this error was not an unreasonable application of Strickland.
Petitioner’s application for relief on this ground is denied.
C. Failing to Object to Detective Atwell’s Testimony
Petitioner asserts that trial counsel was ineffective for failing to object to Detective
Atwell’s testimony regarding the eyewitnesses’ identification of the robber when presented with
the photo line-ups. Petitioner argues that Atwell improperly vouched for Loveall by stating he had
confidence in her pick and that this testimony influenced the jury more so because Atwell was a
police officer. The court of appeals did not find that counsel was ineffective for failing to object
because they agreed with the state that Atwell’s testimony was not impermissible vouching but an
explanation of the path of the investigation. The court of appeals also determined that Petitioner
was not prejudiced by the testimony. Petitioner asserts that this holding was an unreasonable
application of Strickland. (Doc. 25 at 38-42.)
The court of appeals recounted the following from the trial:
One of the themes of LaPointe's defense at trial was that Detective Atwell
botched the investigation when he focused on LaPointe rather than Seeber. This
was made clear in Smith's opening statement at trial when he noted that in a photo
lineup Wellman identified Seeber as the robber. Smith stated, “That individual was
identified as Joseph [Seeber]. Mr. [Seeber] was not investigated as part of this case
and has never been charged in this case and has never been subject to examination
regarding this case.” Smith returned to this theme in his closing argument when he
argued, “The Sheriff's Office dropped the ball on Joseph Seeber.”
23

Wellman testified at trial before Detective Atwell testified. Wellman was
the store cashier on duty at the time of the robbery. She heard the robber yell, “No
one move.” She testified that the robber was carrying a long gun at his side.
Wellman collected the money from the safe and the cash register. “He told me to
hurry up when I wasn't going fast enough with the money.” At that point she said,
“I wasn't looking at him.... I didn't really look at him a whole lot.” Wellman only
observed the robber for 20 seconds. “Once I realized what was going on, I could
not look at him anymore.” He had a bandana covering his nose and the lower half
of his face; only his eyes, forehead, and the top of his head were exposed.
About 2 weeks later, Wellman was shown a photo lineup of various
individuals. At the time of trial Wellman could not remember whom she picked out
of the lineup. She testified that it took her a while to pick someone out of the lineup.
She did so by covering the bottom half of the faces in the photo because she had
only seen the upper portion of the robber's face. “I just wasn't for sure who it was
that did it, so I just [picked someone] [p]robably because I felt I kind of had to pick
someone.” She said she would not recognize the man who robbed her if she saw
him again. The man she identified as the robber was Seeber.
Loveall also testified before Detective Atwell testified. She was in a car in
the parking lot when she saw a man walking fast and carrying what appeared to be
a sawed-off shotgun. By this time the robber had pulled the bandana from his face
and it was “[p]ulled back over his hair.” She and the robber made eye contact, and
she stated, “We stared at each other.” As the robber passed by, Loveall turned and
continued to look at him.
Loveall was shown more than one photo lineup. She said the man she saw
was not in the first lineup. She identified LaPointe as the robber in the second
lineup. She also identified LaPointe in the courtroom as the armed man she saw
running from the Payless store immediately after the robbery.
When the State called Detective Atwell to testify, the prosecutor asked,
“Did you ever contact Mr. Seeber, the guy that Ms. Wellman picked out?” Atwell
explained that he did not because he had no confidence in the manner in which
Wellman picked Seeber out of the photo lineup, but he did have confidence in
Loveall's identification of LaPointe.
LaPointe III, 2012 WL 4372995, *5-6.
Atwell’s testimony on the identification was as follows:
Question: Did you ever contact Mr. Seeber, the guy that Ms. Wellman picked out?
Atwell: No ma’am.

24

Question: Why not?
Atwell: I had absolutely no confidence in the way Ms. Wellman picked out
photograph No. 1, also because of the length of time she took. I could understand
the manner in which she was doing it with her hand; and when she said that the
kid’s face in photograph No. 1 was fatter than that of the suspect, I had absolutely
no confidence in her at that time. I also received a laboratory report dated the 15th
of November, 2000, stating that Joseph Seeber’s fingerprints were not those on the
latent fingerprint cards presented to the crime lab from the crime scene. Ms.
Loveall, I did have confidence in because she had observed the suspect under no
stress whatsoever.3
(R. Vol. VII at 67-68.)
Atwell further explained, in response to a question that asked what factors led him to place
more importance on Loveall’s rejection of the first lineup, that Loveall saw the suspect under no
stress and barefaced while Wellman was under stress and saw the suspect with a face covering.
Id. at 69; LaPointe II, 42 Kan. App.2d at 536. This testimony was not objected to. In closing
argument, the prosecutor argued that Loveall was able to give an accurate description of the robber
and what he looked like. (R. Vol. VIII, 149.)
In Petitioner’s initial appeal on the ineffective assistance of counsel claim, a majority of
the court of appeals held that Atwell’s testimony was improper vouching for the credibility of an
eyewitness. LaPointe III, 2012 WL 4372995, *4 (citing LaPointe II, 42 Kan. App.2d at 538–39).
The matter was remanded for a hearing. Notably, the state had not argued on appeal that the
testimony was for the purpose of explaining why the investigation focused on Petitioner and not
Seeber. Judge Malone, in his concurring opinion, stated that the testimony was not impermissible
vouching but an explanation of the investigation. Id. (citing LaPointe II, 42 Kan. App.2d at 557).
The court of appeals noted that “Judge Malone [had] picked up on the argument in the State's brief

3

A review of the transcript shows that Smith did make an objection at the end of this testimony. The objection was
not based on vouching, however, but rather that the answer was beyond the scope of the question. The court sustained
the objection. Smith did not request to strike the testimony or admonish the jury to disregard the testimony. LaPointe
II, 42 Kan. App.2d at 536.

25

before the district court which characterized Atwell's testimony not as an opinion on the credibility
of another witness, but rather as an explanation of why Atwell focused his investigation on
LaPointe.” Id.
During the evidentiary hearing at the district court, the state argued that the testimony was
not improper vouching but rather explaining why the investigation turned towards Petitioner and
away from Seeber. Smith testified that at the time of trial it did not seem that Atwell was vouching.
(R. May 18, 2011, Hrg., p. 93.) He further testified that he could see it “both ways” when he
reviewed the testimony at the hearing. (Id.) The district court determined that Atwell was not
improperly vouching and that decision was affirmed. The court of appeals reasoned as follows:
Given the nature of the testimony from Wellman and Loveall, we fail to see
how LaPointe was prejudiced by Atwell's explanation of the reason for his decision
to pursue the investigation of LaPointe. Atwell's testimony explaining the path of
the police investigation did not deprive LaPointe of a fair trial. Judge Bennett did
not err in holding that Smith's failure to object to Atwell's testimony did not fall
below the standard required of competent counsel and that LaPointe was not
deprived of a fair trial by Smith's failure to object.
LaPointe III, 2012 WL 4372995, *7.
Petitioner objects to the court of appeals’ finding and contends that it is an unreasonable
application of Strickland. Petitioner spends a large portion of his argument on the court of appeals’
decision in LaPointe II. Again, this court is reviewing the final decision of the state court. Notably,
the court of appeals held that the decision in LaPointe II was not the law of the case and that it had
not been directly presented with the argument that the testimony was an explanation of the
investigation:
The appellate court in LaPointe II was never asked to consider the applicability of
the caselaw prohibiting one witness from vouching for the credibility of another
witness when, as now argued, the testimony was elicited in order to explain the
course of the criminal investigation. The LaPointe II majority did not examine the
testimony in this context. Consequently, the issue as now framed remained

26

undecided when the case was remanded to the district court, and the law of the case
doctrine did not apply.
Id. at *5.
While Petitioner argues that LaPointe III directly contradicted LaPointe II and that decision
is therefore clearly erroneous, Petitioner cites to no authority that would support a determination
that LaPointe III’s holding regarding the law of the case doctrine is unreasonable under federal
law. As stated earlier, the initial decision in LaPointe II was decided prior to an evidentiary hearing
and, as the court of appeals stated, argued on a different basis. Therefore, this court is examining
the decision of the state court in LaPointe III, which was the final state court decision on this issue.
As stated by the court of appeals, a witness cannot express an opinion as to the credibility
of another witness. State v. Drayton, 285 Kan. 689, 700, 175 P.3d 861, 871 (2008) (citing State v.
Jackson, 721 P.2d 232 (Kan. 1986)). “This is because the determination of the truthfulness of a
witness is for the jury.” Id. The court of appeals held that the testimony was elicited to explain the
course of Atwell’s investigation and to address the contention that the police conducted a “shoddy
investigation.” LaPointe III, 2012 WL 4372995, *7. The court of appeals concluded that trial
counsel’s failure to object on the basis of vouching did not fall below the standard of competent
counsel. Id. The court agrees. At the time Atwell testified, both Wellman and Loveall had
testified. They both explained how they picked out the individuals in the photo line-up. This
testimony was consistent with Atwell’s testimony. Prior to the testimony, Smith had criticized the
investigation because the police never followed up with Seeber. Therefore, it was appropriate for
the prosecutor to ask Atwell why he did not contact Seeber. Atwell was testifying as to why he
took the direction he did in the investigation. See United States v. Magallanez, 408 F.3d 672, 679
(10th Cir. 2005) (“The testimony of the agents served legitimate purposes. For instance, it provided
necessary background about the nature of the investigation, without which the jury would have
27

been deprived of understanding how and why the drug enforcement agents proceeded as they
did.”); see also LaPointe III, 2012 WL 4372995, *7 (“The Bledsoe court also noted that the district
court concluded that Dunnaway's testimony was admissible opinion testimony under K.S.A. 60–
456. The court concluded: ‘This statement also helped to explain the course of the investigation,
which turned from Tom to Floyd.’”) (citation omitted). Therefore, counsel’s performance did not
fall below the standard set forth in Strickland.
Moreover, even if the testimony was impermissible vouching, Petitioner has not
established that he was prejudiced by the testimony. Petitioner must show that “but for counsel's
errors, there is a reasonable probability that the result of the proceeding would have been
different.” Snow v. Sirmons, 474 F.3d 693, 719 (10th Cir. 2007) (quoting Boyd, 179 F.3d at 914).
This is determined by looking at all of the evidence. Id. at 720.
Petitioner argues that there is a reasonable probability of a different outcome because the
only other evidence of his involvement in the robbery came from Norton. Petitioner argues that
Norton’s testimony was entirely inconsistent. Essentially, Petitioner is arguing that the case
against Petitioner really hinged on the eyewitness identification by Loveall which was improperly
bolstered by Atwell.
As pointed out by the state, however, Atwell’s testimony regarding the eyewitnesses’
identifications was consistent with their testimony. Wellman testified that she only picked out
someone because she felt she had to. She testified that she would not recognize the robber if she
saw him again. Moreover, his face was partially concealed with a bandana and she was scared
during the robbery. She only looked at him for about 20 seconds and just “could not look at him
anymore” because she was scared. (R. Vol. IV. Pg. 41.) Based on her testimony at trial, Wellman
was not even confident in her own selection. Her testimony that she was scared was consistent

28

with Atwell’s testimony that she was under duress when she saw the robber. Turning to Loveall,
although she did not recall some of the events of the day of the robbery at the time of trial, she did
testify that she stared at the robber when she was outside in the parking lot. She also testified that
she could identify him if she saw him again. Loveall then identified Petitioner as the robber during
the trial. Even if the objected-to testimony by Atwell was omitted, the jury would have been
presented with Wellman’s testimony regarding her lack of confidence in her pick and Loveall’s
in-court identification of Petitioner.
The court of appeals also noted that the jury was instructed to consider the reliability of
eyewitness testimony by reviewing various factors, including the emotional state of the witness
and the opportunity the witness had to observe the robber. (R. Vol. I, 266, Inst. 9.) The jury was
also instructed that it was up to the jury to determine the weight and credit of the testimony of each
witness. (R. Vol. I, 264, Inst. 7.) There is no evidence to support a finding that the jury did not
follow the instructions in this case.
Moreover, although Norton’s testimony contradicted other evidence in the case, i.e.
regarding where the robber discarded his shirt, cap, gloves, and bandana, Norton testified that
Petitioner committed the robbery and that Petitioner threw the shotgun on the top of the building.
The shotgun was recovered on top of the building. Loretta also testified that she saw Petitioner
with a sawed off shotgun in early October 2000.
Based on a review of the evidence, Petitioner has not shown that there is a reasonable
probability that, but for Atwell’s testimony regarding the identifications, there would have been a
different outcome at trial. The court of appeals’ determination that Petitioner was not prejudiced
by the evidence is not objectively unreasonable under the AEDPA’s standards.
Petitioner’s application for relief on this ground is denied.

29

II.

Conclusion
Petitioner’s application for habeas corpus (Doc. 1) is DENIED. Respondents’ motion to

strike (Doc. 26) is GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED this 31st day of October, 2019.
___s/ John W. Broomes ____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

30