Wimberly v. McKune
| Decision Date | 16 April 1997 |
| Docket Number | No. 94-3201-DES.,94-3201-DES. |
| Parties | Ormond L. WIMBERLY, Jr., Petitioner, v. David McKUNE, et al., Respondent. |
| Court | U.S. District Court — District of Kansas |
Ormond Lee Wimberly, Jr., Lansing, KS, pro se.
Kay Huff, University of Kansas School of Law, Lawrence, KS, for Petitioner.
Melanie S. Pfeifer, Kansas Bureau of Investigation, Topeka, KS, for Respondents.
This is a habeas corpus petition, 28 U.S.C. § 2254, filed by an inmate of the Kansas State Penitentiary, Lansing, Kansas, challenging his conviction of first degree murder. Petitioner was granted leave to proceed in forma pauperis, and an order to show cause issued. Respondents filed an answer and return, and petitioner filed a traverse. Having examined all the materials in the file including the records and transcripts of the state criminal and post-conviction proceedings, the court makes the following findings and order.
Petitioner was convicted of first degree murder upon a jury verdict of guilty in Shawnee County District Court, Topeka, Kansas, on August 18, 1988. On direct appeal, the Supreme Court of the State of Kansas reversed the additional consecutive life sentence imposed by the sentencing judge based upon a prior military court martial conviction, but otherwise affirmed the conviction and life sentence. Petitioner's motion pursuant to K.S.A. 60-1507 was denied by the Shawnee County District Court, the denial was affirmed by the Court of Appeals for the State of Kansas, and application for review was denied by the Kansas Supreme Court.
The facts giving rise to petitioner's conviction were set forth in the opinion of the Kansas Supreme Court on direct appeal and are summarized here. On the morning of June 17, 1981, the body of 75 year-old Sarah Woody was found on the rear floor and seat of her car in the parking lot of Montgomery Wards in Topeka, Kansas. An autopsy indicated that Woody had suffered five bullet wounds from a large caliber weapon shot at close range, one of which was fatal. The time of death was estimated between 3:30 and 9:30 p.m. on June 16, 1981. Several witnesses testified that Woody's vehicle had been parked in the Ward's parking lot for some time before her body was found. A teller working at the drive up window at Capitol Federal Savings and Loan in Topeka testified she had cashed a check in the amount of $500 for Mrs. Woody the afternoon of June 16. Police officers who processed the crime scene testified as to their actions which included dusting for fingerprints, and described items found in Mrs. Woody's car. The items found included a purse with its contents strewn on the right rear floorboard and an open shoe box and package of Kleenex on the front floorboard of the passenger side. No money was found in the vehicle.
The Woody murder was unsolved for several years. In March 1987, a special agent with the KBI investigating a homicide in Kansas City in which Wimberly was a suspect noticed that slugs found in that investigation were similar to slugs removed from Mrs. Woody's body and vehicle. Wimberly was asked if he would allow the KBI to take his fingerprints and cooperated with the agents.
Two fingerprint specialists testified regarding the latent fingerprints found on the items in Mrs. Woody's car. Wimberly's fingerprints were found on a Standard Oil charge receipt dated January 10, 1981, and a King Travel receipt dated May 6, 1981. The two receipts had been found by officers inside Mrs. Woody's billfold which had been near the purse in her car. Wimberly's fingerprints were also on the show box and the Kleenex package found in the car.
A witness, who worked in the Federal Building located one block from where Mrs. Woody's body was found, could not give an exact time but testified that Wimberly had been in the witness' office sometime during the day on June 16, 1981. Another witness testified that he had seen a handgun in Wimberly's car while cleaning it about a year prior to the murder. Six close friends of Mrs. Woody and her husband testified that they had never heard Mrs. Woody mention Wimberly and had never seen him in her company.
Petitioner asserts two grounds as the basis for his petition: (1) that he was denied effective assistance of trial counsel and (2) that the evidence was constitutionally insufficient to convict him of first degree murder.
Petitioner has fully exhausted the available state remedies in that he presented his claim of insufficient evidence on direct appeal and his claim of ineffective assistance of counsel by state post-conviction motion, and the records indicate that these claims were considered by the state appellate courts on the merits. Thus, petitioner is properly before this court on his petition for federal habeas corpus relief.
On April 24, 1996, while Wimberly's habeas petition was under consideration by this court, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) came into effect "with a stroke of the Presidential pen." Ford v. Ahitow, 104 F.3d 926 (7th Cir.1997); Pub.L. 104-132, 110 Stat. 1214. Among other changes, the Act amended 28 U.S.C. § 2254(d), the habeas statute under which petitioner seeks relief. The initial question raised by this case is whether or not the amended § 2254(d) applies to cases pending on the date of its enactment so that it governs our review of this habeas petition.
The AEDPA includes a new Chapter 154, 28 U.S.C., establishing procedures that apply only to prisoners in state custody under a death sentence which are not applicable in this non-capital case. It also amended Chapter 153, 28 U.S.C., creating strict filing deadlines for all habeas corpus applications, restricting the ability of a prisoner to bring more than one application, rewriting the federal habeas standard of review, and narrowing the circumstances in which an appeal of a habeas action may be taken.
Congress stated explicitly that the death-penalty chapter applies retroactively. AEDPA, § 107(c). In contrast, the amendments to Chapter 153 lack any provision specifying whether they are prospective or retroactive and contain no effective date. Generally, a statute is effective upon the date of its enactment unless an express provision states otherwise. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). We attempted to determine applicability of the habeas amendments of chapter 153 of the AEDPA because of this presumption. Hatch v. State of Oklahoma, 92 F.3d 1012, 1014, FN2 (10th Cir.1996).
At this point it appears from our research that Congress, the Supreme Court and the Tenth Circuit have not yet determined the applicability of the § 2254(d) standard of review amendments to habeas petitions pending at the time of the AEDPA's enactment. Thus, we studied the relevant decisions and reasoning of other federal courts.
The circuit courts of appeals which have decided this question are divided. The Fifth and Seventh Circuits have explicitly held in lengthy, well-reasoned opinions that the amended § 2254(d) applies to cases pending on the date the AEDPA was enacted. Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996) cert. denied, ___ U.S. ___, 117 S.Ct. 1114, 137 L.Ed.2d 315, 65 USLW 3598 (1997); Lindh v. Murphy, 96 F.3d 856, 865 (7th Cir.1996). The Ninth Circuit issued a one page "decision prior to issuing an opinion" holding that the amendments to chapter 153 of the AEDPA do not apply to cases filed in the federal courts of that circuit prior to the Act's effective date. Jeffries v. Wood, 103 F.3d 827 (9th Cir.1996). The Second Circuit in a brief opinion held that the AEDPA does not apply to pending non-capital cases due to retroactivity problems. Boria v. Keane, 90 F.3d 36 (2d Cir.1996). In a more deliberate opinion the U.S. District Court for the Eastern District of Virginia held chapter 153 of the AEDPA inapplicable to pending cases and cited other district court opinions in accord. Satcher v. Netherland, 944 F.Supp. 1222, 1247, FN15 (1996). A reasoned district court opinion going the other way and citing opinions by other courts is Zuern v. Tate, 938 F.Supp. 468 (S.D.Ohio 1996). Other circuit courts have expressly avoided deciding whether or not amended § 2254(d) applied to pending cases. See e.g. Berryman v. Morton, 100 F.3d 1089, 1104 (3d Cir.1996); Hunter v. United States, 101 F.3d 1565, 1571 FN5 (11th Cir.1996); Sherman v. Smith, 89 F.3d 1134, 1142 FN1 (4th Cir.1996) cert. denied, ___ U.S. ___, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997). We believe that our own circuit court of appeals has substantially followed the last option.
The courts agree that Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), is the controlling precedent for determining the effect of intervening changes in the law. However, they vary widely in the extensiveness of their analysis under Landgraf. See Zuern at 475. A thorough Landgraf analysis requires that courts "evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and preenactment conduct." Landgraf, 511 U.S. at 280-81, 114 S.Ct. at 1505 (emphasis added); Satcher at 1247. And yet many of the original pronouncements have been broad statements that the AEDPA as a whole either applies or it does not.
The Tenth Circuit Court of Appeals has analyzed the applicability of the AEDPA on a pending case under Landgraf and stated that the new amendments must be applied "unless to do so would have retroactive effect." Lennox v. Evans, 87 F.3d 431, 432 (10th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 746, 136 L.Ed.2d 684 (1997). In Lennox, the Tenth Circuit concluded that the certificate to appeal requirements of amended § 2253(c)(2) are to be applied to pending § 2254 habeas petitions because no new legal consequences resulted. In United...
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