Mathis v. Bruce , 148 F. App'x 732 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT September 21, 2005
Clerk of Court
KEITH DEAN MATHIS,
Petitioner-Appellant,
v.
No. 04-3099
(D.C. No. 01-3048-KHV)
L.E. BRUCE, Warden, Hutchison
(D. Kan.)
Correctional Facility, and PHILL
KLINE, Attorney General of the State
of Kansas,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HOLLOWAY and LUCERO, Circuit Judges. **
Petitioner-appellant Keith Dean Mathis brought an application under 28 U.S.C.
§ 2254 for habeas corpus relief in the district court, challenging his conviction by a
state court in 1996 for the crime of rape. The district judge denied the petition by
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. This court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment
may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material assistance
in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
The cause is therefore ordered submitted without oral argument.
an unpublished Memorandum and Order entered February 10, 2004. She did not act
on the request for a certificate of appealability. We previously granted a certificate
of appealability, and we now affirm the district court.
I
We will briefly summarize the facts underlying Mathis’ conviction. This
summary of the trial evidence is based primarily on testimony of the victim, except
where otherwise indicated.
Mathis and the then seventeen year old victim, J.R., were co-workers at a
restaurant. They were on friendly terms. On the afternoon of February 11, 1996,
J.R. met Mathis and her cousin at a bar after work. After they had a few drinks,
J.R.’s cousin left. Later, J.R. decided to go to a convenience store to call her mother,
and Mathis went with her in her car. When they returned to the bar parking lot, he
kissed her. They then decided to drive around awhile before J.R. was to go meet her
boyfriend. Before they left the bar parking lot, Mathis got something out of his car
and put it in the backseat of J.R.’s car; she thought at the time it was a coat but it
turned out to be a blanket.
After the two had driven into the country, J.R. pulled onto a dirt road,
intending to turn around and go back to town. She testified that Mathis then threw
the car out of gear and grabbed her around the neck, forcefully kissing her and
groping her breasts. J.R. protested that he was hurting her, but he pulled her over
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the center console almost on top of him. She was having trouble breathing because
of how tightly he was holding her neck. Then he pulled her out of the car, grabbed
the blanket, and led her away from the car. He pulled her to the ground and removed
her clothes. J.R. testified that she resisted being pulled from the car, but then did not
resist being led away from the car and disrobed because she was scared and shocked.
When Mathis attempted intercourse, however, she tried to avoid it by moving as best
she could. He was able to restrain her in spite of her efforts and raped her. They
then gathered up her clothes and drove back to town.
J.R. went to her boyfriend’s house, and he noticed that her neck was red.
When asked about that, and the fact that she was late, J.R. said only “let’s just say
Keith kissed me forcefully.” The next day at school she told two girlfriends about
the assault. At their suggestion she spoke to two counselors, who persuaded her to
call the police. She reported the rape and had a physical examination. The nurse
who examined her testified that she had bruising on her neck, breasts, upper thigh,
and elsewhere on her legs, and that further examination revealed vaginal tearing and
abrasions consistent with forced penetration. The nurse testified that J.R.’s were the
most significant vaginal injuries that she had seen in five years.
Others who had worked at the same restaurant with J.R. and Mathis testified
at trial, corroborating the victim’s testimony that she and Mathis had only been
friends. There was also testimony that Mathis had told at least two co-workers that
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he wanted to have sex with J.R., and he told one of these witnesses after the attack
that J.R. had resisted but he “got what he wanted.”
Mathis testified at trial. He denied raping J.R. He testified that they had
kissed twice in the parking lot, and the second time J.R. had put his hand on her
breast. He testified that they continued petting a little while, and then he became
concerned that they were in a public place. He testified that they drove into the
country, spread the blanket on the ground and removed her clothes. He testified that
he was unable to get an erection because he was too intoxicated, so after awhile they
returned to town. In sum, he said that everything that happened was consensual, but
there was no intercourse.
II
On May 16, 1996, Mathis was convicted on the rape charge after a jury trial.
Three months later he was sentenced to 260 months in prison. In the interim, the
state trial court had denied Mathis’ motion for a new trial. Mathis appealed his
conviction to the Kansas Court of Appeals, which affirmed the conviction on July 31,
1998. Under Kansas law, Mathis had 30 days to file a petition for review in the
Supreme Court of Kansas. He failed to do so, filing one day late. On September 1,
1998, he sought leave to file a petition out of time. The Kansas Supreme Court
denied the motion.
Mathis then sought post-conviction relief in state court. The state district
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court noted that the petition raised the same issues that had been raised in the direct
appeal and denied relief, citing Kansas Supreme Court Rule 183(c)(3), which
generally prohibits using a post-conviction proceeding “as a substitute for direct
appeal involving mere trial errors or as a substitute for a second appeal.” The
Kansas Court of Appeals affirmed the denial of relief, and the Kansas Supreme Court
denied review.
III
A
Mathis filed his petition for writ of habeas corpus in the federal district court
on February 12, 2001. Mathis raised three issues in his petition: that trial counsel
was ineffective in failing to thoroughly investigate witnesses and to exploit
inconsistencies between witnesses’ statements as reflected in police reports and those
witnesses’ trial testimony; that the trial court violated his right to counsel by refusing
to appoint new counsel to argue, at the post-trial motion stage, that his trial counsel
had been ineffective; and that the trial court had violated his due process rights in
two ways – by preventing him from presenting his theory of defense to the jury by
refusing a particular instruction his trial lawyer had requested, and by responding to
a question from the jurors in his absence. We note that these are the same issues that
were decided on the merits by the Kansas Court of Appeals in Mathis’ direct appeal.
The federal district judge noted that Mathis had procedurally defaulted his
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claims by not filing a timely petition for review with the Kansas Supreme Court. In
spite of her stated concern that the procedural default rule might bar all relief in
federal court, the judge ultimately addressed the issues on the merits rather than
trying to completely untangle the “procedural morass” created by Mathis’ attempt to
avoid procedural bar with an argument of ineffective assistance of appellate counsel.
The decision to reach the merits under these circumstances is specifically
authorized by 28 U.S.C. § 2254(b)(2). We likewise go to the merits of the habeas
claim. Primarily for the same reasons as were given by the district judge, we
conclude that habeas relief should be denied.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies
in this case because Mathis’ petition was filed after its effective date. See Paxton
v. Ward, 199 F.3d 1197, 1204 (10th Cir. 1999). Because the issues raised here were
addressed by the state court, this court may not grant relief unless the determination
of the state court “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of
the facts in light of the evidence presented,” id. § 2254(d)(2).
B
The district judge first considered Mathis’ claim that his trial counsel had been
ineffective because counsel had allegedly failed to investigate the case thoroughly
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and as a consequence had failed to call one or more potential witnesses and failed
to effectively cross-examine others. In essence, this claim was based on contentions
that the victim had made inconsistent statements and that other prosecution witnesses
had made statements during the investigation which tended to exculpate Mathis. The
district judge observed, however, that the alleged inconsistencies were minor and
that, although pursuit of the questioning suggested might have led to “minimally
relevant evidence,” Mathis had not explained specifically what that evidence would
have been, nor had he suggested why he had not done so. The judge concluded that
Mathis had failed to show that trial counsel had been ineffective in this respect.
Then in a footnote, she added that Mathis could not show that the alleged
ineffectiveness had been prejudicial to his defense under the second prong of the
standard established by Strickland v. Washington, 466 U.S. 668 (1984).
We agree with the district judge that Mathis has shown neither that his
counsel’s performance fell below an objective standard of reasonableness,
Strickland, 466 U.S. at 688, nor a reasonable probability that but for errors by
counsel the result of the proceeding would have been different, id. at 694.
C
Mathis’s second claim arose from unusual and quite unfortunate
circumstances. After his conviction, Mathis’ trial attorney filed a motion for new
trial within the ten days permitted by state law. Some time later, Mathis filed a pro
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se motion or supplement in which he first raised his claim of ineffective assistance
of trial counsel. Apparently Mathis was then able to retain new counsel, who was
to represent him in arguing the motion for new trial and particularly in arguing the
ineffective assistance point. However, the night before the motion for a new trial
was to be heard, the new attorney had died. The hearing was continued.
Petitioner filed a pro se motion for appointment of new counsel. The trial
court re-appointed Petitioner’s original trial counsel. The court told Mathis he could
proceed entirely pro se or with that trial counsel. In the end, trial counsel argued all
of the issues raised in the motion for new trial except the ineffective assistance issue,
which Mathis argued pro se. The trial court denied the motion, finding inter alia that
trial counsel had not been ineffective.
On direct appeal, the intermediate state court relied on the state law principle
that a trial court has discretion in deciding whether to appoint counsel to represent
a criminal defendant in pursuing an untimely motion for new trial. The appellate
court went on to examine the merits of the ineffective assistance of trial counsel
claim, as the trial judge had done, and concluded that Mathis had failed to show that
counsel had been ineffective. The federal district judge, having already concluded
that the ineffective assistance of trial counsel claim had no merit, concluded that the
state appellate court had not unreasonably applied the law to the facts of the case and
that federal habeas relief was therefore not to be granted.
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In this appeal, Mathis does not dispute the holdings of the state and federal
courts that he was not prejudiced by having to argue pro se his claim of ineffective
assistance of trial counsel at the hearing on his motion for new trial. Mathis argues
instead that this case is one of the complete denial of counsel, which the Court has
referred to as so likely to prejudice the accused that prejudice should be presumed.
This applies, Mathis argues, whenever an accused is denied the presence of counsel
at “a critical stage,” citing Bell v. Cone, 535 U.S. 685, 695-96 (2002) (discussing
United States v. Cronic, 466 U.S. 648 (1984)). Mathis offers no support, however,
for his implicit assumption that this was a “critical stage” at which the assistance of
counsel was required by the Constitution.
The state, on the other hand, contends that this court must give AEDPA
deference to the holding of the Kansas Court of Appeals that consideration of the
untimely post-conviction motion was not a critical stage of the proceedings requiring
appointment of counsel. The United States Supreme Court has never spoken directly
to the question, the state observes. The Kansas courts have decided, based on both
state law and the federal Constitution, that there is a right to counsel for timely post-
trial motions. Where the motion for new trial is not timely, however, a Kansas
district court is given discretion whether to appoint counsel, based on whether the
motion suggests a “realistic basis” for a new trial. State v. Kingsley, 851 P.2d 370,
374-75 (Kan. 1992).
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In this case, the ineffective assistance contention was made in an untimely pro
se motion. The Kansas Court of Appeals determined that the motion contained no
realistic basis for obtaining a new trial, and so held that the trial court had not abused
its discretion in declining to appoint counsel for the issue. This holding must be
sustained under the standards of the AEDPA, which we must apply. The state court’s
holding was neither contrary to, nor an unreasonable application of, firmly
established United States Supreme Court precedent, see 28 U.S.C. § 2254(d)(1), nor
an unreasonable determination of the facts in light of the evidence presented, see id.§ 2254(d)(2). Our analysis under AEDPA need go no further. We believe, however,
that some further comment may be proper.
To accept the argument made by Mathis would be to impose on the trial courts,
both state and federal, an enormous new burden. For it would seem that trial judges
would be required to appoint new counsel for the post-trial motions whenever the
convicted defendant raised an ineffective assistance claim. We certainly cannot
make such a rule in this case because, as we have shown, we are instead compelled
by the deference mandated under AEDPA to defer to the state appellate court’s
disposition. On the other hand, the Supreme Court has not held that due process
never requires the appointment of new counsel to argue ineffective assistance of trial
counsel in conjunction with a motion for a new trial.
We will only say that, even if we were not compelled to reject this argument
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under AEDPA, we would still likely be unpersuaded in this case that petitioner’s due
process rights had been denied. This court has held that counsel is required in the
interim between conviction and the beginning of the appeal “in order that a
defendant knows that he has the right to appeal, how to initiate an appeal and
whether, in the opinion of counsel, an appeal is indicated.” Baker v. Kaiser, 929
F.2d 1495 (10th Cir. 1991). Kansas does not require a motion for a new trial to be
filed as a predicate for an appeal; thus Mathis’ right to appeal was not impacted by
the denial of counsel for the motion. Mathis was able to and did present his
ineffective assistance argument on direct appeal to the Kansas Court of Appeals, as
we have discussed supra, so it is clear that there was no prejudice to Mathis in this
case.
We need not belabor the point further, but we do note the incisive analysis in
Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990), explaining why a presumption of
prejudice is not necessary when the defendant’s ability to raise the issue of
ineffective assistance of trial counsel on direct appeal is not impaired. We have no
occasion to, and do not, consider whether due process might require a different result
under different circumstances.
D
Mathis also claimed that the trial judge’s decision to reject a requested
instruction had deprived him of his due process right to present his theory of defense
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to the jury. The requested instruction would have told the jurors that defendant
could be acquitted if they found that he had mistakenly believed that the victim had
consented to the sexual activity. The trial judge had refused to give this instruction,
reasoning that the instruction on the elements of the crime adequately addressed the
subject. The federal judge noted that the state appellate court had found no prejudice
from this decision because Mathis’ theory at trial was that no intercourse had
occurred, and she concluded that the argument on this point “borders on the
frivolous.” We agree and hold there was no prejudicial error in the instructions.
E
Finally, Mathis asserted that a due process violation occurred when the trial
court responded to a question from the jury during its deliberations without the
defendant being present. The jury had sent a note asking whether, under the
instruction on intent, Mathis had to be aware that the victim was not consenting. The
judge consulted with the attorneys and, with mutual assent, replied in writing to the
jurors that they should refer to the instructions previously given, specifically the
instruction on the elements of the crime. The state court of appeals found that this
was not prejudicial error, although it was in violation of a state statute, at least in
part because that court concluded that Mathis’ presence was not essential to a fair
resolution of how to respond to the jury’s question.
The federal district judge here noted the Supreme Court’s teaching that “the
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right [of the accused] to personal presence at all critical stages of the trial and the
right to counsel are fundamental rights of each criminal defendant.” Rushen v. Spain,
464 U.S. 114, 117 (1983). Further she noted that the Supreme Court has held that
“a jury question is tantamount to a request for further instructions.” Rogers v.
United States, 422 U.S. 35, 39 (1975). See Memorandum and Order of the District
Court at 16-17. The federal district judge here said that such further jury instructions
were a critical stage at which the defendant had the right to be present, citing Rogers,
422 U.S. at 39. Memorandum and Order at 16-17. Nevertheless, again the federal
district judge noted in her Memorandum and Order at 17, that a defendant’s presence
is required by due process “to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.” United States v. Gagnon, 470 U.S.
522, 526 (1985). Further the Memorandum and Order below noted the recognition
by the Supreme Court that “a defendant is guaranteed the right to be present at any
stage of the criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745
(1987).
The state appellate court had determined that the formulation of the response
to the jury question had been a “critical stage” but had then gone on to hold that the
constitutional violation had been harmless. The federal district judge then framed
the issue before her as whether the state appellate court’s determination was an
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unreasonable application of federal constitutional law. She held that it was not:
“Mathis’ input on this legal issue would not have changed the outcome.”
We are persuaded that the district court’s reasoning was sound and the
conclusion is correct.
Accordingly, the judgment of the district court is AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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