Bartling (ID 79866) v. Heimgartner et al
MEMORANDUM AND ORDER-IT IS THEREFORE ORDERED that petitioner's Petition for Relief From a Conviction or Sentence By a Person in State Custody (Doc. 1) is denied. IT IS FURTHER ORDERED that petitioner's request for appointment of counsel is denied as moot. Signed by District Judge Carlos Murguia on 4/4/2017. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES HEIMGARTNER, et al.,
Case No. 15-3251
MEMORANDUM AND ORDER
Adam Bartling, a prisoner in a state correctional facility in Kansas, filed a Petition for Relief
From a Conviction or Sentence By a Person in State Custody (Doc. 1.) Petitioner was convicted in
state court of aggravated indecent liberties with a child. He seeks a writ pursuant to 28 U.S.C. § 2254.
Specifically, petitioner requests federal relief on the following grounds: (1) ineffective assistance of
both trial and appellate counsel; (2) the trial court erred when it denied petitioner’s motion for
discovery requesting the victim’s psychological reports; (3) the trial court should have allowed
evidence of the victim’s prior allegations of sexual assault for impeachment and confrontation; (4) the
trial court violated petitioner’s right to prepare a defense; (5) prosecutorial misconduct during closing
argument; (6) insufficient evidence; and (7) cumulative error. The court has reviewed the record and
petitioner’s arguments, and finds that habeas relief is not warranted. For the following reasons, the
petition is denied.
Standard of Review
Because petitioner filed his habeas petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, the court reviews petitioner’s claims pursuant to the provisions of
the Act. Lott v. Trammell, 705 F.3d 1167, 1172 (10th Cir. 2013). The Act permits a court to grant a
writ only if one of two circumstances is present: (1) the state court’s 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) the state court’s decision “was
based on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2). Absent clear and convincing evidence to the contrary, the court
presumes the state court’s factual findings are correct. Id. § 2254(e)(1).
Petitioner, then 26 years old, developed a relationship with the victim, a 15-year-old female.
For approximately one month, the victim met with petitioner on several occasions without her parents’
knowledge. While petitioner claimed that the relationship was merely platonic, the victim indicated
that the two were having sexual intercourse and oral sex. The state charged petitioner with seven
counts of aggravated indecent liberties with a child and two counts of criminal sodomy. The jury
acquitted petitioner of all charges except for one count of aggravated indecent liberties that occurred in
petitioner’s bedroom on April 11 or 12, 2003, when two other people were in another room of
A. Ineffective Assistance of Counsel
In evaluating petitioner’s claims that his counsel provided ineffective assistance, the
appropriate standard is that identified in Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland,
a petitioner bears the burden of satisfying a two-pronged test. First, he must show that his attorney’s
“performance was deficient” and “fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 687–88. The court affords considerable deference to an attorney’s strategic decisions and
“recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Second, a
habeas petitioner must demonstrate prejudice, which requires a showing 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. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id.
There is no reason for a court deciding an ineffective assistance claim to address both
components of the inquiry if the petitioner makes an insufficient showing on one. If it is easier to
dispose of an ineffectiveness claim based on a lack of prejudice, then that course should be followed.
Id. at 697.
i. Psychological Evaluation
Petitioner claims that trial counsel was ineffective when he failed to properly pursue a
psychological evaluation of the victim as well as obtain a written ruling from the trial court on the
matter. Petitioner also alleges that appellate counsel was ineffective for failing to obtain a written
ruling and designate it for the appellate record. Petitioner acknowledges that when the trial court
ordered the records to be produced for in camera inspection, it tentatively ruled that it would deny the
motion unless something eye-opening was revealed during its review.
Trial counsel moved for a psychological evaluation of the victim and requested that the results
be provided to the defense. Trial counsel argued in favor of his motion at a hearing before the trial
court. Respondents note that the trial court never issued a formal ruling on petitioner’s motion, but
refers to the trial court’s tentative ruling denying it. Respondents argue that the state court’s rulings
that trial counsel’s efforts were not deficient, and that petitioner could not show a different outcome
had a written order been in the record, were not unreasonable applications of the Strickland standards.
While petitioner did not properly raise his claim against trial counsel for failing to preserve the
record, the Kansas Court of Appeals addressed the merits of each of petitioner’s arguments in its
January 30, 2015 Memorandum Opinion. Bartling v. State, No. 109659, 2015 WL 569344, *5 (Kan.
Ct. App. Jan. 30, 2015). Thus, this court limits its review to whether the appellate court unreasonably
applied Strickland or whether its factual determination was unreasonable in light of the evidence
In its opinion, the Kansas Court of Appeals referenced Kansas law, but properly set forth the
same Strickland standards cited above. Bartling, 2015 WL 569344 at *3. It identified petitioner’s
allegations of ineffective assistance of counsel, and rejected petitioner’s claims. Id. at *4–5. The
appellate court considered trial counsel’s actions in filing the motion and arguing for a psychological
evaluation. Id. at *4. It noted that there was no further action for trial counsel to perform, except
perhaps file a motion requesting the trial court to make a definitive ruling. Id. The appellate court
found that such a motion would not have swayed the trial court to decide one way or another. Id. It
further found that petitioner did not show that attaching a written ruling of the trial court’s decision
would have altered the appellate court’s prior rulings on direct appeal, or its characterization of
petitioner’s attempt for an evaluation as a “fishing expedition.” Id. at *5. Ultimately, the Kansas
Court of Appeals held that petitioner could not show that trial counsel or appellate counsel was
ineffective. Id. at *4–5.
Because the state court reasonably applied clearly established federal law to the facts before it.
28 U.S.C. § 2254(d)(1). Petitioner is not entitled to relief on these claims.
ii. Prior False Accusations
Petitioner also alleges that trial counsel conducted an inadequate investigation and was
ineffective when he failed to present evidence of the victim’s prior false accusations of sexual assault.
Petitioner claims that appellate counsel was ineffective when he failed to attach a copy of the police
report to the appellate record on direct appeal as well as cite proper legal authority. Petitioner attached
a copy of the police report to his petition, and indicates that it was obtained nine years after his
conviction. He argues that before now, the state courts have only been able to speculate about what the
report might have detailed as well as how it might have affected his case.
In the state appeal from petitioner’s Kan. Stat. Ann. § 60-1507 motion, the police report was
added to the appellate record and reviewed by the Kansas Court of Appeals. Bartling, 2015 WL
569344 at *5. The appellate court rejected petitioner’s argument that it had previously speculated
about the report’s contents because there were two transcripts in the record in which trial counsel
extensively discussed the contents of the police report and provided argument in support of its
admissibility. Id. at *7. On direct appeal, the state court recognized that two different law
enforcement officers testified inconsistently about the veracity of the victim’s statement, and the
prosecutor consistently argued that the prior case was dropped because the victim was uncooperative.
State v. Bartling, No. 92,106, 2005 WL 345524, *3 (Kan. Ct. App. Dec. 16, 2005). Specifically, one
police officer reported the victim was uncooperative, while another police officer supplemented the
report concluding that the victim’s statement lacked credibility. Id. at *8. The state court further
found that petitioner could not show trial and appellate counsels’ failures to attach the police report to
the record would not have changed the outcome of petitioner’s appeal. Bartling, 2015 WL 569344 at
*7–8. The appellate court was aware of the police report’s contents and applied applicable case law
even though it was not cited by appellate counsel. Id. at *8.
As stated above, this court limits its review to whether the state court unreasonably applied
Strickland, or whether its factual determination was unreasonable in light of the evidence presented.
The court has reviewed the police reports attached by petitioner and they are consistent with the state
court’s factual findings. The state court rulings were reasonable as petitioner cannot show the outcome
of his direct appeal would have been different had appellate counsel included the police report in the
record and cited applicable Kansas law.
iii. Key Witness
Petitioner claims that trial counsel was ineffective when he failed to investigate and subpoena
Mr. Nick McDow as a defense witness. Petitioner proffers Mr. McDow would have supported his
defense by testifying that he saw petitioner and the victim talking in the bedroom doorway a couple of
times, and also that the crime could not have happened because both petitioner and the victim were
never out of sight. Petitioner argues that Mr. McDow’s testimony corroborated his own testimony and
would have had an impact on the jury’s verdict.
The Kansas Court of Appeals focused on Mr. McDow’s testimony from speaking with trial
counsel and his investigator, and it determined that trial counsel investigated the matter and may have
made a strategic decision not to call Mr. McDow. Bartling, 2015 WL 569344 at *8–9. In fact, the
state court found that Mr. McDow’s testimony contradicted petitioner’s testimony. Id. Consequently,
the appellate court found that petitioner could not show prejudice because petitioner testified at trial
that he did go into the bedroom with the victim. Id. at *10.
Once again, the state court applied the correct legal standards and its factual determinations
were not unreasonable. Petitioner is not entitled to habeas relief.
B. Trial Court Error
i. Psychological Evaluation
Petitioner claims that the trial court violated petitioner’s due process rights when it denied his
motion for discovery regarding the victim’s psychological counseling and evaluation. Petitioner
argues that the trial court’s failure to rule on his motion, and withholding favorable evidence, denied
petitioner his right to present a complete defense under the Sixth and Fourteenth Amendments.
Respondents claim that the Kansas Court of Appeals disposed of petitioner’s claim on direct
appeal based on state grounds, independent of the federal issue raised on appeal. Respondents argue
that petitioner has procedurally defaulted; and further, petitioner fails to show cause and actual
prejudice or that the court should consider his claim to prevent a miscarriage of justice.
On direct appeal, petitioner argued that he was denied exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83, 87 (1963). Bartling, 2005 WL 345524 at *1. The Kansas Court of
Appeals stated petitioner’s argument was misdirected, and further that petitioner did not provide the
correct standard of review. Id. The appellate record did not contain the trial court’s ruling on the
motion for a psychological evaluation. Id. at *2. The state court referred to the transcript and
acknowledged that the trial court was taking the matter under advisement. Id. However, the appellate
court did not know what factors the trial court relied on, and it could not declare that the trial court
abused its discretion. Id. The Kansas Court of Appeals cited Kansas law and stated “it must presume
the trial court’s action to be proper.” Id.
“A federal court may not review a habeas claim by a state prisoner if the state court’s decision
rests on a state law ground that is independent of the federal question and adequate to support it.”
Barber v. McKune, No. 13-3040-SAC, 2014 WL 2604283, *6 (D. Kan. June 11, 2014) (citing
Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)). The adequacy requirement is met if the state
rule is firmly established, regularly followed, and applied to all similar claims in an evenhanded
manner in the majority of cases. Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996) (citations
omitted). “Under well-established Kansas law, an appellant has the burden of providing a record
which affirmatively shows a prejudicial error occurred, and in the absence of a sufficient record, the
appellate courts must presume the actions of the lower courts were proper.” Barber, 2014 WL
2604283 at *7 (citing State v. Moncla, 936 P.2d 727, 736 (Kan. 1997)) (also finding this rule to be
firmly established and regularly followed in Kansas). Accordingly, this claim is procedurally barred
from habeas review.
Nonetheless, this court may review a procedurally defaulted claim if petitioner demonstrates
cause for the default and actual prejudice as a result of the alleged violation of federal law, or petitioner
demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice. See
Coleman, 501 U.S. at 750. Petitioner argues his ineffective assistance of trial and appellate counsel
allegations constitute cause, and that he was prejudiced. But the court has already found that petitioner
failed to show prejudice under Strickland. See id. (“To show prejudice, petitioner must show that he
suffered ‘actual prejudice as a result of the alleged violation of federal law.’”).
The fundamental miscarriage of justice exception only applies in “extraordinary instances when
a constitutional violation probably has caused the conviction of one innocent of the crime.” Gilbert v.
Scott, 941 F.2d 1065, 1067–68 (10th Cir. 1991) (quoting McClesky v. Zant, 499 U.S. 467, 494 (1991)).
To make a credible showing of actual innocence, a “petitioner must ‘support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.’”
Cummings v. Sirmons, 506 F.3d 1211, 1223 (10th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298,
324 (1995)). To warrant relief, the court must find that “it is more likely than not that no reasonable
juror would have convicted [the petitioner] in light of the new evidence.” Id.
Although petitioner claims that he is innocent of the crime of conviction, he fails to present
new reliable evidence sufficient to meet this extraordinary standard. See House v. Bell, 547 U.S. 518,
538 (2006) (“repeating that the Schlup standard is demanding and permits review only in the
‘extraordinary’ case”). Petitioner fails to meet the miscarriage of justice exception to overcome
ii. Exclusion of Prior Sexual Assault Accusation
Petitioner argues that the trial court violated his due process right to present a defense when it
excluded evidence of the victim’s prior accusation of sexual assault. As noted above, petitioner alleges
that this accusation was false, and he would have used this evidence to discredit the victim’s testimony
at trial. He further claims that he was denied his Sixth Amendment right to confront witnesses against
Petitioner raised this issue on direct appeal; however, the Kansas Court of Appeals noted that
he did not raise this issue before the trial court. Bartling, 2005 WL 345524 at *2. The state court
reviewed the record and explained that evidence of the prior rape allegation was deemed inadmissible
by the trial court under Kansas rape shield and evidence statutes. Id. The state court also referenced
the general rule that it does not review constitutional grounds for the first time on appeal, and
highlighted petitioner’s failure to argue an exception to the general rule. Id. at *3.
Although the police report was not provided to the Kansas Court of Appeals on direct appeal, it
reviewed the record and applicable state law, and stated that it felt comfortable determining that
reversal was not mandated. Id. at *3. Specifically, the state court cited State v. Barber, 766 P.2d 1288,
1290 (1989), which found that under certain circumstances a defendant may put on evidence of prior
false accusations based on a defendant’s constitutional right to cross examine. Bartling, 2005 WL
345524 at *3. However, prior accusations are admissible only after the trial court has made a threshold
determination that a reasonable probability of falsity exists. Id.
The appellate court then referred to the record showing that three trial judges had made rulings
touching on various aspects on the matter. Id. at *2. The appellate court stated that no trial judge had
made a definitive determination of whether there was a reasonable probability that the victim’s prior
accusation was false. Id. at *3. Furthermore, the state court recognized that two different law
enforcement officers testified inconsistently about the veracity of the victim’s statement, and the
prosecutor consistently argued that the prior case was dropped because the victim was uncooperative.
Id. The Kansas Court of Appeals declined assessing the credibility of two law enforcement officers—a
function it does not do—and affirmed the trial court’s exclusion of this evidence because petitioner had
not met his burden of showing the falsehood of the prior accusations. Id.
This court’s review is limited; “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
This includes state-law questions about the admissibility of evidence. See Moore v. Marr, 254 F.3d
1235, 1246 (10th Cir. 2001). The court “may not interfere with state evidentiary rulings unless the
rulings in question rendered ‘the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights.’” Id. (quoting Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989)).
Petitioner has not shown that the excluded evidence was critical to his defense or rendered his trial
fundamentally unfair. In fact, the jury acquitted petitioner on eight charges even without this evidence.
Without such a showing, this court cannot conclude that exclusion of the evidence violated petitioner’s
due process rights.
To the extent that the state court characterized petitioner’s claim as a confrontation clause
issue, petitioner is likewise entitled to no relief. “A defendant, however, does not have an unlimited
right to cross-examination, and the trial court retains ‘wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Dalton v. Dinwiddie, 273 F. App’x 724, 726 (10th Cir. 2008)
(quoting Del. v. Van Arsdall, 475 U.S. 673, 679 (1986). The state court’s application of Sixth
Amendment jurisprudence was not unreasonable.
Alternatively, the Kansas Court of Appeals found that petitioner could not meet the
constitutional harmless error standard announced in State v. Hebert, 82 P.3d 470, 496 (Kan. 2004),
which applied Kan. Stat. Ann. § 60–261, and also the federal constitution error rule. Bartling, 2005
WL 345524 at *4. The appellate court acknowledged that petitioner wanted to use the alleged prior
false accusation to impeach the victim’s testimony. Id. But the state court held “that the exclusion of
the evidence of the prior sexual abuse accusation ‘had little, if any, likelihood of having changed the
result of the trial.’” Id. (quoting Hebert, 82 P.3d at 496).
Here, considering harmless error in a habeas proceeding, the court applies the standard set out
in Kotteakos v. United States, 328 U.S. 750, 776 (1946). Relief is granted when the constitutional
error had substantial and injurious effect or influence on the jury’s verdict. Herrera v. Lemaster, 301
F.3d 1192, 1197 (10th Cir. 2002). Because the Kansas Court of Appeals did not apply the correct
standard, this court reviews the argument de novo. See id.
Considering the record as a whole (assuming the exclusion was error), the court concludes that
petitioner’s right to a fair trial was not substantially impaired. The trial court’s exclusion of the prior
accusation was not significant because the jury acquitted petitioner on all but one of the charges; an
indication that it did not find the victim to be credible even without the prior accusation. See Darks v.
Mullin, 327 F.3d 1001, 1019 (10th Cir. 2003) (citing Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir.
2000) ( “[C]ourts must be careful not to magnify the significance of errors which had little
importance.”)). Petitioner’s single conviction stemmed from the incident where the victim’s friend
was present in the apartment at the time the alleged sex acts occurred and corroborated the victim’s
story on this account. There is not a reasonable probability that the jury would have acquitted
petitioner on this additional count in the absence of the error. See Hooper v. Mullin, 314 F.3d 1162,
1178 (10th Cir. 2002). The court finds no basis for habeas corpus relief on this claim.
iii. Amendment of the Complaint
On the first day of trial, the prosecutor amended the complaint by changing the dates of some
of the offenses to coordinate with the victim’s recollection of a swim meet. Petitioner objected and
argued that the amendment impaired his defense because he had an alibi for those dates. Petitioner
alleges that the trial court violated his right to a fair trial under the Sixth and Fourteenth Amendments
by allowing the late amendment. Petitioner also claims violations of Kansas law, but habeas relief is
only available for violations of federal rights. See Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.
On direct appeal, petitioner challenged the amendment of the complaint. Bartling, 2005 WL
345524 at *4. The Kansas Court of Appeals acknowledged that changing the occurrence dates of a
complaint could prejudice an alibi defense, but stated that the witnesses—and even petitioner
himself—testified they were all in his apartment the weekend of the swim meet. Id. at *5. The state
court referred to petitioner’s defense for that particular occasion, and stated that he denied sexual
intercourse—as opposed to testifying that he was somewhere else. Id. Accordingly, the appellate
court found no reversible prejudice. Id.
A defendant must have adequate notice of the nature and cause of the charges against him
under the Sixth Amendment. See Kordelski v. Jordan, 111 F. App’x 557, 564 (10th Cir. 2004)
(involving challenge to amended information under section 2254) (citing Johnson v. Gibson, 169 F.3d
1239, 1252 (10th Cir. 1999)); see also Dorsey v. McKune, 553 F. Supp. 2d 1287, 1297 (D. Kan. 2008).
Here, the prosecution amended the complaint (altering the charged dates from April 4 and 5, 2013, to
April 11 and 12, 2013) to conform to the victim’s testimony about the swim meet at the preliminary
hearing. As the Kansas Court of Appeals noted in rejecting his claim, petitioner was aware of the facts
surrounding the charges against him. Bartling, 2005 WL 345524 at *5. Moreover, petitioner testified
that he was with the victim the night before the swim meet. Id. The court agrees with the state court
that petitioner has not shown he lacked adequate notice of the charge or that the amendment prejudiced
his defense presented at trial. See id. Petitioner has not established a constitutional violation relating
to the amendment of his complaint.
iv. Prosecutorial Misconduct
Petitioner claims that the prosecutor committed misconduct during closing argument when she
questioned petitioner’s veracity. Specifically, petitioner claims that the prosecutor’s reference to his
story as “baloney” was similar to calling him a liar in front of the jury, and further denied him a fair
The Kansas Court of Appeals highlighted the fact that the prosecutor used the word “baloney”
during her rebuttal to the defense’s closing argument. Bartling, 2005 WL 3455424 at *5. It found that
the prosecutor’s use of the word “baloney” was not referring to petitioner as a liar; but instead,
emphasized that petitioner’s attempt to positively spin the evidence was not supported by the facts. Id.
at *6. The state court further held that “inconceivable” was a more appropriate synonym for “baloney”
in the context used, and found that “[t]he prosecutor was not out-of-bounds in arguing that Bartling’s
characterization of the evidence was inconceivable.” Id.
In evaluating a claim of prosecutorial misconduct, the court determines “whether the
prosecutor[’s] comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). The
prosecutor’s statement is not viewed in isolation, but in light of the entire trial. Green v. Miller, 483
U.S. 756, 765–66 (1987). The court reviews the record and considers whether “the strength of the
evidence against the petitioner and any cautionary steps—such as instruction to the jury—offered by
the court to counteract improper remarks.” Trammell v. Cline, No. 5:14-CV-3232-JTM, 2015 WL
5439030, *11 (D. Kan. Sept. 15, 2015).
The court finds that petitioner has failed to meet his high burden here. Even if the prosecutor’s
use of the word “baloney” was improper, the fact that the jury acquitted petitioner of all but one of the
charges does not support a finding that the prosecutor’s statements infected the trial with unfairness.
Petitioner was not denied his right of due process and is not entitled to relief on this claim.
v. Sufficiency of the Evidence
Petitioner claims that the evidence was insufficient to support his conviction. When evaluating
whether evidence was sufficient to support a conviction, “the relevant question is whether, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (citation omitted) (emphasis in original); Romano v. Gibson, 239 F.3d 1156,
1164 (10th Cir. 2001) (citing Jackson, 443 U.S. at 319). The court neither weighs conflicting evidence
nor considers the witnesses’ credibility. Messer, 74 F.3d at 1013. And the court is bound to accept the
jury’s verdict “as long as it is within the bounds of reason.” Kelly v. Roberts, 998 F.2d 802, 808 (10th
Cir. 1993) (citations omitted).
Where the petitioner challenges the state court’s conclusion that the facts support his
conviction, the question presented for the federal court is one of law, which is governed by 28 U.S.C. §
2254(d)(1). Torres v. Mullin, 317 F.3d 1145, 1151–52 (10th Cir. 2003). The relevant inquiry is
whether the state court’s decision was contrary to, or involved an unreasonable application of Jackson.
In making this inquiry, the court applies state law regarding the substantive elements of the offense.
Id. at 1152 (citations omitted).
Here, the Kansas Court of Appeals held:
The jury found that the State had proved beyond a reasonable doubt that Bartling had
sexual intercourse with R.N.A. in the bedroom of his apartment on the weekend of the
swim meet. That event differs from the other alleged incidences. R.N.A.’s friend was
present in the apartment at the time of the alleged act and provided testimony from
which a rational jury could infer that R.N.A.’s claim of sexual intercourse was
corroborated. The times and places of the acts giving rise to the counts upon which
Bartling was acquitted were not similarly corroborated.
Bartling attempts to discount the corroborating evidence by pointing out that the friend
present in the apartment did not personally hear or see the sex act and was not
specifically told that the couple had engaged in sexual intercourse. Nevertheless, it is
the function of the jury and not an appellate court to weigh evidence and pass on the
credibility of the witnesses. State v. Moore, 4 P.3d 1141, 1144 (Kan. 2000). The jury
could rationally believe the friend’s testimony that R.N.A., upon returning from the
bedroom with Bartling, had smiled and communicated to her that the couple had been
“doing something” in the bedroom and infer that the “something” was sexual
intercourse. We find sufficient evidence to support the jury’s conviction.
Bartling, 2005 WL 3455424 at *6–7.
The court has reviewed the record, including the trial transcript. Upon such review, the court
finds that the Kansas Court of Appeals applied the correct standard of review, and that its decision is
reasonable and supported by the record. Both petitioner’s and the victim’s ages were undisputed. See
Kan. Stat. Ann. § 21-3504(a)(1) (aggravated indecent liberties with a child is sexual intercourse with a
child who is 14 or 15 years of age). The decision was not contrary to, and did not involve an
unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1).
vi. Cumulative Error
Petitioner argues that the cumulative effect of all of the constitutional errors in his case
warrants federal habeas relief. Petitioner raised a similar issue in his direct appeal. Bartling, 2005 WL
3455424 at *7. The Kansas Court of Appeals denied petitioner’s claim, stating: “our review of the
record convinces us that the totality of circumstances did not substantially prejudice the defendant or
deny him a fair trial.” Id.
“In the federal habeas context, a cumulative-error analysis aggregates all constitutional errors
found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such
that collectively they can no longer be determined to be harmless.” Lott, 705 F.3d at 1223 (10th Cir.
2013) (quoting Alverson v. Workman, 595 F.3d 1142, 1162 (10th Cir. 2010)). The court undertakes a
cumulative-error analysis only if there are at least two errors. Id. Because the court has not found at
least two errors, it will not conduct a cumulative-error analysis.
C. Petitioner’s Traverse
Petitioner alleges two new claims in his traverse. Specifically, petitioner claims that other
prisoners are discovering that the state district attorney’s office violated both state and federal rights by
speaking with jurors outside the courtroom. Petitioner also raises a Giglio violation, but argues
generally that the disciplinary problems within the Sedgwick County Sheriff Department and District
Attorney’s office tainted numerous cases. Petitioner did not raise these issues in state court, and they
were not a part of his § 2254 motion. As such, petitioner has procedurally defaulted on these issues.
See, e.g., Love v. Roberts, 259 F. App’x 58, 60 (10th Cir. 2007). Furthermore, petitioner does not state
a cause outside his control causing the default or that he personally suffered prejudice. Petitioner also
does not argue that a fundamental miscarriage of justice would occur absent review. Thus, petitioner is
not entitled to habeas relief.
The court concludes that petitioner has not established any instance in which the state
proceedings “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), or “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). Petitioner has not
established any federal constitutional violation that the state courts did not address. Accordingly, the
court denies the petition for habeas relief, and also finds no need for an evidentiary hearing.
Rule 11 of the Rules Governing Section 2254 Proceedings states that the court must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant. “A certificate of
appealability may issue . . . only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitutional
claims on the merits, a petitioner makes that showing by demonstrating that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484 (2000). Petitioner has not met this standard as to any issue presented. The court
therefore denies a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner’s Petition for Relief From a Conviction or
Sentence By a Person in State Custody (Doc. 1) is denied.
IT IS FURTHER ORDERED that petitioner’s request for appointment of counsel is denied as
Dated this 4th day of April, 2017, at Kansas City, Kansas.
s/ Carlos Murguia _
United States District Judge
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