Ellifrits v. Davies

769 F. Supp. 350, 1991 U.S. Dist. LEXIS 10945, 1991 WL 151353
CourtDistrict Court, D. Kansas
DecidedJuly 12, 1991
DocketNo. 89-3068-S
StatusPublished
Cited by1 cases

This text of 769 F. Supp. 350 (Ellifrits v. Davies) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellifrits v. Davies, 769 F. Supp. 350, 1991 U.S. Dist. LEXIS 10945, 1991 WL 151353 (D. Kan. 1991).

Opinion

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter comes before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Lansing Correctional Facility, Lansing, Kansas, was convicted in the Jefferson County District Court, Oskaloosa, Kansas, in December 1981 and is serving two consecutive sentences of fifteen years to life. In this action, petitioner asserts: (1) the consecutive service of these sentences constitutes an abusive sentence; (2) his guilty plea was not voluntary; and (3) he was denied the effective assistance of counsel.

Having examined the record, the court makes the following findings and order.

Factual Background

Petitioner was originally charged with first degree murder, rape, and aggravated sodomy. In November 1981, petitioner entered a guilty plea to an amended charge of second degree murder and to the charge of rape. The aggravated sodomy charge was dismissed upon the State’s motion. After inquiring into petitioner’s understanding and acceptance of the plea bargain, the trial court accepted petitioner’s plea.

The trial court again questioned the petitioner regarding the voluntariness of his guilty plea and the factual basis for the plea at petitioner’s sentencing in December 1981. No direct appeal was taken, and petitioner unsuccessfully sought post-conviction relief in the state appellate court prior to commencing this action.

DISCUSSION

Abusive Sentence

Petitioner challenges his consecutive sentences on the ground this type of sentence constitutes an “abusive sentence”, an allegation this court construes as a claim the trial court abused its discretion. Petitioner’s sentence, however, is in conformity with Kansas law. Pursuant to K.S.A. 21-4608(1), “When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date ... such sentences shall run concurrently or consecutively as the court directs.” Petitioner’s claim presents, at most, an issue of state law and does not present a constitutional error that may be properly addressed on habeas corpus re[352]*352view. Claims of state procedural error, without more, do not raise federal questions cognizable on federal habeas review. Brinlee v. Crisp, 608 F.2d 839 (10th Cir. 1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); see Handley v. Page, 398 F.2d 351 (10th Cir.1968), cert. denied, 394 U.S. 935, 89 S.Ct. 1212, 22 L.Ed.2d 466 (1969) (question whether sentences were void under state law raised no federal issue where defendant did not allege state law had been applied discriminatorily).

Voluntariness of Guilty Plea

Petitioner next asserts his guilty plea was not voluntarily made. The standard for determining competency to enter a guilty plea is whether the accused has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and has a rational and factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Because a guilty plea admits all elements of the crime charged, the defendant must understand all the elements as they relate to the facts of the case to enter a voluntary guilty plea. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Having reviewed the state court record, this court finds that the guilty plea entered by petitioner was made knowingly, voluntarily, and intelligently. The record reflects that, before accepting petitioner’s plea, the district court judge reviewed with petitioner and his co-defendant the factual basis for the charges, the right to trial, their rights as defendants in a criminal trial, the possible penalties for the counts charged, and the possibility of consecutive sentencing. During the colloquy, petitioner both expressed his guilt and acknowledged his decision to enter a guilty plea to avoid possible conviction on the charge of first degree murder and the charge of aggravated sodomy. Petitioner’s responses throughout the entry of his plea on November 30, 1981, and at the time of sentencing on December 21, 1981, illustrate a comprehension of the statements of the court and counsel, and thus the record supports a finding that the plea was valid.

In reaching this conclusion, the court has carefully considered an exchange that took place during the sentencing proceeding. During the proceeding, petitioner’s co-defendant and his counsel were excused to confer after the co-defendant expressed some reservations about his plea. After they left the courtroom, the following exchange occurred between petitioner, his counsel, and the court:

Counsel: (addressing petitioner) If you have any questions like he does and have any misgivings about anything we have done any time along the way, we have discussed it many times, now is the time to bring it up.
The Court: Well, he doesn’t. They are both in this together ... and they know it. The point is they did counsel, aid and abet each other and that is clear from what they have already told me. Isn’t that true?
Counsel: Yes.
Counsel: Isn’t that true, Mr. Ellifritz? Petitioner: Yes.
The Court: Both in the rape and the stabbing?
Petitioner: Yes.
Counsel: What he is saying, you don’t have to do the stabbing or raping as long as you counsel, if you counsel, aid and abet you are as guilty as the one who did it.

Following this, the co-defendant and his counsel returned to the courtroom, and the sentencing proceeding resumed. During the remainder of the proceeding, petitioner was given an opportunity to make a statement regarding the sentence or any other subject but made none.

Clearly, the better course for the trial court would have been to refrain from interrupting the conversation between petitioner and his counsel. However, viewing the record as a whole, this court cannot find that this alone resulted in such a miscarriage of justice as would render relief appropriate. Petitioner was given an op[353]*353portunity to respond to the court regarding any doubts, and there is no indication that petitioner actually had any inclination at that time to withdraw his plea.

Ineffective Assistance of Counsel

Petitioner’s final contention in this action is that he received inadequate legal representation. To establish his claim of ineffective assistance of counsel, petitioner must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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Bluebook (online)
769 F. Supp. 350, 1991 U.S. Dist. LEXIS 10945, 1991 WL 151353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellifrits-v-davies-ksd-1991.