Burdick (ID 32858) v. Attorney General of Kansas

Filing 26

MEMORANDUM AND ORDER. IT IS THEREFORE ORDERED that Benjamin Burdick's Amended Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (Doc. #6) filed September 20, 2017 is DENIED. IT IS FURTHER ORDERED that a certificate of appealability as to the ruling on defendant's Section 2254 petition is DENIED. Signed by District Judge Kathryn H. Vratil on 1/29/19. Mailed to pro se party Benjamin Burdick by regular mail. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BENJAMIN BURDICK,

)
)
Petitioner,
)
)
)
)
WARDEN SAM KLINE,
)
)
Respondent.
)
____________________________________________)

CIVIL ACTION
No. 17-3148-KHV

MEMORANDUM AND ORDER
On July 7, 2009, in the District Court of Crawford County, Kansas, Benjamin Burdick was
sentenced to 324 months in prison for multiple drug-related convictions. This matter is before the
Court on Burdick’s pro se Amended Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus
By A Person In State Custody (Doc. #6) filed September 20, 2017. For reasons stated below, the
Court denies the petition and denies a certificate of appealability.
Factual Background
On April 2, 2009, in the District Court of Crawford County, Kansas, a jury found Burdick
guilty of manufacture of a controlled substance; possession of ephedrine, methamphetamine,
marijuana and drug paraphernalia; use of drug paraphernalia; and aggravated endangerment of a
child. The state court sentenced Burdick to a controlling sentence of 324 months in prison.
Before trial, petitioner sought to suppress evidence which officers obtained from a search
of his residence conducted pursuant to a search warrant.

The Kansas Court of Appeals

summarized petitioner’s challenge to the warrant as follows:
The warrant was obtained by Senior Special Agent Shawn Campiti of the Kansas
Bureau of Investigation. Campiti obtained information from Matthew Hood, a
known methamphetamine user, indicating Burdick had been manufacturing and
distributing methamphetamine from his home. Hood also named several other

individuals involved in Burdick’s operation. Campiti verified Burdick lived at the
address Hood provided, and he conducted surveillance to corroborate Hood’s
statements. Campiti checked the pseudoephedrine logs from the local Walmart
pharmacy and discovered several of the names Hood had given him appeared on
the log. He also ran criminal history checks on the individuals and found they had
numerous convictions for drug-related crimes. Campiti also discovered Burdick
had two prior drug-related arrests.
Campiti applied for a search warrant of Burdick’s home and provided a supporting
affidavit. A judge issued the warrant, and Campiti and other law enforcement
officers executed the search. During the course of the search, the officers found
evidence relating to the manufacture of methamphetamine and other drug-related
activity. Two minor children were present in the home at the time of the search.
Prior to trial, Burdick filed a motion to suppress evidence obtained as a result of the
execution of the search warrant. The motion alleged there was insufficient
evidence to establish probable cause, the search warrant was based on faulty or
incorrect information, there was no indication of the informant’s reliability, and the
issuing judge was misled by Campiti’s affidavit. Burdick requested an evidentiary
hearing and obtained a subpoena to call Hood to testify. The State moved to quash
the subpoena arguing Burdick could not impeach a nongovernment agent in
challenging the search warrant. Hood had not been served with the subpoena and
did not appear at the evidentiary hearing. The district court denied the State’s
motion to quash as moot and proceeded with the motion hearing without taking
evidence. Burdick’s counsel did not request a continuance of the hearing and had
not complied with the procedures required for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.Ed. 2d 667 (1978). Specifically, the
motion was filed without an accompanying affidavit alleging a materially false
statement or omission by Campiti. The court denied Burdick’s motion to suppress.
Burdick v. State, 383 P.3d 181 (Table), 2016 WL 6138666, at *1-2 (Kan. Ct. App. 2016), rev.
denied, (Kan. June 20, 2017).
Petitioner appealed his conviction and sentence. He argued in part that the district court
erred in denying his motion to suppress. The Kansas Court of Appeals rejected petitioner’s
challenge to the sufficiency of the affidavit because he had failed to include the affidavit in the
record on appeal. See State v. Burdick, 243 P.3d 716 (Table), 2010 WL 5185782, at *1 (Kan.
App. 2010), rev. denied, (Kan. Feb. 15, 2011).
Samuel Marsh represented petitioner in state district court. Ryan Eddinger of the Kansas
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Appellate Defender Office represented petitioner on direct appeal.
On August 18, 2011, petitioner filed his original K.S.A. § 60-1507 motion. He argued
that trial counsel provided ineffective assistance because he did not request a hearing under Franks
v. Delaware, 438 U.S. 154, 164 (1978) and appellate counsel provided ineffective assistance
because he failed to include the search warrant affidavit in the record on appeal.1 On May 5,
2015, the state district court denied petitioner’s motion on all claims. On October 21, 2016, the
Kansas Court of Appeals affirmed. Burdick, 2016 WL 6138666, at *1-2.
In the instant action under 28 U.S.C. § 2254, petitioner re-asserts his claims that (1) Marsh
provided ineffective assistance because he did not request a Franks hearing and (2) Eddinger
provided ineffective assistance because he did not include the search warrant affidavit in the record
on appeal.
Analysis
The Court reviews a state prisoner’s challenge to his conviction in state court under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. AEDPA “erects
a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in
state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). The Court may issue a writ of habeas corpus
only if petitioner’s state court adjudication resulted in a decision that (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”

1

28 U.S.C.

Petitioner also asserted that the evidence was insufficient to sustain his conviction
for child endangerment. Burdick, 2016 WL 6138666, at *2. In the instant action, petitioner does
not assert this claim.
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§ 2254(d)(1), (2).2
Under the “contrary to” clause, the Court will grant relief only if a state court reaches
(1) a conclusion opposite to that reached by the United States Supreme Court on a question of
law or (2) a different result from the Supreme Court on “materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the “unreasonable application” clause, the Court will grant relief only when the
state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of
a particular prisoner’s case.” Id. at 407-08. To warrant relief, petitioner must establish that the
state court ruling is “objectively unreasonable, not merely wrong; even clear error will not
suffice.” Virginia v. LeBlanc, ––– U.S. –––, 137 S. Ct. 1726, 1728 (2017) (per curiam) (internal
quotation marks omitted). Petitioner must establish that the state court ruling “was so lacking
in justification that there was an error well understood and comprehended in existing law beyond
any possibility for fair minded disagreement.” Id. (internal quotation marks omitted).
Both of petitioner’s claims assert ineffective assistance of counsel.

To establish

ineffective assistance of counsel under federal law, petitioner must show (1) that the performance
of counsel was deficient and (2) a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687, 694 (1984). To establish deficient performance, petitioner must prove that counsel
“made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. at 687. In other words, petitioner must prove that counsel

2

AEDPA also requires petitioners to exhaust state remedies before seeking postconviction relief in a federal court. 28 U.S.C. § 2254(b)(1)(A). Here, respondent concedes
petitioner has exhausted his available state court remedies.
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performed “below an objective standard of reasonableness.” United States v. Walling, 982 F.2d
447, 449 (10th Cir. 1992). The Supreme Court recognizes, however, “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.
In evaluating ineffective assistance claims under Section 2254, the question “is not whether
a federal court believes the state court’s determination under the Strickland standard was incorrect
but whether that determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (internal quotation marks omitted). “And, because the
Strickland standard is a general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether
a rule application was unreasonable requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-by-case determinations”)).
Petitioner asserts that (1) trial counsel provided ineffective assistance because he did not
request a Franks hearing and (2) appellate counsel provided ineffective assistance because he did
not include the search warrant affidavit in the record on appeal. To evaluate petitioner’s claims,
the Court first sets forth federal law governing search warrants and challenges to misstatements or
omissions in search warrant affidavits.
The Fourth Amendment Warrant Clause provides that “no warrants shall issue but upon
probable cause, supported by Oath or affirmation.” Franks, 438 U.S. at 164. A warrant affidavit
must set forth particular facts and circumstances underlying the existence of probable cause, so as
to allow the magistrate to make an independent evaluation of the matter. Id. at 165. In making
a probable cause determination, the court “is simply to make a practical, common-sense decision
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whether, given all the circumstances set forth in the affidavit before [it], including the ‘veracity’
and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983). A reviewing court owes great deference to a court’s finding of the existence of
probable cause to issue a warrant. See United States v. Le, 173 F.3d 1258, 1265 (10th Cir. 1999).
A reviewing court need only ask whether, under the totality of the circumstances presented in the
affidavit, the judge had a “substantial basis” for determining that probable cause existed. United
States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001).
The Fourth Amendment prohibits an affiant in an application for a search warrant from
knowingly and intentionally, or with reckless disregard for the truth, making a false statement.
Franks, 438 U.S. at 155-56. Where an affiant makes a false statement, the warrant must be voided
if the affidavit’s remaining content is insufficient to establish probable cause. See United States
v. Basham, 268 F.3d 1199, 1204 (10th Cir. 2001). The Tenth Circuit has applied this rule “to
intentional or reckless omissions of material facts, which, if included, would vitiate probable
cause.” Id. (citing Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990)). Recklessness can
be inferred where the omitted facts were “clearly critical” to a finding of probable cause.
DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990). Franks applies to false statements made
by the affiant or other government employees to the extent that the affiant relied on those
statements in preparing the affidavit. Marin v. King, 720 F. App’x 923, 936 (10th Cir. 2018);
United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997). In a case where a defendant
alleges that information was intentionally omitted from an affidavit, the existence of probable
cause is determined by examining the affidavit as if the omitted information had been included
and determining whether the affidavit would still give rise to probable cause. Basham, 268 F.3d
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at 1204.

To warrant a hearing, defendant must make a substantial showing that officers

knowingly and intentionally included a material false statement or omission in the warrant
affidavit. See Franks, 438 U.S. at 155-56.
I.

Trial Counsel’s Failure To Request A Franks Hearing (Claim 1)
As noted, the state district court denied petitioner’s motion to suppress without taking

evidence. Defendant argues that trial counsel provided ineffective assistance because he did not
request a Franks hearing based on the limited information in Campiti’s affidavit. See Amended
Petition (Doc. #6) at 7. Petitioner raised this same claim in his K.S.A. § 60-1507 motion. After
an evidentiary hearing, the state district court denied petitioner’s claim. On the performance
prong, the state district court stated as follows:
In the present case, Burdick argues Marsh was ineffective for failing to follow the
procedure required by Franks. However, at the K.S.A. 60-1507 hearing, Marsh
testified he had no good faith reason to believe that SSA Campiti, the author of the
affidavit in question, made any false statements in the search warrant affidavit.
Marsh’s problem with Campiti’s affidavit was that it was “tenuous” and lacked
[corroboration]. At the 1507 hearing, Burdick also failed to establish that SSA
Campiti deliberately or recklessly included falsehoods in his affidavit, or
deliberately or recklessly omitted material facts. The testimony elicited by
Burdick at the 1507 hearing merely established Burdick’s position that he believed
Campiti could have done more to investigate, based on Burdick’s opinion, and that
of his counsel. But Burdick failed to establish by a preponderance of the evidence
that any of Campiti’s actions were deliberate or reckless, and there is no evidence
of deliberate or reckless falsehoods or omissions of material fact. The fact that
Matt Hood was upset, and this fact was not included in the affidavit, does not
demonstrate deliberate or reckless omission. The same is true with regard to the
fact Campiti had arrested Hood in 2002. The fact that Campiti did not include
language stating that cold medicines might be normally used during cold and flu
season is not an omission. Any magistrate would draw that reasonable conclusion
without this being specifically stated in the affidavit. Finally, the fact Campiti did
not include whether he checked other local pharmacies for logs is again not an
omission, and even if that fact were removed, probable cause would still exist to
support the affidavit. A reasonable attorney would not have filed a Franks motion
under these circumstances. Marsh’s representation was not deficient in this
regard.

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See Journal Entry filed May 5, 2015, at 3-4 (Doc. #6-1 at 13-14).
The Kansas Court of Appeals affirmed, reasoning as follows:
To prevail on a claim of ineffective assistance of counsel, a criminal defendant must
establish (1) defense counsel’s performance was deficient under the totality of the
circumstances and (2) prejudice, i.e., there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola–
Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 [1984]). To
properly evaluate Burdick’s claim of ineffective assistance of counsel, this court
must look at the applicable legal standards concerning a motion to suppress
evidence under Franks, 438 U.S. 154.
An affidavit in support of a search warrant is presumed valid. An evidentiary
hearing is required if a defendant shows by a sworn allegation that an affidavit in
support of a search warrant is unreliable in that it: (1) contains statements that are
material to the issuance of the search warrant because the statements were
necessary to find probable cause and (2) the material statements (a) were a
deliberate falsehood, (b) were made in reckless disregard for the truth, or
(c) deliberately omitted a material fact. Allegations of negligence or innocent
mistakes are insufficient. Franks, 438 U.S. at 155–56, 171; State v. Adams, 294
Kan. 171, 179, 273 P.3d 718 (2012); State v. Francis, 282 Kan. 120, 128, 145 P.3d
48 (2006). A defendant is only entitled to a Franks hearing where the affiant
whose statements are being challenged is a government agent. State v. Jensen, 259
Kan. 781, 789, 915 P.2d 109 (1996).
Burdick’s trial counsel clearly did not follow the procedure necessary for a Franks
hearing as there was not an accompanying affidavit or sworn allegation filed with
the motion to suppress. However, counsel is only deficient if the Franks procedure
should have been followed in the first place. As noted above, a defendant may
only use a Franks hearing to challenge the statements made by a government agent.
Franks is therefore inapplicable to statements made by nongovernment informants.
Here, Burdick was not alleging a materially false statement or omission or a
reckless disregard for the truth by Campiti; rather, Burdick was challenging the
statements made by Hood to Campiti as being materially false. At best, Burdick
alleges a lack of due diligence or thoroughness in Campiti’s investigation or the
omission of extraneous details in the affidavit, but allegations of mere negligence
are not enough to warrant a Franks hearing. Francis, 282 Kan. at 128.
A Franks hearing was not warranted based on the grounds alleged in Burdick’s
motion to suppress; therefore, his counsel was not deficient for failing to take the
steps to secure one. Because Burdick’s trial counsel’s performance was not
deficient, there can be no prejudice. The district court did not err.
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2016 WL 6138666, at *2-3.
Petitioner does not explain how the Kansas Court of Appeals erred in this ruling. The
Kansas Court of Appeals correctly identified the governing federal rules in Strickland and Franks.
The Kansas Court of Appeals reasonably applied federal law when it held that counsel’s
performance was adequate because Franks does not apply to statements made by nongovernment
informants. See Franks, 438 U.S. at 171 (impeachment permitted involves deliberate falsity or
reckless disregard of affiant, not nongovernmental informant); United States v. Owens, 882 F.2d
1493, 1499 (10th Cir. 1989) (not enough to show that informant lied to unsuspecting affiant).
Petitioner argues that counsel should have requested a Franks hearing because Campiti
relied on statements by Hood without investigating his credibility or attempting to corroborate his
statements. Amended Petition (Doc. #6) at 6.3 Petitioner does not allege that Campiti knowingly
and intentionally, or with reckless disregard for the truth, made a false statement. As the Kansas
Court of Appeals correctly noted, allegations of negligence are insufficient to warrant a Franks
hearing. 2016 WL 6138666, at *3; see United States v. Sanchez, 725 F.3d 1243, 1247-48 (10th
Cir. 2013) (negligence or innocent mistakes insufficient to justify excisions from affidavit under
Franks); United States v. Gonzales, 399 F.3d 1225, 1229 (10th Cir. 2005) (omission because of
officer “inexperience,” like “negligence or innocent mistake,” insufficient to overcome finding of
good faith); United States v. Ross, 920 F.2d 1530, 1534 (10th Cir. 1990) (Franks challenge goes

3

In particular, petitioner argues that the state court and Campiti relied on two
statements by Hood to justify the search warrant: (1) petitioner’s house was a “hub house” where
methamphetamine users congregated and (2) on January 14, 2008, Hood smelled
methamphetamine cooking when he was outside of petitioner’s residence. Id. at 7. Petitioner
asserts that Campiti should have conducted surveillance of the house and questioned the other
purported methamphetamine users who allegedly spent time at the house.
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to false, not conclusory statements). The Kansas Court of Appeals reasonably determined that
counsel’s failure to request a Franks hearing was not deficient because the allegations in
petitioner’s motion to suppress did not warrant such a hearing.
Petitioner notes that Hood had a criminal history involving methamphetamine and
pseudoephedrine, and he withheld from Campiti “vital information about his purchases of
pseudoephedrine until he was forced to reveal it.” Amended Petition (Doc. #6) at 6-7. In the
affidavit, Campiti disclosed Hood’s criminal history and the fact that Hood did not disclose his
recent purchases of pseudoephedrine until Campiti specifically questioned him about this fact in a
follow-up interview. Petitioner has not alleged that in the affidavit, Campiti misstated Hood’s
criminal history or the circumstances related to Hood’s belated disclosure of his pseudoephedrine
purchases. Accordingly, these allegations did not warrant a Franks hearing.
In his reply brief, petitioner asserts that trial counsel provided ineffective assistance
because before filing the motion to suppress, he did not interview the individuals identified in the
affidavit to identify additional grounds to support a request for a Franks hearing. Petitioner’s
Traverse To Respondent’s Answer And Return (Doc. #25) filed July 9, 2018 at 13-15, 17. In his
amended petition, however, petitioner claims that counsel failed to request a Franks hearing based
on the contents of Campiti’s affidavit, not that counsel failed to investigate additional grounds to
support a request for such a hearing. See Amended Petition (Doc. #6) at 7 (counsel aware that
“above stated facts were in the affidavit of probable cause, yet did not file the necessary
motion/request and accompanying sworn affidavit required to initiate a Franks hearing”). In his
state habeas petition, as part of his claim related to Franks, petitioner argued that counsel should

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have interviewed the witnesses identified in the affidavit.4 Even so, the state district and appellate
courts did not specifically address petitioner’s allegation related to counsel’s failure to interview
witnesses.5 The Court need not decide whether the Kansas courts rejected petitioner’s argument
silently or intended to reject it implicitly in the broader analysis of what is required to trigger a
Franks hearing. In either case, the Court must determine whether in denying petitioner’s claim,
the state courts reasonably applied Strickland and Franks. See Postelle v. Carpenter, 901 F.3d
1202, 1213-14 (10th Cir. 2018) (same analysis under AEDPA whether we read state court opinion
to reject “argument silently or implicitly to sweep it into a broader analysis”). As explained
above, the Kansas Court of Appeals reasonably applied federal law when it held counsel’s
performance was adequate because Franks does not apply to statements made by nongovernment
informants.

Petitioner’s allegation that counsel failed to interview witnesses involves the

truthfulness of the informant’s statements. See Affidavit Of Chris Beckley (Doc. #25-1 at 39-40)
¶¶ 1-5 (denies Burdick or his residence involved with methamphetamine and states Hood’s
apartment was “hub house” for methamphetamine users); Affidavit Of Joe Venturella (Doc. #251 at 41-42) ¶¶ 1-3, 5-6 (denies Burdick or his residence involved with methamphetamine or that
Burdick was looking for ephedrine and pseudoephedrine at Venturella’s apartment). Again, for
reasons explained by the state district and appellate courts, proof that an informant’s statements

4

See KSA § 60-1507 Motion filed Aug. 18, 2011, at -8 (Issue No. 1: attorney failed
to challenge veracity of affidavit pursuant to Franks); id. at 14 (counsel deficient because 1. failed
to file a motion for Franks hearing and 2. “failed to conduct any interviews of witnesses or potential
witnesses who were listed in the Affidavit Supporting Probable Cause, which would have
supported a request or Motion for a Franks hearing”).
5

See Journal Entry filed May 5, 2015, at 3 (Doc. #6-1 at 13) (“Burdick argues Marsh
was ineffective for failing to follow the procedures required by Franks”); see also 2016 WL
6138666, at *3 (Kansas Court of Appeals) (counsel not deficient because Franks hearing not
warranted “based on the grounds alleged in Burdick’s motion to suppress”).
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were incorrect is insufficient to warrant a Franks hearing.
In sum, petitioner has not shown that the state court adjudication of his first claim was
contrary to or involved an unreasonable application of clearly established federal law, or was based
on an unreasonable determination of the facts. The Court denies relief on petitioner’s claim that
trial counsel provided ineffective assistance because he did not request a Franks hearing.
II.

Counsel’s Failure To Include Affidavit In Record On Appeal (Claim 2)
Petitioner asserts that appellate counsel provided ineffective assistance because he did not

include the search warrant affidavit in the record on appeal. On direct appeal, the Kansas Court
of Appeals rejected petitioner’s claim that the affidavit lacked probable cause because he failed to
include the affidavit in the record on appeal. The Kansas Court of Appeals stated as follows:
Preliminarily, we note that although Burdick properly preserved this issue for
appellate review by filing a pretrial suppression motion challenging the search and
making a continuing objection at trial to the admission of the seized evidence,
Burdick has failed to include the allegedly deficient affidavit in the appellate record.
In its response brief, the State pointed out this omission and argued it precludes our
review of this issue on appeal. Burdick did not file a reply brief and did not address
this issue in his initial brief.
As the appellant, Burdick has the burden to furnish a record sufficient to establish
the claimed error; without such a record, the claim of error fails. See State v. Paul,
285 Kan. 658, 670, 175 P.3d 840 (2008). * * *
Because Burdick has failed to provide the affidavit he claims was deficient, he has
failed to furnish a record which affirmatively shows that the district court erred in
upholding the magistrate’s probable cause determination and in failing to grant
Burdick’s suppression motion. Accordingly, we must presume the district court’s
action was proper. See State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004).
Burdick, 2010 WL 5185782, at *2.
In his state habeas petition, Burdick alleged that appellate counsel provided ineffective
assistance because he failed to include the search warrant affidavit in the record on appeal. The
Kansas district court agreed that counsel’s performance was deficient in this regard. See Journal
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Entry filed May 5, 2015 at 4 (Doc. #6-1 at 14). Even so, the court held that Burdick suffered no
prejudice because the affidavit sufficiently established probable cause to issue the search warrant.
See id. The Kansas Court of Appeals affirmed, stating as follows:
To establish ineffective assistance of counsel on appeal, a defendant must show that
(1) counsel’s performance, under the totality of the circumstances, was deficient in
that it fell below an objective standard of reasonableness and (2) the defendant was
prejudiced to the extent there is a reasonable probability that, but for counsel’s
deficient performance, the appeal would have been successful. Sola-Morales, 300
Kan. at 882. * * *
The district court was correct in finding appellate counsel’s performance deficient
by omitting the affidavit, but we need not delve into a comprehensive analysis of
appellate counsel’s performance to reach the merits of the issue. In fact, an
appellate court may proceed to the second prong of the Strickland analysis without
reaching the first if doing so will intelligently resolve the issue. See Edgar v. State,
294 Kan. 828, 843, 283 P.3d 152 (2012) (citing Strickland, 466 U.S. at 697). In
order to determine whether Burdick was prejudiced by appellate counsel’s
performance, we start our analysis by looking to the applicable legal standards
regarding a challenge to the sufficiency of a search warrant.
In reviewing whether an affidavit in support of a search warrant supplies probable
cause, a judge must consider the totality of the circumstances presented and make
“a practical, common-sense decision whether a crime has been or is being
committed and whether there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’ [Citation omitted.]” State v. Mullen, 304
Kan. 347, 353, 371 P.3d 905 (2016).
“‘When an affidavit in support of an application for a search warrant
is challenged, the task of the reviewing court is to ensure the issuing
magistrate had a substantial basis for concluding probable cause
existed. This standard is inherently deferential. It does not
demand that the reviewing court determine whether, as a matter of
law, probable cause existed; rather, the standard translates to
whether the affidavit provided a substantial basis for the
magistrate’s determination that there is a fair probability that
evidence will be found in the place to be searched. Because the
reviewing court is able to evaluate the necessarily undisputed
content of an affidavit as well as the issuing magistrate, the
reviewing court may perform its own evaluation of the affidavit’s
sufficiency under this deferential standard.’ [Citation omitted.]”
304 Kan. at 353.

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The search warrant affidavit here provided a substantial basis for the issuing
magistrate judge to find probable cause. Our standard of review does not compel
this court to perform a hyper-technical analysis of the information contained in
Campiti’s affidavit; rather, this court’s review is inherently deferential. See
Mullen, 304 Kan. at 353. Burdick argues the affidavit failed to establish probable
cause, but the errors he alleges do not undermine the issuing magistrate judge’s
probable cause finding.
In his brief, Burdick argues Campiti failed to conduct an adequate investigation.
He alleges Campiti provided an unreasonable basis for believing Hood was reliable,
as Campiti’s basis for believing so was that Hood admitted to being a
methamphetamine addict. Burdick fails to explain how these alleged errors
undermine the issuing magistrate judge’s findings. He provides no pertinent
caselaw or authority in support of his argument. An argument not briefed is
deemed waived and abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d
1065 (2016). Failure to support an argument with citations of pertinent authority
or show why it is sound despite a lack of pertinent authority or in the face of
contrary authority is akin to failing to brief the issue. State v. Murray, 302 Kan.
478, 486, 353 P.3d 1158 (2015). Because Burdick has failed to argue the point or
support it with pertinent authority, we deem the issue waived and abandoned.
In any event, a thorough review of the search warrant affidavit shows the issuing
magistrate judge had a substantial basis to find probable cause to issue the warrant.
Contrary to Burdick’s present contentions or the arguments he raised at trial and on
direct appeal, the affidavit was not deficient or misleading.
Campiti’s
investigation was sufficient, and the information Hood provided was sufficiently
corroborated so as to render reliance thereon objectively reasonable.
Because the affidavit established probable cause there is no reasonable probability
the outcome on direct appeal would have been different had Burdick’s appellate
counsel included the search warrant affidavit in the record on appeal. The district
court did not err.
Burdick, 2016 WL 6138666, at *3-4.
The Kansas Court of Appeals correctly identified the governing federal rules in Strickland
and Gates.6 The Kansas Court of Appeals reasonably applied federal law when it held that the

6

The Kansas Court of Appeals did not cite Gates directly, but it cited Kansas
Supreme Court authority which was based directly on Gates. See State v. Mullen, 304 Kan, 347,
371 P.3d 905 (2016) (citing State v. Hicks, 282 Kan. 599, 147 P.3d 1076 (2006), which in turn
cited Gates and Tenth Circuit precedent applying Gates).
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issuing magistrate judge had a substantial basis to find probable cause to issue the warrant. In
particular, Campiti’s affidavit sets forth facts which suggest that Hood was a reliable source.
First, Hood was a known informant. A reasonable person in Hood’s position would realize that
police could hold him responsible if his allegations turned out to be false. See Florida v. J.L., 529
U.S. 266, 270 (2000) (reputation of known informant can be assessed and informant can be held
responsible if allegations turn out to be fabricated) (citing Adams v. Williams, 407 U.S. 143, 14647 (1972)). This provides a disincentive for making false allegations and “[a] court can consider
this factor in weighing the reliability of the tip.” J.L., 529 U.S. at 276 (Kennedy, J., concurring);
see United States v. Tucker, 305 F.3d 1193, 1200-01 (10th Cir. 2002) (tips from known informants
more reliable than anonymous tips). Second, Hood admitted to personally participating in various
drug transactions and gave information which was against his penal interest. See Gates, 462 U.S.
at 230, 234 (even with some doubt as to informant motives, his basis of knowledge is one way to
validate information provided); id. at 268 n.20 (informant’s veracity can be shown by proof he
gave information against his penal interest). Third, based on Hood’s criminal history which
involved pseudoephedrine and methamphetamine, Campiti could reasonably conclude that Hood
recognized the smell of methamphetamine cooking, or recently cooked, outside petitioner’s house.
Based on the above factors and the totality of the circumstances, the Kansas Court of Appeals
reasonably concluded that the issuing magistrate judge had a substantial basis to find probable
cause to issue the warrant.
The Court denies relief on petitioner’s claim that appellate counsel provided ineffective
assistance because he did not include the search warrant affidavit in the record on appeal.
Conclusion
For the above reasons, the Court denies the petition for a writ of habeas corpus.
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Petitioner has failed to establish that the state court 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” 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.” 28 U.S.C. § 2254(d). The Court reaches this result through examining the state
court record and concludes that no evidentiary hearing is required. See Schriro, 550 U.S. at
474 (evidentiary hearing not needed on issues resolved by state court record).
Certificate Of Appealability
Under Rule 11 of the Rules Governing Section 2254, the Court must issue or deny a
certificate of appealability when it enters a final order adverse to a petitioner. A court may
issue a certificate of appealability “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253. A petitioner meets this standard by
showing “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). For the reasons
state above, the Court finds that petitioner has not satisfied this standard. The Court denies a
certificate of appealability as to its ruling on petitioner’s Section 2254 petition.
IT IS THEREFORE ORDERED that Benjamin Burdick’s Amended Petition Under
28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (Doc. #6) filed
September 20, 2017 is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability as to the ruling on
defendant’s Section 2254 petition is DENIED.

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Dated this 29th day of January, 2019 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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