Opinion
Case No. 97-3451-DES
January 25, 2001
REPORT AND RECOMMENDATION The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
In June of 1995, petitioner was convicted by a jury of aggravated kidnapping, aggravated robbery and aggravated burglary. The Kansas Court of Appeals affirmed petitioner's convictions. State v. Kappel, No. 75,308, (Kan.Ct.App. Mar. 14, 1997). The Kansas Supreme Court denied review.
The petition for writ of habeas corpus filed herein raises the following grounds for relief, each of which was also presented and addressed in petitioner's direct appeal:
• whether the "bodily harm" inflicted upon the victim occurred in the course of the robbery only and before the kidnapping commenced;
• whether the aggravated kidnapping and aggravated robbery charges were multiplicious; and
• whether the trial court erred in refusing to instruct the jury on the lesser included offense of unlawful restraint.
The facts, as summarized by the Kansas Court of Appeals, are as follows:
The convictions are based upon defendant's participation in the burglary of the Prairie Hills Middle School in Reno County. Defendant confessed to his participation in this crime, along with a codefendant who was tried separately.
The perpetrators entered the school in an area occupied by the victim, one of the school janitors. They were wearing ski masks and secured the victim by placing a large laundry bag over his head, which hung down to his waist.
The victim testified he was able to see enough through the bag to see two men and that one had a gun. One of the burglars stayed by the side of the victim and held a gun to his head. At one point, the victim moved in his chair and was clubbed two to three times in the back of his head with a hard object. The victim testified that he assumed he had been hit with a gun. But defendant, in his confession, indicated that he used a hammer to strike the janitor on the back of his head.
The janitor was subsequently taken to the boys' locker room at gun point. He was eventually tied up with a telephone cord, with his hands and feet behind his back. He was told not to call the police as his captors knew who his family was. The perpetrators then left the premises. The victim eventually got free and called the police.
Kappel, at 2. STANDARD OF REVIEW
Petitioner's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and is, therefore, governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997) and Thomas v. Gibson, 218 F.3d 1213, 1219 (10th Cir. 2000).
28 U.S.C. § 2254(d) directs that habeas corpus will not be granted on a claim decided on the merits by the state court unless such decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law" or (2) "resulted in a decision that was based on an unreasonable determination of the facts . . . ." The Supreme Court has provided some elucidation of the phrases "contrary to" and "unreasonable application of":
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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000).
CLAIMS PRESENTED
A. No harm inflicted during "kidnapping."
Petitioner argues the harm inflicted upon the janitor occurred before the kidnapping and, thus, cannot be used to support the conviction for aggravated kidnapping. The state court found the evidence supported a finding that the kidnapping commenced in the break room when the victim was secured by the placing of a large laundry bag over his head (which was prior to the victim being struck). The court then concluded that "the elements constituting a kidnapping occurred prior to the act of tying the victim up with a telephone cord" and, thus, affirmed the aggravated kidnapping conviction. Kappel, at 9.
While petitioner attempts to frame this issue as one presenting a constitutional question, petitioner's primary focus is upon the state court's interpretation of state law as to when the kidnapping commenced. This court will not reexamine an issue arising solely under state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (removing from "the province of a federal habeas corpus court" the "reexamin[ation] [of] state-court determinations on state-law questions.").
Petitioner states the issue within his "form" petition (Doc. 1 at p. 5) as "violation of 6th Amendment Due Process and the right to a fair trial." In his supporting memorandum, petitioner makes reference to an ex post facto violation. (Doc. 2 at p. 5).
Certainly, petitioner has not presented any U.S. Supreme Court decision which would establish an ex post facto violation. To the extent petitioner is raising sufficiency of the evidence in violation of his due process rights as a basis for habeas relief, his conviction for aggravated kidnapping is subject to limited review. Faced with an insufficient evidence challenge, this court determines only whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," viewing the evidence in a "light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Regardless of whether sufficiency of the evidence is treated as an issue of law or fact, petitioner's challenge fails. The state court's conclusion that the kidnapping commenced in the break room is neither an "unreasonable determination of the facts in light of the evidence," 28 U.S.C. § 2254(d)(2), nor contrary to or an unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
"To fall with the ex post facto prohibition a law must be retrospective — that is it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quotations and citations omitted). No retroactive change in the law is presented by petitioner's argument. See State v. Hammond, 251 Kan. 501 (1992) (construing the aggravated robbery and aggravated kidnapping statutes in a similar manner under similar facts).
[4]
[4] To fall with the ex post facto prohibition a law must be retrospective — that is it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433, ______________ (1997) (quotations and citations omitted). No retroactive change in the law is presented by petitioner's argument. See State v. Hammond, 251 Kan. 501 (1992) (construing the aggravated robbery and aggravated kidnapping statutes in a similar manner under similar facts)[5].
[5] To fall with the ex post facto prohibition a law must be retrospective — that is it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433, ______________ (1997) (quotations and citations omitted). No retroactive change in the law is presented by petitioner's argument. See State v. Hammond, 251 Kan. 501 (1992) (construing the aggravated robbery and aggravated kidnapping statutes in a similar manner under similar facts).
A confinement which is intended to "facilitate flight or the commission of any crime," K.S.A. 21-3420, constitutes a separate act of kidnapping only where the confinement:
(a) [Is not] slight, inconsequential and merely incidental to the other crime;
• [Is not] of a kind inherent in the nature of the other crime; and
• [Has] some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
State v. Buggs, 219 Kan. 203, Syl. ¶ 10 (1976).
The foregoing factors, while not specifically identified by the Kansas Court of Appeals, appear to be addressed in the following passage of the court's opinion:
The jury could have found that the kidnapping occurred in the break room. In that room, the laundry bag put over the victim's head which hung to his waist was intended to prevent him from seeing the defendant and the codefendant. He was forced at gun point to stay in a chair and was hit with a hammer when he moved slightly in the chair. Certainly, the use of a laundry bag was more than was required to facilitate the robbery. We hold that the elements constituting a kidnapping occurred prior to the act of tying the victim up with a telephone cord and that the aggravated kidnapping conviction is affirmed.
Kappel, at 9. Accord State v. Hammond, 251 Kan. at 505.
Reviewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found that the victim's initial confinement in the break room constituted a kidnapping in accordance with the Buggs factors. While the use of a laundry bag may border on "slight and inconsequential," it is not so slight or inconsequential as to foreclose a finding that with placement of the bag over the victim's head (and under constant watch at gun point), the victim was sufficiently confined to constitute a kidnapping. The state court's finding that the kidnapping commenced by that initial restraint is neither an unreasonable determination of the facts nor an unreasonable application of the Jackson standards for determining sufficiency of the evidence.
Petitioner's first issue provides no basis for habeas relief.
B. Multiplicity.
Petitioner next argues that the crimes of aggravated kidnapping and aggravated robbery, under the facts presented in this case, are multiplicious. The state court rejected this claim, relying upon State v. Hammond, 251 Kan. 501 (Kan. 1992). In Hammond, the court found that "[c]onvictions for aggravated kidnapping and aggravated robbery are not multiplicious when the confinement required to support the aggravated kidnapping conviction is not incident to and inherent in the aggravated robbery." Id. The Kansas Court of Appeals, in applying and construing State law, concluded the charges were not multiplicious because the "robbery could easily have been accomplished without binding and hog-tying the janitor" and because the binding "made the robbery easier to commit and reduced the risk of detection." Kappel, at 8.
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V; Monge v. California, 524 U.S. 721, 727-28 (1998); Benton v. Maryland, 395 U.S. 784, 794 (1969). Included within the protection of the double jeopardy clause is protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Where the same transaction constitutes a violation of two distinct statutes, the test under Blockburger v. United States, 284 U.S. 299, 304 (1932) is whether the two offenses require proof of a fact which the other does not.
Aggravated kidnapping and aggravated robbery7 require proof of different elements. In addition to the element of bodily harm for aggravated kidnapping, the state was required to prove Kappel intended to hold the victim for one of four statutorily enumerated purposes (in this case, "to facilitate flight or the commission of any crime."). K.S.A. 21-3420(b). Aggravated robbery does not require proof of the intent necessary for aggravated kidnapping.
"Aggravated kidnapping is kidnapping, as defined in K.S.A. 21-3420 [to-wit: "the taking or confining of any person, accomplished by force, threat or deception, with the intent of hold such person . . . to facilitate flight or the commission of any crime"] when bodily harm is inflicted upon the person kidnapped." K.S.A. 21-3421 and K.S.A. 21-3420 (1999).
Moreover, the aggravated robbery in this case was submitted to the jury on the theory that a dangerous weapon was used during the course of the robbery. (R. Vol. I, 23). Aggravated kidnapping does not require use of a dangerous weapon.
Finding no double jeopardy violation, petitioner's second issue provides no basis for habeas relief.
C. State court error in failing to instruct on lesser included offense of unlawful restraint.
In the Tenth Circuit there is an "`automatic non-reviewability' of the lesser included offense argument as a basis for federal habeas corpus relief, regardless of whether the evidence was such as to support the giving of an instruction on a lesser included offense in all noncapital cases." Wilburn v. Nelson, No. 99-3167-DES, 2000 WL 764950, at 3 (D.Kan. May 25, 2000), citing Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988); see also Lujan v. Tansy, 2 F.3d 1031 (10th Cir. 1993).
The state court's decision that the evidence did not support an instruction on unlawful restraint is not subject to habeas review.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed and all relief denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation.8 Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to timely file objections may constitute a waiver of a party's right to appeal. Thomas v. Arn, 474 U.S. 140 (1985) and Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.