Gordon (ID 56595) v. Cline

Filing 31

MEMORANDUM AND ORDER ENTERED: The Petition for Writ of Habeas Corpus 1 is denied. The certificate of appealability is denied. Signed by District Judge Daniel D. Crabtree on 09/13/18. Mailed to pro se party Willis Shane Gordon by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIS SHANE GORDON,
Petitioner,
v.

Case No. 17-3184-DDC

SAM CLINE,
Respondent.
____________________________________

MEMORANDUM AND ORDER
This matter comes before the court on Willis Shane Gordon’s pro se1 Petition for Writ of
Habeas Corpus (Doc. 1), respondent’s Answer and Return (Doc. 19), and petitioner’s Traverse
(Doc. 30). Petitioner was convicted in Kansas state court for aggravated kidnapping and rape.
He claims his convictions were procured in a way that violated the Constitution. For reasons
explained below, the court denies the Petition.
I.

Facts
The Kansas Court of Appeals summarized the facts of petitioner’s state-court case this

way:
In his underlying criminal case,
[Petitioner] was charged with one count each of rape, aggravated kidnapping,
attempted robbery, and aggravated battery after B.H. claimed that she was the
victim of these crimes. At the ensuing jury trial, B.H. testified that she was
kidnapped, raped, robbed, and battered by [petitioner], but [petitioner] claimed that
B.H. arranged to have consensual sex for money. The jury found [petitioner] guilty
on all counts, and he received a controlling sentence of 460 months’ imprisonment.

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Because petitioner proceeds pro se, the court construes his filings liberally. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam).

On his direct appeal, [petitioner] raised three issues: (1) ineffective assistance of
counsel; (2) failure of the district court to give a limiting instruction; and (3)
violation of his constitutional rights by enhancing his sentence based on a criminal
history that had not been proven to a jury beyond a reasonable doubt. Another
panel of this court dismissed his ineffective assistance of counsel claim for lack of
jurisdiction, rejected his other two claims, and affirmed his convictions. The
Kansas Supreme Court denied [petitioner’s] petition for review on November 4,
2011.
On June 5, 2012, [petitioner] filed a timely, and lengthy, pro se [Kan. Stat. Ann. §]
60-1507 motion. His primary pleading was nine pages long and is essentially the
habeas pleading form. In that pleading, specifically in paragraphs 10 and 11, he
raised a violation under Brady v. Maryland, 373 U.S. 83 (1963), contending the
prosecution withheld important information about the cell phones used by the
victim and police, and contends that had the jury seen the full text messages
between the victim and him the jury may have reached a different verdict. Then in
paragraph 20, where the form requests the movant to list how his counsel had been
ineffective, [petitioner] appended a 35-page attachment discussing in detail his
allegations of ineffective assistance of counsel.
[Petitioner] also filed
contemporaneously a 15-page “Affidavit of Case Law in Support of Habeas
Corpus.”
After reviewing this extensive pleading, the district court appointed counsel to
represent [petitioner] on July 9, 2012. Interestingly, the court did not appoint
someone from the appointment list but instead appointed an attorney specifically
requested by [petitioner]. After a number of continuances granted at [petitioner’s]
counsel’s request, on January 23, 2013, [petitioner’s] counsel filed a modified [Kan.
Stat. Ann. §] 60-1507 motion intended to replace [petitioner’s] original 60-1507
motion. This amended motion was far more succinct—only 10 pages—and was
filed beyond the 1-year limitation period for filing 60-1507 motions.
In his modified motion, [petitioner] raised 13 grounds of relief. He argued his trial
counsel was ineffective for: (1) lack of pretrial investigation; (2) failure to present
evidence in support of his theory of defense, [i.e.,] self-defense; (3) failure to
maintain adequate pretrial contact with [petitioner]; (4) failure to strike a potential
juror from the jury as requested by [petitioner]; (5) failure to object during . . . the
State’s questions regarding [petitioner’s] silence after arrest; (6) failure to make
appropriate trial objections; (7) failure to call a character witness requested by
[petitioner]; (8) failure to assert multiplicity or merger defenses; (9) failure to
contest certain convictions at [petitioner’s] sentencing; (10) failure to take
[petitioner’s] desired trial strategy into proper consideration; (11) failure either to
obtain certain discovery for trial or failure to provide this discovery to [petitioner];
(12) appellate counsel was ineffective during [petitioner’s] direct appeal; and (13)
the State failed to turn over exculpatory evidence.
At the preliminary hearing held on October 24, 2013, [petitioner’s] counsel
indicated that the movant would proceed on the modified motion. In a written order
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filed November 18, 2013, the district court granted [petitioner] an evidentiary
hearing on six of his grounds of relief and dismissed the remaining seven. These
six grounds for relief were denied after the evidentiary hearing.
Gordon v. State, 382 P.3d 484, 2016 WL 6137901, at *1–2 (Kan. Ct. App. Oct. 21, 2016)
(unpublished table decision) (internal citations and quotations omitted).
Petitioner timely appealed the Kansas state district court’s decision to the Kansas Court
of Appeals. Id. at *2. In that appeal, petitioner raised four issues: (1) whether his original trial
counsel was constitutionally ineffective when he failed to argue that the aggravated kidnapping
and rape charges violated the double jeopardy clause; (2) whether his original trial attorney was
ineffective when he failed to present petitioner’s desired defense; (3) whether the government
committed a Brady violation at his original criminal trial; and (4) whether the government
committed a Doyle violation during his original criminal trial. See generally id.
The Kansas Court of Appeals affirmed the district court. It rejected petitioner’s first
argument, concluding that the aggravated kidnapping and rape convictions did not violate the
Double Jeopardy Clause. Id. at *5. On petitioner’s second argument, the Kansas Court of
Appeals construed his appeal as arguing that his original trial counsel was ineffective for failing
to find photographs or hospital records that would have bolstered his claim that B.H. and an
acquaintance of hers robbed and attacked him—not the other way around. Id. The appeals court
concluded that it could not consider this argument because petitioner never raised that issue
before the habeas trial court. Id. at *6.
The Kansas Court of Appeals also refused to consider the next two issues raised by
petitioner—i.e., whether the government had committed a Brady violation and whether it had
committed a Doyle violation. Id. at *5–9. Generally, the court of appeals explained, Kansas law
prevents a court from addressing any argument raised in a habeas petition when the petitioner
never raised it on his direct appeal. Id. at *7–8. And petitioner articulated no reason why that
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general rule should not apply. Id. Eight months later, the Kansas Supreme Court declined to
review his case. On October 23, 2017, petitioner filed his Petition for Writ of Habeas Corpus in
this court.
II.

Legal Standard
When reviewing a state prisoner’s challenge to matters decided in state court criminal

proceedings, federal law “requires federal courts to give significant deference to state court
decisions” on the merits. Lockett v. Trammell, 711 F.3d 1218, 1230 (10th Cir. 2013). So, a
federal court should not grant a state prisoner habeas relief for “any claim that was adjudicated
on the merits in State court proceedings” unless the prisoner can show that: (1) that the
adjudication of the claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) that the adjudication of the claim “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)(1), (2). “Clearly established Federal law” refers to
the Supreme Court’s holdings—not dicta. Lockett, 711 F.3d at 1231. An adjudication is
“‘contrary to’ a clearly established law if it ‘applies a rule different from the governing law set
forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has]
done on a set of materially indistinguishable facts.’” Id. (quoting Bell v. Cone, 535 U.S. 685,
694 (2002)). A factual determination “made by a State court shall be presumed to be correct.”
28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting this presumption of
correctness by clear and convincing evidence. Id.

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III.

Discussion
In his federal court Petition, petitioner raises four grounds for relief. First, he argues, the

government committed a Brady violation by failing to disclose photographs showing petitioner’s
injuries after the incident leading to his arrest. In his second ground for relief, he argues that his
aggravated kidnapping and rape convictions violate the Fifth Amendment’s Double Jeopardy
Clause because they arose out of the same conduct. Next, he contends, his original trial counsel
was ineffective for failing to (A) find the missing photographs and (B) object to testimony about
his silence after he invoked his Fifth Amendment right to remain silent. Finally, he asserts that
the testimony about his silence after he invoked his Fifth Amendment right to remain silent
violates Doyle v. Ohio, 426 U.S. 610, 619 (1976).2 Respondent argues that the court should
dismiss petitioner’s writ. Specifically, he argues that petitioner procedurally defaulted on his
first, third, and fourth grounds for relief. And he argues that the Kansas Court of Appeals
correctly decided the second ground for relief.
The court agrees with respondent. The court first addresses petitioner’s first, third, and
fourth grounds for relief, explaining why they are procedurally barred. Then, the court addresses
petitioner’s contention that his aggravated kidnapping and rape convictions violated the Double
Jeopardy Clause.
A.

Procedural Default

Procedural default can occur in two ways: (1) when a state court clearly dismisses an
issue on a state procedural ground that is both independent of federal law and adequate to
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In his Traverse—but not in his Petition—petitioner asserts that the trial court sentenced him while
considering facts that the jury never found, violating Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, he
argues that part of the Kansas Sentencing Grid is unconstitutional because it enhances a defendant’s sentence due to
earlier “person” felonies without a jury finding that defendant committed a “person” felony. The court cannot
consider this argument because petitioner asserts it for the first time in his Traverse. See Thompkins v. McKune, 433
F. App’x 652, 660 (10th Cir. 2011) (“[A]rguments raised for the first time in a traverse are not properly presented to
the district court . . . .”).

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support the judgment; or (2) when the petitioner fails to exhaust available state remedies and
would be procedurally barred from presenting the issue if it was brought in state court. Griffin v.
Scnurr, 640 F. App’x 710, 717 (10th Cir. 2016). “A state procedural ground is independent if it
relies on state law, rather than federal law, as the basis for the decision,” and “adequate” if it is
“strictly or regularly followed and applied evenhandedly to all similar claims.” Hickman v.
Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal citations and quotations omitted). A
petitioner exhausts his claim once he “fairly present[s]” the claim to state courts. Picard v.
Connor, 404 U.S. 270, 275 (1971). It is “not sufficient merely that the federal habeas applicant
has been through state courts.” Id. at 275–76.
Under the procedural default doctrine, a federal court cannot review claims that were
procedurally defaulted in state court unless the applicant can “demonstrate either [1] cause and
prejudice for the default or [2] that a fundamental miscarriage of justice would result if his claim
is not considered.” Bowles v. Kansas, No. 15-3049-JTM, 2016 WL 3759508, at *1 (D. Kan. July
14, 2016); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Respondent argues that petitioner procedurally defaulted on three of his Petition’s
grounds for relief: the first, third, and fourth. The next three subsections discuss, in turn, each
ground for relief and explain why they are procedurally barred.
1. Brady Violation (Ground 1)
Petitioner argues that the state committed a Brady violation when it did not produce
photographs of petitioner’s injuries after his encounter with B.H.—the victim. The government
commits a Brady violation when it withholds evidence that is favorable to a defendant and “the
evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87.

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At trial, petitioner argued that he never raped or kidnapped B.H. Instead, he contended,
B.H. had consensual sex with him and then B.H. and her acquaintance robbed petitioner.
Petitioner tried to escape but the acquaintance tackled him. A fight ensued, and the acquaintance
drew a knife. Petitioner contended that he raised his hands in self-defense, and the knife cut his
finger, causing significant bleeding. Petitioner argues that the government should have disclosed
photos of his injuries because these photos would have helped him prove his version of events.
Respondent argues that petitioner procedurally defaulted on this ground for relief because
the Kansas Court of Appeals concluded that petitioner waived this argument by failing to raise it
when he initially appealed his convictions. Specifically, the Kansas Court of Appeals held, “We
reject [petitioner’s] claim on the ground that it should have been raised in his direct appeal.”
Gordon, 2016 WL 6137901, at *7. It continued. “It is well established that motions filed under
[Kan. Stat. Ann. §] 60-1507 are not to be used as substitutes for a direct appeal or a second
appeal, and issues that could have been raised in the direct appeal are res judicata meaning they
are barred from consideration.” Id. This reasoning is based on an independent and adequate
state law ground and thus the court cannot consider it, absent exceptional circumstances. See
Gleason v. McKune, No. 11-3110-SAC, 2012 WL 2952242, at *15 (D. Kan. July 19, 2012)
(“The Kansas Court of Appeals affirmed [the Kansas district court’s] decision, reasoning that a
[Kan. Stat. Ann. §] 60-1507 motion cannot be used as a substitute for either a direct appeal or a
second appeal and that Petitioner failed to establish exceptional circumstances which would have
excused his failure to raise this claim on direct appeal. This is an adequate and independent state
ground, which bars reconsideration by this court.”).
Petitioner argues that the court should review this ground for relief despite his procedural
default because he can show good cause and prejudice. Specifically, he asserts he never knew

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the photographs existed until his state habeas proceedings because the government never
revealed their existence until then. And petitioner can show actual prejudice, he argues, because
the photos would have corroborated his side of the story.
The court assumes, without deciding, that petitioner could show good cause. But
petitioner cannot demonstrate any prejudice from the government’s error. To show prejudice,
petitioner must show that the evidence would have had more than a negligible effect on the trial.
Ochoa v. Workman, 451 F. App’x 718, 731 (10th Cir. 2011). Here, several witnesses testified
that petitioner had severe injuries after his fight with the acquaintance—including B.H. and a
police officer who responded to the scene. So, the jury heard extensive evidence about
petitioner’s injuries. And the government never disputed these injuries. Any photographs of
these injuries, at most, would have allowed the jury to visualize injuries they knew about already.
Also, these photographs would do little to inform the jury who started the fight or why petitioner
and the acquaintance were fighting. The court denies this first ground for relief because
petitioner has failed to demonstrate prejudice.
2. Ineffective Assistance of Counsel (Ground 3)
In his third ground for relief, petitioner argues that his trial counsel was ineffective in two
distinct ways. First, he argues that his trial counsel should have discovered the Brady violation.
And second, petitioner contends, his trial counsel should have objected to testimony about his
silence after police arrested him. He has procedurally defaulted on these claims as well.
When discussing petitioner’s claim that his trial counsel was ineffective because he never
discovered the Brady violation, the Kansas Court of Appeals said, “At no point in his amended
[habeas] motion did [petitioner] complain that his counsel was ineffective for failing to find
photographs or hospital records; he does so for the first time on appeal.” Gordon, 2016 WL

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6137901, at *5. It continued, “As a general rule, we will not consider an allegation of ineffective
assistance of counsel raised for the first time on appeal.” Id. This is an independent and
adequate bar to the court considering this claim. See Reynolds v. Hannigan, No. 95-3559-DES,
1999 WL 33177300, at *7 (D. Kan. Mar. 22, 1999) (finding Kansas state-court rule against
raising an issue for the first time on appeal independent and adequate), adopted, 53 F. Supp. 2d
1149 (D. Kan. 1999).
Petitioner argues that he raised this issue before the trial court that heard his habeas
motion, highlighting several pro se motions he filed. But, the Kansas Court of Appeals
explained, “ʻ[g]enerally[,] the factual aspects of a claim of ineffective assistance of counsel
require that the matter be resolved through a [Kan. Stat. Ann. §] 60-1507 motion or through a
request to remand the issue to the district court for an evidentiary hearing . . . .’” Gordon, 2016
WL 6137901, at *5 (internal alterations omitted) (emphasis added) (quoting State v. Galaviz, 291
P.3d 62, 77 (Kan. 2012)). Petitioner failed to request either step. So, under Kansas law,
petitioner failed to preserve this issue properly and the court cannot consider it.
Petitioner’s ineffective assistance of counsel claim based on his trial counsel’s failure to
object to the Doyle violation also is procedurally barred. Under Doyle v. Ohio, a prosecutor
cannot use a defendant’s post-arrest silence to impeach his credibility. 426 U.S. at 619. The
Kansas Court of Appeals never addressed this claim of ineffective assistance of counsel directly.
It declined to do so because, “[s]ignificantly, [petitioner] does not argue his counsel was
ineffective for failing to object [to the Doyle violation].” Gordon, 2016 WL 6137901, at *7.
The court cannot consider this argument because the state court never addressed it.
Coleman, 501 U.S. at 731 (“This Court has long held that a state prisoner’s federal habeas
petition should be dismissed if the prisoner has not exhausted available state remedies as to any

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of his federal claims.”). Petitioner claims that he fairly presented this issue to the trial court
presiding over his habeas motion. But this argument does not negate the fact that this issue never
was “ʻproperly presented to the highest state court’”—in this case, the Kansas Court of Appeals.
Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)). Petitioner cites no good cause for his failure
to assert this argument before the Kansas Court of Appeals. Nor does he argue that the court’s
failure to review this claim will result in a miscarriage of justice. The court denies petitioner’s
writ based on the third ground for relief.
3. Doyle Violation (Ground 4)
Next, petitioner argues that the court should grant his writ because the prosecution
committed a Doyle violation at his original trial. In addressing this argument, the Kansas Court
of Appeals said, “When considering this issue, we first must reject it on res judicata grounds.
Like [petitioner’s] Brady violation argument, his contention of a Doyle violation is a trial error
that should have been raised on direct appeal. As [petitioner] has not articulated a reason why it
was not, our consideration of the issue is barred.” Gordon, 2016 WL 6137901, at *8. As the
court explained above, the Kansas rule that a prisoner cannot litigate any issue he didn’t raise in
his initial appeal is an independent and adequate state rule that prevents the court from reviewing
the issue. See Gleason, 2012 WL 2952242, at *15. And petitioner cannot claim that his original
trial counsel’s ineffectiveness constitutes good cause for his failure to raise the issue because
petitioner failed to preserve that claim. See Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000)
(holding that a petitioner cannot use ineffective assistance of counsel as “good cause” to avoid
the procedural default rule when petitioner has failed to present his ineffective assistance of

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counsel claim properly to the state court). The court denies petitioner’s habeas writ on the fourth
ground for relief.
B.

Merits of Petitioner’s Double Jeopardy Argument (Ground 2)

The Kansas Court of Appeals did decide one of the claims petitioner raises here on its
merits: his claim that the aggravated kidnapping and rape convictions violate the Double
Jeopardy Clause. Petitioner argues that these convictions violate the Double Jeopardy Clause
because they punish him for the same conduct twice, citing Grady v. Corbin, 495 U.S. 508
(1990). In Grady, the Supreme Court held that the Double Jeopardy Clause bars the government
from prosecuting a defendant for a crime that requires the government to establish that defendant
engaged in conduct for which he was convicted already. Id. at 521. For example, in Grady, the
Supreme Court held that the Double Jeopardy Clause prohibited the government from charging a
defendant with negligent homicide for killing someone while driving because he already was
convicted for driving while intoxicated—the very act that led to defendant killing someone. Id.
at 523. But the Supreme Court expressly overruled this test in Grady. See United States v.
Dixon, 509 U.S. 688, 703 (1993) (“We have concluded, however, that Grady must be
overruled.”). Instead, the proper test to determine whether two convictions violate the Double
Jeopardy Clause is “whether each offense contains an element not contained in the other.” Id. at
696. Here, aggravated kidnapping and rape each have elements that the other does not.
Aggravated kidnapping requires the jury to find that petitioner confined the victim. Gordon,
2016 WL 6137901, at *5. And a rape conviction requires the jury to find that petitioner had
sexual intercourse with someone who did not give consent. Id. at *4. Ground two thus provides
no basis for relief.

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C.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases provides, “The district 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). To satisfy this standard, the
movant must demonstrate that “‘reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.’” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir.
2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282 (2004)). While this standard does not
require a movant to demonstrate that his appeal will succeed, he must “prove something more
than the absence of frivolity or the existence of mere good faith.” Miller-El v. Cockrell, 537 U.S.
322, 338 (2003) (quotation marks omitted). “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims. In fact, the statute
forbids it.” Id. at 336.
The rulings that the court has made here are not the type that reasonable jurists could
debate or would conclude were wrong. The court thus declines to issue a certificate of
appealability for this Order.
IV.

Conclusion
For reasons explained above, the court denies the Petition for Writ of Habeas Corpus

(Doc. 1).
IT IS THEREFORE ORDERED BY THE COURT THAT the Petition for Writ of
Habeas Corpus (Doc. 1) is denied.
IT IS FURTHER ORDERED THAT the certificate of appealability is denied.

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IT IS SO ORDERED.
Dated this 13th day of September, 2018, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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