Nelson v. State, Case No. 10-3135-RDR
| Decision Date | 17 June 2011 |
| Docket Number | Case No. 10-3135-RDR |
| Parties | TROY H. NELSON, Petitioner, v. STATE OF KANSAS, Respondent. |
| Court | U.S. District Court — District of Kansas |
This case is before the court upon petitioner's request for relief pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of aggravated robbery, possession of cocaine and failure to obtain a drug tax stamp. In addition, petitioner pleaded guilty to three counts of felony theft. He was sentenced to 228 months. His convictions were affirmed on direct appeal by the Kansas Court of Appeals in 2004. State v. Nelson, 2004 WL 2694252 (Kan.App. 11/24/2004). Review by the Kansas Supreme Court was denied on May 3, 2005. Petitioner filed an action for state habeas relief pursuant to K.S.A. 60-1507. The state district court's denial of relief was affirmed by the Kansas Court of Appeals in 2009. Nelson v. State, 2009 WL 2030381 (Kan.App. 7/10/2009). Review by the Kansas Supreme Court was denied on May 18, 2010. The court has read the trial transcript and the other materials in the record. After careful consideration, the court shall deny the petition for relief.
During petitioner's trial, there was evidence that a women's clothing store named "Club Girl" was robbed by two black males on March 1, 2002. Defendant admitted that he was in the store at the time of the robbery with an acquaintance named Terry Gasper. The owner of the store, Carole Hall, testified that she was working alone there at the time of the robbery. Hall stated that defendant rushed to the counter and demanded the cash register. She replied that there wasn't a cash register, and when defendant came behind the counter she said that she kept the store's money in her purse. She testified that the other black male also approached the counter and raised a tire iron over her head. Hall stated that defendant took her purse, cut the telephone cord and left the store along with his accomplice. They left in a gold four-door car. Hall called the police from the phone of an adjacent store. According to evidence presented by the prosecution, the purse (minus cash and credit cards) and the tire iron were later recovered. Hall testified that defendant had been in the store the previous day with a different person.
Petitioner testified at trial that he went into the store with Terry Gasper on March 1, 2002. He admitted that he had been in the same store the previous day with a different person. According to defendant's trial testimony, at the time of the robbery he was in the back of the store. He said he was surprised that Terry Gasperwas robbing the store. His reaction was to make Gasper leave the store and he left, too, in the gold car which was driven by a female friend. Petitioner testified that he did not see the purse or the tire iron until he was in the car.
There was trial testimony from police witnesses that petitioner was spotted exiting a gold car at a gas station on March 9, 2002 at about 5:00 a.m. There was further testimony that petitioner ran on foot from the police when there was an attempt to make contact with him. Eventually, petitioner was apprehended hiding behind a tree and taken into custody. A piece of crack cocaine was found in his pants pocket when he was searched sometime after his arrest. There was no drug tax stamp on the cocaine.
Police officers testified regarding statements petitioner made during interrogation. Detective Dye testified that petitioner admitted being in the Club Girl store on the two occasions described by the store's owner. According to Dye, petitioner told the police that Terry Gasper waved a tire iron during the robbery on March 1, 2002, although petitioner was not aware of the tire iron before this happened. Petitioner also told the police that he acted as a lookout. He said that he and Gasper left in a car and used the proceeds of the robbery to buy dope and groceries. Petitioner admitted to having a cocaine habit. He also admitted to taking cash registers from two stores on March 8, 2002.
During his trial testimony, petitioner stated that he wasintoxicated during his police interrogation. But, he denied to the police that he was intoxicated when he was interrogated. Petitioner testified that he ran from the police because he was afraid they would find drug paraphernalia in his car.
An audiotape of petitioner's interrogation was admitted into evidence but not played in open court.
If petitioner is bringing a claim which was decided on the merits by the state court, then this court may not grant a writ of habeas corpus unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or, "was based on an unreasonable determination of the facts in light of the evidence presented at trial." 28 U.S.C. § 2254(d)(1)&(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
The Supreme Court has stated that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in our cases" or if the state court "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state courtdecision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"If constitutional error is committed, we look to whether 'the prejudicial impact of constitutional error in [the] state-court criminal trial' rises to the 'substantial and injurious effect standard . . .'" Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011) (quoting Fry v. Pliler, 551 U.S. 112, 120-22 (2007)). "[A] 'substantial and injurious effect' exists when the court finds itself in 'grave doubt' about the effect of the error on the jury's verdict." Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). "'[W]hen a court is "in virtual equipoise as to the harmlessness of the error" . . . the court should "treat the error . . . as if it affected the verdict . . . Id. (quoting Fry, 551 U.S. at 121 n.3) (quoting O'Neal, 513 U.S. at 435).
This court may not issue a writ of habeas corpus "simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003) cert. denied, 541 U.S. 1074 (2004). We must be convinced that the state court's decision was objectively unreasonable. Id. "This standard does not require our abject deference, . . . but nonetheless prohibits us from substituting our own judgment for that of the state court." Snowv. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007) (). Furthermore, "[w]e 'may not consider issues raised in a habeas petition that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.'" Welch, 639 F.3d at 992 (quoting House v. Hatch, 527 F.3d 1010, 1025 (10th Cir. 2008)).
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). "The procedural default doctrine and its attendant 'cause and prejudice' standard are grounded in concerns of comity and federalism, and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack."Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citations and some internal quotation marks omitted). In other words, procedural default for federal habeas corpus purposes occurs when a state court has declined to address a federal claim because the petitioner failed to satisfy an independent state procedure requirement. Coleman, 501 U.S. at 729-30.
Petitioner raises twenty-eight grounds for relief. The court shall address these claims mostly in the order in which they are presented.
Petitioner contends that the prosecutor's examination of Carole Hall during the preliminary hearing was improperly leading and that this tainted Hall's identification of defendant during the trial, allegedly violating petitioner's due process rights. This argument must be rejected for the following reasons.
First, petitioner did not raise an objection during the preliminary hearing or at trial. Therefore, it was defaulted from review on direct appeal according to the established rules in Kansas. Nelson, 2004 WL 2694252 at *1 (); see also, State v.Washington, 479 P.2d 833, 836 (Kan. 1971) (...
To continue reading
Request your trial