Tomlin v. McKune
| Decision Date | 25 September 2007 |
| Docket Number | No. 06-3296-JWL.,06-3296-JWL. |
| Citation | 516 F.Supp.2d 1224 |
| Parties | Edwin TOMLIN, Petitioner, v. David R. MCKUNE, et al., Respondents. |
| Court | U.S. District Court — District of Kansas |
Jean K. Gilles Phillips, Lawrence, KS, for Petitioner.
Kristafer R. Ailslieger, Office of Attorney General, Topeka, KS, for Respondents.
Petitioner Edwin Tomlin is currently before this Court on his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2554. In his petitions Mr. Tomlin alleges that he was denied effective trial and appellate counsel. After thoroughly reviewing the parties' motions, briefs, and the underlying record, the court finds that the evidence establishes Mr. Tomlin is entitled to relief. As such, his habeas petitioners granted.
The facts pertinent to this habeas case are largely uncontested and are taken from the Kansas Court of Appeals ("KCOA") decision in Tomlin v. State, 35 Kan.App.2d 398, 130 P.3d 1229 (2006). Mr. Tomlin was charged with one count of rape and one count of aggravated indecent liberties with his 10 year old stepdaughter. During its deliberations, the jury sent a note to the judge stating:
We are hung. 3 for Guilty to Count 1; 3 for Not Guilty to Count 1 or 2 due to reasonable doubt; 6 for Guilty to Lesser Charge of Count 1 and Guilty to Count 2. We reviewed the facts and your instructions. We have discussed how to "compromise" but we all feel very strongly that we must vote what we believe. Also we feel strongly about our Duty to reach a decision for this Trial. To help us break our deadlocks-what can you say or do for us? We want to come to a decision.
The court then gave the jury an Allen-type instruction over Mr. Tomlin's objection. After further jury deliberations, Mr. Tomlin moved for a mistrial. Shortly thereafter, the jury sent another note to the court stating:
We have moved to 11 guilty to Count 1 of the lesser aggravated indecent liberties and 1 Not guilty to Count 1 or Count 2 due to reasonable doubt; we have all agreed to Not Guilty to Count 1 Rape. Since 3p.m. today, we have made good progress. However, the one has stated that since we haven't convinced him of his reasonable doubt position he will never change his mind. We are at an impasse. Most of the Jury feels further discussion will not change his mind.
Subsequently, the State also moved for a mistrial. The trial court determined the jury was deadlocked, declared a mistrial, and discharged the jury. Mr. Tomlin then filed a motion for judgment of acquittal arguing that a retrial of the rape charge would subject him to double jeopardy based on the jury's second note indicating that all members agreed he was not guilty of rape. The court denied the motion. Mr. Tomlin was retried and convicted of both counts. He renewed his motion for judgment of acquittal based on double jeopardy grounds which the trial court denied. He was sentenced to 334 months for rape and 51 months for aggravated indecent liberties with a child.
Mr. Tomlin appealed his convictions and the KCOA affirmed, concluding that the trial court did not abuse its discretion in granting the mistrial and denying his motion for judgment of acquittal. The KCOA further concluded that double jeopardy did not prevent Mr. Tomlin's second trial because the first trial was terminated with Tomlin's consent.
Mr. Tomlin then filed a motion for post-conviction relief pursuant to K.S.A. § 60-1507. He argued that his trial counsel was ineffective for consenting to the mistrial and failing to request that the court publish the jury's note as a verdict on the rape charge at the first trial. In evaluating this claim, the court concluded that counsel's actions were not objectively unreasonable because partial verdicts were prohibited under Kansas case law. Since partial verdicts were impermissible, no acquittal was possible on the greater charge of rape when the jury was hung on the lesser included offense. Counsel's actions were, therefore, reasonable under Strickland's first prong, and Mr. Tomlin's ineffective assistance of trial counsel claim was denied. Tomlin, 35 Kan.App.2d at 402-03, 130 P.3d at 1233-34; see also Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The KCOA also addressed Mr. Tomlin's claim that his appellate counsel was ineffective for raising the issue of double jeopardy on direct appeal instead of arguing that the trial court's failure to publish the jury's acquittal amounted to a constitutional error. Tomlin, 35 Kan.App.2d at 404-05 130 P.3d at 1234-35. The KCOA rejected this claim as well, concluding that Mr. Tomlin's appellate counsel was not ineffective as Mr. Tomlin failed to demonstrate prejudice because he failed to show that the outcome of the case would have been different but for his counsel's alleged error.
When a state court decision rests on either procedural or substantive state grounds which are "independent of the federal question and adequate to support the judgment," a federal court may not review the claim. Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). To preclude federal review of a claim, the state grounds must be "firmly established and regularly followed state rules." Id. at 376, 122 S.Ct. 877. When state decisions do not direct "flawless compliance" with the state law, it is evidence that the state ground is inadequate to block adjudication of a federal claim. Id. at 363-64, 122 S.Ct. 877.
While deciding the ineffective assistance claim on the merits under Strickland, the KCOA used a state law ground to determine counsel's actions were reasonable. It held that partial verdicts were prohibited in Kansas; thus, it was impossible for the unanimous agreement of not guilty of rape written by the jury to become a final verdict when the jury was hung on the lesser included offense. Jeopardy does not attach without a verdict, so it would have been unavailing for counsel to move to formalize the verdict. The court, therefore, denied Mr. Tomlin's ineffective assistance of trial claim based on state procedural law interpretations and never independently evaluated whether Mr. Tomlin's case presented a "manifest necessity" for mistrial.
This Court finds the prohibition on partial verdicts in Kansas is not an independent and adequate state ground. Prior to his habeas appeal, there was no decision in Kansas that specifically disallowed the course of conduct Mr. Tomlin asserts his counsel should have taken — that counsel should have moved for a formal verdict where there was a unanimous decision known by the court before the jury was discharged, at which time the court could have resolved whether the agreement was a temporary compromise or a final agreement. While the KCOA relied on State v. McKay, 217 Kan. 11, 535 P.2d 945 (Kan. 1975),1 a case in which the unanimous agreement was unknown by the court until after the jury was discharged, there is no evidence that the partial verdict rule from this decision has been "regularly followed" or "firmly established." The KCOA in Mr. Tomlin's habeas appeal stated that it would have been "laudable" for counsel to do the quick thinking to move for a judgment of acquittal on the rape charge, indicating that the law was not entirely settled. It further noted that the California case on which McKay relied has since been overturned, even though it had not been in Kansas. Also, there is nothing in Kansas statutes that prohibit partial verdicts. Last, the particular issue regarding partial verdicts in a multiple offense context in McKay has only been referenced once since 1976, showing this is not a rule of law "regularly followed."2 Accordingly, there is not independent and adequate state law ground to preclude review, so this court reviews the merits of Mr. Tomlin's constitutional claim, first discussing the deference that should be given to the KCOA's decision.
Deference a federal court must give depends on whether the state court addressed the claim or argument on the merits. This case provides an interesting scenario. The KCOA adjudicated the ineffective assistance of counsel claim on the merits, and it used the Strickland standard required to evaluate that claim.3 In deciding that claim, the KCOA had to decide whether Mr. Tomlin's counsel's actions were objectively reasonable in not moving to formalize the verdict. It decided that partial verdicts were not recognized under state law, so counsel was reasonable because any effort to formalize that verdict would have been futile.
The KCOA primarily relied on State v. McKay, 217 Kan. 11, 535 P.2d 945 (Kan.1975) to determine that Mr. Tomlin's counsel's actions were reasonable under Strickland. The McKay court denied a double jeopardy claim but, in doing so, stopped short of discussing whether there was a "manifest necessity" to declare a mistrial. It concluded there was no acquittal and, consequently, that no jeopardy had attached. When the jurors were discharged in that case, three stood for conviction of voluntary manslaughter and nine for involuntary manslaughter. Both were lesser included offenses of the second degree murder charge. After the jury was discharged, affidavits were obtained from six jurors indicating that during deliberations all jurors had agreed the defendant was not guilty of the second degree murder charge, the greater offense. The Supreme Court of Kansas first noted that defendant was not prejudiced because he was only convicted of manslaughter at the second trial, so the decision was outside cases such as Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) or ...
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