United States District Court, W.D. Oklahoma
HEATON GRIEF U.S. DISTRICT JUDGE
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unpublished opinion, Kelln v. State, No. F-2012-375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 Aug. 5, 2015) (unpublished).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
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
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.
Standard of Review.
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;
(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
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
Id. at 102-03 (citation omitted).
Ground One: Ineffective Assistance of Counsel.
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.
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.
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.”
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.
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.
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
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
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).
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.
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
THE COURT: Okay.
PROSPECTIVE JUROR KUHLMAN: You know, cursory. I don't
know the boys.
THE COURT: Can you be fair to the State of Oklahoma?
PROSPECTIVE JUROR KUHLMAN: Yes.
THE COURT: Can you be fair to the Defendant?
PROSPECTIVE JUROR KUHLMAN: Yes.
THE COURT: Do you think you can follow the law that the Court
PROSPECTIVE JUROR KUHLMAN: Yes.
THE COURT: And its instructions?
PROSPECTIVE JUROR KUHLMAN: (Nods head.)
THE COURT: Okay. Um, in all candor, can you do that and will
you do that?
PROSPECTIVE JUROR KUHLMAN: I mean, I can.
THE COURT: Okay.
PROSPECTIVE JUROR KUHLMAN: I mean, I have no doubt that I
THE COURT: Okay. All right. I will overrule your exception.
(J. Tr. 1, 232-42).
what transpired during voir dire, petitioner has come forth
with the following additional evidence:
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