Ahmedin v. State

NOT DESIGNATED FOR PUBLICATION

No. 114,333

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

HASSEN AHMEDIN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed May 13, 2016.
Affirmed.

Christine M. Larson, of Sharp McQueen, P.A., of Liberal, for appellant.

Russell W. Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., LEBEN, J., and HEBERT, S.J.

LEBEN, J.: Hassen Ahmedin appeals the district court's denial of his habeas corpus
motion for postconviction relief. Ahmedin sought to have his rape conviction set aside
based on claims that his attorneys had provided inadequate representation and that the
judge who presided over his trial committed misconduct that kept Ahmedin from getting
a fair trial.

But one of the things Ahmedin must show to obtain relief on any of his claims is
that the claimed failure had some impact on his trial. After reviewing Ahmedin's claims
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and the record of his trial and his earlier appeal, we find that he has not made that
showing:
 He claims that the attorney who handled the direct appeal of his conviction should
have argued that the evidence wasn't sufficient to convict him of rape. But the
victim's testimony was sufficient evidence to convict him, and that testimony
wasn't wholly unbelievable, as Ahmedin argues, merely because it had some
inconsistencies.
 He claims that his appellate attorney also should have raised a claim that the trial
judge committed misconduct. But what he challenges is a single evidentiary
ruling, and that ruling didn't substantially prevent Ahmedin from presenting his
defense at trial.
 He claims that his attorney at trial should have done a better job of questioning
potential jurors so that a juror who was engaged to a prosecutor wouldn't have
been seated on the jury. But that prosecutor wasn't participating in the trial, the
fiancée was questioned and said she could be fair, and Ahmedin hasn't shown that
his attorney would have removed her rather than another juror.
We conclude, therefore, that the district court properly dismissed Ahmedin's motion for
habeas relief under K.S.A. 60-1507.

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2009, Hassen Ahmedin had sexual intercourse with a woman we'll
refer to as Jennifer. On February 25, 2010, a Seward County jury concluded that it hadn't
been consensual and found Ahmedin guilty of rape. This was Ahmedin's second trial for
the rape—the first trial resulted in a hung jury.

Following his conviction, Ahmedin was sentenced to 155 months in prison and
lifetime postrelease supervision. He appealed both his conviction and sentence with the
help of appellate defender Matthew Edge. On appeal, Ahmedin argued prosecutorial
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misconduct, juror misconduct, and that his statutory and constitutional rights were
violated when he was denied an interpreter during posttrial and sentencing proceedings,
but his appeal was denied. See also State v. Ahmedin, No. 105,378, 2012 WL 1919925
(Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1247 (2013). Ahmedin
then filed the habeas corpus motion that led to this appeal. It was denied by the district
court without an evidentiary hearing, and Ahmedin appealed.

Much of Ahmedin's appeal focuses on events from the second trial, starting with
his trial counsel's performance at jury selection, so we must first review those facts.

At his second trial, jury selection proceeded much like it always does: prospective
jurors were brought in, the process was explained, the judge and lawyers asked questions,
the potential jurors answered, and eventually a jury of 12 plus 1 alternate was empaneled.
And then the trial started. But at some point during the first day of the trial, Ahmedin's
attorney, Daniel Schowengerdt, found out that one of the jurors was engaged to a Seward
County attorney. Thinking the juror's close connection to an attorney who worked with
the prosecutor would bias her against his client, Schowengerdt objected to her continued
service on the jury. His objection was denied, and the trial continued.

But the district court came back to his objection a little later in the day, at which
time Schowengerdt explained that he had disclosed the names of people who may have
known something about the case or been prejudiced toward the defense and that he had
expected the prosecution to do the same. The prosecution argued that lawyers' wives
served on juries all the time in a small town like Liberal and that the juror wasn't even
married to the attorney yet. The district court again denied the objection, noting that
Schowengerdt had never asked the jurors whether they knew anyone associated with the
attorneys in the case. The court was correct—neither attorney asked the juror any
questions that would have led her to divulge that she was engaged to an assistant county
attorney.
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On the second day of the trial, the district court returned to the issue for a third
time—this time calling the juror in to discuss her relationship. The juror said she would
have no problem being unbiased and that she had not discussed the case with her fiancé.
So the court left her on the jury, and the trial continued.

As the trial proceeded, the events of June 25, 2009, began to unfold. That day,
Jennifer and her boyfriend were driving home from Amarillo, Texas, and picked up
Ahmedin along the way. Ahmedin was a friend of Jennifer's boyfriend and was going to
stay with them while he tried to find work in Liberal, Kansas. Once they returned to
Liberal and Jennifer's boyfriend went to work, Jennifer, Ahmedin, and Jennifer's 2-
month-old son were alone in the apartment. According to Jennifer, after she put the baby
down to sleep, Ahmedin began making sexual advances and eventually forced her to have
sexual intercourse. Jennifer said she protested the advances—telling Ahmedin to stop
rubbing her shoulders, for instance—asked him to get off of her, bit and scratched at him,
and tried to push him away as he was raping her. Once the sexual intercourse was over,
Ahmedin got in the shower; Jennifer locked herself in a bedroom and called the police.

During the second trial, but not the first, Schowengerdt called a witness to rebut
Jennifer's testimony—Said Goodir. Before Goodir could say much, however, the
prosecution objected to Schowengerdt's questioning, arguing that "Mr. Schowengerdt has
just broken some major rules here," and that the questioning was "so far in the rape
shield," a reference to the Kansas rape-shield statute that prevents questioning a sex-
crime victim about other sexual conduct unless it has been shown relevant through a
pretrial motion. See K.S.A. 2015 Supp. 21-5502. After a protracted back and forth, the
district court denied the prosecution's objection but told Schowengerdt to "play it close."
Goodir then testified that Jennifer had told him that she hadn't been raped and that
Jennifer and her boyfriend had broken up 2 days after the incident with Ahmedin.
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Ahmedin presented the rest of his case, the attorneys gave closing statements, and the
jury found him guilty of rape.

ANALYSIS

This case has come to us on Ahmedin's appeal of the district court's summary
dismissal of his habeas motion. Since the district court denied the motion without holding
an evidentiary hearing, we must review whether "the motion, files, and records of the
case conclusively show" that Ahmedin is not entitled to relief on his ineffective-
assistance-of-counsel claims. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
We conduct that review de novo—that is, independently and without deference to the
district court. Fuller v. State, 303 Kan. ___, 363 P.3d 373, 381 (2015).

All of Ahmedin's claims allege the ineffective assistance of his attorneys—either
at trial or on appeal. When a defendant seeks to set aside the result of a criminal trial on
the ground that his defense attorney provided ineffective assistance, the defendant has the
burden to show (1) that the attorney's work was below minimum standards and, thus, was
constitutionally deficient and (2) that the attorney's substandard work prejudiced the
defense. Wilson v. State, 51 Kan. App. 2d 1, Syl. ¶ 1, 340 P.3d 1213 (2014), rev. denied
301 Kan. ___ (April 29, 2015). To establish prejudice, the defendant must show a
reasonable probability that the result would have been different if not for the attorney's
deficient performance. 51 Kan. App. 2d at 26. A reasonable probability in this context is
a probability sufficient to undermine our confidence in the trial's outcome. Edgar, 294
Kan. at 838.

For our consideration of Ahmedin's claim of judicial misconduct, we should also
note the standards for determining whether a trial result should be set aside for a judge's
misconduct. To justify setting aside a jury's verdict, the misconduct must have been so
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serious that it prejudiced the substantial rights of the defendant. State v. Hayden, 281
Kan. 112, Syl. ¶ 1, 130 P.3d 24 (2006). In addition, because Ahmedin argues that his
appellate attorney should have raised this claim in his direct appeal, Ahmedin must also
meet the two-part standard we have described for an ineffective-assistance-of-counsel
claim.

With these standards in mind, we turn to Ahmedin's specific claims.

I. Ahmedin's Trial Counsel Was Not Ineffective for Failing to Interrogate a Prospective
Juror about Her Relationship to an Assistant County Attorney.

Ahmedin claims that his trial counsel—Schowengerdt—provided ineffective
assistance because he "failed to properly question" potential jurors during jury selection,
which led to M.D., the fiancée of an assistant Seward County attorney, sitting on the jury.
Even if we presume that Schowengerdt's failure to ask the potential jurors about their
connection to attorneys in the county attorney's office constituted inadequate
representation, Ahmedin has not shown any prejudice arising from that failure. See
Edgar, 294 Kan. at 843 (noting that courts don't have to consider whether counsel was
ineffective if the case can be resolved under the prejudice standard).

To meet the prejudice standard under his theory of Schowengerdt's ineffective
assistance, Ahmedin must convince the court that had Schowengerdt asked potential
jurors about their connection to any of the lawyers in the case, M.D. would have
disclosed her connection to the county attorney's office and either been dismissed
outright for bias or eliminated from the jury panel by Ahmedin's attorney. In any case, if
she wasn't biased against Ahmedin, then her presence on the jury could not undermine
the court's confidence in the outcome of his trial. See State v. Coryell, No. 110,542, 2016
WL 757568, at *16 (Kan. App. 2016) (unpublished opinion) (noting that a party claiming
ineffective assistance based on inadequate questioning of prospective jurors generally
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must show that at least one juror had an actual bias) (citing cases), petition for rev. filed
March 9, 2016.

Nothing in the record suggests that M.D. was biased against Ahmedin. In fact,
Ahmedin does not allege that M.D. was biased. He simply argues that "[d]uring voir dire,
[Schowengerdt] had no opportunity to question [M.D.] about her knowledge of the case,
her relationship with the County Attorney's Office or about being fair or impartial" and
that Schowengerdt's failure to "determine [M.D.'s] relationship with the County
Attorney's Office" likely prejudiced him. And though Ahmedin dwells on M.D.'s status
as the fiancée of an assistant county attorney, he does not explain how that relationship
affected her ability to render an unbiased verdict in his case. Cf. State v. Ji, 251 Kan. 3,
13, 832 P.2d 1176 (1992) (denying ineffective-assistance claim when movant failed to
explain how "the religious belief of any juror affected the ability of that juror to render a
verdict according to the law"). Ahmedin must "'make more than conclusory contentions
and must state an evidentiary basis in support of [his] claims or an evidentiary basis must
appear in the record.'" Trotter v. State, 288 Kan. 112, 131-32, 200 P.3d 1236 (2009).

Here, although Schowengerdt's in-depth questioning of M.D. was delayed until the
second day of trial, he ultimately did ask her about her relationship with an assistant
county attorney. And during this questioning, M.D. stated that her relationship would not
prevent her from being fair and impartial—and the trial judge did not remove M.D. as a
juror after hearing her responses.

Ahmedin cites State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), disapproved
on other grounds by State v. Brooks 298 Kan. 672, 317 P.3d 54 (2014), for support, but
the case actually undermines his argument. In Timley, the Kansas Supreme Court stated
that denying a defendant's objection to dismiss a juror because she was acquainted with
the judge would not be error because the juror "affirmatively stated that her personal
acquaintance with the trial judge would not affect her ability to be fair and impartial."
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255 Kan. at 308-09. The same is true here. When questioned mid-trial, M.D. indicated
that her relationship with a county attorney would not affect her ability to be fair and
impartial. Given that response, there is no reason to suspect bias or to find it probable that
she would have been dismissed from service had Schowengerdt more thoroughly
questioned her during jury selection. Nor has Ahmedin made any claim that he would
have removed M.D. from the jury rather than one of the other jurors he removed during
jury selection with a peremptory challenge (one of the challenges each side is given to
remove a juror without cause). Accordingly, Ahmedin has failed to show prejudice.

II. Ahmedin's Appellate Counsel Was Not Ineffective.

Ahmedin next argues that his appellate counsel, Edge, provided ineffective
assistance because he did not raise sufficiency-of-the-evidence and judicial-misconduct
claims on direct appeal. Ahmedin does not explicitly argue that failure to raise these
claims fell below constitutionally required standards for defense attorneys. Instead, he
focuses on the prejudice prong of the ineffective-assistance test.

We could rule against Ahmedin on both appellate-counsel claims for his failure to
meet the first part of the two-part test for ineffective assistance. The inadequacy of
counsel is not self-evident: The mere "failure to raise an issue on direct appeal is not per
se ineffective assistance." Miller, 298 Kan. at 932 (citing Laymon v. State, 280 Kan. 430,
439, 122 P.3d 326 [2005]). But even if we assume that the representation was inadequate
(here for the failure to raise these issues on appeal), we still find that Ahmedin has not
shown prejudice, the second of the two showings he is required to make.

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A. Ahmedin Has Not Shown Prejudice in His Attorney's Failure to Challenge the
Sufficiency of the State's Evidence.

Ahmedin argues that Edge should have argued that the State failed to prove that he
raped Jennifer—in other words, Edge should have challenged the sufficiency of the
State's evidence presented at trial. Thus, Ahmedin must show that if it weren't for Edge's
failure to raise that challenge, "there is a reasonable probability that . . . the appeal would
have been successful." Miller, 298 Kan. at 934; see Mattox v. State, 293 Kan. 723, 726,
267 P.3d 746 (2011). We will therefore look to see whether the State presented sufficient
evidence for the jury to find Ahmedin guilty of rape. If it did, then no error would have
been found on appeal, and Edge's failure to raise this issue caused him no harm.

When an appellate court reviews the sufficiency of the evidence, it does so after
the factfinder—here a jury—has found the evidence sufficient beyond a reasonable doubt
and convicted the defendant. Accordingly, we must "look[] at all the evidence in a light
most favorable to the prosecution and determin[e] whether a rational factfinder could
have found the defendant guilty beyond a reasonable doubt." State v. Frye, 294 Kan. 364,
374-75, 277 P.3d 1091 (2012). In doing so, the appellate court does not reweigh the
evidence or determine the credibility of witnesses. 294 Kan. at 375.

Under K.S.A. 21-3502—the rape statute in effect at the time of Ahmedin's
conviction—rape is "[s]exual intercourse with a person who does not consent to the
sexual intercourse" in certain circumstances, such as "[w]hen the victim is overcome by
force or fear." K.S.A. 21-3502(a)(1)(A). The State presented evidence to support each
element of the crime: Jennifer testified that the sexual intercourse had not been
consensual, that Ahmedin had pinned her down, that she had asked him to stop, and that
he had not stopped.

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Though it may seem strange in the age of crime-scene shows like Law and Order
and CSI to rely primarily, if not entirely, on a victim's testimony, rape cases usually do
not include smoking-gun physical evidence or eyewitnesses who can corroborate a
victim's testimony. Instead, they often rest on whether a jury finds the victim's testimony
credible. Accordingly, as courts have long held, a victim's testimony, without any
corroboration, "can be sufficient to sustain a rape conviction." State v. Plunkett, 261 Kan.
1024, 1033, 934 P.2d 113 (1997) (citing State v. Borthwick, 255 Kan. 899, Syl. ¶ 2, 880
P.2d 1261 [1994]); see also State v. McGill, 50 Kan. App. 2d 208, 254, 328 P.3d 554
(2014) (Atcheson, J., dissenting) ("Kansas courts have long held the statement of a rape
victim is legally sufficient to sustain a conviction for that offense.") (citing State v.
Tinkler, 72 Kan. 262, 264-65, 83 P. 830 [1905]).

Even so, Ahmedin argues that inconsistencies in Jennifer's testimony prevented
the State from proving that the sexual intercourse at issue was not consensual. Because
inconsistency in testimony is ultimately a question of how credible a witness is, the effect
of inconsistent testimony is usually left up to the jury and not reviewed by this court.
State v. Price, 30 Kan. App. 2d 569, 586, 43 P.3d 870 (2002), rev'd on other grounds 275
Kan. 78, 61 P.3d 676 (2003); see also State v. Elrod, 38 Kan. App. 2d 453, 457, 166 P.3d
1067 (2007) (noting that the effect of inconsistencies in a sexual-assault victim's
testimony were best left to the jury), rev. denied 285 Kan. 1175 (2008). But rape cases
may be an exception; in one case, the Kansas Supreme Court reversed a rape conviction
based on its review of the victim's testimony, which it found so seriously undermined and
contradicted by other testimony that it could not support a conviction. See State v.
Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

In later cases, our Supreme Court has described Matlock as "aberrant" and
"perhaps the only case of its kind in this state where the Supreme Court directly weighed
the evidence and assessed the credibility of the [victim] to reverse a conviction for rape."
State v. Brinklow, 288 Kan. 39, 53, 200 P.3d 1225 (2009); see also State v. Kettler, 299
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Kan. 448, 470, 325 P.3d 1075 (2014) (citing Brinklow and distinguishing Matlock); State
v. Winn, No. 111,474, 2016 WL 1169422, at *3-4 (Kan. App. 2016) (reviewing Matlock,
Brinklow, and other cases on how to assess witness credibility on appeal). Under these
cases, we review whether the inconsistencies "render the witness's entire testimony
unbelievable." State v. Rivera, No. 96,899, 2008 WL 183323, at *6 (Kan. App.)
(unpublished opinion), rev. denied 286 Kan. 1184 (2008). That is, this court will overturn
a rape conviction because of a victim's inconsistent testimony only if that testimony is "so
incredible and improbable as to defy belief." Plunkett, 261 Kan. at 1033 (citing
Borthwick, 255 Kan. 899, Syl. ¶ 2).

The inconsistencies Ahmedin points out, however, were more than adequately
addressed by trial counsel and did not render Jennifer's entire testimony so incredible as
to defy belief. At the second trial, Ahmedin's attorney pointed out that Jennifer testified at
the first trial that Ahmedin had made sexual advances toward her before pinning her
down and forcing her to engage in sexual intercourse. This included rubbing Jennifer's
breasts, both over and under her shirt, and pinning her against the wall while rubbing his
genitalia against hers with their clothing still on. As Ahmedin's attorney pointed out,
Jennifer did not testify to this on direct examination during the second trial. Rather, when
questioned about the same time frame, Jennifer testified that Ahmedin had simply started
rubbing her shoulders and that she had asked him to stop. When cross-examined, Jennifer
admitted her prior testimony without equivocating. So when the jury went to deliberate, it
had heard both stories and was aware of Jennifer's inconsistencies.

These inconsistencies did not make her entire testimony unbelievable. Jennifer
called police immediately after the rape, called her mother to discuss what had happened,
and submitted to a rape kit. Moreover, the detective and officer involved testified that
Jennifer's statements to them were consistent throughout the entire investigation and that
the evidence at the scene was consistent with her testimony.

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The inconsistencies Ahmedin points out certainly would factor into a jury's
credibility determination. But the jury found Jennifer credible, and there's no reason for
us to interfere with its conclusion. In sum, the State presented sufficient evidence for a
jury to find that the sexual intercourse between Ahmedin and Jennifer was not consensual
and to convict Ahmedin of rape. Because of this, Ahmedin was not prejudiced by his
appellate counsel's failure to raise a sufficiency-of-the-evidence challenge on direct
appeal—the claim would not have been successful even if his attorney had made it.

B. Ahmedin Has Not Shown Prejudice in the Failure of His Appellate Counsel to
Raise a Claim of Judicial Misconduct.

Ahmedin's final claim is that Edge should have raised judicial misconduct as an
issue on direct appeal. Ahmedin must show that if it weren't for Edge's failure to raise a
judicial-misconduct claim, there is a reasonable probability that the appeal would have
been successful, Mattox, 293 Kan. at 726, which requires this court to determine whether
the district judge's complained-of conduct rose to the level of judicial misconduct.

To establish judicial misconduct, Ahmedin must show that the district court's
conduct substantially prejudiced his right to a fair trial. State v. Hayden, 281 Kan. 112,
116, 130 P.3d 24 (2006); State v. Miller, 274 Kan. 113, Syl. ¶ 3, 49 P.3d 458 (2002). In
determining whether Ahmedin has met his burden, this court considers the "facts and
circumstances surrounding the alleged misconduct." Hayden, 281 Kan. at 116.

We begin by noting that it's a stretch to categorize Ahmedin's complaint as one
regarding "judicial misconduct." What's involved here is a single evidentiary ruling,
something quite unlike the judicial misconduct found in the Hayden case, which involved
repeated interference with the ability of the attorneys for both sides to fairly try the case,
or that found in Miller, where the trial judge in a bench trial repeatedly interrupted both
attorneys, expressed his belief during trial that a witness was lying, made sarcastic
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remarks, and told counsel to move on to another witness because he didn't believe the one
then testifying. Here, Ahmedin's initial argument is simply that the district court
improperly applied Kansas' rape-shield statute when ruling on a single objection to
Schowengerdt's questioning of Said Goodir.

The rape-shield statute "prohibits the admission of evidence of a complaining
witness' previous sexual conduct with any person, including the defendant, in specified
sex offense cases unless the trial court first determines the evidence is relevant and
otherwise admissible." State v. Holman, 295 Kan. 116, Syl. ¶ 7, 284 P.3d 251 (2012);
K.S.A. 2015 Supp. 21-5502. But while the prosecutor claimed that the questioning had
gone "far [into] the rape shield," the district court actually did not apply the statute to
Schowengerdt's questioning.

When Schowengerdt first questioned Goodir about any conversations he had had
with Jennifer, the State quickly objected, stating that "Mr. Schowengerdt has just broken
some major rules here." The State argued that because Goodir's testimony spoke to
Jennifer's relationship with her boyfriend—specifically that the couple had broken up 2
days after the incident with Ahmedin—Schowengerdt had violated the rape-shield
statute. But the court found that the statute did not apply since, as Schowengerdt pointed
out, Goodir's testimony did not deal with Jennifer's previous sexual history—his
testimony was simply that Jennifer and her boyfriend had broken up.

The district court did admonish Schowengerdt to "play it close," and Ahmedin also
contends that this admonition somehow prevented Schowengerdt from presenting
Ahmedin's full defense. But we do not find that it substantially prejudiced the defense.
Schowengerdt told the court what he was after from Goodir—testimony that Jennifer had
recanted and told him that she had said Ahmedin raped her because she had been afraid
of her boyfriend. And Schowengerdt was able to elicit that testimony, even after the court
told him to "play it close" to avoid a rape-shield problem. Goodir testified that Jennifer
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had "said he didn't do it. She accept[ed] it [the] first time," apparently meaning that it was
not a rape and that the sex had been accepted, i.e., consensual. Schowengerdt then asked,
"Did she tell you why she reported the rape to the police then?" Goodir replied, "She
scared of her boyfriend." Schowengerdt chose to end his questioning of Goodir after that
response.

Though it is true that Schowengerdt did not dwell long on Goodir's testimony, he
got what he was after—testimony that Jennifer had said she wasn't raped. Ahmedin was
not prevented from presenting his defense, and despite admonishing Schowengerdt to
"play it close," the district court never sustained a substantive objection against the
presentation of this testimony. Since the district court did not rule that the evidence could
not be presented, did not prevent the evidence from being presented, and did not unduly
interfere with defense counsel's ability to present Ahmedin's defense, there was no
judicial misconduct—and Edge did not provide inadequate representation by failing to
raise that issue on appeal.

In sum, even if we assume that Ahmedin's trial and appellate attorneys performed
inadequately in the ways he has alleged in this appeal, Ahmedin has not shown—even to
the extent required to obtain an evidentiary hearing—that he was prejudiced from these
alleged failings. In the absence of some viable claim of prejudice, Ahmedin has given no
reason to set aside his conviction.

We therefore affirm the district court's judgment.