Opinion
Case No. 04-3002-JWL.
July 19, 2004
MEMORANDUM AND ORDER
Adam D. Blau brings this motion to vacate his state court sentence pursuant to 28 U.S.C. § 2254. (Doc. 1). Therein, Mr. Blau contends that: (1) the state court abused its discretion in refusing to hold an evidentiary hearing on his state habeas corpus petition; and (2) that he received ineffective assistance of counsel in violation of his rights under the Sixth Amendment.
The court, however, finds that the existing factual record clearly establishes that Mr. Blau is entitled to no relief. As to his claim that the state court wrongfully denied him an evidentiary hearing on his state habeas petition, this argument arises under state law and is not cognizable under § 2254. As to his ineffective assistance of counsel claims, petitioner has failed to demonstrate that the state court's adjudication of his claims was contrary to or an unreasonable application of controlling Federal law. As such, the court denies Mr. Blau's petition in its entirety.
BACKGROUND
On July 7, 2000, the State of Kansas filed a complaint charging Mr. Blau with two counts of rape. Count 1 charged that on or about May 15, 2000, the defendant feloniously and intentionally committed the act of sexual intercourse with a person under fourteen years of age, in violation of K.S.A. § 21-3502(1)(b). Count 2 charged that on or about May 16, 2000, the defendant again engaged in the same unlawful conduct that was charged in count 1. Ultimately, Mr. Blau pled no contest to one count of attempted rape in violation of K.S.A. §§ 21-3502(1)(b) and 21-3301, pursuant to an agreement with the State. In that agreement, the State agreed to dismiss all remaining charges in exchange for the defendant's plea of no contest to attempted rape (a count charged in an amended complaint/information). The agreement also contemplated that Mr. Blau would be requesting a mitigated sentence and a downward dispositional departure. Mr. Blau also waived his right to a preliminary hearing pursuant to the agreement. At sentencing, the court denied Mr. Blau's motion for a downward departure, and the court sentenced him to a mitigated term of 55 months in the Kansas Department of Corrections.
On July 21, 2001, Mr. Blau filed a petition for post-conviction relief pursuant to K.S.A. § 60-1507. Therein, he alleged that his plea was invalid because: (1) his attorney told him that he had to plead guilty; (2) his attorney refused to call any of his witnesses and told him that if he did not waive his preliminary hearing and accept the plea bargain, the prosecutor would take him to trial on all charges; and (3) his attorney failed to arrange for him to obtain treatment.
On October 10, 2001, the state district court denied Mr. Blau's request for post-conviction relief. In its order, the state court judge rejected the notion that Mr. Blau was coerced into taking the plea based on the District Attorney's alleged statement to counsel that he would prosecute Mr. Blau on all charges if he did not accept the plea. The court recognized that the state had the discretion to prosecute defendant on all charges, and therefore the alleged statement was factual, not coercive. Moreover, the court found that Mr. Blau knowingly and voluntarily entered into his plea agreement based on his admissions during the plea colloquy. Finally, the court rejected Mr. Blau's claims of ineffective assistance after concluding that the record failed to demonstrate that counsel's decision-making was erroneous.
The Kansas Court of Appeals affirmed the district court's decision pursuant to Supreme Court Rule 7.042(d). Blau v. State, No. 88,360, 69 P.3d 216 (Kan.Ct.App. May 9, 2003). The Kansas Supreme Court denied review on July 9, 2003. Mr. Blau filed a petition seeking federal habeas relief on January 5, 2004.
Kansas Supreme Court Rule 7.042(d) provides that "[i]n any case in which the court determines after argument or submission on the briefs that no reversible error of law appears and either . . . (d) the opinion or finding of fact and conclusions of law of the trial court adequately explain the decision . . . the court may affirm by an opinion citing this rule and indicating which one or more of the above criteria it has determined to be applicable."
STANDARD
Because Mr. Blau "filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this appeal." Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citations omitted). The AEDPA "circumscribes a federal habeas court's review of a state-court decision." Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir. 2003) (quotations omitted).
Specifically, where, as here, the Kansas state courts reviewed the merits of petitioner's claims, "habeas relief is not warranted unless the state adjudication `(1) . . . 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) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Martinez, 330 F.3d at 1262 (quoting § 2254(d)) (emphasis added). "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, the Court in Williams stressed that the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was `objectively unreasonable.'" Anderson, 327 F.3d at 1153 (citing Williams, 529 U.S. at 409). "Ultimately, our review of the state court's proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings." Anderson, 327 F.3d at 1152.
ANALYSIS
I. Request For An Evidentiary Hearing
Mr. Blau contends that the state district court wrongfully denied him an evidentiary hearing on his state post-conviction motion. This claim, however, is not cognizable in a federal habeas corpus proceeding.
To obtain habeas relief in federal court, Mr. Blau must show a violation of his constitutional rights, rather than errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("Federal habeas corpus relief does not lie for errors of state law."). If the petitioner's alleged constitutional violation is founded upon on the state's remedy and not the judgment providing the basis for incarceration, there is no cognizable federal habeas claim. Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993). Based on this reasoning the Tenth Circuit has held that a state court's refusal to grant an evidentiary hearing on a prisoner's state habeas petition is not cognizable under § 2254 because it is founded on an alleged violation of a state law. Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (finding that petitioner raised no cognizable federal habeas claim because constitutional error alleged by petitioner focused only on the state's post-conviction remedy and not the judgment forming the basis of his incarceration); see also Weaver v. Ward, No. 00-6386, 18 Fed. Appx. 697, 698, 2001 WL 987546 (10th Cir. Aug. 29, 2001).
Here, Mr. Blau alleges that the state district court improperly denied him an evidentiary hearing on his state habeas petition under Kan. Stat. Ann. § 60-1507. Because this claim is founded on an alleged violation of state law, Mr. Blau is entitled to no relief.
II. Ineffective Assistance of Counsel
Mr. Blau alleges that his counsel violated his Sixth Amendment right to effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-prong framework for evaluating claims of ineffective assistance of counsel under the Sixth Amendment. Under Strickland, Mr. Blau must first show that his counsel's performance "fell below an objective standard of reasonableness." Id. at 688. "In applying this test, we give considerable deference to an attorney's strategic decisions and `recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690).
Second, Mr. Blau "must show that counsel's deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result." Le v. Mullin, 311 F.3d 1002, 1024-25 (10th Cir. 2002). Under this prong, Mr. Blau must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 1025 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Bullock, 297 F.3d at 1044. The court "may address the performance and prejudice components in any order, but need not address both if [Mr. Blau] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Id at 58-59. Additionally, the Tenth Circuit has applied the two-part Stickland test to claims of ineffective assistance of counsel arising out of counsel's alleged deficiencies during sentencing. See United States v. Montoan-Herrera, 351 F.3d 463, 465 (10th Cir. 2003).
Here, Mr. Blau asserts that counsel was deficient in the following respects: (1) he failed to complete a thorough investigation; (2) counsel told him that he "had" to plead guilty; (3) counsel refused to get him on the court docket for 4 months; and (4) he failed to offer adequate assistance at sentencing by failing to subpoena Community Corrections officials, failing to call character witnesses, and failing to enroll petitioner in a sex-offender program before sentencing. The court analyzes each claim in turn.
A. Counsel's Investigation
Mr. Blau alleges that his attorney did not conduct a thorough investigation prior to waiving his preliminary hearing. In support of this allegation, Mr. Blau explains that counsel's investigation was necessarily inadequate because he did not hire a private investigator. The court, however, finds that the record, motions, and pleadings conclusively establish that Mr. Blau is entitled to no relief for several reasons.
First, Mr. Blau's petition contains only conclusory allegations regarding counsel's alleged failure to investigate his case, and such allegations are insufficient to establish a claim under the Sixth Amendment. Snyder v. Addison, 89 Fed. Appx. 675, 681, 2004 WL 377682 (10th Cir. Mar 02, 2004) (conclusory allegations regarding the failure of counsel to develop a defense are insufficient to prove ineffective assistance of counsel).
Second, Mr. Blau's petition fails to explain or even allege how the Kansas court's adjudication was contrary to or an unreasonable application of Federal law. 28 U.S.C. § 2254(d) (establishing "contrary to" and "unreasonable application" standard); Salters v. Palmer, 271 F. Supp.2d 980, 993 (E.D. Mich. 2003) (finding habeas relief not warranted where petitioner failed to allege or establish that the Michigan Court of Appeals' decision was contrary to Supreme Court precedent or constituted an unreasonable application thereof.). Finally, to the extent an independent analysis is required, the court finds that the state court's decision was an objectively reasonable application of Strickland While petitioner suggests that counsel was derelict in failing to hire an investigator, he does not identify what evidence or facts the investigator would have divulged. Mr. Blau cannot demonstrate that he suffered legal prejudice without at least alleging that a more thorough investigation would have produced exculpatory evidence or other facts that might have altered the outcome of the proceedings. Moreover, the record suggests that a private investigator would not have changed the result of the proceedings. During sentencing, Mr. Blau fully admitted his guilt and accepted responsibility for the crime he committed. These admissions suggest that counsel would not have uncovered exculpatory or favorable evidence by hiring a private investigator. For these reasons, Mr. Blau is not entitled to relief as to this issue.
B. Defendant's Allegation that he was Forced to Plead Guilty by his Attorney
The Defendant alleges, in conclusory fashion, that he was forced to plead guilty. The record, motions, and pleadings, however, conclusively establish that Mr. Blau is entitled to no relief.
First, petitioner fails to allege or show how the state court's adjudication was contrary to or an unreasonable application of Federal law. Moreover, in its independent review of petitioner's claim, the court finds that the adjudication was neither contrary to nor an unreasonable application of Federal law.
Here, the district court's plea colloquy evidences the voluntariness of Mr. Blau's plea. On February 5, 2001, the court held a preliminary hearing. At the outset of the hearing, the parties informed the magistrate judge that they had reached an agreement. Magistrate Judge Collins conducted a colloquy to ensure that Mr. Blau understood his rights. During the course of this colloquy, Mr. Blau admitted that nobody told him that he had to take a plea. He further admitted that nobody, in any way, forced, coerced, or threatened him into taking the plea bargain. On March 8, 2001, the court held an arraignment hearing, during which it accepted the defendant's plea under the terms of the agreement. During the hearing, Mr. Blau affirmatively informed and represented to the court that he understood the plea bargain and had sufficient time to discuss it with his attorney. Furthermore, he admitted that he had not been coerced or threatened in any way to take the plea bargain. Finally, Mr. Blau represented to the court that no one promised him leniency or a mitigated sentence in exchange for his plea. The courts have found such admissions during a plea colloquy to be compelling evidence that a defendant voluntarily and knowingly entered his or her plea. United States v. Trusdale, 38 Fed. Appx. 485, 2002 WL 258200 (10th Cir. Feb. 25, 2002) (representations of the defendant and findings of the judge accepting the plea can constitute a barrier to subsequent collateral proceedings); see also United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (explaining that the court looks to an informed plea colloquy for evidence that defendant knowingly and voluntarily entered into agreement). For these reasons, Mr. Blau has failed to demonstrate entitlement to federal habeas relief.
C. Attorney's Alleged Refusal to Get Defendant on the Court's Docket
Mr. Blau contends that his counsel "refused to get [him] on the court docket for four months." The record, motions, and pleadings, however, conclusively establish that Mr. Blau is entitled no relief.
Petitioner, as with all of his claims, fails to allege that the state court's decision was contrary to or an unreasonable application of Federal law. Moreover, the court finds that the State court's adjudication was objectively reasonable. First, the delay cannot be attributed to any act of counsel. Quite simply, the court, not counsel, controls the docket. As such, Mr. Blau cannot establish that counsel's performance deviated from an objectively reasonable standard of care under the first prong of Strickland Even if counsel's performance did contribute to the delay and such a performance was objectively unreasonable, Mr. Blau does not identify any legal prejudice stemming therefrom. As such, Mr. Blau cannot satisfy the second prong of Strickland For these reasons, the court denies Mr. Blau's requested relief on this ground.
D. Alleged Sentencing Errors
Mr. Blau alleges that counsel was ineffective at sentencing because his attorney: (1) did not subpoena a community corrections official; (2) failed to call additional character witnesses; and (3) failed to enroll him in a sex offender program prior to sentencing. The court addresses each claim in turn.
As with his other claims, Mr. Blau fails to explain, discuss, analyze, or otherwise allege how or why the state court's decision was contrary to or an unreasonable application of Federal law.
1. Failure to Subpoena Community Corrections
Mr. Blau claims that his lawyer failed to secure the attendance of a Community Corrections official to testify at sentencing. The court, however, finds that Mr. Blau is entitled to no relief on this ground. First, counsel's performance did not deviate from an objectively reasonable standard of care. It appears that before sentencing, defense counsel contemplated putting a Community Corrections official on the stand to testify to the fact that the state had sex offender treatment programs Mr. Blau could utilize if the court were to grant defendant's motion for a downward departure, thereby reducing his sentence to a term of probation. The state of Kansas, however, was willing to stipulate to the existence of such programs. As such, counsel did not need to utilize the testimony of the Community Corrections official.
Second, Mr. Blau fails to allege that he was prejudiced by counsel's decision. Under Kansas law, the court must impose the presumptive guideline sentence unless there are substantial and compelling reasons to depart therefrom. K.S.A. § 21-4716(a) (establishing that the sentencing judge will impose the presumptive sentence provided by sentencing guidelines unless he or she finds substantial or compelling reasons to impose a departure).
At sentencing, the state district court found that there were no substantial or compelling facts to support a downward departure. The petitioner fails to allege or show how the testimony of a Community Corrections officer would have altered the court's position on this issue. In light of the foregoing, the court denies Mr. Blau's requested relief on this ground.
2. Failure to Call Character Witnesses at Sentencing Hearing
Mr. Blau asserts that his attorney refused to call character witnesses to the stand during sentencing in support of his motion for a downward departure. The court, however, finds that the state court's adjudication was objectively reasonable and that Mr. Blau is entitled to no relief.
First, counsel's performance was not objectively unreasonable. At sentencing, Mr. Blau called the defendant's mother to attest to his character. While other family members could have taken the stand to provide similar testimony, counsel simply informed the court that their testimony would corroborate the testimony of Mr. Blau's mother. Counsel made the strategic decision not to burden the court with redundant testimony. The record demonstrates that this decision was the product of trial strategy, not negligence. As such, petitioner cannot establish a violation of his Sixth Amendment rights. See Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002) (explaining that where it is shown that a particular decision was, in fact, an adequately informed strategic choice, the presumption that the attorney's decision was objectively reasonable becomes virtually unchallengeable).
Second, Mr. Blau makes no allegation that counsel's decision prejudiced his defense. Mr. Blau failed to proffer these witnesses' testimony, and he does not suggest that their testimony would have provided the judge with any facts or information that were not already set forth in his mother's testimony. As such, Mr. Blau is entitled to no relief on this ground.
3. Failure to Enroll Petitioner in Sex-offender Program
Finally, Mr. Blau contends that his attorney failed to enroll him in the sex-offender program available within his community. The court, however, finds that he is entitled no relief because the state court's decision was objectively reasonable.
Quite simply, Mr. Blau cannot demonstrate that counsel's decision not to place him in a sex offender program prejudiced his defense. Mr. Blau fails to explain what could have been gained from his participation in a sex-offender program prior to sentencing. One could infer that the judge might have looked upon him and his motion for a downward departure more favorably had he been participating in a treatment program. However, there is no factual or legal basis to conclude that the state court judge would have found substantial or compelling reasons to depart simply because Mr. Blau sought treatment before sentencing. In fact, the record suggests that the court did not rely on Mr. Blau's post-offense conduct in evaluating his motion. Instead, the judge denied the motion in light of the severity of the crime and the age of the victim. As such, the record suggests that the court would have denied the motion for a downward departure even if Mr. Blau had been participating in a treatment program. As such, the court denies Mr. Blau's requested relief on this ground.
CONCLUSION
Under the circumstances of this case, the court finds that the state court's adjudication was neither contrary to nor an unreasonable application of Federal law as determined by the Supreme Court. As such, the court denies Mr. Blau's motion in its entirety. IT IS THEREFORE ORDERED BY THE COURT that Mr. Blau's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied.
IT IS SO ORDERED.