Reynolds (ID 104857) v. Meyer

Filing 27

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to amend (Doc. 18 ) is granted. Petitioner's motion to arrest judgment (Doc. 20 ) is denied. Respondent's motion for extension of time (Doc. 21 ) is denied as moot. Petitioner� 39;s motion for summary judgment (Doc. 26 ) is denied. The petition for habeas corpus is dismissed and all relief is denied. No certificate of service will issue. Signed by U.S. Senior District Judge Sam A. Crow on 06/23/21. Mailed to pro se party Teill Reynolds by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TEILL REYNOLDS,
Petitioner,
v.

CASE NO. 20-3185-SAC

SHANNON MEYER, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28
U.S.C. § 2254. For the reasons that follow, the court denies relief.
Procedural background
Petitioner was convicted by a jury in the District Court of
Wyandotte County, Kansas, of two counts of rape and one count of
battery. He was sentenced to concurrent terms of life without parole
for 25 years for the two rape convictions and a concurrent term of
six months for the battery conviction.
The Kansas Court of Appeals (KCOA) affirmed the convictions
on December 15, 2014. State v. Reynolds, 339 P.3d 412 (Table), 2014
WL

6909523

(Kan.

Ct.

App.

2014),

rev.

denied,

Jul.

22,

2015

(“Reynolds I”).
On July 31, 2015, petitioner filed a third amended motion to
correct an illegal sentence. The trial court denied the motion on
September 24, 2015, and petitioner filed an appeal.
On July 28, 2016, petitioner filed a motion for postconviction relief under K.S.A. 60-1507. On January 30, 2018, the

Wyandotte County District Court denied relief, and petitioner filed
an appeal.
On

November

petitioner’s

9,

motion

2018,

to

the

correct

KCOA

an

affirmed

illegal

the

sentence.

denial

of

State

v.

Reynolds, 429 P.3d 910 (Table), 2018 WL 5851617 (Kan. Ct. App.
2018)(unpublished opinion) ( ).
On

October

18,

2019,

the

KCOA

affirmed

the

denial

of

petitioner’s action under K.S.A. 60-1507. Reynolds v. State, 450
P.3d 385 (Table), 2019 WL 5280795 (Kan. Ct. App. 2019)(unpublished
opinion). On May 2020, the Kansas Supreme Court denied review
(Reynolds III).
On July 10, 2020, petitioner filed the present application
for habeas corpus relief.
Factual background
The Kansas Court of Appeals summarized the facts of this
case as follows:
On the morning of May 18, 2011, T.R., Reynolds' 13–year–
old daughter, contacted her aunt, Teah Reynolds (Teah),
with a friend's cell phone while on a school bus. After
corresponding via text message, T.R. called Teah and said
she really needed to talk but could not talk over the
phone because there were people around. After a brief
conversation, Teah went to T.R.'s school to see her. Teah
ultimately was not allowed to see T.R., however, because
Teah was not on the approved list of visitors. Knowing
that her aunt may not have been on the approved list,
T.R. agreed to meet Teah in front of the school after
school let out. But when Teah returned at the end of the
school day, T.R. was not in the front of the school. Teah
called the number from which T.R. had called earlier in
the day and T.R. answered. T.R. said she was on the bus
and was scared.
Teah met T.R. at her bus stop. Teah noticed that T.R. was
walking funny. T.R. got into Teah's car, started crying,
and told Teah that Reynolds had inserted a flashlight

into her vagina the night before. She also told Teah that,
on a previous occasion, he had allowed another person to
perform oral sex on her and fondle her. Later, Teah,
Teah's mother, T.R., and T.R.'s sister went to the police
station to file a report. T.R. spoke to a police officer
and was examined at Children's Mercy Hospital.
Reynolds was placed under arrest after he arrived at the
police station where T.R. made her report. On May 20,
2011, Detective John Hudson picked Reynolds up from the
jail, transported him to the detective bureau, and
asked Reynolds to
make
a
statement.
Initially, Reynolds denied both allegations made by T.R.
At some point, Captain Greg Lawson began assisting with
the interrogation and Reynolds gave a statement. During
that recorded statement, Reynolds made what the district
court described as “some inculpatory statements.”
Reynolds was charged with one count of aggravated
indecent liberties with a child and two counts of rape.
The aggravated incident liberties charge and one of the
rape charges were alleged to have occurred on March 15,
2011. The other count of rape was alleged to have occurred
on May 17, 2011. At the preliminary hearing on August 23,
2011, T.R. testified that she was certain the first
incident occurred on March 15, 2011. On October 19, 2011,
the
State
filed
an
amended
information
charging Reynolds with two counts of rape and one count
of battery. This time, however, one of the rapes was
alleged to have occurred on November 7, 2010, and one on
May 17, 2011.
Prior to trial, the State made a motion for a court order
allowing it to introduce Reynolds' police statement at
trial. A hearing under Jackson v. Denno, 378 U.S. 368, 84
S.Ct. 1774, 12 L.Ed.2d 908 (1964), was held on October 5,
2011,
to
determine
the
voluntariness
and
thus
admissibility of Reynolds' statement. Detective Hudson
testified at the hearing and provided the following
information.
Hudson
read Reynolds his Miranda rights
prior to interrogating him. Hudson then read a waiver of
rights form to Reynolds and had Reynolds place his
initials beside each right to signify that he understood
those rights. Hudson made no threats to Reynolds during
this process. Reynolds voluntarily signed the waiver of
rights form. Later, Hudson asked Reynolds if he would
take
a
CVSA,
a
type
of
lie
detector
test. Reynolds agreed, and the CVSA was conducted at the
internal affairs unit.

On cross-examination, Detective Hudson testified he had
spent about 3 hours with Reynolds at the detective bureau
but only talked about the case for about 1 1/2 hours. At
about 1 or 1:30 p.m., they left to go to the internal
affairs unit in a different building because that was
where the necessary CVSA equipment was located. Captain
Lawson performed the CVSA. During the CVSA, Lawson was
the only person in the room with Reynolds. Hudson was
outside the room and testified that he could hear
everything
Lawson
said
but
could
not
hear
everything Reynolds said. Hudson began preparing to
record Reynolds' statement at 4:45 p.m. Prior to
recording the statement, Hudson went over the waiver of
rights form with Reynolds again. After recording the
statement, Hudson took Reynolds back to jail.
Reynolds testified to a completely different version of
events. Reynolds said that when Detective Hudson picked
him up from the jail, Reynolds asked for an attorney,
whom he claimed already had been retained by him in an
unrelated
criminal
matter. Reynolds testified
that
Hudson said he would call the attorney, but to Reynolds'
knowledge, he never did. Reynolds told Hudson a total of
three or four times before and during the time he was at
the detective bureau that he did not want to proceed
without his attorney. Reynolds also denied that he spoke
to Hudson about a lie detector test. Reynolds claimed
that he was threatened before giving his recorded
statement. Reynolds noted that he made several references
to the threats made against him during the recorded
statement but that the recording was turned off and on
many times throughout the day.
After hearing the evidence and arguments by both parties,
the district court found Reynolds' statement was freely
and voluntarily given; therefore, it ruled the statement
would be admissible at trial.
Before trial, the State made an oral motion in limine to
exclude
T.R.'s
school
disciplinary
records,
which Reynolds intended to introduce into evidence. The
State argued the records had no probative value and were
not
relevant. Reynolds'
appointed
attorney,
KiAnn
McBratney, argued that the records were going to be used
to
show
that
T.R.
had
behavioral
problems,
that Reynolds disciplined her for these problems, and
that she fabricated the allegations because she was mad
at him. The district court granted the motion and excluded
the records on the basis that they contained specific
instances of conduct that were inadmissible.

At trial, T.R. testified that the first sexual incident
involving Reynolds occurred when she was in eighth grade.
In contrast to her testimony at the preliminary hearing,
she stated at trial that she could not remember the month
in which the incident occurred. On the night in question,
T.R., her sister, and Reynolds' girlfriend Veronica went
to Riverside to get some candy. During this car trip,
Veronica was pulled over for having a broken taillight
and was arrested. Reynolds and a friend of his picked up
T.R. and her sister. Reynolds' friend dropped the three
of them off at their house and left. T.R. kept Veronica's
purse and cell phone and gave them to Reynolds after
arriving home. Later, a text was delivered to Veronica's
phone asking if T.R. was up. T.R. stated that she did not
know the name of the person the text came from but that
it was somebody Veronica was communicating with. T.R.
stated she knew it was not her boyfriend, whom she had
texted with the phone earlier that day.
T.R. testified that sometime after she had fallen asleep
in her bed, Reynolds woke her up. Reynolds and T.R. went
into Reynolds' room. T.R. said that Reynolds confronted
her about the identity of the person who had sent the
text to Veronica's phone. T.R. told him that she did not
know. She testified that Reynolds then told her that he
had
a
couple
people
lined
up
for
her.
Thereafter, Reynolds made her take off her clothes and
lie down on his bed. Reynolds then put a hat over her
head. At this point, T.R. said she heard a knock at the
front door. She heard Reynolds and another person come in
the room and then heard the door shut as Reynolds left
the room. After Reynolds left, the person in the room
licked her vagina and then stuck his finger in her vagina.
This went on for about 20 to 30 seconds. This person did
not say anything to her. T.R. then stated Reynolds came
in the room and turned on some music. T.R. testified that
she
was
crying
and
apologized
for
not
telling Reynolds that Veronica was cheating on him. The
other man left after Reynolds said they would have to do
this another time. T.R. said she told her sister about
the incident after it happened, but her sister did not
believe her. T.R. testified that she was too scared to
tell anyone in a position of authority about it.
T.R. next testified about the events of May 17, 2011. On
that
night,
after
T.R.
went
to
bed,
Veronica
and Reynolds had an argument and Veronica left. After
Veronica left, Reynolds came into T.R.'s room, woke her
up, and told her to go into the living room. Once in the

living room, Reynolds told T.R. that she had been lying
and acting up. Reynolds then demanded T.R. take her
clothes off. After she did what Reynolds said, he asked
her if she knew how to “strip pole dance.” Reynolds told
T.R. to lie down on the couch, which she did. He then
retrieved a flashlight from his bedroom, handed it to
T.R., and told her to “stick this up your coochie.” T.R.
attempted to comply, but it would not fit. Reynolds then
put some lotion on the handle of the flashlight and stuck
it inside T.R.'s vagina. Sometime before putting the
lotion on the flashlight, Reynolds also told T.R. to
“suck on [the flashlight] like it was a dick.”
McBratney did not cross-examine T.R. However, she did
cross-examine T.R.'s aunt, Teah, about why T.R. initially
reported that the date of the first alleged incident was
March 15, 2011, and then changed the date to November 7,
2010. Teah confirmed that when she and T.R. went to the
police station to report the crime, the first event was
said to have occurred on March 15, 2011. Teah stated that
T.R. could not give specific dates, so she and the police
officer asked T.R. questions in an attempt to determine
the date. Teah said T.R was able to tell them that it was
cold outside, that she was living on 5th Street, and that
Mosetter Reynolds, Teah's sister, was in town. Teah also
testified that Mosetter visited both in November 2010 and
March 2011 and that Reynolds moved his family to 5th
Street in November 2010.
Reynolds testified on his own behalf at trial. He denied
both allegations of rape against T.R. Although Detective
Hudson earlier testified that Reynolds had initialed and
signed a waiver of rights form before giving a recorded
statement to the police, Reynolds denied ever having done
so. Reynolds testified that it was actually Hudson who
initialed
and
signed
the
document. Reynolds also
testified that before giving his recorded statement, he
asked
three
times
to
have
his
attorney
present. Reynolds said Hudson gave him a piece of paper
to read once the recording started and told him that if
he did not read it, Hudson would tell the district
attorney that Reynolds was “an animal” and to sentence
him to 100 years.
The jury found Reynolds guilty of two counts of rape and
one count of battery. After trial, Reynolds filed an
untimely motion for a new trial alleging ineffective
assistance of counsel. New counsel was appointed
for Reynolds. His new attorney filed another untimely
motion for a new trial alleging several instances of

alleged ineffective assistance of counsel. An evidentiary
hearing was held, and the motion for a new trial was
denied.
At sentencing, Reynolds orally moved to continue the
hearing based on an alleged problem with the phones in
the jail that had prevented Reynolds from contacting his
character
witnesses.
That
motion
was
denied. Reynolds then orally moved for a downward
departure, citing his lack of significant criminal
history and the fact that he was a contributing member of
society prior to his arrest. This motion also was denied.
Under Jessica's Law, K.S.A.2010 Supp. 21–4643(a)(1)(B),
the district court ultimately sentenced Reynolds to
concurrent life sentences without the possibility of
parole for 25 years for his two rape convictions.
Reynolds I, 2014 WL 6909523, *1-4 (Kan. Ct. App. 2014).
Standard of review
This matter is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA). As amended by the AEDPA, 28 U.S.C. §
2254 limits the power of a federal court to grant an application
for a writ of habeas corpus. Where a petitioner seeks relief on
claims

that

were

adjudicated

on

the

merits

in

state

court

proceedings, § 2254(d) provides that habeas relief “shall not be
granted with respect to [such a] claim ... unless the adjudication
of the claim:
(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.”
28 U.S.C. § 2254(d)(1) and (2).
These rules create “a difficult to meet and highly deferential
standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quotations omitted). See
also Kernan v. Hinojosa, 136 S. Ct. 1603, 1604 (2016) (per curiam)
(stating that “[i]f the state courts adjudicate the prisoner's
federal

claim

deferential,

‘on

rather

the

merits,’ § 2254(d),

than de

novo,

review,

then AEDPA mandates
prohibiting

federal

courts from granting habeas relief” unless the petitioner makes the
necessary showing under 2254(d)).
A federal court applying this standard “reviews the specific
reasons given by the state court and defers to those reasons if
they are reasonable.” Wilson v. Sellers, 584 U.S. ––––, 138 S.Ct.
1188, 1192 (2018).
Under § 2254(d)(1), a state-court decision is “contrary to”
the Supreme Court's clearly established law if it “applies a rule
that contradicts the governing law set forth in [Supreme Court]
cases” or if it “confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and nevertheless
arrives at a result different from [that] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).

A state court need not make

reference to relevant Supreme Court decisions, “so long as neither
the reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
A state-court decision is an “unreasonable application” of
clearly established Supreme Court law if the decision “correctly
identifies the governing legal rule but applies it unreasonably to

the facts of a particular prisoner's case.” Williams, 529 U.S. at
407-08.

Under the AEDPA, a federal court may grant a writ only

where there is no possibility fair-minded jurists could disagree
that

the

state

court's

decision

conflicts

with

Supreme

Court

precedents. Harrington, 562 U.S. at 102.
Discussion
Petitioner’s claim of actual innocence
Petitioner first asserts a claim of actual innocence, claiming
that newly discovered evidence supports his release. He presents
this claim in his motion to amend (Doc. 18)1. The claim was not
presented in the state courts; rather, petitioner seeks to advance
it under the exception that allows a petitioner to proceed on a
time-barred or defaulted claim to avoid a miscarriage of justice.
“[A]ctual innocence, if proved, serves as a gateway through which
a petitioner may pass whether the impediment is a procedural bar
[or] ... expiration of the statute of limitations.” McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013). See also Herrera v. Collins, 506
U.S. 390, 404 (1993) (explaining that this exception must be
supported “with a colorable showing of factual innocence.”).
The evidence in question concerns Detective John Hudson, who
conducted
during

the

the

initial

criminal

questioning

proceedings

of

petitioner

against

him.

and

testified

Detective

Hudson

retired from the Kansas City, Kansas, Police Department in 2011

1

The court grants the motion to amend and has considered its contents.

after he developed difficulty in performing his job duties. He
eventually was diagnosed with PTSD and was awarded disability
benefits. Litigation concerning that award is described in Hudson
v. Bd. of Directors of the Kansas Pub. Employees Ret. Sys., 388
P.3d 597 (Kan. Ct. App. 2016). That decision was published after
petitioner filed his action under K.S.A. 60-1507.
Petitioner argues that the information concerning Detective
Hudson’s PTSD diagnosis and its impact on his employment performance
establishes that he was not a reliable witness at the time he
testified in petitioner’s trial. Petitioner reasons that these
facts show that he is innocent.
As stated, a “credible showing of actual innocence” allows a
habeas

court

to

habeas claim. McQuiggin,

consider
569

U.S.

an
at

untimely or
392.

The

Tenth

defaulted
Circuit

recognizes that this exception “is rare and will only be applied in
the extraordinary case.” Lopez v. Trani, 628 F.3d 1228, 1231 (10th
Cir. 2010) (quotations omitted).
“Simply maintaining one’s innocence, or even casting some
doubt on witness credibility, does not necessarily satisfy this
standard.” Frost v. Pryor, 749 F.3d 1212, 1232 (10th Cir. 2014).
Rather, “to claim actual innocence a petitioner must present new,
reliable evidence that was not presented at [or available for]
trial. Such evidence typically consists of ‘exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence.’” Rose v. Newton-Embry, 194 F. App'x 500, 502 (10th Cir.

2006) (unpublished) (quoting Schlup v. Delo, 513 U.S. 298, 324
(1995)).
Petitioner has not presented the sort of new evidence required
to support a claim of actual innocence. The information he presents
shows that Detective Hudson was under considerable emotional and
mental strain at the time he investigated the criminal charges
against petitioner and during petitioner’s prosecution. It does not
establish that the prosecution of petitioner was improper or tainted
or that anyone involved in the proceedings withheld exculpatory
evidence.

Petitioner’s

bare

reference

to

Detective

Hudson’s

personal circumstances is insufficient to support a claim of actual
innocence.
Petitioner’s claim the state lacked subject matter jurisdiction
Petitioner claims the state lacked jurisdiction due to the
failure of the charging document to charge an off-grid crime and to
address the element of age. The Kansas Court of Appeals (KCOA) has
considered this claim twice. In the first instance, in petitioner’s
appeal from the denial of his motion to correct an illegal sentence,
the KCOA rejected the claim because it challenged petitioner’s
convictions rather than his sentences. Reynolds II, 2018 WL 5851617
at

*1-2.

In

the

second

instance,

the

KCOA

denied

relief

in

petitioner’s appeal from the denial of his action brought under
K.S.A. 60-1507, citing the holding of the Kansas Supreme Court that
“charging

document

jurisdiction

over

deficiencies
criminal

do

case”

not

remove

because

subject
“subject

matter
matter

jurisdiction is granted to the courts by the Kansas Constitution.”
Reynolds III, 2019 WL 5280795 at *4 (citing State v. Dunn, 375 P.3d
332 (Kan. 2016)). The KCOA held that the charging documents, by
naming the defendant and identifying the date of crime alleged,
“inherently include the defendant’s age” and provide the defendant
the requisite notice and opportunity to defend. Id.
First, to the extent the KCOA’s decision rests upon state law,
petitioner

cannot

obtain

habeas

corpus

petitioner is only entitled to relief . . .

relief.

“A

habeas

for alleged violations

of federal rights, not for errors of state law.” Bullock v. Carver,
297 F.3d 1036, 1055 (10th Cir. 2002) (citing Estelle v. McGuire,
502 U.S. 62, 67 (1991)); Blaurock v. Kansas, 686 F. App'x 597, 613
(10th Cir. 2017). “[I]t is not the province of a federal habeas
court

to

reexamine

state-court

determinations

on

state-law

questions.” Estelle, 502 U.S. at 67-68.
In ruling on this claim, the KCOA panel also applied Chapman
v. California, 386 U.S. 18, 22-24 (1967), stating that “a court will
declare a constitutional error harmless only ‘where a party benefitting
from

the

error

proves

beyond

a

reasonable

doubt

that

the

error

complained of will not or did not affect the outcome of the trial in
light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict.’” Reynolds III, 2019
WL 5280795 at *6.
The KCOA panel stated that Counts One and Two in the charging
documents alleged that petitioner committed an off-grid felony offense
of the rape of a child under 14 and that petitioner was 18 or older

at the time of the crimes. It also noted petitioner’s trial testimony
that he and police officers had discussed his possible sentence under
Jessica’s Law. It concluded that in light of the entire record, the
failure to expressly list Jessica’s Law in the charging documents would
not change the outcome of the trial. Id.

A federal court reviewing a state court's Chapman decision in
habeas corpus “may not award habeas relief under § 2254 unless the
harmlessness

determination

itself

was

unreasonable.” Davis

v.

Ayala, 576 U.S. 257 (2015) (emphasis in original). Here, the KCOA’s
assessment of the record and application of Chapman in petitioner’s
case is reasonable, and this court agrees that petitioner had
sufficient

notice

of,

and

opportunity

to

defend

against,

the

charges. Petitioner is not entitled to relief on this claim.
Procedurally defaulted claims
Respondent

asserts

that

five

of

petitioner’s

claims

were

procedurally defaulted: denial of the right to present a defense,
prosecutorial

misconduct,

insufficiency

of

the

evidence,

solicitation of false testimony, and malicious prosecution.
First, petitioner’s claim that he was denied the right to
present

a

defense

was

not

explicitly

presented

in

his

post-

conviction action. The KCOA considered his seven assertions of
ineffective assistance of counsel and held that his briefing was
insufficient to show error. The KCOA stated, in part:
[Petitioner] makes conclusory statements in his brief
for which he provides no factual support from the
record. His brief only mentions his complaints about
his trial counsel’s performance in passing. Issues

raised incidentally in a brief and not argued therein
are deemed waived and abandoned. Russell v. May, 306
Kan. 1058, 1089, 400 P.3d 647 (2017).
Reynolds III, 450 P.3d 385, 2019 WL 5280795, *3.
Next,

petitioner’s

challenge

to

the

sufficiency

of

the

evidence and his claims of prosecutorial misconduct, specifically,
threatening or intimidating a witness, soliciting false testimony,
and malicious prosecution, were presented for the first time in an
action under K.S.A. 60-1507. The state district court rejected the
claim alleging insufficient evidence due to petitioner’s failure to
provide more than conclusory statements and his failure to argue
the issue in his direct appeal. The KCOA agreed that this was an
issue that could have been presented on appeal, citing Kan. S. Ct.
R. 183(c)(3)2 , and held that it therefore was barred from appellate
review. Reynolds III, id. The KCOA also found that petitioner’s
claims alleging prosecutorial misconduct, which were new claims
presented in the 60-1507 action, could have been presented in
petitioner’s direct appeal and therefore were barred from review.
Id.
The habeas corpus statute, in 28 U.S.C. § 2254(b)(1), provides
that a writ of habeas corpus may not be granted unless it appears
that the petitioner has exhausted state law remedies or that no
adequate state remedies are available or effective to protect the

2

Kan. S. Ct. R. 183(c)(3) states: A proceeding under K.S.A. 60-1507 ordinarily
may not be used as a substitute for direct appeal involving mere trial errors
or as a substitute for a second appeal. Mere trial errors must be corrected by
direct appeal, but trial errors affecting constitutional rights may be raised
even though the error could have been raised on appeal, provided exceptional
circumstances excuse the failure to appeal.

petitioner's

rights. See O'Sullivan

v.

Boerckel,

526

U.S.

838

(1999); Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th
Cir. 1994). The petitioner has the burden of showing the exhaustion
of available state remedies for the claims presented. See Miranda
v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Under

the

procedural

default

doctrine,

a

federal

court

ordinarily may not review habeas claims that were procedurally
defaulted in state court, that is, claims that were denied in state
court on an adequate and independent state procedural rule. To
avoid

this

procedural

bar,

the

petitioner

must

establish

either cause for the procedural default and prejudice arising from
it or that the refusal 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).
Petitioner has not satisfied these standards. In his traverse
(Doc. 25), petitioner asserts that he asked his appellate counsel
to raise certain issues that she declined to pursue. In support,
petitioner attaches a letter from his counsel discussing the issues
she intends to raise and explaining why she will not present others
(Id.,

Attach.

procedurally

1).

However,

defaulted

are

none

of

the

addressed

issues

in

that

identified

as

correspondence.

Moreover, if a petitioner relies on counsel’s failure to present
claims

to

support

that ineffective assistance of

cause
counsel

for

a

“generally

default,
must

‘be

presented to the state courts as an independent claim before it may
be used to establish cause for a procedural default.’” Edwards v.
Carpenter, 529 U.S. 446, 452 (2000).
Petitioner’s statement to police
Petitioner claims his statement to police was involuntary.
Although the petition contains only a bare statement of the claim,
the court notes that on direct appeal, petitioner alleged that his
trial counsel erred in failing to renew her objection to the
statement when it was introduced at trial. However, he acknowledged
that this claim of ineffective assistance of counsel was not raised
in the trial court, despite the fact that the district court
appointed new counsel for an evidentiary hearing on the claim of
ineffective assistance. The KCOA noted that the statement was held
to be admissible in a pretrial hearing conducted under Jackson v.
Denno, found that there was no evidence in the record upon which it
could

determine

why

counsel

did

not

renew

an

objection,

and

determined that this claim had not been preserved for appeal.
Reynolds I, 2014 WL 6909523, *14 (citing Williams, 299 Kan. at 1048–
49 (declining to consider ineffective assistance of counsel claim
for first time on direct appeal)).
In

his

traverse,

petitioner

argues

this

claim

should

be

considered, stating that he claimed the statement was coerced in
his action under 60-1507, that his counsel had a duty to protect
her client’s interests, and that manifest injustice will occur if
the claim is not considered because he is actually innocent.

The KCOA’s decision in petitioner’s 60-1507 action found that
the district court did not address petitioner’s claim that it erred
in admitting his statement because it was involuntary. The KCOA
held the error harmless because the issue was, or could have been,
raised in petitioner’s direct appeal and was barred by Kan. S. Ct.
R. 183(c)(3). And, although the appellate decision in that action
shows

that

petitioner

presented

seven

claims

of

ineffective

assistance, the claim concerning the voluntariness of his statement
is not among them. Reynolds III, 2019 WL 5280795, at *3. Finally,
petitioner’s bare claim of innocence is insufficient to support
review of his defaulted claim.
Ineffective assistance of trial counsel
The

petition

identifies

three

instances

of

allegedly

ineffective assistance of counsel: (1) counsel failed to file a
motion to arrest judgment; (2) counsel failed to cross-examine a
witness; and (3) counsel failed to investigate or gather police
reports.
Petitioner presented the issue concerning the failure to move
to arrest judgment in his action under 60-1507. There, the KCOA
found

that

all

of

petitioner’s

seven

claims

of

ineffective

assistance failed, stating:
Reynolds’ briefing of this issue is insufficient to show
the district court erred in denying him a new trial. He
makes conclusory statements in his brief for which he
provides no factual support from the record. He also fails
to properly argue or analyze the issue. His brief only
mentions his complaints about his trial counsel’s
performance in passing. Issues raised in a brief and not
argued therein are deemed waived and abandoned. Russell

v. May, 306 Kan. 1058, 1090, 400 P.3d 647 (2017). Because
Reynolds fails to explain why he believes any of these
conclusory statements are entitled to appellate review
and provides no factual support or analysis for his
claims, he has waived and abandoned them.
Reynolds III, 2019 WL 5280795, *3.
Next,

although

petitioner’s

assertion

of

ineffective

assistance concerning the failure to cross-examine a witness is
devoid of detail, the court agrees with respondent’s assumption
that petitioner refers to trial counsel’s failure to cross-examine
T.R., the minor victim. Petitioner challenged that decision in his
direct appeal, which the KCOA addressed as follows:
Reynolds argues that McBratney's decision not to crossexamine T.R. fell below an objective standard of
reasonableness. Whether to conduct cross-examination is
a strategic trial decision over which an attorney has
exclusive control after consulting with his or her
client. Cheatham, 296 Kan. at 445.
Again, Reynolds does not argue on appeal that McBratney
inadequately investigated the facts or law surrounding
her decision not to cross-examine T.R. Instead, Reynolds
asserts McBratney should have attacked T.R.'s credibility
based on T.R.'s statements at the preliminary hearing
that she was first raped on March 15, 2011. However, T.R.
did not provide a particular date of the first offense in
her direct testimony at trial. Further, McBratney
explained that she chose not to cross-examine T.R.
because her allegations were supported by medical and
photographic evidence and, in McBratney's opinion,
pressing T.R. could have inadvertently turned the jury
against Reynolds. McBratney also stated that it is
possible to attack the credibility of a victim's
statements through other witnesses at trial. McBratney
cross-examined Teah extensively about the explanation she
provided with regard to the process she and T.R. initially
went through to determine that the first offense occurred
on March 15, 2011.
The district court found McBratney's decision not to
cross-examine T.R. was trial strategy and thus was
virtually unchallengeable in terms of proving deficient

performance. Its finding is supported by substantial
competent evidence. Therefore, we find no deficiency in
McBratney's performance in deciding not to cross-examine
T.R.
State v. Reynolds, 2014 WL 6909523, *12.
The KCOA’s decision cited Edgar v. State, 283 P.3d 152 (Kan.
2012), which incorporates the standards announced by the Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984) to evaluate
claims of ineffective assistance of counsel, namely, a defendant
must show both that counsel's performance was deficient and that
the deficient performance was sufficiently serious to prejudice the
defense and deny the defendant a fair trial. Edgar v. State, 283
P.3d 152, 154 (2012).
The KCOA identified the correct standard, and its analysis of
the record is reasonable and supported by the record.
Finally, petitioner alleges ineffective assistance of trial
counsel based upon a failure to investigate or gather police
reports. Because petitioner did not present this claim in the state
courts on either direct appeal or his action under 60-1507, the
claim is procedurally defaulted, and this court may consider it
only if petitioner shows cause and prejudice or that a fundamental
miscarriage of justice will occur if the court fails to consider
it. Petitioner makes only vague statements concerning the failure
to present this claim, asserting broadly that he has shown cause
and prejudice, that he exhausted his remedies in state court, and
that he has shown exceptional circumstances. Doc. 25, pp. 13-14.

These

allegations

are

insufficient

to

overcome

his

procedural

default, and the court concludes that review of this claim is
barred.
Pending motions
Three motions remain for decision. First, the respondent’s
motion for an extension of time (Doc. 21) is moot and is denied.
Petitioner’s motion to arrest judgment (Doc. 20) and motion for
summary judgment (Doc. 26) both seek relief on the claim that the
Kansas courts lacked jurisdiction due to the alleged deficiencies
in the charging documents. Because the court has concluded that
petitioner is not entitled to relief on this claim, these motions
are denied. Petitioner does not present new or persuasive arguments.
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 concludes that the present record does not warrant
the issuance of a certificate of appealability. For the reasons set
forth, the court concludes the petitioner has not made a substantial
showing that he is entitled to relief.

IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
amend (Doc. 18) is granted.
IT IS FURTHER ORDERED petitioner’s motion to arrest judgment
(Doc. 20) is denied.
IT IS FURTHER ORDERED respondent’s motion for extension of
time (Doc. 21) is denied as moot.
IT IS FURTHER ORDERED petitioner’s motion for summary judgment
(Doc. 26) is denied.
IT IS FURTHER ORDERED the petition for habeas corpus is
dismissed and all relief is denied.
IT IS FURTHER ORDERED no certificate of service will issue.
IT IS SO ORDERED.
DATED:

This 23rd day of June, 2021, at Topeka, Kansas.

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