Kelln v. Dowling
| Decision Date | 20 November 2017 |
| Docket Number | NO. CIV-15-0888-HE,CIV-15-0888-HE |
| Parties | MATTHEW JAMES KELLN, Petitioner, v. JANET DOWLING, Warden, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Petitioner, Matthew James Kelln, a state court prisoner, has filed a petition for a writ of habeas corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 1. Petitioner challenges the conviction entered against him in Ellis County District Court Case No. CF-2011-3. In that case, petitioner was found guilty by jury of murder in the second degree and was sentenced to twenty years in prison (Tr. 4/17/12, 6). Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (hereinafter "OCCA"). The OCCA affirmed in an unpublished opinion, Kelln v. State, No. F-2012-375 (Okla. Crim. App. Sept. 18, 2013). Petitioner was also denied post-conviction relief. Kelln v. State, No. PC 2015-0507 (Okla. Crim. App. Aug. 5, 2015) (unpublished). See Resp., Exs. 3 and 7 ().
Petitioner brings six grounds for relief, all of which have been presented to the OCCA. Respondent has responded to the petition and petitioner has replied. Docs. 14 and 20. In his reply, petitioner has requested an evidentiary hearing. He has also requested the appointment of counsel and an investigator. Because all of petitioner's grounds for relief were presented to the OCCA and addressed on the merits, and because the court has concluded that the OCCA was reasonable in its denial, the court's review is limited to, and must be decided on, the record that was before the OCCA. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (). Further exploration of petitioner's claims is therefore unwarranted, and his requests for a hearing, counsel, and an investigator are all hereby denied. See Jones v. Warrior, 805 F.3d 1213, 1222 (10th Cir. 2015) (); Anderson v. Att'y Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005) (); Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001) (); Swazo v. Wyo. Dep't of Corr., 23 F.3d 332, 333 (10th Cir. 1994) ().
Petitioner was the driver in a single truck accident which caused the death of his front seat passenger. A sample of petitioner's blood was taken at the hospital where he was treated for his injuries (J. Tr. 2, 271-81, 291-94, 322-23, 362). His blood alcohol level was above the legal limit (.12), and he had prior drunk driving convictions (State's Exs. 19, 46, and 50). Additional facts will be referenced herein as they relate to the individual grounds for relief raised by petitioner.
See Pinholster, 563 U.S. at 181 (). The focus of this statutory provision is on the reasonableness of the OCCA's decision. "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). In other words, "[i]t is not enough that [this] court, in its independent review of the legal question, is left with a firm conviction that the [OCCA] was erroneous." What is required is a showing that the OCCA's decision is "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citation omitted).
The Supreme Court has repeatedly acknowledged that Section 2254(d) "'erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court,'" and that "[i]f [it] is difficult to meet, that is because it was meant to be." White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460 (2015) (quoting Burt v. Titlow, 571 U.S. ___, 134 S. Ct. 10, 16 (2013)); Harrington v. Richter, 562 U.S. 86,102 (2011). Section 2254(d) "stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings." Richter, 562 U.S. at 102. What remains, then, is a very narrow avenue for relief, one that permits relief only "where there is no possibility fairminded jurists could disagree that the [OCCA's] decision conflicts with Court's precedents." Id. (emphasis added).
Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Id. at 102-03 (citation omitted).
In his first ground for relief, petitioner asserts that trial counsel was ineffective for failing to (1) inform the trial court of a juror's partiality and bias; (2) effectively impeach a State's witness; and (3) obtain an expert regarding his blood alcohol content. Because trial counsel also represented him on direct appeal, petitioner additionally asserts that counsel was ineffective on appeal as well because he failed to raise these challenges to his own performance. Petitioner raised this claim in post-conviction and the OCCA denied relief on the merits. Kelln, No. PC 2015-0507, slip op. at 1-3. For the following reasons, the court concludes that no relief is warranted on Ground One.
"[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance . . . ." Titlow, 134 S. Ct. at 18. Whether counsel hasprovided constitutional assistance is a question to be reviewed under the familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which the OCCA did in denying petitioner relief. Kelln, No. PC 2015-0507, slip op. at 2-3. Strickland requires a defendant to show not only that his counsel performed deficiently, but that he was prejudiced by it. Strickland, 466 U.S. at 687.
To satisfy the deficient performance prong, a defendant must show that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. The assessment of counsel's conduct is "highly deferential," and a defendant must overcome the strong presumption that counsel's actions constituted "'sound trial strategy.'" Id. at 689 (citation omitted). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . ." Id. at 690. As Strickland cautions, "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. Therefore, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Within "the wide range of reasonable professional assistance," "[t]here are countless ways to provide effective assistance in any given case[, and] [e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id.
As for prejudice, Strickland requires a defendant to show that his counsel's errors and omissions resulted in actual prejudice to him. Id. at 687. In order to make a threshold showing of actual prejudice, a defendant Id. at 694.
As applied to appellate counsel challenges, Strickland requires a showing that (1) appellate counsel's actions on appeal were objectively unreasonable and (2) but for counsel's unreasonable actions, there is a reasonable probability that petitioner would have prevailed on appeal. Smith v Robbins, 528 U.S. 259, 285-86 (2000); Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (quoting Ellis v. Hargett, 302 F.3d 1182, 1186-87 (10th Cir. 2002)). When an appellate counsel claim concerns omitted issues, as in the present case, Strickland's first prong requires a showing that counsel unreasonably omitted "nonfrivolous issues." Robbins, 528 U.S. at 285. When counsel has filed a brief on the merits, it is difficult to show his incompetence for failing to raise a particular claim. Id. at 288. Appellate counsel does not have an obligation to raise every possible claim irrespective of its merit. In fact, "the hallmark of effective appellate advocacy" is the "process of 'winnowing out weaker arguments...
To continue reading
Request your trial