Blaurock v. Kansas

• Decision Date: 08 December 2016
• Docket Number: Case No. 15-cv-03274-DDC
• Parties: ROBERT D. BLAUROCK Petitioner, v. STATE OF KANSAS, et al., Respondents.
• Court: U.S. District Court — District of Kansas

ROBERT D. BLAUROCK Petitioner, v. STATE OF KANSAS, et al., Respondents.

Case No. 15-cv-03274-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

December 8, 2016

MEMORANDUM AND ORDER

This matter comes before the court on Robert Blaurock's pro se Petition for Writ of Heabeas Relief (Doc. 1), the State's Answer and Return (Doc. 32), and his Reply (Doc. 37).¹ Petitioner attacks his state-court convictions on 31 grounds, ranging from a claim that he was denied his right to a fair trial to a claim that an illegal sentence was imposed. For reasons explained below, the court denies Mr. Blaurock's Petition.²

I. Factual Background

The Kansas Court of Appeals summarized the facts of petitioner's state-court case as follows:

In 2005, the State charged Blaurock with numerous crimes, including rape, aggravated kidnapping, aggravated criminal sodomy, and sexual exploitation of a child. The charges all stemmed from allegations that Blaurock sexually assaulted his girlfriend's minor daughter, C.S. The evidence against Blaurock includedwitness testimony, DNA evidence, photographs recovered from Blaurock's residence, and letters to both his mother and the victim's mother.

In two jury trials, Blaurock was convicted of aggravated incident liberties with a child, rape, aggravated criminal sodomy, and sexual exploitation of a child.

Blaurock v. Kansas, 344 P.3d 396, 2015 WL 1122935, at *1 (Kan. Ct. App. Mar. 6, 2015), review denied, 2015 Kan. LEXIS 894 (Kan. Sept. 14, 2015).

Petitioner timely appealed his convictions to the Kansas Court of Appeals. In this direct appeal, petitioner raised six issues: (1) whether the trial court erred in admitting prior-crimes evidence; (2) whether the trial court erred in admitting evidence of petitioner's federal-parolee status; (3) whether the trial court erred when finding that the Kansas 90-day speedy trial statute did not apply; (4) whether the trial court erred in granting the State's motion for a continuance; (5) whether cumulative trial errors deprived petitioner of a fair trial; and (6) whether the trial court erred when using petitioner's criminal-history score to increase his sentence. Brief for Appellant at ii-iii, Kansas v. Blaurock, 201 P.3d 728 (Kan. Ct. App. 2009) (No. 97,040) [hereinafter Direct Appeal Brief]; Kansas v. Blaurock, 201 P.3d 728, 733-37 (Kan. Ct. App. 2009). The Kansas Court of Appeals affirmed his convictions. Blaurock, 201 P.3d at 752, review denied, 289 Kan. 1280 (2009).

Petitioner then sought review on three of those six issues from the Kansas Supreme Court: (1) whether the trial court erred in admitting prior-crimes evidence; (2) whether the trial court erred when finding that the Kansas 90-day speedy trial statute did not apply; and (3) whether the trial court erred when using petitioner's criminal-history score to increase his sentence. Direct Appeal Pet. for Review at 1, Kansas v. Blaurock, 289 Kan. 1280 (2009) (No. 97,040), Doc. 42-1 at 4 [hereinafter Direct Appeal Pet. for Review]. The Kansas Supreme Court denied review. Kansas v. Blaurock, 289 Kan. 1280 (2009).

Petitioner then filed a motion for post-conviction relief under Kansas Statutes Annotated section 60-1507 ("60-1507 motion"). Motions, Blaurock v. Kansas, No. 2010cv0028 (Wyandotte Cty. Dist. Ct. Sept. 15, 2011) [hereinafter 60-1507 Motion]. His motion raised 41 claims of error.³ On September 8, 2011, the Wyandotte County, Kansas District Court ("the District Court") held a hearing on petitioner's 60-1507 motion and then denied the motion in its entirety. Journal Entry Denying Defendant's K.S.A. 60-1507 Motion at 1, Blaurock v. Kansas, No. 2010cv0028 (Wyandotte Cty. Dist. Ct. Sept. 15, 2011); 60-1507 Motion Hearing Transcript, Blaurock v. Kansas, No. 2010cv0028 (Wyandotte Cty. Dist. Ct. Sept. 8, 2011), Doc. 6-7 [hereinafter 60-1507 Hearing]. Petitioner appealed this district court decision ("60-1507 appeal"). Petitioner was represented by counsel in both his 60-1507 motion hearing and appeal. In his appeal, petitioner's counsel raised just two issues: (1) whether the Wyandotte County District Court had violated Kansas Supreme Court Rule 183(j) by failing to make explicit findings of fact and conclusions of law on all issues presented, and (2) whether petitioner's 60-1507 counsel was ineffective. Brief for Appellant at i, Blaurock v. Kansas, 2015 WL 1122935 (Kan. Ct. App. Mar. 6, 2015) (No. 108,591) [hereinafter 60-1507 Appeal]. Petitioner, acting on his own behalf, also sent the Kansas Court of Appeals what he called a "supplemental brief." This brief raised two new issues not briefed by his counsel. Supplemental Brief of Appellant, Blaurock v. Kansas, 2015 WL 1122935 (Kan. Ct. App. Mar. 6, 2015) (No. 108,591), Doc. 6-2 [hereinafter Supplemental Brief]. The court of appeals declined to hear those two issues, and ruled against him on the two issues briefed by counsel. Blaurock, 2015 WL 1122935, at *6-7. The Kansas Supreme Court declined to review the court of appeals's 60-1507 decision. Blaurock v. Kansas, 2015 Kan. LEXIS 894 (Kan. Sept. 14, 2015).

Petitioner then came to our court, filing his Petition for Writ of Habeas Corpus on December 18, 2015. Doc. 1. The Petition asserts 31 grounds for relief. The court reproduces all of his claims here, albeit in abbreviated form:

1. Ineffective assistance of counsel based on counsel's failure "to pursue" an 8-year plea offer and advise petitioner about the offer. Id. at 6.

2. Denial of Sixth Amendment right to a "fair, impartial, and competent jury" based on failure to grant a mistrial. Id. at 7.

3. The trial court did not gain jurisdiction over petitioner at his initial appearance.

4. Ineffective assistance of counsel based on trial counsel's failure to investigate petitioner's alibi.

5. Ineffective assistance of counsel based on trial counsel denying petitioner "Brady Rule exculpatory/exclusionary evidence." Id. at 17.

6. "The State's information, and jury instructions alleged multiplicative crimes, double punishments at sentencing." Id. at 19.

7. Trial court denied petitioner a speedy preliminary hearing and arraignment.

8. "Trial counsel was ineffective, and trial court abused its discretion [by] failing to investigate" a conflict of interest between petitioner and the prosecutor. Id. at 23.

9. The trial court's Fourth Amendment and attorney-client privilege rulings were erroneous.

10. Petitioner "was too far removed from the crime scene . . . before discovery of evidence admitted in trials." Id. at 27.

11. Fourth Amendment violation based on failure to exclude evidence seized as fruit of the poisonous tree.

12. No one conducted fingerprint analysis on evidence that was used during the commission of the crime.

13. "The State was allowed to use the DNA evidence from a 6/1/05 sexual assault to corroborate/prove a 5/25/05 rape." Id. at 33.

14. Erroneous jury instructions.

15. Error based on the trial court allowing "the State and State witnesses to violate a limiting instruction 95 times." Id. at 37.

16. Prosecutorial misconduct based on the prosecutor threatening and intimidating defense witnesses.

17. "The [trial] court erred in making the defendant wear restraint devices throughout his trial." Id. at 41.

18. "The [trial] court erred in allowing the jurors to keep and view all evidence[] and exhibits in [the] deliberating room." Id. at 43.

19. Error based on inadmissible evidence about gang affiliation and "allowing the State to present [non-existent] evidence." Id. at 45.

20. Error based on trial court instructing the jury to deliberate longer when it came back "hung" on five of the 13 counts. Id. at 47.

21. Error based on jury foreperson's failure to sign the verdict form in petitioner's first trial.

22. Prosecutorial misconduct based on improper remarks in the prosecutor's opening and closing statements.

23. Prosecutorial misconduct based on the prosecutor's comments about petitioner's and other witnesses' veracity as well as about the credibility of the evidence.

24. Prosecutorial misconduct based on the prosecutor being "rude and interruptive during defense witness testimony, and defense counsel questioning." Id. at 55.

25. Ineffective assistance of counsel on direct appeal.

26. Ineffective assistance of counsel in petitioner's 60-1507 motion hearing.

27. Error based on the District Court's failure to comply with Kansas Supreme Court Rule 183(j).

28. Error based on admission of inadmissible hearsay testimony.

29. "The Court Services Reporters failed to record all proceedings trial related, erased, deleted, and omitted transcripts." Id. at 65.

30. 90-day speedy trial violation under Kansas Statutes Annotated section 22-3402.

31. Cumulative error resulting in deprivation of a fair trial.

Doc. 1 at 6-70. The court considers these claims under the governing standard detailed in the following section.

II. Habeas Corpus Governing Standards

A federal court reviews a state prisoner's challenge to matters decided in state court proceedings under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This Act "requires federal courts to give significant deference to state court decisions" on the merits. Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013) (citing Hooks v. Workman, 689 F.3d 1148, 1162-63 (10th Cir. 2012)). A federal court may not grant a state prisoner habeas relief on "any claim that was adjudicated on the merits in [s]tate court proceedings" unless the prisoner can show that the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "Clearly established law" means the Supreme Court's holdings, but not its dicta. Lockett, 711 F.3d at 1231. A state court decision is "contrary to" clearly established federal law "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 ...