MEMORANDUM AND ORDER
This matter comes before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner alleges that (1) he was denied his right to present a complete defense by the trial court's refusal to allow defense evidence of a potential third-party perpetrator; (2) the trial court erred by instructing the jury on lesser included offenses; (3) the prosecutor committed misconduct in calling a particular witness; and (4) he was denied his right to a fair and impartial jury by the trial court's refusal to change venue. Petitioner, in custody and incarcerated at the Winfield Correctional Facility, proceeds pro se, so the court liberally construes his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
This court presumes that all factual findings of the state court are correct absent clear and convincing evidence to the contrary. 28 U.S.C. §2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004), cert denied, 545 U.S. 1145 (2005). No factual challenge is raised to the following facts from the Kansas Court of Appeals opinion:
On January 19, 2004, Mary LaFaye Noble was supposed to meet the victim, Judith Shrum, at the victim's house south of Chetopa, Kansas. When the victim did not answer her door or phone, Noble and a neighbor discovered the front door was unlocked, entered the house and searched it, but found only the victim's purse and cell phone sitting on a counter and the victim's car parked in the garage. Noble then called 911.
Although there was no sign of forced entry or a struggle, Noble informed the police she noticed wet towels on the bathroom vanity and clothes and a pillow on the floor of the bedroom, which seemed out of place for the victim, a meticulous housekeeper. Law enforcement officers collected the towels from the bathroom, a single hair lying on one towel, and swabs of two stains on the bathroom countertop.
Initially, law enforcement officers feared the victim had harmed herself because of the recent death of her husband. Community members and law enforcement began searching for the victim. On January 21, the victim's house was sealed off as a possible crime scene, and the sheriff's office executed a search warrant on the house a day later, collecting hair from the shower drain and a nightgown and robe from the master bedroom.
Eventually, the victim's partially clothed body was located in a nearby creek on January 23. She had been strangled to death.
The Chetopa police chief filed a report stating he had seen the defendant's vehicle driving in Chetopa at midnight on January 19, 2004. On January 26, two KBI agents interviewed the defendant. The defendant told the agents he had been watching football at a friend's house on January 18 before returning home at about 9 p.m. to play video games for a couple of hours. According to the defendant, around 11 p.m., he drove to some of his property southeast of Chetopa to shoot beavers and returned home around 2 a.m. on January 19, 2004. The defendant told the agents he had met the victim when they both worked for the Chetopa School District in 1996-97. According to the defendant he owned a tilling business and had been to the victim's house to till a garden.
DNA testing on stains from the robe, a towel from the bathroom, and the bathroom vanity revealed a mixture of DNA. Neither the defendant nor the victim could be excluded as contributors to the stains. The defendant's facial hair was found to be consistent with thehair found on the bathroom towel, and his pubic hair was consistent with a hair from the shower drain.
Ultimately, the State charged the defendant with one count of premeditated first-degree murder ... and one count of aggravated battery .... Later, the State filed an amended complaint/information charging the defendant with one count of premeditated first-degree murder...
The defendant's first trial resulted in a mistrial after the jury could not reach a unanimous decision.
Prior to the second trial, the defendant filed a motion to appoint an expert to conduct a survey to determine if the venue should be changed and a motion for change of venue, arguing the defendant was prejudiced by pretrial media coverage. The district court denied both motions.
At the close of the evidence of the second trial, in addition to first-degree murder, the district court instructed the jury on the lesser included offenses of second-degree murder and voluntary manslaughter, over the defendant's objection. Following deliberation, the jury found the defendant guilty of murder in the second degree. The defendant moved for a new trial, citing multiple errors. The district court denied the motion.
State v. Krider, 41 Kan.App.2d 368, 370-71 (2009).
Petitioner was sentenced to a term 165 months imprisonment. On direct appeal, Petitioner argued each of the claims that he now raises before this Court. The Kansas Court of Appeals affirmed his conviction and sentence, and the Kansas Supreme Court denied review. Petitioner then filed for federal habeas corpus relief in this Court. No procedural default or failure to exhaust is alleged.
II. General Standards for 2254 Motions Federal habeas corpus relief is available under § 2254 only upon a showing that petitioner is in custody in violation of the constitution or laws of the United States. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This courtcannot correct errors of state law, and is bound by the state court's interpretation of its own law. Id.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") govern a federal court's review of petitioner's claims. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under § 2254, as amended by AEDPA, the Court may not grant federal habeas corpus relief unless the applicant establishes the state court's adjudication of the claims resulted in a decision that was either (1) "contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court"; or (2) "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). See also Williams v. Taylor, 529 U.S. 362, 404-05 (2000). This standard is difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction. Greene v. Fisher, 132 S.Ct. 38, 43-44 (2011) (quotations and citations omitted).
III. Exclusion of Third-Party Perpetrator Evidence Petitioner first contends that his constitutional right to present a complete defense was violated by the trial court's exclusion of evidence that the victim's son-in-law (Cook) framed Petitioner by placing Petitioner's hairand blood in the victim's house. Petitioner contends that the following facts warrant the admission of his third-party perpetrator theory and evidence:
• Cook was married to the victim's daughter;
• Cook's wife was the sole beneficiary of the victim's assets, so Cook had a motive to kill the victim;
• He and Cook worked together;
• Cook served as the first-aid officer at Petitioner's workplace and Petitioner went to first-aid twice when Cook was serving as the safety officer, so Cook had direct access to Petitioner's blood and hair;
• Cook had the opportunity to plant Petitioner's blood and hair in the victim's house because Cook and his wife stayed overnight at the victim's house at least once after the murder, before the house was secured as a crime scene;
• Cook called in sick to work on January 19th, the day the victim was killed.
• Cook was in the general vicinity of the crime at the time of the crime.
• No DNA evidence showed that the victim struggled or was dragged from her house;
• None of the victim's DNA was found in Petitioner's vehicle or house; and• No stolen items from the victim's home were found in Petitioner's possession.
The State's evidence against the Petitioner was circumstantial, as was the Petitioner's evidence of a third-party perpetrator. The trial court excluded Petitioner's third-party perpetrator evidence as speculative and irrelevant because no evidence connected Cook to the crime. R.Vol. I, p. 11.
Relevant evidence is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are designed to establish. State v. Lumley, 266 Kan. 939, 950-51 ... (1999).
State v. Marsh, 278 Kan. 520, 531 (2004), rev'd on other grounds, 548 U.S. 163 (2006).
The Kansas law applied by the trial court deems third-party evidence irrelevant unless the defense shows an "effective connection" between the third-party perpetrator and the commission of the crime.
The admissibility of third-party evidence is evaluated under the "totality of facts and circumstances in a given case." (citations omitted). To be admissible, third-party evidence must "effectively connect the third party to the crime charged." (citation omitted). Additionally, third-party evidence must reveal more than motive to be relevant. (citation omitted).
In Marsh, we held that "while evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime." (citation omitted). We explained that evidence of third-party motive alone, without connection to the crime charged, serves only to " 'confuse the jury [and] to permit [jurors] to indulge in speculations on collateral matters wholly devoid of probative value relative to who committed the [crime].' " (citation omitted). InMarsh, we held the third-pa
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