Opinion
Case No. 96-3326-DES
May 27, 1999.
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. Having examined the pleadings and material in the file, the following findings are made.
I. INTRODUCTION AND PROCEDURAL HISTORY
Petitioner Bobby L. Smith was charged with and pleaded guilty to attempted possession of cocaine, sale of cocaine, and possession of cocaine. Sedgwick County District Court Judge Robert D. Watson accepted this plea on August 3, 1992. On September 2, 1992, Judge Watson sentenced Smith three to five years for the attempted possession charge, five to ten years for the sale of cocaine charge, and five to ten years for the possession of cocaine charge. See Sentencing Transcript, at 25. These sentences, Judge Watson ordered, were to run consecutive to one another, thus, leaving Smith with a sentence of thirteen to twenty-five years.
Smith appealed the terms of his sentence to the Kansas Court of Appeals. Smith argued that Judge Watson improperly imposed consecutive sentences and failed to consider statutory sentencing factors. See State v. Smith, No. 70, 271 (Kan.Ct.App. Oct. 21, 1994). In a per curiam opinion, the court affirmed Judge Watson's sentence. See id. slip op. at 3.
Smith presents this Court with three separate grounds: (1) the trial court erred in imposing consecutive sentences; (2) the trial judge expressed prejudice toward petitioner by use of derogatory, prejudgmental and biased language; and (3) the trial court refused to follow the recommendation of the State Reception and Diagnostic Center ("SRDC") for a reduced sentence, violating K.S.A. 1991 Supp. 21-4603. Respondents filed their answer and return (Doc. 10) and petitioner filed a traverse (Doc. 14).
II. ISSUES
A. Sentence Imposed
Petitioner challenges the imposition of consecutive sentences and the court's failure, pursuant to K.S.A. 1991 Supp. 21-4603, to follow an SRDC recommendation that petitioner be given favorable consideration for a sentence reduction.
Pursuant to K.S.A. 21-4608, separate sentences of imprisonment for different crimes imposed on a defendant may run concurrently or consecutively at the court's direction, except that a sentence for a crime committed while a person is on conditional release shall be served consecutively to the term imposed for the crime giving rise to the conditional release.
According to defense counsel's statements at the hearing on the motion to modify defendant's sentence, the SRDC report indicated defendant should serve his appropriate sentence and that favorable consideration be given for a sentence reduction. See Transcript of motion to modify, at 4. Absent an unequivocal recommendation to modify a sentence, the mandatory modification language of K.S.A. 21-4603(d)(1) does not apply. State v. Dotson, 886 P.2d 356, 364-365 (Kan. 1994).
These issues concern interpretation of state law and are not appropriate grounds for habeas relief. See Davis v. Reynolds, 890 F.2d 1105, 1109 n. 3 (10th Cir. 1989) (interpretation of state statutes would be beyond the scope of review on habeas). The Kansas Court of Appeals has reviewed petitioner's claims and found them to be without merit. A federal habeas court is precluded from "reexamin[ing] state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Petitioner's challenge to the imposition of consecutive sentences and the court's failure to modify the sentences fails to present a constitutional issue and no relief is warranted.
B. Judicial Prejudice
1. Exhaustion
The record indicates the judicial bias issue was not fully presented to the Kansas courts. The statute governing habeas review, 28 U.S.C. § 2254, requires petitioners to first exhaust remedies available in the state courts. See 28 U.S.C. § 2254 (b)(1)(A).
The petition (Doc. 2) demonstrates this issue was not identified as an issue on direct appeal or in any state post-conviction proceeding.
Smith filed his petition for habeas corpus on June 21, 1996, several months after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320 (1997). Prior to the passage of AEDPA, mixed petitions containing both exhausted and unexhausted claims were routinely dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982). Unexhausted claims governed by AEDPA, however, may either be dismissed for failure to exhaust or denied on the merits.Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir. 1997) cert. denied 118 S.Ct. 126 (1997) (citing Granberry v. Greer, 481 U.S. 129 (1987)). Accordingly, the merits of the judicial bias claim will be addressed.
2. Addressing the Merits
The transcript of the sentencing hearing is somewhat confusing.See State v. Smith, No. 70, 271, slip. op. at 2 (Kan.Ct.App. Oct. 21, 1994). Judge Watson mentioned several factors during the sentencing hearing, such as Smith's lack of intent to change his criminal behavior, Judge Watson's disbelief in short-term drug treatment, Smith's prior criminal history, and Smith's continued connection to a drug environment. See Sentencing Transcript, at 17, 18, 20, 21. Petitioner specifically complains of the sentencing judge's statements that petitioner was a "dealer in poison" and did not have prior drug convictions "probably because he had not been caught before".
The issue is whether these statements violated Smith's right to a fair and impartial judge. "To state a due process claim that a judge was biased, defendant must show either that actual bias existed, or that an appearance of bias created a conclusive presumption of actual bias." United States v. Lowe, 106 F.3d 1498, 1504 (10th Cir. 1997).
While judicial expressions of personal beliefs may, under some circumstances, constitute a violation of a defendant's right to due process, these comments do not rise to the level of a constitutional violation. Compare United States v. Roth, 934 F.2d 248, 253 (10th Cir. 1991) (construing the sentencing judge's comments as "simply highlight[ing] the seriousness of defendant's offense").
See United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991) ("Courts . . . cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.")
The comparison of drugs to poison is no indication of judicial bias. Further, the comment reflecting a concern there may have been prior, unreported drug activity by petitioner does not render the sentencing so unfair or impartial as to constitute a violation of due process.
III. CONCLUSION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be 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.
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation," filed with the clerk of the district court and served on counsel for respondents.
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.