Hume v. McKune

• Decision Date: 02 November 2001
• Docket Number: No. 98-3363-DES.,98-3363-DES.
• Citation: 176 F.Supp.2d 1134
• Parties: Larry G. HUME, Petitioner, v. David R. McKUNE, Warden and Carla Stovall, Attorney General, Respondents.
• Court: U.S. District Court — District of Kansas

176 F.Supp.2d 1134

Larry G. HUME, Petitioner, v. David R. McKUNE, Warden and Carla Stovall, Attorney General, Respondents.

No. 98-3363-DES.

United States District Court, D. Kansas.

November 2, 2001.

COPYRIGHT MATERIAL OMITTED

Larry D. Hume, Lansing, KS, pro se.

Jared S. Maag, Office of Attorney General, Topeka, KS, for respondents.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter comes before the court on review of Magistrate Judge Walter's Report and Recommendation (Doc. 19) on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner has filed Objections to the Report and Recommendation (Doc. 20) and a Supplement (Doc. 24) to his original objections. Magistrate Judge Walter found petitioner's claims to be procedurally defaulted and recommends denying all relief. For the following reasons, the court accepts and adopts the findings and conclusions of the Report and Recommendation ("R & R").

I. BACKGROUND

A. State Conviction

On December 18, 1971, the Money Galore Pawn Shop in Wichita, Kansas, was robbed, and the pawn shop attendant was shot and killed. Both petitioner and a minor, Phillip Trissal, were charged with the robbery and murder. Apparently, Mr. Trissal entered the pawn shop and killed the attendant while petitioner waited in a vehicle outside the pawn shop. At petitioner's criminal trial, the jury was instructed on felony murder and aiding and abetting. The state theorized petitioner had conspired with Mr. Trissal to commit the robbery.

A Sedgwick County jury convicted petitioner of first degree murder, aggravated robbery, and unlawful possession of a firearm. He was sentenced on April 27, 1972, to life imprisonment and a consecutive term of three to ten years. Petitioner did not appeal his conviction or sentence.

B. Procedural History

Petitioner has actively pursued multiple post-conviction motions before the Kansas courts. The court adopts the following description of these proceedings as found by Magistrate Judge Walter:

On June 12, 1973, petitioner filed a motion for reduction in sentence. He asserted that misrepresentation of counsel was a factor in the harsh sentence he received. The Court denied the motion, finding it had no jurisdiction to modify the sentence because the motion had not been timely filed. (Doc. 6, Tab N).

Case No. 83 C 3428: Petitioner filed his first post-conviction motion pursuant to K.S.A. 60-1507 in Sedgwick County, Kansas on December 15, 1983. Petitioner challenged his conviction on the grounds that [1] he did not defend himself at trial to protect Phillip Trissal, his younger co-defendant, [2] physical evidence was presented against him at trial for which he does not remember being served a warrant, [3] he does not remember being read Miranda warnings nor waiving them, [4] witnesses were not called for his defense, and [5] trial counsel was incompetent because he failed to advise the court that petitioner was "nuts." On February 6, 1984, the District Court denied the motion stating that the claim that petitioner offered no defense to protect Trissal was successive and thus an abuse of the remedy provided by K.S.A. 60-1507; and additionally concluding that "questions of guilt or innocence are not justiciable issues under K.S.A. 60-1507." The court generally stated that a 1507 motion could not be used as an alternative to an appeal. The court rejected the warrantless search and Miranda violation arguments on the basis that both issues should have been presented at trial and the failure to do so waived those arguments. As to plaintiff's claim that no witnesses were called in his defense, the court states that whether to call witnesses is within the province of defense counsel after consulting with the client. The petitioner's final argument, that counsel was incompetent for failing to question petitioner's competency, was found to be unpersuasive because the trial record reflected that the issue was raised and the court found petitioner competent to stand trial. (Doc. 6, Tab A). Although petitioner filed an appeal, he voluntarily dismissed the appeal (see Doc. 18, at 5).

Case No. 84 C 44: Petitioner filed a second 60-1507 post-conviction motion on January 6, 1984, in Sedgwick County. He asserted that [1] extenuating and mitigating circumstances showed that he did not want to defend himself in order to protect a friend, [2] no search warrant was ever given for items presented against him at trial and [3] he did not recall being given Miranda warnings nor did he waive them. The court denied the motion on February 6, 1984, on grounds similar to the order denying relief in the first post-conviction proceeding. (Doc. 6, Tab B). Although petitioner filed an appeal, he voluntarily dismissed the appeal on the advice of court-appointed counsel (Doc. 1, pp. 4-5) and the appeal was dismissed April 17, 1984.

Case No. 89 HC 074: Petitioner's third filing, a motion for state habeas relief, was dismissed on August 23, 1989, by Leavenworth County District Court for failure to exhaust available administrative remedies.

Case No. 90 C 991: Petitioner then filed another 60-1507 motion in Sedgwick County on March 26, 1990. He claimed ineffective assistance of counsel on the grounds that his attorney [1] did not question petitioner to determine if his confession had been voluntary, [2] failed to request a Jackson v. Denno hearing to determine if seized evidence was admissible at trial, and [3] failed to argue that there was no probable cause. The district court denied the motion on May 16, 1990, as an abuse of remedy. (Doc. 6, Tab D). The Kansas Court of Appeals affirmed the District Court's decision on April 26, 1991. Hume v. State, No. 65,346, (Kan. Ct.App. Apr.26, 1991). The court, relying upon Lee v. State, 207 Kan. 185, (1971) and K.S.A. 60-1507, found no error in the denial of petitioner's successive motion. The court found this 1507 motion, his third, was justifiably denied pursuant to the successive motions rule, K.S.A. 60-1507(c). The court rejected petitioner's argument that his lay status and ignorance of the law constituted exceptional circumstances. Petitioner did not seek review by the Kansas Supreme Court.

Petitioner then filed two state habeas petitions, one in Cowley County (Case No. 91 C 75) and another in Leavenworth County (Case No. 9105HC0031). Both were dismissed. Neither dismissal was appealed.

Case No. 91 C 2453: Petitioner filed another 60-1507 motion in Sedgwick County on August 23, 1991. This motion claimed ineffective assistance of counsel and prosecutorial misconduct. The ineffective assistance of counsel claim asserted that counsel did not [1] advise the petitioner that his decision not to present a defense was not intelligently made and "contradicted the purposes of counsel," [2] communicate the need to present mitigating circumstances, [3] investigate facts to form a defense, [4] seek advice or guidance from an experienced attorney, [5] make an opening or closing statement or cross-examine witnesses, [6] ascertain the accuracy of the presentence investigation report, [7] advise the court that the Journal Entry in 71CR7915 should reflect that petitioner aided and abetted rather than committed a murder, or [8] file motions [a] contesting the voluntariness of the consent to enter the home, [b] challenging probable cause for arrest, [c] requesting a Jackson v. Denno hearing, [d] challenging the admissibility of evidence seized from petitioner's home and car, [e] challenging competency of Phillip Trissal as a witness, [f] requesting a change of venue, [g] requesting postponement of the trial, [h] challenging accuracy of competency report, [i] challenging accuracy of the presentence investigation report, and [j] requesting a hearing to modify sentence. The claim of prosecutorial misconduct asserted that the prosecutor withheld information that a psychiatric report was to be completed for Trissal. The court dismissed the motion on November 12, 1991, as an abuse of remedy. (Doc. 6, Tab F). Petitioner did not appeal.

Case No. 95 C 695: The petitioner filed once more prior to the current filing. He filed a 60-1507 post-conviction motion in Sedgwick County on March 9, 1995. The petitioner's ineffective assistance of counsel claim asserted [1] his attorney did not pursue a viable insanity defense, [2] no motion was made to determine the legality of the arrest, [3] no motion was made to determine if evidence was properly seized, [4] no motion was made to determine the competency of Trissal as a witness, [5] no Jackson v. Denno motion was made to determine the voluntariness of the petitioner's confession, and [6] no appeal from the original conviction was ever made. The motion was denied on June 11, 1996, for abuse of remedy. (Doc. 6, Tab G). The Kansas Court of Appeals affirmed the decision. Hume v. State, No. 78,623, (Kan.Ct.App. July 17, 1998). (see attachment to Doc. 5). The Kansas Supreme Court denied a petition for review on September 14, 1998.

(R & R at 2-8).

II. PETITIONER'S CLAIMS

Petitioner initially raised three claims within his original 28 U.S.C. § 2254 petition. Petitioner, however, sought dismissal of the first claim (denial of due process), which was granted on September 21, 1999 (Doc. 11). Two claims, therefore, survived for Magistrate Judge Walter's consideration: (1) whether petitioner was denied his Sixth Amendment right to effective assistance of counsel and (2) whether petitioner was denied a fair trial, as guaranteed by the Fourteenth Amendment, as a result of prosecutorial misconduct.

III. STANDARD OF REVIEW

The standard for district court review of a magistrate judge's R & R is contained in 28 U.S.C. § 636, which provides as follows:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings...