Sumpter v. Kansas, State of

Filing 28

MEMORANDUM AND ORDER ENTERED: The petition for relief pursuant to 28 U.S.C. § 2254 is granted in part and denied in part. The petition is granted with respect to petitioner's aggravated kidnapping conviction, which is hereby vacated. The petition is otherwise denied. Petitioner's motion for discovery and an evidentiary hearing (Doc. # 23 ) is denied. The State's motion to strike petitioner's notice of supplemental authority (Doc. # 25 ) is denied. Signed by District Judge John W. Lungstrum on 09/10/20. (smnd)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TIMOTHY SUMPTER,

)
)
Petitioner,
)
)
v.
)
)
STATE OF KANSAS,
)
)
Respondent.
)
)
_______________________________________)

Case No. 19-3267-JWL

MEMORANDUM AND ORDER
This matter comes before the Court1 on Timothy Sumpter’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition
is granted in part and denied in part. The petition is granted with respect to petitioner’s
aggravated kidnapping conviction, which is hereby vacated. The petition is otherwise
denied. In addition, petitioner’s motion for discovery and an evidentiary hearing (Doc. #
23) is denied, and the State’s motion to strike petitioner’s notice of supplemental authority
(Doc. # 25) is denied.

I.

Background

Petitioner was charged in the District Court of Sedgwick County, Kansas, with
various offenses in three separate cases arising out of his alleged attacks on four women:

1

This case was reassigned to the undersigned judge on June 19, 2020.

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11-CR-1187 (involving alleged victim A.E.); 11-CR-1290 (A.C. and A.P.); and 11-CR1638 (J.B.). The district court granted the State’s motion to consolidate the cases for trial.
In 2012, a jury convicted petitioner of the following offenses: one count of aggravated
kidnapping, in violation of K.S.A. § 21-3421 (J.B.); one count of attempted rape, in
violation of K.S.A. § 21-3301 (J.B.); two counts of aggravated sexual battery, in violation
of K.S.A. §21-3518(a)(1) (A.E. and J.B.); two counts of sexual battery, in violation of 213517(a) (A.C. and A.P.); and one count of criminal restraint, in violation of K.S.A. § 213424(a) (A.E.). The district court sentenced petitioner to 351 months of incarceration. The
Kansas Court of Appeals (KCOA) upheld petitioner’s convictions and sentence, and the
Kansas Supreme Court denied review. See State v. Sumpter, 2013 WL 6164520 (Kan. Ct.
App. Nov. 22, 2013) (unpub. op.) (per curiam), rev. denied (Kan. Jan. 15, 2015).
On May 2, 2017, the state district court denied petitioner’s petition for postconviction relief pursuant to K.S.A. § 60-1507. On January 18, 2019, the KCOA affirmed
that decision, and again the Kansas Supreme Court denied review. See Sumpter v. State,
2019 WL 257974 (Kan. Ct. App. Jan. 18, 2019) (unpub. op.), rev. denied (Kan. Dec. 16,
2019). On December 30, 2019, petitioner filed the instant petition under Section 2254.
The parties have briefed petitioner’s claims, and the petition is now ripe for ruling.

II.

Governing Standards

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), provides for consideration of a prisoner’s writ of habeas corpus on the
ground that “he is in custody in violation of the Constitution or laws or treaties of the United
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States.” See 28 U.S.C. § 2254(a). The petitioner must exhaust state court remedies. See
id. § 2254(b), (c). Relief shall not be granted with respect to a claim adjudicated on the
merits in state court unless the adjudication “(1) 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) 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.” See id. § 2254(d). The standard is very strict, as explained by the Tenth
Circuit:
The KCOA [Kansas Court of Appeals] rejected this clam on the merits. Our
review is therefore governed by the AEDPA, which erects a formidable
barrier to federal habeas relief and requires federal courts to give significant
deference to state court decisions on the merits.
. . .
Clearly established law is determined by the United States Supreme
Court, and refers to the Court’s holdings, as opposed to the dicta. A state
court decision is “contrary to” the Supreme Court’s clearly established
precedent if the state court 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.
A state court decision is an “unreasonable application” of Supreme
Court precedent if the state court identifies the correct governing legal rule
from the Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case. Evaluating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general
the rule – like the one adopted in Strickland – the more leeway state courts
have in reaching outcomes in case-by-case determinations. An unreasonable
application of federal law is therefore different from an incorrect application
of federal law.
We may issue the writ only when the petitioner shows there is no
possibility fairminded jurists could disagree that the state court’s decision
conflicts with the Supreme Court’s precedents. Thus, even a strong case for
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relief does not mean the state court’s contrary conclusion was unreasonable.
If this standard is difficult to meet – and it is – that is because it was meant
to be. Indeed, AEDPA stops just short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings.
Accordingly, we will not likely conclude that a State’s criminal justice
system has experienced the extreme malfunction for which federal habeas
relief is the remedy.
See Frost v. Pryor, 749 F.3d 1212, 1222-24 (10th Cir. 2014) (internal quotations and
citations and footnote omitted).

III.

Motion for an Evidentiary Hearing and Discovery

By separate motion, petitioner requests an evidentiary hearing on his claims.
Specifically, petitioner requests a hearing to address the issues of whether counsel’s
performance was deficient and whether African-Americans were systematically
underrepresented on jury venires in Sedgwick County District Court at the time of his trial.
The Court denies this request.
First, a hearing concerning counsel’s performance would not be helpful to the
resolution of petitioner’s ineffective assistance claims, as those claims may be decided on
the record before the Court.

With respect to the claim concerning the aggravated

kidnapping conviction, on which the Court has granted relief, the Court is able to determine
that counsel’s performance was deficient based on the state court record. See infra Part
IV.A. Petitioner’s other ineffective assistance claims have been denied based on a lack of
prejudice, and thus no factual determinations concerning counsel’s performance are
required. See infra Part IV.B, C, D, E.

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Second, the Court denies the request for hearing by which petitioner seeks to
develop evidence to support his jury venire claim. Section 2254 provides that state court
factual determinations are presumed to be correct, and that if a petitioner has failed to
develop the factual basis for a claim in the state courts, the federal court shall not hold an
evidentiary hearing unless the petitioner shows (a) that the claim relies on a new rule of
constitutional law or on a factual predicate that could not have been discovered previously
with due diligence; and (b) the facts show by clear and convincing evidence that the
petitioner would not have been convicted but for constitutional error. See 28 U.S.C. §
2254(e). Petitioner argues that he acted with due diligence by requesting an evidentiary
hearing in the state courts.
It is true that if a state court has made factual findings without considering the
petitioner’s evidence, then a federal court should not necessarily defer to those findings,
and a federal court hearing may be warranted. See Wilson v. Sirmons, 536 F.3d 1064, 1079
(10th Cir. 2008). In this case, however, as discussed below, the state courts did not make
a factual finding; rather, those courts ruled that petitioner had failed to present evidence to
support

his

claim

that

African-Americans

were

systematically

excluded

or

underrepresented in the county’s jury venires. See infra Part IV.E.
“[A]n evidentiary hearing is not a fishing expedition. Instead, its function is to
resolve disputed facts.” See Banks v. Workman, 692 F.3d 1133, 1144 n.4 (10th Cir. 2012);
see also Anderson v. Attorney Gen’l of Kan., 425 F.3d 853, 860 (10th Cir. 2005) (“[t]he
purpose of an evidentiary hearing is to resolve conflicting evidence;” court did not abuse
its discretion in denying an evidentiary hearing when petitioner did not cite evidence
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supporting his claim). A federal district court is not required to conduct an evidentiary
hearing on a claim if the petitioner has not presented available evidence. See Cannon v.
Mullin, 383 F.3d 1152, 1177 (10th Cir. 2004). “District courts are not required to hold
evidentiary hearings in collateral attacks without a firm idea of what the testimony will
encompass and how it will support a movant’s claim.” See United States v. Cervini, 379
F.3d 987, 994 (10th Cir. 2004).
Although petitioner requests a hearing to support his claim, he has not proffered any
evidence to be presented at such a hearing, and thus there are no disputed facts to be
resolved at such a hearing. Nor did petitioner identify any such evidence in requesting a
hearing in the state courts. Petitioner is not entitled to an evidentiary hearing in order to
conduct a fishing expedition for favorable evidence.

Accordingly, a hearing is not

warranted in this case.
In the same motion, petitioner requests leave to conduct discovery, again with
respect to his ineffective assistance claims and his jury venire claim. A habeas petitioner
is not entitled to discovery as a matter of course. See Bracy v. Gramley, 520 U.S. 899, 904
(1997). Under the applicable rule, a party shall be entitled to discovery if the judge grants
leave in the exercise of his or her discretion and for good cause shown. See id. (citing Rule
6(a), Rules Governing § 2254 Cases). Good cause may exist where specific allegations
provide a reason to believe that the petitioner may be able to demonstrate entitlement to
relief. See id. at 908-09. Mere speculation is unlikely to provide good cause for a discovery
request on collateral review. See Strickler v. Greene, 527 U.S. 263, 286 (1999).

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The Court concludes in its discretion that petitioner has not established good cause
for discovery in this case. Again, additional evidence concerning the performance of trial
and appellate counsel would not affect this Court’s rulings, as the Court has denied the
ineffective assistance claims based on a lack of prejudice. With respect to the jury venire
issue, petitioner has not identified specific evidence to support his claim that he expects to
obtain through discovery, and the Court will not authorize a fishing expedition based on
mere speculation. Accordingly, the Court denies the request for discovery.

IV.

Analysis of Petitioner’s Claims
A.

Kidnapping Conviction

Petitioner first claims that he received ineffective assistance of trial and appellate
counsel with respect to their defense of the charge of the aggravated kidnapping of J.B. in
violation of K.S.A. § 21-3421.

“To establish ineffective assistance of counsel, [a]

[d]efendant must show >that counsel=s representation fell below an objective standard of
reasonableness= and that he was prejudiced by the deficient performance.” United States
v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland v. Washington, 466
U.S. 668, 687-88, 692 (1984)). The test for establishing prejudice is as follows:
The defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
See Strickland, 466 U.S. at 694. The defendant does not need to show that counsel’s
deficient performance more likely than not altered the outcome. See id. at 693.
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Petitioner argues that he should not have been convicted of aggravated kidnapping
because any confinement of the victim by force was not independent of the intended crime
of attempted rape under the standard set forth by the Kansas Supreme Court in State v.
Buggs, 219 Kan. 203 (1976). Petitioner argues – and the record reveals – that trial counsel
failed to assert that defense at any stage, including at the preliminary hearing, in examining
the witnesses, in arguing for a directed verdict, in proposing and arguing jury instructions,
and in closing argument. Nor did appellate counsel raise this issue on direct appeal. To
determine whether counsel were deficient in failing to raise this issue and whether
petitioner suffered prejudice from that failure, the Court must examine the merits of
petitioner’s argument under Kansas kidnapping law.
At trial, J.B. testified to the following facts: Petitioner approached J.B. as she
walked to her car from a bar in Wichita. When she was halfway into her car, petitioner
forced his way inside with her, punched her, and closed the door. A physical fight ensued,
during which petitioner punched J.B. multiple times, he choked her with his knee on her
throat as she lay on the floor of the passenger side, and he grabbed her hand and ripped it
down when she attempted to reach for the door handle. J.B. blacked out, and when she
came to, she found petitioner masturbating while still choking her with his knee. When
petitioner placed her hand on his penis, she pretended to go along, but then punched
petitioner and managed to kick him out of the car and lock the doors. Petitioner ended up
with J.B.’s car keys, however, and he dangled them in front of the window for her to see.
Petitioner had ripped the keys out of J.B.’s hand at the beginning of the fight, which, based
on his statements at the time, she believed he had done because he did not want J.B. to use
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the mace attached to the keychain. J.B. did not know whether petitioner had thrown the
keys out of the car at any point or how the keys ended up outside. J.B. opened the door
slightly to accept petitioner’s offer of the keys, but petitioner forced his way into the car
again, and the fight resumed, during which time petitioner rubbed his crotch against J.B.’s
rear. Again J.B. managed to kick petitioner out of the car, and she was able to escape when
other persons approached the car.
In his testimony, petitioner described J.B. as the aggressor, and he stated that he was
pulled into the car when J.B. grabbed his shirt. He claimed that he slapped J.B. but did not
punch her. He stated that he did intend to have sex with her, after she came on to him. He
testified that he pulled the mace off the keychain and threw it out of the car, and that he
choked J.B. to take her keys from her hand because she was hitting him with the keys. He
did not recall if he threw the keys out of the car. He admitted that he did commit a sexual
battery against J.B.
Under K.S.A. § 21-3421, aggravated kidnapping is a kidnapping in which bodily
harm is inflicted upon the person kidnapped. See id. Kidnapping is defined as follows:
Kidnapping is the taking or confining of any person, accomplished by force,
threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage;
(b) to facilitate flight or the commission of any crime;
(c) to inflict bodily injury or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political
function.
See id. § 21-3420.
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In petitioner’s case, this charge was submitted to the jury only as a confining by
force with the intent to facilitate the commission of the crime of rape. Thus, the charge
was not submitted to the jury, and the jury was not instructed, on a theory that would also
include a “taking” under the statute. The Kansas Supreme Court has indicated that “taking”
and “confining” describe different conduct for purposes of this statute. See State v.
Holloman, 240 Kan. 589, 594 (1987). At the hearing in the trial court on petitioner’s postconviction petition, the State argued that there was sufficient evidence under the
kidnapping statute based on petitioner’s taking J.B. into the car and his confining her in the
care by his use of force and threats while fighting with her inside the car and by his use of
deception while outside the car with her keys. The State then conceded, however, that
because the “taking” element was not submitted the jury, the court could disregard the
argument based on taking J.B. into the car, and the court agreed that the State had
abandoned any such argument based on a taking. Similarly, only the element of force was
submitted to the jury; thus, the State may not justify the conviction by reference to
deception or threats, and the State has made no such argument to this Court.
Petitioner’s position is based on the Kansas Supreme Court’s interpretation of the
kidnapping statute in Buggs. The court interpreted the “facilitation” requirement of Section
21-3420(b) as follows:
To be kidnapping, therefore, the taking need not be necessary to the
accomplishment of the underlying crime, but it must be aimed at making it
at least “easier”.
Further, to facilitate in our minds means something more than just to
make more convenient. We think that a taking or confining, in order to be
said to “facilitate” a crime, must have some significant bearing on making
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the commission of the crime “easier” as, for example, by lessening the risk
of detection.
. . . We agree with [other courts whose cases were discussed
previously in the opinion] that a kidnapping statute is not reasonably intended
to cover movements and confinements which are slight and “merely
incidental” to the commission of an underlying lesser crime. Thus the
“standstill” robbery and the ordinary rape require as a necessary incident
some “confinement” of the victim – they are nevertheless not kidnappings
solely for that reason. In the light of our statute, however, we cannot agree
that merely because a taking “facilitates” another crime it must necessarily
be “merely incidental” to the other crime. Whether a taking substantially
“facilitates” another crime or whether it is “merely incidental” are two
different things. The same taking cannot be both.
See Buggs, 219 Kan. at 215. The court announced its holding as follows:
We therefore hold that if a taking or confinement is alleged to have
been done to facilitate the commission of another crime, to be kidnapping
the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other
crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it
makes the other crime substantially easier of commission or substantially
lessens the risk of detection.
See id. at 216. The court provided the following non-exhaustive list of examples:
For example: A standstill robbery on the street is not a kidnapping;
the forced removal of the victim to a dark alley for robbery is. The removal
of a rape victim from room to room within a dwelling solely for the
convenience and comfort of the rapist is not a kidnapping; the removal from
a public place to a place of seclusion is. The forced direction of a store clerk
to cross the store to open a cash register is not a kidnapping; locking him in
a cooler to facilitate escape is.
See id.

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Petitioner argues that any confinement of J.B. by force did not satisfy the
requirement of Buggs that the confinement be independent of, and not incidental to and
inherent in, his attempted rape of J.B. With the State having abandoned a theory of
kidnapping based on petitioner’s taking J.B. into the car, petitioner could have confined
J.B. under Buggs in two ways during the encounter: while fighting with J.B. inside the car;
and while holding J.B.’s keys outside the car.
The Court first addresses petitioner’s conduct outside the car, as the KCOA relied
solely on that conduct in denying petitioner post-conviction relief. The KCOA concluded
that petitioner confined J.B. after he had been kicked out of the car by retrieving her keys
and thus trapping her in the car (she could not drive away, and he could seize her if she
attempted to get out). See Sumpter, 2019 WL 257974, at *4. The KCOA further concluded
that such confinement was independent of the attempted rape for purposes of Buggs. See
id. at *5. The KCOA reached that conclusion in deciding that the evidence was sufficient
to support a kidnapping conviction and that petitioner therefore could not establish the
necessary prejudice under Strickland. See id. at *3. The KCOA applied the wrong
standard, however – the issue is not whether the evidence was legally sufficient; the issue
is whether there is a reasonable probability of a different outcome. Thus, the state court’s
ruling deviated from the controlling federal standard and was contrary to clearly
established federal law. See Milton v. Miller, 744 F.3d 660, 670 (10th Cir. 2014). The
result is that this Court does not defer to the KCOA’s resolution of this claim, and instead
reviews the claim de novo. See id. at 671.

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The Court agrees with the KCOA that petitioner’s conduct outside the car was
independent of the sexual assault of J.B. Petitioner does not argue otherwise. Petitioner
argued to the KCOA, however, and argues to this Court, that any confinement from outside
the car could not support the conviction because any such confinement was not by force.
The KCOA did not address this argument or explain how petitioner’s conduct outside the
car constituted confinement by force (as opposed to by deception or threat, which theories
were not submitted to the jury). In its brief to this Court, the State has merely relied on the
KCOA’s opinion, and thus the State has failed to identify any Kansas authority to suggest
that petitioner could have confined J.B. by force in this manner from outside the car. Nor
has the Court located any such authority. Cf. State v. Ransom, 239 Kan. 594, 601 (1986)
(chase did not constitute kidnapping; “[a]ny kidnapping must have occurred after the
defendant made actual contact with the victim”). Considering only petitioner’s conduct
outside the car (as the KCOA did), if counsel had raised and argued this issue, petitioner
would have had a strong defense to the kidnapping charge.
Although in proceedings in this Court the State has not relied on any conduct by
petitioner inside the car, the trial court, in denying post-conviction relief, relied on
petitioner’s conduct both inside and outside the car. The court cited petitioner’s conduct
in pushing her into the car and forcing his way inside, striking her and holding her down,
choking her and preventing her from yelling, grabbing her hand when she reached for the
door, and taking her keys. This Court does not agree with the state court, however, that
such conduct is independent of and not incidental to petitioner’s sexual assault of J.B.

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As noted above, the State abandoned any argument based on petitioner’s taking J.B.
by pushing her into the car, as no theory of kidnapping by taking was submitted to the jury.
The remaining conduct by petitioner inside the car to restrain J.B. occurred entirely during
his physical fights with J.B. as he attempted to hold her down in order to commit the sexual
assault. As noted above, in Buggs the Kansas Supreme Court stated that the “standstill
robbery” and the “ordinary rape” necessarily require some confinement, but that such
confinement does not by itself support a kidnapping offense. See Buggs, 219 Kan. at 215.
The supreme court applied that distinction in State v. Cabral, 228 Kan. 741 (1980), in
which the court reversed a kidnapping conviction. In Cabral, the victim rode in the
defendant’s car for a period by consent, and then the defendant turned into a park, locked
the door, proceeded behind a tree, and forcibly raped the victim. See id. at 743-44.
Applying the Buggs standard, the court reasoned as follows:
We have concluded that, under all the factual circumstances presented
in the record, a separate and independent crime of kidnapping was not
established. Here the defendant and his victim had been together all evening,
driving around Hutchinson and stopping at various places by mutual consent.
After leaving the first park and on the way to the dormitory where the victim
resided, the defendant simply turned into the second park, locked the door,
and proceeded to rape his victim. When forcible rape occurs in an
automobile, of necessity, some confinement of the woman is a necessary part
of the force required in the commission of the rape. Such a confinement is
of a kind inherent in the nature of forcible rape and incidental to the
commission of the rape.
See id. at 744-45 (emphasis added).
Cabral is the most apt precedent by which to consider the application of Buggs to
petitioner’s conduct in J.B.’s car. Petitioner’s conduct in restraining J.B. occurred while
fighting with her in his attempt to commit sexual assault, and the Kansas Supreme Court
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made clear in Cabral that such conduct is merely incidental to the assault. The state trial
court cited petitioner’s conduct in grabbing J.B.’s hand when she reached for the door
handle; but as the supreme court recognized, a perpetrator must confine the victim
somewhat – and obviously prevent her from leaving – to commit the crime of rape.
Petitioner did not take J.B. to another location to avoid detection or otherwise to facilitate
the rape; in the parlance of the Cabral court, he simply proceeded to assault J.B. once he
was alone with her in the car.
Some Kansas courts, in distinguishing Cabral, have noted that the victim in Cabral
had consensually ridden around with the defendant for a period of time preceding the
assault. Indeed, J.B. did not voluntarily spend the evening with petitioner prior to the
assault in this case. The point of the Cabral court in citing that fact, however, was that the
defendant had not taken or confined the victim until immediately prior to and as part of the
assault. Moreover, in each of those other cases in which Cabral was distinguished, there
was some conduct by the defendant that took the case beyond the “ordinary” rape in a
single confined place in a relatively short time frame – for instance, the defendant had taken
the victim or used restraints or moved the victim to a different place to facilitate the assault.
See, e.g., State v. Halloway, 256 Kan. 449, 452-53 (1994) (defendant did not rape the victim
in the car, but dragged her into woods away from the highway to lessen the risk of
detection); State v. Blackburn, 251 Kan. 787, 794 (1992) (defendant lessened the risk of
detection by driving the victim to other locations); State v. Zamora, 247 Kan. 684, 696
(1990) (conduct went beyond that of Cabral; defendant’s tying and gagging the victim and
his lying in front of the door to the residence to prevent escape was not merely incidental
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to and inherent in an “ordinary” rape); State v. Howard, 243 Kan. 699, 702 (1988)
(defendant restrained the victim in a house for hours and refused to let her leave when she
tried to flee after the assault); State v. Coberly, 233 Kan. 100, 105 (1983) (victim rode with
the defendant for a prolonged period because of deception); State v. Montes, 28 Kan. App.
2d 768, 772 (2001) (defendant drove the victim to another location to facilitate the assault),
rev. denied (Kan. June 12, 2001, and July 11, 2001).
Again, in the present case, the alleged confinement took place within the car, at a
single location, during the attempted assault. The State has not addressed the conduct
inside the car, and thus the State has not cited any Kansas case in which such conduct solely
within a vehicle has been found sufficient to support a kidnapping conviction. Cabral is
thus the most apt case here.
This conclusion is further supported by the KCOA’s opinion in State v. Burden, 30
Kan. App. 2d 690 (2002), rev’d, 275 Kan. 934 (2003). In Burden, the defendant had beaten
and raped the victim in the bathroom of a residence, chased her when she fled toward the
back door, and caught her and dragged her back to a bedroom, where he continued to beat
and threaten her. See id. at 700. The KCOA held that under the Buggs standard, such
conduct was “part and parcel of the beating rather than a crime apart from it,” and that the
defendant’s movement of the victim “only enabled him to continue what he had started and
was incidental to it.” See id. at 700-01. The Kansas Supreme Court reversed, but only
based on its holding that the Buggs standard for “facilitation” did not apply to a kidnapping
conviction under K.S.A. § 21-3420(c) (taking or confining with intent to inflict injury or

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terrorize); thus it did not find fault with the KCOA’s conclusion that the conduct at issue
would not satisfy the Buggs standard. See Burden, 275 Kan. 934.
Mere days ago, the KCOA again applied the Buggs standard to reverse a kidnapping
conviction in State v. Olsman, __ P.3d __, 2020 WL 5265521 (Kan. Ct. App. Sept. 4, 2020).
The court held that the forceful confinement of the victim in that case was incidental and
inherent to the force used to commit the attempted rape of the victim, as he “committed the
attempted rape by physically overpowering [the victim] and continuing to physically
control her movements, in spite of her efforts to resist the attack,” until she was able to
leave. See id. at *5. The court also stated:
Rape through force necessarily and inherently requires confinement
of the victim to a particular place where the rape occurs. After all, if the
victim were allowed to leave, there would be no rape.
See id. at *7.
The Buggs standard applies to petitioner’s conviction under Section 21-3420(b), and
as in Cabral and Burden and Olsman, the confining conduct at issue (in J.B.’s car) –
including efforts to prevent J.B. from leaving – was part and parcel of the intended assault.
One might argue (although the State made no such argument here) that petitioner
confined J.B. when he forcibly took her car keys while in the car, thereby hindering her
ability to flee. Such conduct would not necessarily be required as part of the assault. The
testimony at trial, however, does not support such a theory of confinement. J.B. testified
that petitioner made reference to the attached mace and took the keys to prevent J.B. from
using that mace. She also testified that she did not know how the keys ended up outside
the car. Petitioner testified that he ripped the mace off the keys and discarded it, and that
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he grabbed the keys away so that J.B. could no longer hit him with the keys in her hand.
He further testified that he did not know whether he threw the keys out of the car. Thus,
there was no certain evidence (only petitioner’s speculation that he might have done so)
that petitioner threw the keys out of the car (as opposed to finding the keys outside where
they fell when petitioner was kicked out), and there was no evidence at all that he took the
keys to prevent J.B. from driving away. Thus, a reasonable jury that followed the testimony
would not likely find that petitioner confined J.B. by taking her keys and throwing them
outside the car.
The Court thus concludes, based on the Kansas precedent, that if confronted with
the issue the Kansas Supreme Court would rule that petitioner’s conduct inside the car
(after he forced his way inside) did not constitute a separate crime of kidnapping under the
Buggs standard. As discussed above, petitioner also had a strong defense based on his
conduct outside the car.
Accordingly, petitioner could have raised a defense to the kidnaping charge as
submitted to the jury (confinement only, by force only) with a great likelihood of success
based on the kidnapping statute as interpreted in Buggs and Cabral. Based on the strength
of that defense, there is little doubt that counsel’s failure to raise that defense, based on
settled caselaw, before or during or after trial, was objectively unreasonable. Buggs is the
seminal and oft-cited standard for the key facilitation element of the offense, and in light
of the facts here, the Court can divine no possible strategic reason for failing to hold the
State to that standard in its proof. That failure to appreciate and assert this defense was
especially inexcusable considering that this conviction proved the most serious for
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purposes of petitioner’s sentencing. Thus, the Court concludes that counsel’s performance
in this regard was constitutionally deficient.
The Court further concludes that petitioner has established the requisite prejudice
here.2 Under existing Kansas precedent, there is a significant likelihood that the Kansas
Supreme Court would have ruled as a matter of law in petitioner’s favor on this issue; and
there is also a significant likelihood that a jury, if properly instructed on the law under
Buggs and Cabral, would have found that petitioner did not confine (not merely take) J.B.
by force (not by threat or deception), based on the charge submitted to it. The strength of
this defense under Kansas law creates a probability of a different outcome sufficient to
undermine confidence in the kidnapping conviction. Petitioner is therefore entitled to
relief.
The Court takes this opportunity to stress that by this ruling it does not mean to take
away from the seriousness of petitioner’s sexual assault of J.B., whose testimony about
petitioner’s horrific conduct the jury credited. Petitioner was convicted of the attempted
rape and aggravated sexual battery of J.B., and he was sentenced for those crimes.
Nevertheless, Kansas law does not permit his additional conviction of the crime of
kidnapping through confinement based on the force used to commit the assault, and when
his counsel failed to assert that defense, petitioner was denied his constitutional right to the
effective assistance of counsel. The Court therefore must order that petitioner’s conviction

2

The Court does not agree with petitioner that he was completely denied counsel or
that counsel entirely failed to subject the State’s case to meaningful adversarial testing,
such that prejudice may be presumed under United States v. Cronic, 466 U.S. 648, 659 &
n.25 (1984).
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and sentence for aggravated kidnapping be vacated. Petitioner is entitled to a new trial on
that charge, and the instant petition is granted to that extent.
B.

Consolidation of Cases

In the case involving two alleged victims, the trial court denied petitioner’s motion
to sever the charges into separate cases, one for each victim. The trial court also granted
the State’s motion to consolidate the three cases (involving four alleged victims) for trial.
On direct appeal, the KCOA rejected petitioner’s challenge to the consolidation, holding
that the alleged crimes were of the same or similar character as required for consolidation
under K.S.A. § 22-3203 and that the trial court therefore did not abuse its discretion in
consolidating the cases. See Sumpter, 2013 WL 6164520, at *3-6.
Petitioner now claims that his appellate counsel’s performance was constitutionally
deficient because she failed to challenge the denial of the motion for severance and thus
failed to argue that the trial court violated its continuing duty to sever all four sets of
charges to prevent prejudice to petitioner. See, e.g., State v. Coburn, 38 Kan. App. 2d
1036, 1058-59 (2008) (citing State v. Shaffer, 229 Kan. 310, 312 (1981)), rev. denied (Kan.
July 3, 2008). The state district court and the KCOA denied this claim of ineffective
assistance of counsel. See Sumpter, 2019 WL 257974, at *5-10. Although petitioner
challenged only appellate counsel’s performance, the KCOA treated the claim as one
involving both trial and appellate counsel. See id. at *5. After a thorough analysis, the
KCOA concluded that petitioner could not demonstrate undue prejudice from
consolidation, primarily because in separate trials evidence of the other alleged incidents
would have been admissible and would likely have been introduced and admitted. See id.
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at *5, 8-10. The KCOA also noted that in separate trials petitioner would have in fact been
disadvantaged because in the consolidated trial jurors were instructed not to consider
evidence involving one incident in deciding charges based on another incident, while in
separate trial jurors would essentially have been free to consider evidence of all of the
incidents for any purpose. See id. at *10. The KCOA further concluded that the verdicts
did not reveal any obvious prejudice, as the mixed verdicts (involving an acquittal and
conviction on lesser included offenses) indicated that the jury did not act in a blanket
fashion but considered each charge involving each victim separately. See id. at *8. Finally,
the KCOA rejected petitioner’s argument that in separate trials he could have chosen to
testify in some and remain silent in others, as based on a faulty premise that other incidents
would not be in evidence in separate trials; the implication is that if multiple incidents were
at issue in a separate trial, petitioner would have had to testify to address any incident, just
as he did in the consolidated trial. See id. at *10.
In pursuing this claim in this Court, petitioner repeats the same arguments rejected
by the KCOA concerning whether he suffered undue prejudice from consolidation and a
denial of severance. He argues that appellate counsel, in challenging the propriety of
consolidation on direct appeal, unreasonably failed to make the separate argument that
consolidation resulted in undue prejudice. With respect to Strickland’s second prong,
petitioner argues that such an appeal would have been successful, and that the KCOA
applied the Strickland standard unreasonably in failing to address that precise question.
It is true that the KCOA’s opinion is not clear with respect to its application of
Strickland’s second prong. The KCOA chose to “pass” on reviewing counsel’s strategic
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considerations in arguing the consolidation issue, and thus it skipped to the second prong
relating to prejudice. See id. at *7. It stated that the second prong required it to explore
whether the outcome might have been different with separate trials. See id. As noted, it
concluded that separate trials would not have been materially different because evidence
of other incidents likely would have been admitted even in separate trials. See id. at *710.
The Tenth Circuit has made clear that in evaluating a claim of ineffective assistance
of appellate counsel in a Section 2254 proceeding, under clearly established law the
requirement of prejudice under Strickland’s second prong “means the defendant must show
a reasonable probability that, but for his counsel’s unreasonable failure to raise a particular
nonfrivolous issue, he would have prevailed on his appeal.” See Milton v. Miller, 744 F.3d
660, 669 (10th Cir. 2014) (internal quotations omitted) (quoting Smith v. Robbins, 528 U.S.
259, 285 (2000)). Thus, the issue is whether petitioner probably would have prevailed on
appeal if counsel had raised this issue concerning prejudice from consolidation. In
focusing on whether separate trials would have been different instead of on whether the
appeal would have succeeded, the KCOA appears not to have applied the correct standard
under Strickland’s prejudice prong.3

Accordingly, the Court reviews petitioner’s

ineffective-assistance claim de novo. See id. at 671.

This seeming misapplication may have resulted from the KCOA’s consideration
of the claim as involving both trial and appellate counsel, as prejudice from trial counsel’s
failure to argue the issue properly would depend on the likely outcome in the trial court.
In his initial and reply briefs to the KCOA, petitioner clearly claimed ineffective assistance
by appellate counsel; thus, the source of the KCOA’s confusion is unclear.
3

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The Court concludes, however, that petitioner has failed to show that a prejudicefrom-consolidation argument would likely have succeeded on direct appeal. Petitioner
notes that on direct appeal one judge issued a concurring opinion, stating that he concurred
with respect to the consolidation issue “based on how the parties framed and argued the
issue on appeal.” See Sumpter, 2013 WL 6164520, at *12 (Atcheson, J., concurring). That
same judge authored the KCOA’s post-conviction opinion, however, and that opinion
includes the following footnote:
As a member of the panel deciding the direct appeal, I wrote a short
concurrence that deliberately bordered on the delphic but hinted at
reservations about consolidation. I was troubled by the possibility of undue
prejudice to [petitioner] in a single trial of all four incidents. But the
appellate lawyer did not brief that issue and at oral argument indicated she
hadn’t really considered it. So I confined my review to what the parties
presented. The issue has been fully briefed in this proceeding. Based on that
argument and the broad legislative mandate in [Kansas Rule 455(d)], I am
persuaded [petitioner] did not face legally impermissible prejudice in the
consolidated trial.
See Sumpter, 2019 WL 257974, at *7 n.3 (Atcheson, J.) (citations omitted). Moreover, the
KCOA stated plainly its conclusion that petitioner “cannot demonstrate undue prejudice in
his consolidated trial.” See id. at *5. Thus, given this holding of the KCOA – ruled by a
panel including two of the judges on the panel hearing petitioner’s direct appeal – it is not
likely that petitioner would have prevailed on direct appeal if counsel had argued prejudice
from consolidation. Accordingly, the Court concludes that petitioner has failed to satisfy
Strickland’s prejudice prong, and it therefore denies this claim.
C.

Prosecutorial Misconduct

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On direct appeal, the KCOA rejected petitioner’s argument based on misconduct by
the prosecutor in commenting on petitioner’s credibility in the State’s closing argument.
See Sumpter, 2013 WL 6164520, at *8-11. Petitioner now claims that his appellate counsel
rendered constitutionally deficient performance in failing to argue two other instances of
prosecutorial misconduct.4
Again, because the claim is that appellate counsel failed to raise the issue, the
prejudice inquiry focuses on whether there is a reasonable probability that such an appeal
would have succeeded. See Milton, 744 F.3d at 669. Again, the KCOA did not explicitly
apply that standard. The KCOA made clear in its opinion, however, that such an appeal
by petitioner under Kansas law would not have succeeded. Thus, petitioner cannot
establish the necessary prejudice here.
First, petitioner claims that appellate counsel should have argued that the prosecutor
committed misconduct by misstating the intent element for attempted rape as an intent to
have sex as opposed to an intent to commit rape. In his closing argument, the prosecutor
stated as follows:
And he told you what his intent was with [J.B.]. He minimizes it and
says well, I didn’t go into that car with the intent to have sex with her. But
4

In asserting this claim in this Court, petitioner has argued that these instances of
misconduct violated his right to due process and that both trial and appellate counsel should
have raised these issues. In his petition to the state district court and in his briefs to the
KCOA, however, he claimed only that appellate counsel rendered ineffective assistance
with respect to the instances of prosecutorial misconduct, and the district court and the
KCOA addressed only that narrow basis in denying the claim. See Sumpter, 2019 WL
257974, at *10. Petitioner did not argue to the state courts ineffective assistance by trial
counsel or a due process violation with respect to prosecutorial misconduct. Thus,
petitioner failed to exhaust with respect to any such claim, and this Court has confined its
consideration to a claim of ineffective assistance by appellate counsel.
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clearly he told you on the stand, I was going to have sex with her, I thought,
I thought she wanted it. Clearly he intended to have sex. I don’t have to
prove rape occurred, I don’t have to prove sex occurred, I have to prove he
took her – or I’m sorry, he confined her with the intent to commit sex, commit
rape against her. Clearly that was his intent, he told you even yesterday that’s
what he intended to do.
Petitioner takes issue with the prosecutor’s statement that he had to prove that petitioner
confined the woman “with the intent to commit sex.” The KCOA concluded that this “slip”
did not constitute misconduct, as the prosecutor merely “misspoke, realized as much, and
immediately offered a revised statement of the law to the jurors.” See Sumpter, 2019 WL
257974, at *13. The Court agrees with that description of what occurred.
The Court disagrees with petitioner’s statement that the prosecutor repeated his
misstatement of the law. When the prosecutor argued in that excerpt that petitioner
intended to have sex, he was addressing the defense that petitioner did not intend to have
sex with J.B. when he entered the car; he did not thereby suggest that he need not prove an
intent to have illegal sex. Moreover, the prosecutor had previously argued in closing that
petitioner’s intent was to have sex with J.B. “with or without her consent” and that
petitioner then acted without her consent. Immediately after that argument, the prosecutor
stated the law properly, as follows:
I have to prove that he intended to commit the crime of rape. I don’t have to
prove rape occurred. I have to prove that he intended to commit it.
Thus, the prosecutor’s argument was generally consistent and correct concerning the intent
element. He misstated the element a single time, and then immediately corrected himself
by stating the element correctly. Indeed, his statement that he had to show an intent to

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“commit sex” – instead of a mere intent to “have” sex – demonstrates that he really meant
to state the element correctly, as “commit” suggests an improper act.
Petitioner also argues that the effect of the prosecutor’s misstatement was
exacerbated by the fact that his own counsel stated that the State had to prove an intent to
have sexual intercourse. Of course, a misstatement by his own counsel would not mean
that the prosecutor committed misconduct in making a similar mistake.

Moreover,

petitioner’s counsel did not misstate the intent element. She was merely suggesting that
the State could not prove that he intended to have sex with J.B., which would provide a
defense to the charge that he intended unconsensual sex.

Immediately before that

statement, petitioner’s counsel stated that the State had to prove an intent to rape the
accuser. There is no basis to conclude that the prosecutor was somehow trying to exploit
confusion sown by defense counsel.
Finally, petitioner is incorrect in arguing that the Court failed to correct the
prosecutor’s misstatement. The jury instruction setting forth the elements for the charge
of the attempted rape of J.B. stated properly that the State had to prove an intent by
petitioner to commit the crime of rape, defined as sex without consent.
Accordingly, petitioner has not shown that an appeal based on such a claim of
prosecutorial misconduct would have succeeded. The KCOA reasonably concluded that
the misstatement at issue did not constitute misconduct, and petitioner has not shown that
the KCOA, despite its post-conviction opinion to the contrary, would have found
misconduct to such a degree to require reversal of petitioner’s conviction for attempted
rape of J.B. The Court therefore denies this claim of ineffective assistance of counsel.
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Second, petitioner argues that appellate counsel’s performance was deficient
because he failed to assert that the prosecutor committed misconduct in closing argument
by mischaracterizing a pro se motion by petitioner as including an admission that petitioner
committed lesser-included offenses. As the KCOA noted, in the motion petitioner stated
that he and his trial counsel had concluded that the conduct to which witnesses testified at
the preliminary hearing amounted only to lesser-included offenses; thus, petitioner had not
actually admitted to committing those offenses.

Nevertheless, the KCOA, applying

standards set forth by the Kansas Supreme Court for claims of prosecutorial misconduct,
concluded that the prosecutor’s misrepresentation had not been flagrant or born of ill will,
and that it was not so significant to have had a material effect on the verdicts. See id. at
*12. With respect to the latter point, the KCOA noted that petitioner had admitted in his
testimony to conduct “likely amounting” to minor crimes against the accusers. See id.
In light of that conclusion by the KCOA in post-conviction proceedings, the Court
concludes that petitioner has not shown that he probably would have prevailed on appeal
if appellate counsel had pursued this instance of prosecutorial misconduct. Petitioner has
now had a full opportunity to argue to the KCOA that such misconduct warrants reversal
under the applicable Kansas standards, and the KCOA rejected that argument. Based on
its own review of the entirety of the prosecutor’s closing and the evidence against
petitioner, this Court is not persuaded that this mischaracterization by the prosecutor was
so excessive and prejudicial to create a reasonable probability that the KCOA (or the

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Kansas Supreme Court) would have ruled differently on direct appeal.5 Accordingly, the
Court denies this part of the claim as well.
D.

Continuances

Petitioner claims that his trial counsel rendered ineffective assistance, in violation
of the Sixth Amendment, in obtaining continuances of his trial date without his consent,
causing him to forfeit his statutory speedy trial rights. The KCOA, relying on precedent
from the Kansas Supreme Court, rejected this claim, holding that the Kansas speedy trial
statute did not require reversal of the convictions. See Sumpter, 2019 WL 257974, at *13.
The speedy trial statute was amended while petitioner’s case was on direct appeal, and the
amendment applied to petitioner’s case; and under that amendment, as interpreted by the
Kansas Supreme Court, because defendant’s counsel requested the continuances, that time
would not be charged against the speedy trial period, even if the continuances were later
deemed improper because petitioner had not been consulted. See id. (citing State v.
Dupree, 304 Kan. 43 (2016)). The Court is bound by the Kansas courts’ interpretation of
the state’s speedy trial statute. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Thus, in
the absence of a violation, trial and appellate counsel were not ineffective in failing to
request that the convictions be set aside on that basis.

5

The Court does not agree with petitioner that the prosecutor repeated the improper
statement multiple times. The prosecutor referred to the pro se motion only one time. On
the other cited occasions, the prosecutor argued that petitioner had admitted to lesserincluded offenses, but that argument could properly have been based on defendant’s own
testimony. In addition, in cross-examining petitioner about the pro se motion, the
prosecutor accurately quoted the relevant statement about the lesser-included defenses, and
the jurors were instructed that they were to consider as evidence the testimony and not
statements by counsel.
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The KCOA essentially held that trial and appellate counsel were not ineffective for
failing to raise this issue after the fact (at trial or after). The KCOA did not address whether
trial counsel’s performance was deficient at the time the continuances were requested
without petitioner’s consent. Petitioner has not pursued such an argument in asserting this
claim, however, and thus petitioner has not shown that counsel acted unreasonably in
seeking additional time to prepare for trial.
Petitioner responds to the decision of the KCOA by arguing that that court failed to
address his argument that trial counsel violated a duty of loyalty to him. Petitioner argues
that counsel was eventually acting under a conflict of interest because if she had raised the
issue after-the-fact, she would have had to admit her mistake in seeking the continuances
without petitioner’s consent. Petitioner argues that such a conflict of interest means that
prejudice may be presumed under the Supreme Court’s opinion in Strickland. In that case,
however, the Supreme Court stopped short of creating a per se rule of prejudice for conflicts
of interest; rather, the Court held that “[p]rejudice is presumed only if the defendant
demonstrates that counsel actively represented conflicting interests and that an actual
conflict of interest adversely affected his lawyer’s performance.” See Strickland, 466 U.S.
at 692 (internal quotations omitted) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).
Petitioner has not addressed this standard from Strickland for the presumption of
prejudice.6 Thus petitioner has not shown that a speculative desire to avoid admitting an

Petitioner did not allege a breach of counsel’s duty of loyalty in his petition to the
state district court. Nor did petitioner cite Strickland or argue that prejudice may be
presumed in pursuing this claim in his briefs to the KCOA. Thus it is not clear that
Continued…
6

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error meets the requirement that counsel was “actively representing conflicting interests.”
Nor has petitioner shown how the alleged conflict actually affected trial counsel’s
performance. Indeed, the KCOA has held that trial counsel could not successfully have
argued a violation of the state speedy trial statute. In sum, petitioner has not established
that the KCOA unreasonably applied Strickland in denying this claim, and the Court
therefore also denies this claim for relief.
E.

Jury Venire

Petitioner claims that he was denied his rights under the Sixth Amendment because
the panel from which his jury was selected did not include any African-Americans and was
therefore underrepresentative. In denying this claim, the state district court ruled that the
issue should have been raised on direct appeal and that no exceptional circumstances
excused that failure. The KCOA treated this claim as one of ineffective assistance of trial
and appellate counsel, based on counsel’s failure to pursue the issue at trial or on direct
appeal. See Sumpter, 2019 WL 257974, at *14. The KCOA denied the claim, based on
petitioner’s failure to show that African-Americans were routinely underrepresented in jury
pools in that county. See id.
As a preliminary matter, it remains unclear whether petitioner is attempting to claim
ineffective assistance of counsel with respect to this claim. Petitioner did not make such a
claim in his district court post-conviction petition or in his initial brief on appeal to the
KCOA. Indeed, petitioner noted in those briefs that trial counsel objected to the panel’s

petitioner satisfied his exhaustion requirement by presenting this argument fully to the state
courts.
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lack of African-Americans and moved for a mistrial on that basis. In his reply brief on
appeal, petitioner stated that trial counsel did not raise this issue sufficiently and that
appellate counsel ignored the issue. In his petition to this Court, petitioner claims that trial
and appellate counsel were ineffective with respect to this issue, and he makes the same
claim in his claim summary in his initial brief to this Court; but in his argument on this
issue and in his reply brief, he has not mentioned counsel or the Strickland standard.
Ultimately, the Court need not decide the precise basis for this claim. The KCOA
denied the claim because petitioner failed to make the required showing of
underrepresentation, and such a failure would doom either a Sixth Amendment claim or a
claim of ineffective assistance (because of a lack of prejudice) with respect to the issue.
The Court therefore addresses the merits of the Sixth Amendment claim.
The parties agree that the governing standard may be found in the Supreme Court’s
opinion in Berghuis v. Smith, 559 U.S. 314 (2010), which standard the KCOA applied. As
the Supreme Court stated in that case, “[t]he Sixth Amendment secures to criminal
defendants the right to be tried by an impartial jury drawn from sources reflecting a fair
cross-section of the community.” See id. at 319 (citing Taylor v. Louisiana, 419 U.S. 522
(1975)). To establish a prima facie violation of the Sixth Amendment’s fair-cross-section
requirement, a criminal defendant “must prove that (1) a group qualifying as distinctive (2)
is not fairly and reasonably represented in jury venires, and (3) systematic exclusion in the
jury selection process accounts for the underrepresentation.” See id. at 327 (internal
quotations omitted) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).

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Petitioner bases this claim on the fact that his jury venire lacked any AfricanAmericans while that group makes up 9.3 percent of the county’s population. The KCOA
noted, however, that petitioner had not presented any evidence that African-Americans
were routinely or systematically underrepresented on jury venires in that county. In
support of the present petition, petitioner has not identified any evidence overlooked by the
KCOA. Petitioner continues to rely on the fact that his own venire was underrepresentative
and on speculation concerning possible causes of underrepresentation in venires in that
county.7 That is not enough, as petitioner did not show in the state courts – and has still
not shown – that African-Americans were routinely or systematically underrepresented in
venires in that county. Thus, petitioner has not shown that the KCOA misapplied the
Berghuis standard for this type of claim or unreasonably applied any facts.
Petitioner argues that the KCOA had no basis for its statement that “[t]he absence
of African-Americans from the particular jury panel called for his case is nothing more
than a statistical anomaly so far as the record evidence demonstrates.” It is clear, however,
that the KCOA based that conclusion on petitioner’s lack of evidence that such
underrepresentation was systematic and not an aberration (an “anomaly”). The KCOA
based its decision on a lack of evidence to meet the applicable standard, and there is no
basis to overturn that decision.

7

By notice of supplemental authority, petitioner has submitted a survey and an
article concerning the issue of low jury pay, which petitioner cites as one such possible
cause. Those materials are not helpful, as they do not contain any evidence that AfricanAmericans were systematically underrepresented in the county. Although the submission
is not helpful, the Court does not believe that it was improper, and the Court therefore
denies the State’s motion to strike the notice of supplemental authority.
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F.

Lifetime Registration and Supervision

Petitioner claims that the conditions of his sentence that require (a) his registration
as a sexual offender and (b) lifetime supervision are unconstitutional, specifically violating
due process, equal protection, and the Eighth Amendment’s prohibition against cruel and
unusual punishment. Petitioner concedes that the Kansas Supreme Court has previously
rejected such an argument, but, citing a single law review article in support, he contends
that those decisions were based on the faulty assumption that sexual offenders are more
likely to re-offend. The KCOA denied this claim, noting that the Kansas Supreme Court
has rejected the argument and that petitioner had failed to explain how his lifetime
supervision violates the Equal Protection Clause.8
The Court denies this claim. Petitioner has not shown how the KCOA’s rejection
of this claim is contrary to or constitutes an unreasonable application of settled precedent
of the United States Supreme Court. Indeed, petitioner has not cited any federal law in
support of this claim or otherwise addressed the applicable frameworks for the
constitutional provisions he invokes. Nor has he shown or even suggested that the KCOA
misapplied any facts in rejecting this claim on a legal basis. Accordingly, petitioner has
not shown that he is entitled to relief on this basis under Section 2254.
G.

Application of Apprendi

The State argues that this claim was defaulted by petitioner’s failure to raise these
issues on his direct appeal. The KCOA did not reject this claim on the basis of such a
default, however, but instead addressed the merits of the claim. This Court therefore does
likewise.
8

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In his last claim, petitioner argues that the trial court’s use of his criminal history in
sentencing him violated the constitutional requirement, recognized in Apprendi v. New
Jersey, 530 U.S. 466 (2000), that any fact that increases a sentence beyond the statutory
maximum must be found by a jury beyond a reasonable doubt. See id. at 490. The KCOA
followed precedent from the Kansas Supreme Court in rejecting this claim both on direct
appeal and in post-conviction proceedings. See Sumpter, 2013 WL 6164520, at *11;
Sumpter, 2019 WL 257974, at *15. Petitioner argues that the opinions by the Kansas
Supreme Court on which the KCOA relied were wrongly decided.
The Court denies this claim. Petitioner has not cited any federal law other than
Apprendi, and he has not explained how that opinion applies in this case. In fact, in
deciding Apprendi, the Supreme Court held that its rule applied to facts “[o]ther than the
fact of a prior conviction.” See Apprendi, 530 U.S. at 490. Only last year the Supreme
Court confirmed that the fact of a prior conviction remains an exception to the general rule
of Apprendi. See United States v. Haymond, 139 S. Ct. 2369, 2377 n.3 (2019). Thus,
petitioner has not shown that the KCOA’s rejection of this claim is contrary to or an
unreasonable application of settled law of the Supreme Court.
In addition, in his summary, one-paragraph argument on this issue, petitioner
appears to argue that the trial court also violated Apprendi by its use of “aggravating
factors” to sentence him. Petitioner has not identified those factors or explained Apprendi’s
application to such factors under Kansas law, and thus petitioner has not established his
entitlement to relief on this basis. Moreover, on direct appeal petitioner argued that the
trial court improperly imposed a sentence at the upper end of the applicable sentencing
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range under Kansas law, instead of at the range’s midpoint. The Kansas Supreme Court,
however, has interpreted the relevant Kansas sentencing statutes as giving a trial court
discretion to sentence anywhere within the sentencing range, without the need to find
additional facts; thus, an upper-range sentence does not exceed the statutory maximum,
and the Apprendi rule is not implicated. See State v. Johnson, 286 Kan. 824, 840-52 (2008).
This Court is bound by the Kansas Supreme Court’s interpretation of Kansas law. See
Bradshaw, 546 U.S. at 76. Accordingly, under Kansas law, a sentence within the guideline
range does not exceed the statutory maximum, and the imposition of such a sentence
without additional jury findings does not violate Apprendi. The Court denies this claim in
its entirety.

V.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases 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).9 To satisfy this
standard, a petitioner must demonstrate that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” See Saiz v. Ortiz, 392
F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282

9 1

The denial of a Section 2254 petition is not appealable unless a circuit justice or
a circuit or district judge issues a certificate of appealability. See Fed. R. App. P. 22(b)(1);
28 U.S.C. § 2253(c)(1).
35

Case 5:19-cv-03267-JWL Document 28 Filed 09/10/20 Page 36 of 36

(2004)). Because it is clear that defendant is not entitled to relief on the claims denied
herein, the Court denies a certificate of appealability in this case with respect to those
claims.

IT IS THEREFORE ORDERED BY THE COURT THAT the petition for relief
pursuant to 28 U.S.C. § 2254 is granted in part and denied in part. The petition is
granted with respect to petitioner’s aggravated kidnapping conviction, which is hereby
vacated. The petition is otherwise denied.

IT IS FURTHER ORDERED BY THE COURT THAT petitioner’s motion for
discovery and an evidentiary hearing (Doc. # 23) is denied.

IT IS FURTHER ORDERED THAT the State’s motion to strike petitioner’s notice
of supplemental authority (Doc. # 25) is denied.

IT IS SO ORDERED.

Dated this 10th day of September, 2020, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

36