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Kelln v. Dowling

United States District Court, W.D. Oklahoma

November 20, 2017

JANET DOWLING, Warden, Respondent.



         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 The OCCA affirmed in an unpublished opinion, Kelln v. State, No. F-2012-375 (Okla.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 Aug. 5, 2015) (unpublished).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 (copies of the OCCA's opinions).

         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) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”). 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) (denying an evidentiary hearing under Pinholster because a petitioner failed to satisfy § 2254(d)); Anderson v. Att'y Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005) (“[A]n evidentiary hearing is unnecessary if the claim can be resolved on the record.”); Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001) (denying a capital habeas petitioner's request for an investigator because he failed to show “reasonable necessity”); Swazo v. Wyo. Dep't of Corr., 23 F.3d 332, 333 (10th Cir. 1994) (the appointment of counsel in § 2254 cases is discretionary).

         I. Facts.

         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.

         II. Standard of Review.

         In order to obtain relief, petitioner must satisfy the requirements of 28 U.S.C. § 2254(d). Section 2254(d) requires petitioner to show that the OCCA's adjudication of his claims either

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See Pinholster, 563 U.S. at 181 (acknowledging that “[t]he petitioner carries the burden of proof”). 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 [the Supreme] 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).

         III. Analysis.

         A. Ground One: Ineffective Assistance of Counsel.

         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 has provided 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 “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 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 on appeal and focusing on' those more likely to prevail . . . .” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). “This has assumed a greater importance in an era when oral argument is strictly limited in most courts-often to as little as 15 minutes-and when page limits on briefs are widely imposed.” Jones, 463 U.S. at 752-53.

         In denying petitioner relief, the OCCA assessed the claim through the lens of appellate counsel ineffectiveness, but because the claim involved omitted issues, the OCCA acknowledged that a merits review of the omitted issues was necessary. Relying on the trial court's analysis of the omitted issues, the OCCA determined that petitioner had not shown that his counsel was ineffective.

We set forth in Logan that in reviewing a claim of ineffective assistance of appellate counsel under Strickland, a court must look to the merits of the issues that appellate counsel failed to raise. Only an examination of the merits of any omitted issues will reveal whether appellate counsel's performance was deficient and also whether the failure to raise the omitted issue on appeal prejudiced the defendant; i.e., whether there is a reasonable probability that raising the omitted issue would have resulted in a different outcome in the defendant's direct appeal. In the present case the trial judge looked to the merits of the issues raised and found no error. Petitioner's application to this Court has not shown that the trial judge erred. Petitioner has not shown that he was denied the effective assistance of trial and appellate counsel.

Kelln, No. PC 2015-0507, slip op. at 3. This determination that petitioner's counsel was not ineffective is entitled to AEDPA deference, and as the Supreme Court has held, when the limits imposed by the AEDPA intersect with the deference afforded counsel under Strickland, petitioner faces a significant hurdle to relief.

Surmounting Strickland's high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so[.] The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Richter, 562 U.S. at 105 (internal quotation marks and citations omitted).

         Juror Bias

         Petitioner's first claim concerns Juror Kuhlman and counsel's failure to inform the trial court of her “highly egregious and presumptively prejudicial partiality and bias . . . .” Pet. at 5. Petitioner makes two assertions regarding Mrs. Kuhlman's ability to serve as an impartial juror. First, he states that she “discussed the case in depth” with the victim's mother “in the hallway prior to the start of voir dire.” Second, he states that “prior to leaving her place of employment the day voir dire began[, Mrs. Kuhlman] openly vowed that Petitioner would ‘hang' if she were to be chosen as a juror in [the] case.” Id. at 4.

         Although Mrs. Kuhlman did not know either petitioner or the victim, she stated in voir dire that she knew about the case, had discussed it with others prior to that day, and that she knew both of the families. Petitioner's cousin was currently working for her, and the victim's mother and aunt had previously worked for her. Mrs. Kuhlman acknowledged that she had spoken to the victim's family members that day but stated that she did not discuss the case with them. In response to defense questioning, Mrs. Kuhlman expressed that it might be best if she did not serve; however, defense counsel's request to have her excused was overruled after the following inquiry by the court:

THE COURT: Mrs. Kuhlman, having asked - - - having been asked these questions, do you - - - I know you had some contact with these people, but do you really know of any reason why you cannot be a fair and impartial juror to both sides today?
PROSPECTIVE JUROR KUHLMAN: Not really, because I know both sides.
PROSPECTIVE JUROR KUHLMAN: You know, cursory. I don't know the boys.
THE COURT: Can you be fair to the State of Oklahoma?
THE COURT: Can you be fair to the Defendant?
THE COURT: Do you think you can follow the law that the Court gives you?
THE COURT: And its instructions?
THE COURT: Okay. Um, in all candor, can you do that and will you do that?
PROSPECTIVE JUROR KUHLMAN: I mean, I have no doubt that I can.
THE COURT: Okay. All right. I will overrule your exception.

(J. Tr. 1, 232-42).

         Beyond what transpired during voir dire, petitioner has come forth with the following additional evidence:[1]

1. An affidavit from Dannette Solis (Ex. 1 to Resp't's Ex. 4), whom petitioner identifies as a sheriff's deputy. In her affidavit, Ms. Solis states that she saw Diane Akins, the victim's mother, speaking to jurors as they left the courtroom. According to Ms. Solis, Mrs. Akins was asking all jurors to find petitioner guilty ...

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