Grey (ID 95397) v. Cline

Filing 26

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 8/13/2021. Mailed to pro se party Robert Grey by regular mail. (jal)

Case 5:18-cv-03093-SAC Document 26 Filed 08/13/21 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT GREY,
Plaintiff,
v.

CASE NO. 18-3093-SAC

WARDEN SHANNON MEYER,
Respondent.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed under 28 U.S.C.§
2254. Proceeding pro se, petitioner challenges his 2012 conviction
of rape. For the reasons that follow, the court denies relief.
Procedural background
Petitioner was convicted in 2008 of a rape that occurred in 1997.
The Kansas Court of Appeals (KCOA) reversed the conviction and ordered
a new trial. State v. Grey, 268 P.3d 1218 (Kan. App. 2012). Petitioner
again was convicted in the second trial and sentenced to a term of
300 months. The conviction was affirmed on appeal. State v. Grey, 367
P.3d 1284, 2016 WL 1169398 (Kan. App. 2016), rev. denied April 26,
2017.
Factual background
The KCOA summarized the relevant facts as follows:
In May 1997, L.L. and her boyfriend returned to college in
Lawrence after spending the evening out of town. Because
they had transported some of L.L.'s belongings to a friend's
home, they drove separately. When L.L. exited her car at
her residence hall, a man with a gun appeared and forced

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her into the passenger seat. The man drove L.L. to an empty
parking lot near the high school. He forced L.L. out of the
car and into a secluded area. He instructed L.L. to remove
her pants and kneel down on the ground. He penetrated her
digitally with a gloved hand before demanding she turn over
onto her back. He then pulled her shirt over her head and
raped her until he ejaculated. Afterward, he and L.L.
returned to the car. He drove a short distance, parked, and
left her alone in the vehicle. The man wore a mask for part
of the attack; L.L. described him as slender, white, about
her height, with dark hair and a mustache.
L.L.'s boyfriend spotted L.L.'s car driving away while she
sat “kind of huddled” in the passenger seat. He called the
police. He described the driver as a white man with a goatee
who looked to be about 25 years old and about 6 feet tall.
L.L. told the investigating officer her assailant appeared
to be between 5–foot–7 and 5–foot–9 with a full beard and
mustache. She estimated his age at around 30 years old. A
few days after the assault, she assisted the police
department in completing a composite sketch of her
attacker. At that time, she described her assailant in much
the same way: a white male in his mid-to-late twenties with
a slender build, dark hair, a mustache, and facial hair.
L.L. submitted to a sexual assault examination, where
medical professionals collected evidence from her body,
including her assailant's DNA. Officers also processed
L.L.'s car for evidence, collecting latent finger and palm
prints. A technician at the Kansas Bureau of Investigation
(KBI) searched unsuccessfully for matches to the unknown
fingerprints. However, after the KBI's database was updated
in 2007, the system returned a match on one of the
unidentified prints from L.L.'s car. The fingerprint
belonged to Grey.
Based in part on the fingerprint match, police received a
search warrant for Grey's DNA. Grey's DNA was a “very, very
strong match” to L.L.'s assailant, and the State charged
Grey with rape. At trial, Grey claimed that the night before
the alleged rape, he and L.L., who was a stranger to him,
met at a local bar and engaged in unprotected consensual
sex in the front seat of his car. According to Grey, a very
angry man, possibly L.L.'s boyfriend, drove up to him and
L.L. after their sexual encounter. Grey and the man
exchanged words before the man drove off. Grey also
testified that, in May 1997, his employer required facial
hair be limited to a “neatly trimmed” mustache.

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Important to Grey's defense was testimony about the
motility, or movement, of the sperm collected from L.L.
Specifically, a medical technologist testified that the
sperm was nonmotile, and Grey's expert witness, Dr. Merle
Hodges, explained that this lack of motility indicated that
the sperm had likely been in L.L.'s vagina for no less than
4 hours and possibly as long as 12 hours, a much longer
period than the 3 hours between her assault and the exam.
Hodges also testified regarding the lack of trauma to L.L.'s
genitals. However, the State called rebuttal witnesses,
including Dr. Michael Weaver, to contradict Hodges'
testimony concerning the sperm motility.
The jury returned a guilty verdict. Prior to sentencing,
Grey filed a motion for a new trial alleging various due
process violations. The district court denied the motion
and sentenced Grey to 300 months' imprisonment. Grey timely
appealed.
State v. Grey, 367 P.3d 1284, 2016 WL 1169398, *1-2 (Kan. Ct. App.
2016).
Claims for relief
Petitioner seeks habeas corpus relief on three grounds: (1) the
trial court erred in admitting unreliable DNA, because the conclusory
statements of a police officer were the basis for the search warrant;
(2) the trial court erred in failing to require reciprocal discovery;
and (3) the trial court erred in admitting a recorded interview that
contained improper burden-shifting comments by police.
Standard of review
This matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). Under the AEDPA, when a state court has
adjudicated

the

merits

of

a

claim,

a

federal

court

may

grant habeas relief only if the state court decision “was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United

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States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2). In this context, an
“unreasonable application of” federal law “must be objectively
unreasonable, not merely wrong.” White v. Woodall, 134 S. Ct. 1697,
1702 (2014) (quotations omitted).
The Court presumes the correctness of the fact-finding by the
state court unless petitioner rebuts that presumption “by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). See also Wood v. Allen,
558 U.S. 290, 301 (2010) (“a state-court factual determination is not
unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance”).
These standards

are

intended

to

be

“difficult

to

meet,” Harrington v. Richter, 562 U.S. 86, 102 (2011), and require
that

state

court

decisions

receive

the

“benefit

of

the

doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
A habeas petitioner generally must exhaust available state court
remedies before seeking federal habeas relief. “A threshold question
that

must

be

addressed

in

every habeas case

is

that

of

exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994).
“The exhaustion requirement is satisfied if the federal issue has been
properly presented to the highest state court, either by direct review
of the conviction or in a postconviction attack.” Dever v. Kansas
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

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The presentation of a claim “requires that the petitioner raise
in state court the ‘substance’ of his federal claims.” Williams v.
Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015). A federal court can
excuse exhaustion “only if there is no opportunity to obtain redress
in state court or if the corrective process is so clearly deficient
as to render futile any effort to obtain relief.” Duckworth v.
Serrano, 454 U.S. 1, 3 (1981).
The procedural default doctrine provides an additional limit to
review in habeas corpus cases. A federal habeas corpus may not review
“federal claims that were procedurally defaulted in state court – that
is, claims that the state court denied based on an adequate and
independent state procedural rule” – unless the prisoner demonstrates
either cause for the procedural default and resulting prejudice or
that the failure of the federal court to review the claim will result
in a fundamental miscarriage of justice. Davila v. Davis, 137 S.Ct.
2058, 2064-65 (2017); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Likewise, where a petitioner fails to present a claim in the state
courts, and would now be procedurally barred from presenting it if
he returned to state court, there is an anticipatory procedural bar
which prevents the federal court from addressing the claim. Anderson
v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007). As in the case
of other procedurally defaulted claims, a petitioner’s unexhausted
claims barred by anticipatory procedural default cannot be considered
in habeas corpus unless he establishes cause and prejudice for his

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default of state court remedies or a fundamental miscarriage of
justice. Gray v. Netherland, 518 U.S. 152, 162 (1996).
To demonstrate cause for the procedural default, petitioner
must show that some objective factor external to the defense impeded
his ability to comply with the state's procedural rule. See Murray
v. Carrier, 477 U.S. 478, 488 (1986). “Objective factors that
constitute cause include

interference

by

officials

that

makes

compliance with the State's procedural rule impracticable, and a
showing that the factual or legal basis for a claim was not reasonably
available to [petitioner.]” McCleskey v. Zant, 499 U.S. 467, 493-94
(1991) (internal quotation marks omitted). Petitioner also must show
“actual prejudice as a result of the alleged violation of federal
law.” Coleman, 501 U.S. at 750.
A procedural default also may be excused if a petitioner can show
that the failure to consider the defaulted claim would result in a
fundamental miscarriage of justice. To proceed under this exception,
petitioner

“must

make

a

colorable

showing

of

factual

innocence.” Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000).
A petitioner seeking relief under a defaulted claim and asserting a
claim of innocence must show that “in light of new evidence, ‘it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S.
518, 536-37 (2006)(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Analysis
Ground 1: admission of DNA evidence

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Petitioner claims that DNA evidence collected from him by law
enforcement under a search warrant was improperly admitted. Before
trial, petitioner sought to exclude the evidence on the ground that
the affidavit supporting the warrant had “material omissions” and
“impermissible conclusory statements”. Grey, 2016 WL 1169398, at *2.
Petitioner specifically pointed to an error in the information on how
many fingerprints identified as his were found and to conclusions
concerning the resemblance between the composite sketch developed
during the initial investigation and a photograph of petitioner.
The affidavit supporting the search warrant stated that (1) the
victim identified her assailant as a white male between 5’7” and 5’9”,
having a thin build, dark brown matted hair, a beard and mustache;
(2) four of the fingerprints collected from the victim’s car were
entered into the KBI’s database; these four returned no matches, and
two fingerprints remained in the unidentified fingerprint files.
Nearly 10 years after the crime, the two unidentified prints were
matched to petitioner; (3) Detective Hanson of the Lawrence Police
Department compared the composite sketch to several driver’s license
photographs of the petitioner and found a strong resemblance to his
2004 photo; and (4) petitioner’s biographical evidence matched the
victim’s description of her assailant. Grey, id.
The trial court held an evidentiary hearing on petitioner’s
motion to suppress and received testimony from the KBI’s fingerprint
analyst and Detective Hanson. The analyst testified that the two
fingerprints identified in the KBI database were two separate lifts

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of the same fingerprint rather than lifts of two fingerprints. These
fingerprints were analyzed separately because they were lifted
separately. Detective Hanson testified that he did not attach the
composite sketch or the photograph from petitioner’s driver’s license
to the search warrant application.
The trial court denied the motion to suppress. It found that the
error concerning the number of fingerprints matched to petitioner was
not material or deliberate, and it found that Detective Hanson
conducted

a

careful

review

of

the

composite

and

petitioner’s

photographs.
On appeal, the Kansas Court of Appeals (KCOA), citing Franks v.
Delaware, 438 U.S. 154, 171 (1978), reviewed the challenge to the
search warrant to evaluate whether the supporting affidavit created
a “substantial basis to determine that there was a fair probability
that evidence will be found in the place to be searched.” Grey, 2016
WL 1169398, at *3.
Rejecting petitioner’s argument that the knowledge of the KBI
analyst that the two fingerprints were, in fact, two lifts of the same
print was imputed to Detective Hanson, the KCOA found that the KBI
analyst neither intentionally or dishonestly misrepresented the
fingerprint matches nor directed Detective Hanson in preparing the
affidavit. The KCOA also rejected the claim that Detective Hanson
deliberately failed to explain where the fingerprint was collected,
citing his testimony at the evidentiary hearing that at the time he
prepared the search warrant affidavit, he knew that the victim’s car

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was searched on both the interior and exterior but did not know where
the fingerprint was lifted. Grey, 2016 WL 1169498, at *5.
Likewise, the KCOA rejected petitioner’s argument that Detective
Hanson’s comparison between the composite sketch and his driver’s
license

photographs

provided

only

“unsupported,

conclusory

statements” that were insufficient to support probable cause. The KCOA
observed that Detective Hanson had a description of the rapist
provided by the victim, that he compared the composite to multiple
photos of petitioner, and that he specifically identified the photo
that supported his belief that petitioner was the perpetrator. The
KCOA concluded on these facts that Detective Hanson’s conclusion was
based upon “first hand observations about [petitioner’s] appearance
and biography” and were sufficient to support the finding of probable
cause. Grey, 2016 WL 1169398, at *6.
In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme
Court held that “where the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at
his trial.” Id. at 494.
In this case, petitioner’s counsel presented a challenge to the
DNA collected from him under the search warrant, and the trial court
conducted an evidentiary hearing and issued a ruling on that matter.
Petitioner also presented the claim in his direct appeal, and the KCOA
examined the issue thoroughly. This court finds petitioner was

Case 5:18-cv-03093-SAC Document 26 Filed 08/13/21 Page 10 of 15

provided the “opportunity for full and fair litigation” contemplated
by the Stone holding and concludes that he is not entitled to
additional review in habeas corpus.
In a related argument, petitioner challenges the admission of
the DNA evidence against him on the ground that the DNA was unreliable.
Petitioner did not present this argument in the state courts. At trial,
he did not contest that semen collected from the victim was his,
arguing instead that he and the victim had had consensual contact on
the evening prior to the assault reported by the victim. On appeal,
although petitioner challenged the search warrant due to alleged
deficiencies in the supporting affidavit, he did not challenge the
reliability of the DNA itself as a separate ground.
Because petitioner did not present this claim in the state
courts, it is unexhausted and, because petitioner cannot return to
the state courts to present it in a timely manner, it is procedurally
defaulted. As explained, to overcome a procedural default, petitioner
must establish cause and prejudice or a fundamental miscarriage of
justice. Coleman, 501 U.S. at 750.
Petitioner did not file a traverse in this action, and he has
offered no grounds for excusing his procedural default. The court
concludes

the

claim

that

the

DNA

evidence

was

unreliable

is

procedurally defaulted and review is barred.
Ground 2: Due process violation arising from a failure to provide for
reciprocal discovery

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Petitioner’s second claim alleges a violation of his right to
due process caused by a failure to require reciprocal discovery. He
claims the prosecution was allowed to receive specific discovery
concerning his expert witness before trial, which gave the State an
advantage and prevented petitioner from challenging the reliability
of the prosecution expert under Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993).
Petitioner is not entitled to relief on this claim. First, as
respondent argues, petitioner did not present this claim in the state
courts. Instead, he challenged the constitutionality of the procedure
for expert witness discovery in K.S.A. 2013 Supp. 22-3212(c)(2), which
does

not

require

the

State

to

provide

reciprocal

information

concerning a prosecution rebuttal expert witness. However, both the
trial court and the KCOA determined that petitioner’s own expert
witness was a rebuttal witness who fell outside the requirements of
the statute. The KCOA found that, as a result, petitioner did not
suffer adverse consequences by operation of the statute cited by him,
and that, to the extent he voluntarily complied with it, any error
was invited error which he could not challenge on appeal. Grey, 2016
WL 1169398, **8-9 (Kan. App. 2016).
It is settled that “federal habeas corpus relief does not lie to
review

state

law

questions

about

the

admissibility

of

evidence.” Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001).
Therefore, any challenge to the state courts’ interpretation of the
applicability of the state statute to petitioner is not grounds for

Case 5:18-cv-03093-SAC Document 26 Filed 08/13/21 Page 12 of 15

relief. Likewise, the Tenth Circuit has stated that Daubert is not
relevant in a habeas action brought under § 2254, as it does not
establish constitutional guidelines but

instead interprets the

Federal Rules of Evidence. Mann v. Aldridge, 770 F. App’x 931, 933
(10th Cir. 2019)(citing Wilson v. Sirmons, 536 F.3d 1064, 1101-02 (10th
Cir. 2008)). “Absent a showing that the admission of the evidence
violated a specific constitutional guarantee, a federal [habeas]
court ... will not disturb the ... evidentiary ruling unless it was
so grossly prejudicial that it fatally infected the trial and denied
the fundamental fairness that is the essence of due process.” Wilson,
id.
Having considered the record, the court finds no grounds to
support petitioner’s claim. Both the trial court and the KCOA
carefully

and

reasonably

evaluated

the

petitioner’s

arguments

concerning the state statute, and the record does not show that
petitioner

was

denied

fundamental

fairness

by

the

evidentiary

rulings.
Ground 3: Denial of due process by burden shifting
Petitioner claims he was denied due process by the introduction
at trial of statements in a recorded police interview in which
Detective Hanson questioned him. He alleges the failure to redact
portions of the interview violated his rights by allowing the jury
to hear comments that shifted the burden of proof.
Prior to trial, the district court granted some of petitioner’s
requests to redact the video but denied others. At trial, petitioner’s

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counsel did not object when the prosecution moved to admit the
interview during Detective Hanson’s testimony. Instead, counsel
requested a limiting instruction. On the next day, after Detective
Hanson finished his testimony, defense counsel renewed the pretrial
objection

to

the

interview.

The

district

court

overruled

the

objection.
On appeal, the KCOA cited K.S.A. 60-404, which requires a
contemporaneous objection to the admission of evidence. It held that
petitioner’s pretrial objection was insufficient to preserve the
objection for appeal, nor did petitioner’s objection after the
interview was shown to the jury satisfy the contemporaneous objection
requirement and preserve the claim for appeal.
The KCOA also conducted a brief review on the merits and
determined that the district court had not committed error. The KCOA
determined that the statements of Detective Hanson in the video did
not

explicitly

challenge

petitioner’s

encouraged him to talk and to explain

credibility

but

instead

inconsistencies in his

statements1. Next, while Kansas case law clearly establishes that a
prosecutor cannot misstate the burden of proof or attempt to shift
it, petitioner identified no case law that found such statements
introduced in a recorded police interview operate to illegally shift
the burden. Finally, the KCOA noted that the district court had
properly instructed the jury on the burden of proof, and that juries
During the police interview, petitioner first stated that he did not know the victim
and then stated he could not remember her name or any contact with her. Police then
confronted with the DNA evidence. R. Vol. 33, pp. 1090-91, 1093-99. At trial, he
testified that he remembered the victim when he saw her at a pre-trial hearing, and
his defense was that the two had consensual intercourse.
1

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are presumed to follow instructions given by the court. Grey, 2016
WL 1169398, at **11-12.
Here, petitioner’s claim is procedurally defaulted due to his
failure to make a contemporaneous objection. Petitioner has not shown
cause and prejudice, nor has he demonstrated that a fundamental
miscarriage of justice will occur if this claim is not considered.
The court concludes that review of this issue is barred and agrees
that the questioning presented in the recorded police interview did
not deny petitioner a fair trial. Petitioner is not entitled to relief
on this claim.
Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, “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 should issue “only
if the applicant has made a substantial showing of the denial of a
constitutional right,” and the Court identifies the specific issue
that meets that showing. 28 U.S.C. § 2253.
The court has carefully considered the record and petitioner’s
claims of error and concludes both that he is not entitled to relief
and that he has not made a substantial showing that his constitutional
rights were violated in the criminal proceeding against him. No
certificate of appealability will issue.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed and all relief is denied.

Case 5:18-cv-03093-SAC Document 26 Filed 08/13/21 Page 15 of 15

IT IS FURTHER ORDERED no certificate of appealability will issue.
IT IS SO ORDERED.
DATED:

This 13th day of August, 2021, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge