Karl Kraus, Jr. v. Clark Taylor

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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KARL KRAUS, JR.,
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Petitioner-Appellant,
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Nos. 10-5261/5262
v.
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Respondent-Appellee. -
CLARK TAYLOR, Warden,
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Appeal from the United States District Court
for the Western District of Kentucky at Paducah.
Nos. 5:08-cv-128; 5:08-cv-129—Thomas B. Russell, District Judge.
Argued: January 23, 2013
Decided and Filed: May 3, 2013
Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: William M. Barron, UNIVERSITY OF MICHIGAN LAW SCHOOL
FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.
Perry T. Ryan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellee. ON BRIEF: William M. Barron, UNIVERSITY OF
MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann
Arbor, Michigan, Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Toledo, Ohio, Dennis G. Terez, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cleveland, Ohio, for Appellant. Perry T. Ryan, OFFICE OF THE
KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Over the course of two trials, state
court juries in Livingston County, Kentucky convicted Karl Kraus, Jr., on charges of
first-degree rape, sodomy, and sexual abuse involving two mentally delayed women. He
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is now serving a prison sentence of seventy years with a life enhancement. After
exhausting his direct appeals and pursuing a motion for post-conviction relief in the
Kentucky courts, Kraus filed two pro se petitions for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 in federal district court. Clark Taylor, the Warden of the Kentucky
State Reformatory in LaGrange, Kentucky, is the respondent in both cases. The district
court denied the petitions in full, and Kraus appealed. Although the district court
declined to issue a certificate of appealability (“COA”) to Kraus in either case, a Rule
34 panel of this court granted Kraus a COA to review a narrow selection of the errors
claimed by Kraus.
Kraus’s petitions highlight serious concerns about his ability to confront the key
witnesses at his trials, the sufficiency of the evidence supporting his convictions, and the
competency of his counsel at the sentencing phase of his second trial. But, despite the
district court’s orders to Taylor to submit pertinent portions of the state court record,
Taylor did not provide the district court with any records of Kraus’s two trials,
precluding meaningful review of Kraus’s claims. Under this court’s precedents, the
merits of Kraus’s petitions may not be considered without first giving the district court
an opportunity to expand the record and re-evaluate the petitions.
We dispose of this appeal in two steps. First, we will expand the COA to include
a Confrontation Clause claim arising out of Kraus’s second trial that mirrors the
Confrontation Clause claim arising from his first trial. Second, we will reverse the
judgment of the district court in both cases and remand them for further proceedings.
We will direct the district court to expand the record in both cases and reconsider the
substantive constitutional claims identified in the COAs, including the newly added
Confrontation Clause claim.
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I.
A.
The Kentucky Court of Appeals summarized the events leading to Kraus’s
prosecution as follows:
[Kraus] was employed by Security Taxi which provides transportation
services to Creative Enterprises, a sheltered workshop/day program for
mentally and physically handicapped people. Jessica Hale and Rachel
Riley utilized the Security Taxi Service for that purpose. Due to a
cerebral hemorrhage suffered as an infant, [Hale], aged 24 at trial,
functions at about the level of a thirteen or fourteen-year-old child.
[Reilly], aged forty-nine at the time of trial, functions at about the level
of a four or five-year-old child. The charges against [Kraus] stem from
an incident which occurred on May 21, 2002 when the women were
returned to their homes late and not in the normal order. Both women
were acting in an uncharacteristic manner and, upon questioning by their
mothers, accused [Kraus] of sexual assault.
Kraus v. Commonwealth, No. 2004-CA-000183-MR, 2005 WL 790778, at *1 (Ky. Ct.
App. Apr. 8, 2005). In light of these accusations, a grand jury indicted Kraus on charges
of first-degree rape, first-degree sodomy, and first-degree sexual abuse against both Hale
and Riley on June 27, 2002. Prior to trial, the state trial court judge conducted hearings
to determine whether Hale and Riley were competent to testify at trial, and how such
testimony would be taken. He permitted the two women to testify outside of the
presence of Kraus and the jury during trial, via closed-circuit television, and agreed to
let them use interpreters while on the stand.
On October 14, 2003, a jury found Kraus guilty of sexually abusing Hale but
could not reach a verdict on any other count. Kraus received a five-year prison sentence.
Prosecutors elected to retry him on the remaining counts. Before the start of his second
trial, they supplemented the initial indictment by charging Kraus as a first-degree
persistent felony offender (“PFO”). In the second trial, which concluded on November
18, 2004, a jury found Kraus guilty of rape and sodomy against Hale and rape and sexual
assault against Riley. Kraus waived jury sentencing, pled guilty to the PFO
enhancement, and agreed to accept the maximum sentence on all counts. The state trial
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judge sentenced Kraus to sixty-five years in prison with a life enhancement. The trial
court used substantially the same remote testimony procedure for examining Hale and
Riley in both trials. In addition, all proceedings at both trials, including the testimony
of Hale and Riley, were recorded on video in lieu of the contemporaneous creation of
a record by a court reporter. These videos are the only known records of what actually
took place during Kraus’s trials.
Kraus appealed his first conviction for sexual abuse against Hale to the Court of
Appeals of Kentucky (“Court of Appeals”) while awaiting his second trial. That court
affirmed the conviction on April 8, 2005. Kraus, 2005 WL 790778, at *5. The
Kentucky Supreme Court (“Supreme Court”) granted discretionary review of the Court
of Appeals’ decision on December 14, 2005. Meanwhile, Kraus appealed the conviction
in his second trial directly to the Supreme Court, as required by the Kentucky Rules of
Criminal Procedure for convictions resulting in serious sentences. See Ky. R. Crim. P.
12.02 (“[A]n appeal from a judgment imposing a sentence of death, life imprisonment,
or imprisonment for 20 years or more shall be taken directly to the Supreme
Court . . . .”). The Supreme Court consolidated the discretionary appeal arising from
Kraus’s first trial with the direct appeal arising from his second trial. After briefing, the
Supreme Court issued a one-page order affirming the convictions based on “the opinion
of the Court of Appeals” due to a tie vote, as the Supreme Court’s rules dictate. Ky. R.
S. Ct. 1.020(1)(a) (“[I]n appealed cases if one member is disqualified or does not sit and
the court is equally divided, the order or judgment appealed from shall stand affirmed.”).
The order makes no mention of the grounds on which it affirmed the appeal of Kraus’s
second conviction, which was never presented to the Court of Appeals.
Kraus then raised a number of ineffective assistance of counsel claims linked to
his second trial in a pro se motion for post-conviction relief under Kentucky Rule of
Criminal Procedure 11.42 on January 24, 2007. The trial court denied the motion in full,
without an evidentiary hearing, on March 22, 2007. Kraus appealed this ruling with the
assistance of counsel. The Court of Appeals affirmed. Kraus v. Commonwealth, No.
2007-CA-000802-MR, 2008 WL 2065803 (Ky. Ct. App. May 16, 2008).
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B.
Kraus brought a pair of pro se § 2254 petitions challenging his convictions in
federal district court on August 5, 2008. Case No. 08-CV-00129 addresses Kraus’s first
trial, and Case No. 08-CV-00128 pertains to Kraus’s second trial. After receiving
Kraus’s petitions and filing fees, the district court entered orders in both cases directing
Taylor to “submit portions of the state court record pertinent” to Kraus’s convictions,
“including but not limited to exhibits, docket sheets, transcripts, and pleadings.” Taylor
submitted Kraus’s indictments and judgments of conviction, along with the briefing from
his direct appeals and his post-conviction proceedings. He did not submit the video
recordings of Kraus’s trials, including video of the testimony Hale and Riley gave via
closed-circuit television, or written transcripts created from those videos. On February
11, 2009, a magistrate judge issued a report and recommendation (“R&R”) in both cases
that suggested denying Kraus’s petitions in full and denying a COA on all claims. The
district court adopted both R&Rs over Kraus’s objections on January 20, 2010, without
writing a separate opinion explaining its reasons.
On multiple occasions, Kraus objected to Taylor’s failure to disclose the actual
trial record to the district court. Kraus filed at least five motions prior to the district
court’s entry of judgment requesting disclosure of the “transcript” from his second trial.
He was apparently unaware that because his trials were recorded on video, there were
no “transcripts” available for Taylor to produce. When Taylor finally made Kraus aware
of this problem in a response to one of Kraus’s motions, Kraus filed a “motion for
mandamus relief” that asked for either a transcript of the video recording of the second
trial or the video itself to be submitted into the record. Kraus also filed a “motion for
default judgment” on the docket in both cases that objected more generally to Taylor’s
failure to follow the district court’s orders mandating submission of the trial court
records. He also objected to the magistrate judge’s recommendations on similar
grounds. The district court denied all of these requests and ruled on the narrow record
Taylor provided.
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C.
Kraus appealed the denial of both petitions without the assistance of counsel on
March 1, 2010. Case No. 10-5261 relates to Kraus’s first trial; Case No. 10-5262 is
linked to Kraus’s second trial. Because the district court did not enter its judgments in
a “separate document” as required by Federal Rule of Civil Procedure 58(a), we deemed
these appeals to be timely, even though Kraus filed them well after the thirty-day time
limit for filing a notice of appeal had expired. See Fed. R. App. P. 4(a)(7)(A)(ii)
(allowing additional 150 days for the filing of an appeal if the district court does not
comply with Rule 58(a)). We granted a COA in both appeals as to a limited subset of
Kraus’s claims in orders dated August 22, 2011. As to the first trial, we agreed to
review: (1) Kraus’s claim that the closed-circuit television testimony violated his right
to confrontation under Maryland v. Craig, 497 U.S. 836 (1990); and (2) whether or not
the district court erred by denying the Craig claim without the relevant portions of the
state court record before it under Adams v. Holland, 330 F.3d 398 (6th Cir. 2003). In the
second trial, we certified three issues for review: (1) Kraus’s claim that there was
insufficient evidence to convict him under Jackson v. Virginia, 443 U.S. 307 (1979);
(2) Kraus’s claim that his trial counsel provided ineffective assistance by failing to
object to the first-degree PFO designation under Strickland v. Washington, 466 U.S. 668(1984); and (3) whether or not the district court erred by failing to consider relevant
portions of the state-court record when evaluating claims (1) and (2) under Adams. We
also ordered that Kraus be appointed counsel on appeal. Kraus’s appointed counsel filed
appearances on his behalf on October 4, 2011.
On September 14—just a week before we formally appointed counsel for
Kraus—Kraus filed a pro se “motion for an extension of time.” The motion asks for
additional time to address the court’s failure to grant a COA on the Confrontation Clause
issue in his second trial. Kraus’s appointed counsel then filed a formal motion to expand
the COA on October 18, emphasizing Kraus’s pro se status immediately after the court
awarded the COA and the incongruity of granting a COA on the Confrontation Clause
issue in the first trial, but not the second. We construed both motions as motions for
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rehearing. So construed, the motions were untimely under Federal Rule of Appellate
Procedure 40(a), and we concluded that there were no “compelling reasons” for
extending the time to bring the motion. 6th Cir. R. 40(a).
Kraus has asked us to reconsider this order and expand the COA to include a
Confrontation Clause claim arising from the second trial so the district court can
reconsider that claim on remand. Upon further review, we agree. We may grant Kraus’s
request to expand the COA out of time only “for the most compelling reasons.” 6th Cir.
R. 40(a). While this court’s interlocutory orders are rarely altered as a practical matter,
they are nonetheless “subject to revision.” R.E. Dailey & Co. v. John Madden Co.,
983 F.2d 1068 (table), 1992 WL 405282, at *1 n.1 (6th Cir. Dec. 15, 1992).
Both of Kraus’s petitions present his Confrontation Clause claim in a similar
fashion. The petition arising from Kraus’s first trial noted that “[t]he trial judge violated
Mr. Kraus’s confrontation right . . . by allowing both adult alleged victims to [testify] via
closed-circuit T.V. because [Ky. Rev. Stat. § 421.350] applies only to children.” In the
petition addressing his second trial, Kraus claimed that “[t]he trial court abused its
discretion . . . [by] permitting adult complainants to testify at trial via closed circuit
television.” Although the second petition did not use the word “confrontation,” it
sufficiently communicated the gravamen of Kraus’s Confrontation Clause
claim—remote testimony by adult witnesses. Given Kraus’s pro se status, the
differences in phrasing hardly seem significant enough to deny consideration of a
Confrontation Clause claim in Kraus’s second trial. This is particularly true when the
second trial petition is considered in the context of this case’s procedural history. The
trial court used substantially the same procedure for examining Hale and Riley in both
trials and relied on the rationale developed during the first trial to justify use of the
procedure in the second trial.
In addition, the untimeliness of Kraus’s application to reconsider the initial COA
must be viewed from the appropriate perspective. We did not appoint appellate counsel
for Kraus until one month after we granted his request for a COA. Nearly two weeks
passed before Kraus’s attorneys filed appearances on his behalf, and another two weeks
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elapsed before those lawyers moved to expand the COA. Given the unusual posture of
this matter and the complexity of the two appeals, this case is a rare instance where a
movant has shown “compelling reasons” for consideration of a late-filed request for
reconsideration. We therefore expand the COA for Kraus’s petition arising from his
second trial to include the following claim: whether the trial court violated Kraus’s
confrontation rights by allowing Hale and Riley to testify via closed-circuit television,
see Maryland v. Craig, 497 U.S. 836 (1990).
II.
In a typical habeas case, our standard of review would be dictated by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). But we do not apply that
standard of review when “we do not reach the merits” of a § 2254 petition. See Jeffries
v. Morgan, 522 F.3d 640, 644–45 (6th Cir. 2008) (refraining from application of AEDPA
deference in an opinion vacating the district court’s judgment for failure to review the
entire state trial court record prior to ruling on a habeas petition). Accordingly, “we
apply the traditional standard, and review the ‘district court’s legal conclusions de novo,
but will set aside its factual findings only if clearly erroneous.’” Id. (quoting Brown v.
Palmer, 441 F.3d 347, 350 (6th Cir. 2006)).
III.
Kraus’s petitions raise many serious concerns about the constitutional soundness
of his convictions, but we are unable to consider them at this time because there is no
record of Kraus’s actual trial proceedings to review. The general rule in this circuit is
that “a [d]istrict [c]ourt must make a review of the entire state court trial transcript in
habeas cases, and where substantial portions of that transcript were omitted . . . a habeas
case should be remanded . . . for consideration in light of the full record.” Adams v.
Holland, 330 F.3d 398, 406 (6th Cir. 2003) (emphasis added) (vacating and remanding
denial of a § 2254 petition after district court failed to consider portions of trial transcript
relevant to petitioner’s Confrontation Clause claim). While there is no “strict rule
requiring a district court to read the state-court trial transcript,” the district court must
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consider portions of that transcript that are “relevant to the petitioner’s . . . claim.” Nash
v. Eberlin, 437 F.3d 519, 524–25 (6th Cir. 2006).
The Adams rule is particularly salient in the context of sufficiency of the
evidence claims, such as the one Kraus raised with respect to his second conviction. In
a § 2254 case where a petitioner cannot produce the evidence supporting his claim,
AEDPA requires the respondent to provide the trial record to the district court when a
petitioner challenges the sufficiency of the evidence supporting his conviction:
If the applicant challenges the sufficiency of the evidence adduced in
such State court proceeding to support the State court's determination of
a factual issue made therein, the applicant, if able, shall produce that part
of the record pertinent to a determination of the sufficiency of the
evidence to support such determination. If the applicant, because of
indigency or other reason is unable to produce such part of the record,
then the State shall produce such part of the record and the Federal court
shall direct the State to do so by order directed to an appropriate State
official. If the State cannot provide such pertinent part of the record, then
the court shall determine under the existing facts and circumstances what
weight shall be given to the State court’s factual determination.
28 U.S.C. § 2254(f). In light of § 2254(f), this court has observed that “a constitutional
sufficiency of the evidence challenge requires a careful review of the entire trial
transcript by the habeas court when a petitioner disagrees with the challenged state court
opinion’s summary of the trial testimony or relevant facts.” Jeffries, 522 F.3d at 644.
Although Kraus paid a nominal filing fee and did not proceed in forma pauperis, the
district court nonetheless recognized that Kraus was “unable to produce” the relevant
records from his trials and ordered Taylor to provide the district court with these records.
Taylor failed to produce the records of Kraus’s trial proceedings or to justify his non-
disclosure, and the district court did not insist on reviewing records before ruling on
Kraus’s petitions.
This case provides an excellent example of the sound rationale for requiring the
district court to review actual trial records, rather than relying on mere assertions about
those records contained in appellate briefs, when it considers a habeas petition. The key
witnesses in Kraus’s trials were his accusers, Hale and Riley. As alluded to earlier, the
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circumstances of their testimony were unique. Both Hale and Riley function mentally
on the level of a child. At trial, they testified via closed-circuit television with the
assistance of interpreters and anatomically correct dolls. The descriptions of their
testimony provided to the Kentucky courts on direct appeal by Kraus and the
Commonwealth are inconsistent. For instance, the Commonwealth claimed on appeal
that during Kraus’s second trial, Hale indicated, using the dolls, that Kraus had
physically “been on top of her” and that the two of them “had intercourse.” The
Commonwealth also claimed that Hale stated that Kraus “had put his penis on her breast
. . . and buttocks,” and that he told her that the two of them “might have babies.”
Kraus’s characterization of this testimony is markedly different:
Hale was asked to demonstrate what happened using the anatomical
dolls. She pulled down the underpants of the girl doll, opened the boy
doll’s pants and touched his penis to the girl doll’s chest. When
immediately asked if she was showing that [Kraus’s] penis touching her
breasts, she said no. When asked to show where the penis touched, she
held the boy dolls at an angle over the girl doll, still not showing a
touching. When the prosecutor then asked leadingly if [Kraus] put “that,
the penis, in there, in Jessica?” she said “yeah.” When asked if he put his
penis anyplace else, Ms. Hale pointed to the doll’s breast. When asked
leadingly if he put his penis anyplace like her behind, she pointed to the
doll’s bottom. When asked leadingly if he “put that in there?” she said
“yeah.”
Without the trial records, we fail to understand how the district court could have drawn
a fair conclusion about the content of Hale’s testimony. Moreover, even if consideration
of assertions in briefs were an appropriate basis for determination of the content of the
state court record, neither party explained in its briefs what Kraus or the jury would have
observed during Hale’s testimony via closed-circuit television. Thus, the briefs are of
no use in evaluating Kraus’s Confrontation Clause claims.
We have previously recognized that the Adams rule is not an absolute. The
district court may be excused from examining state court trial records relevant to a
particular assignment of error if (1) the state court opinions summarize trial testimony
or relevant facts, and (2) the petitioner does not dispute those summaries. Clark v.
Waller, 490 F.3d 551, 556 (6th Cir. 2007). But these cases do not fit this narrow
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exception to Adams. While the Court of Appeals’s opinion addressing Kraus’s first trial
provides a limited summary of the case’s background and the manner in which Hale and
Riley supposedly testified, it does not provide details about how their examinations were
actually carried out at trial, the content of the testimony they provided, or any other
information relevant to the claims covered by the COAs this court issued. Moreover,
Kraus actively disputes both the state court’s summary of the facts and Taylor’s
characterization of the evidence adduced at trial. Finally, there is no summary of the
evidence adduced in Kraus’s second trial that would permit application of Clark, given
that neither the Court of Appeals nor the Supreme Court issued a reasoned opinion
addressing the second trial. Therefore, Kraus’s petitions fall within the core of Adams’s
directive to the district court to review the records of state trial court proceedings.
Taylor’s arguments against remanding these cases for expansion of the record
and reconsideration, as Adams requires, lack merit. He first argues that Kraus did not
properly preserve this issue in the district court by objecting that the records provided
were inadequate. See United States v. Ellison, 462 F.3d 557, 560 (6th Cir. 2006)
(“[T]his court generally will not consider an argument not raised in the district court and
presented for the first time on appeal.”). But this court has never held that the Adams
requirement may be waived. Indeed, Adams describes the requirement to review the
state trial court record as an imperative of the district court, which suggests a petitioner
cannot waive it. See Adams, 330 F.3d at 406 (“[T]he District Court must have the trial
transcript before it” when considering a habeas petition).
But we need not definitively resolve the waiver issue in this case, for two
reasons. First, regardless of whether Kraus raised the issue or not, the district court
ordered Taylor to turn over the “portions of the state court record pertinent to these
issues.” Taylor did not do so, even though he has never claimed that such records are
unavailable. He asserts that he only needed to turn over documents he believed were
“relevant” to the claims. See Rules Governing Section 2254 Cases 5(c) (“The
respondent must attach to the answer parts of the transcript that the respondent considers
relevant.” (emphasis added)). He also claims that the district court had the power to
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order further disclosures if it believed he had not complied with the orders. But Rule
5(c) specifies that the “transcript”—that is, the record of what actually occurred at trial
as opposed to briefs that merely describe what occurred—must be provided. In light of
our consistent pronouncements about the importance of reviewing the “state court trial
transcript,” Adams, 330 F.3d at 406, Taylor’s disclosures to the district court were
inadequate, and the district court should have ensured it had the proper records in front
of it before adjudicating the merits of Kraus’s petitions.
Second, the factual premise of Taylor’s waiver argument is incorrect. Kraus
objected to the adequacy of Taylor’s disclosures on multiple occasions. He now
concedes some deficiencies in these requests: he never made a formal “motion to expand
the record”; he did not realize that the trial had only been recorded on videotape,
meaning there were no written “transcripts” to turn over; and he focused on the
disclosure of the record from his second trial, which carried the more serious criminal
penalty, rather than his first. Nonetheless, as a pro se litigant, Kraus’s filings in the
district court ought to be “held ‘to less stringent standards than formal pleadings drafted
by lawyers,’ and should . . . be liberally construed.” Williams v. Curtin, 631 F.3d 380,
383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)).
Applying this more lenient standard, Kraus repeatedly informed the district court that
Taylor’s disclosures foreclosed proper consideration of his petitions and did not comply
with the district court’s orders mandating disclosure. Neither the district court nor
Taylor was responsive to these demands. Accordingly, we consider the Adams issue
preserved.
Taylor’s final argument against remand is that the record of what took place at
trial is not material to consideration of Kraus’s petitions. We disagree. All of Kraus’s
claims are fact-intensive and require close examination of what actually transpired at
trial. In particular, the video recordings of the testimony Hale and Riley gave during
each trial are critical to his Confrontation Clause claims. Without the videos, the district
court could not meaningfully evaluate Kraus’s Craig claims. See Craig, 497 U.S. at 851(noting that witness “competen[cy],” a “full opportunity for contemporaneous cross-
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examination,” and the ability of trial participants to observe “the demeanor (and body)
of the witness as he or she testifies” are important “safeguards of reliability” when a
witness testifies via closed-circuit television). Evaluation of Kraus’s ineffective
assistance of counsel claim would also be foreclosed without a full record of the events
surrounding his plea to the first-degree PFO enhancement and subsequent sentencing.
And as we held in Jeffries, a sufficiency of the evidence claim like the one arising from
Kraus’s second trial requires “a careful review of the entire trial transcript.” Jeffries,
522 F.3d at 644. The disclosures Kraus seeks are not merely material to his
claims—they are vital.
IV.
For these reasons, we vacate the judgments the district court entered in these
cases and remand both cases for further proceedings consistent with this opinion. The
district court should expand the records in both cases and reconsider the substantive
constitutional claims identified in the COAs, including the Confrontation Clause claim
arising from the second trial we have added to the COA in this opinion. The expanded
record should include, at the very least, the complete video recordings of Kraus’s two
trials, including the recordings of the closed-circuit testimony of Hale and Riley. To the
extent the district court finds that other trial records or a written transcript of those parts
of the trial that do not implicate Kraus’s Confrontation Clause claims would be helpful,
it may exercise its discretion in directing their production.