Wilson v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,227


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KENNETH EUGENE WILSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Osborne District Court; PRESTON PRATT, judge. Opinion filed June 21, 2019.
Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., GREEN and ATCHESON, JJ.

PER CURIAM: Kenneth Eugene Wilson appeals the Osborne County District Court's
summary dismissal of this habeas corpus motion under K.S.A. 60-1507 challenging the
constitutional adequacy of the legal representation he received in the appeal of his first habeas
corpus motion that followed his convictions in a jury trial for first-degree murder and several
lesser crimes. The district court summarily denied this second motion, finding the claims to be
without merit. Although Wilson has raised numerous claims, he has been unable to establish any
legal prejudice. We see no material error in the district court's ruling and affirm.


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FACTUAL AND PROCEDURAL HISTORY

On March 25, 2008, the home of Scott and Carol Noel was burglarized. Scott Noel was
tied up and shot in the back of the head during the burglary. Wilson was charged and convicted
of crimes related to this incident and also another burglary in the area. Wilson appealed his
convictions, and the Kansas Supreme Court affirmed the district court. See generally State v.
Wilson (Wilson I), 295 Kan. 605, 289 P.3d 1082 (2012).

Wilson timely filed a motion for habeas corpus relief under K.S.A. 60-1507 following his
unsuccessful direct appeal. The district court summarily denied most of Wilson's claims but
conducted an evidentiary hearing on Wilson's claim that his trial counsel had provided
ineffective assistance in failing to seek suppression of evidence obtained in the execution of the
search warrant on Wilson's residence. Following the hearing, the court also denied Wilson relief
on the search-warrant claim.

Wilson appealed the district court's denial of his first habeas corpus motion. Based on the
discussion in this court's opinion, Wilson's appellate argument was limited to trial counsel's
failure to seek suppression of the evidence obtained during the execution of the search warrant.
This court concluded that Wilson's claim of ineffective assistance of counsel failed because he
could not establish prejudice even if counsel's failure to seek suppression of some of the
evidence constituted deficient representation. See Wilson v. State (Wilson II), No. 111,962, 2015
WL 5311404, at *2-6 (Kan. App. 2015) (unpublished opinion), rev. denied 304 Kan. 1023
(2016).

While the appeal in Wilson II was pending, Wilson filed his second motion for habeas
corpus relief under K.S.A. 60-1507. Among the many issues Wilson raised, he alleged
ineffective assistance of counsel in the appeal of his first habeas corpus motion. The district court
summarily denied Wilson's second motion. The court concluded that many of Wilson's issues
involved trial errors that were not properly raised in a habeas corpus proceeding. The court also
ruled that Wilson's claims relating to ineffective assistance of his trial and appellate lawyers in
the direct criminal case could have and should have been raised in his first habeas corpus motion.
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Finally, the district court noted that Wilson's appeal in Wilson II was still pending, effectively
concluding that Wilson's claims for ineffective assistance of appellate counsel in Wilson II were
not yet ripe.

Wilson appealed to this court, which essentially affirmed the district court's reasoning.
This court, however, noted that the mandate had since issued in Wilson II after the Kansas
Supreme Court denied review. This court therefore remanded the case to the district court to
consider Wilson's claims of ineffective assistance of appellate counsel in Wilson II. See Wilson v.
State (Wilson III), No. 116,318, 2017 WL 3669061, at *2-3 (Kan. App. 2017) (unpublished
opinion).

Upon remand, the district court summarily denied Wilson's claims of ineffective
assistance of appellate counsel in his first habeas corpus proceeding. Wilson has appealed the
district court denial, and that is what we now have in front of us.

LEGAL ANALYSIS

Wilson challenges the district court's summary denial of his claims of ineffective
assistance of counsel in Wilson III, arguing that his allegations merited an evidentiary hearing.

Governing Legal Principles

A prisoner in state custody may file a motion challenging a conviction or sentence under
K.S.A. 60-1507(a). The prisoner, as the moving party, bears the burden of establishing an
evidentiary basis supporting his or her claims for relief to warrant an evidentiary hearing; mere
conclusory contentions are insufficient. Grossman v. State, 300 Kan. 1058, 1062, 337 P.3d 687
(2014) ("'A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an
evidentiary hearing; the movant must make more than conclusory contentions and must state an
evidentiary basis in support of the claims or an evidentiary basis must appear in the record.'"
[quoting Sola-Morales v. State, 300 Kan. 875, Syl. ¶ 3, 335 P.3d 1162 (2014)]). If the prisoner
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has established a colorable evidentiary basis for his or her claims, the court must conduct an
evidentiary hearing on those claims. K.S.A. 60-1507(b); Grossman, 300 Kan. at 1062.

The issue in this appeal is simply whether the district court properly executed the
mandate of the appellate court in Wilson III. See Leffel v. City of Mission Hills, 47 Kan. App. 2d
8, 15-16, 270 P.3d 1 (2011) ("When an appellate court has remanded a case for further
proceedings, a trial court must comply with the appellate court's mandate and may consider only
the matters essential to implementing the mandate. In a second appeal, a determination regarding
the trial court's compliance with the mandate involves questions of law over which this court has
unlimited review."). In Wilson III, this court remanded the case to the district court "for further
proceedings on the new claims in the second motion regarding the representation provided by the
lawyer handling the appeal of the first motion." 2017 WL 3669061, at *3.

There is no constitutional right to the assistance of counsel in a habeas corpus proceeding
under K.S.A. 2018 Supp. 60-1507. But K.S.A. 22-4506 provides a statutory right to the
assistance of counsel under limited circumstances including an appeal from the denial of relief.
See K.S.A. 22-4506(c). For that statutory right to have any meaning, the Kansas Supreme Court
has interpreted the right to encompass the right to effective assistance of counsel, as that standard
is applied in the constitutional context under Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). See Robertson v. State, 288 Kan. 217, 228-32, 201 P.3d 691
(2009).

Under the Strickland standard, a movant claiming ineffective assistance of counsel must
establish two requirements. First, he or she must demonstrate that counsel's representation fell
below an objective standard of reasonably effective legal representation. Second, he or she must
establish prejudice arising from the deficient representation. Mundy v. State, 307 Kan. 280, 296,
408 P.3d 965 (2018). The test is the same for a challenge to the adequacy of appellate
representation. See Miller v. State, 298 Kan. 921, 929-30, 318 P.3d 155 (2014). As to prejudice,
Wilson must demonstrate that an issue omitted from his appeal or improperly argued on appeal
in his first habeas corpus proceeding would have resulted in some form of relief, i.e., warranted
vacating one or more of his convictions or required a new trial.
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In this case, the district court did not hold an evidentiary hearing. Accordingly, the record
does not contain an explanation from Nancy Ogle, Wilson's appellate counsel on his first habeas
corpus motion, as to why she did not pursue some the claims Wilson raised in his original
motion. The absence of such evidence hampers this court's ability to determine the first prong of
Strickland. Unless no reasonable attorney would have raised a given issue on appeal, the court
must assume, for purposes of this appeal only, that Ogle lacked a legitimate strategic reason for
failing to raise the issues. See Edgar v. State, 294 Kan. 828, 843, 283 P.3d 152 (2012) (an
appellate court may bypass the representational prong of the Strickland test by assuming
deficient performance by counsel and addressing prejudice). The propriety of the district court's
ruling, therefore, turns on the prejudice component of the Strickland standard.

Specific Issues

In his second habeas corpus motion, Wilson raised eight grounds on which he claimed
Ogle was constitutionally ineffective in handling the appeal of his first habeas corpus motion:
(1) Ogle improperly combined issues into a single issue with subdivisions; (2) Ogle failed to
argue that the search warrant lacked probable cause because Wilson had been incarcerated for
three weeks before the search of his residence; (3) Ogle failed to challenge trial counsel's failure
to object to the admission of evidence that Wilson possessed stolen items from several uncharged
burglaries; (4) Ogle failed to argue that possession of a stolen item does not demonstrate the
commission of a burglary; (5) Ogle failed to challenge the sufficiency of the State's evidence
supporting his convictions; (6) Ogle failed to argue that trial counsel provided deficient
representation by not requesting a limiting instruction for the evidence of the uncharged
burglaries; (7) Ogle failed to argue that the State's case relied on impermissible inference
stacking; and (8) Ogle failed to argue the cumulative effect of his trial counsel's errors. Wilson's
appointed counsel raises those claims in this appeal.

Several of Wilson's allegations raise ostensible trial errors that are not properly framed as
constitutionally inadequate legal representation appropriately considered under K.S.A. 60-1507.
See Kansas Supreme Court Rule 183(c)(3) (2019 Kan. S. Ct. R. 228); Calhoun v. State, 56 Kan.
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App. 2d 185, 193-94, 426 P.3d 519 (2018). Nevertheless, pro se pleadings may be construed
liberally to give effect to the substance rather than the form of their arguments. See State v.
Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Giving Wilson every benefit, we interpret his
claims of trial error to be constitutionalized as Ogle's inadequate representation in failing to
similarly constitutionalize and pursue ineffective assistance claims against his trial counsel on
those points.

1. Combined Issues.

Wilson contends that Ogle "sabotaged the defense" by combining Wilson's various
allegations of ineffective assistance of counsel into a single issue with subparts. To the extent
Ogle's compression of Wilson's allegations omitted some claim from review, the reorganization
of Wilson's arguments might have prejudiced him. But, in the context of this argument, Wilson
has not identified any claims that were neglected through Ogle's reorganization on appeal. To the
extent Ogle presented all of Wilson's arguments in a different organization, Wilson cannot
establish prejudice.

2. Additional Argument Regarding Search Warrant.

Wilson next contends that Ogle provided deficient representation in failing to challenge
the search warrant on the ground that Wilson had been incarcerated for three weeks on an
unrelated parole violation before law enforcement officers conducted the search. Wilson's
argument in his appellate brief on this issue is nothing more than a restatement of the claim with
a conclusion that the district court should have held an evidentiary hearing on the claim. This
minimal briefing fairly might be construed as insufficient to outline a colorable claim for relief.
See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).

But we look more closely at Wilson's argument. Ogle did challenge the admission of
evidence on the basis that several items seized during the search were not listed with particularity
in the search warrant. Ogle did not challenge the search warrant itself. See Wilson II, 2015 WL
5311404, at *2. But, in his first habeas corpus motion, Wilson did not raise the issue he contends
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Ogle should have pursued on appeal. Wilson claimed only that the search warrant failed to list
the items to be seized with sufficient particularity and that the officers grossly exceeded the
scope of the warrant in seizing items not listed in the warrant. Ogle did not provide objectively
unreasonable representation in choosing to focus on an issue Wilson had actually raised in his
motion for habeas corpus relief rather than one he did not. Furthermore, even if Ogle's
representation in this respect were somehow deficient, Wilson cannot demonstrate a likelihood
of the claim's success on appeal because the issue was not properly preserved for appellate
review and the appellate court was not obliged to consider the issue. See Robertson, 288 Kan. at
227 ("This court has held that a constitutional challenge to an attorney's performance must first
be raised in the district court, either via a collateral attack or on remand during direct appeal, for
determination of the issue.").

But, even if this court considers the merits of Wilson's search-warrant issue, he cannot
establish prejudice in Ogle's failure to present the issue in his first habeas corpus proceeding.
Wilson raises two arguments in opposition to the search warrant. First, he contends that, since he
was in jail before the search warrant was executed, the State lacked probable cause. The
reasoning of this argument is wholly unpersuasive. Wilson's incarceration at the time the search
warrant was obtained and executed has no particular relevance to the proper grounds for issuing
a search warrant. If the State presented a magistrate judge with probable cause to believe that
evidence or instrumentalities of the burglaries would be found in Wilson's residence, Wilson's
whereabouts when the warrant was executed has nothing to do with the legal sufficiency of the
warrant or its execution. See K.S.A. 2018 Supp. 22-2502 (establishing requirements for search
warrant). Furthermore, the fact that Wilson was ultimately not charged for the burglaries related
to some of the evidence found in his residence does not render the search invalid.

Second, Wilson argues that the search warrant had no nexus to the crime for which he
was incarcerated. Again, this argument lacks merit. Wilson did not need to be arrested on the
burglary charges to establish a factual basis to search his residence for evidence of the burglaries.
So long as the affidavit in support of the search warrant demonstrated probable cause to believe
evidence or fruits of those burglaries would be discovered in his residence, a judge properly
could issue the warrant. Whether Wilson was in jail or the reasons for his incarceration would be
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irrelevant. See K.S.A. 2018 Supp. 22-2502(a) (search warrant shall issue upon identification of
crime and probable cause to believe evidence or fruits of that crime may be found at place
identified in warrant).

If Ogle had raised either of those arguments in Wilson's first habeas corpus proceeding,
they would not have provided a basis for relief. Ogle's omission of the issues, therefore, could
not have legally prejudiced Wilson.

3. Lack of Objection to Admission of Evidence Related to Uncharged Burglaries.

Wilson contends that Ogle provided deficient representation in not raising his trial
lawyer's failure to object to the State's assertion that Wilson was in possession of stolen items
related to uncharged burglaries and in failing to object to the admission of evidence of the stolen
items. Again, Wilson's argument has two components. First, he argues that the State's
representation that he possessed items stolen in burglaries was unfounded. It is undisputed that
victims of the burglaries identified various items found during the search of Wilson's residence
as their stolen property. Although Wilson was incarcerated at the time of the search, the items
remained in his constructive possession. See State v. Washington, 244 Kan. 652, 654, 772 P.2d
768 (1989) ("The possession of [contraband] may be immediate and exclusive, jointly held with
another, or constructive as where the [contraband] is kept by the accused in a place to which he
has some measure of access and right of control.").

Second, Wilson contends that Ogle should have argued against the admission of the
evidence related to the uncharged burglaries. Ogle represented Wilson in a collateral proceeding
at which trial errors are not properly considered. If Ogle had raised the issue in the context of
ineffective assistance of the trial lawyer, the issue would have not prevailed. Trial counsel did
object to the admission of the evidence of the uncharged burglaries, and the issue was considered
by the Kansas Supreme Court in Wilson's direct criminal appeal. See Wilson I, 295 Kan. at 614,
617-21. The Kansas Supreme Court concluded that the evidence was properly admitted to
establish identity, a hotly contested issue in the case. 295 Kan. at 621.

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Accordingly, had Ogle raised these issues in Wilson's first habeas corpus proceeding,
they would not have entitled Wilson to relief. He, therefore, cannot establish legal prejudice
flowing from Ogle's failure to raise the issues.

4. Failure to Argue that Possession of a Stolen Item does not Constitute Burglary.

In his second motion for habeas corpus relief, Wilson asserted that Ogle should have
argued that his possession of stolen property did not suggest he committed a crime. At its core,
this argument challenges the sufficiency of the State's evidence based upon the circumstantial
evidence placing Wilson at the scene of several crimes. It is not an argument appropriately made
in a habeas corpus motion under K.S.A. 60-1507. See Calhoun, 56 Kan. App. 2d at 193-94. If
Wilson's argument were construed as a challenge to Ogle's performance for failing to claim that
Wilson's trial lawyer was ineffective in failing to make such an argument, the point is muddled
given the record on appeal.

In closing argument, Wilson's trial lawyer discussed the State's evidence, questioning
whether the evidence left room for reasonable doubt. In that context, the trial lawyer questioned
why Wilson had possession of only costume jewelry and not the valuable pieces taken from
various homes during the uncharged burglaries. The lawyer argued, "It is more likely that those
pieces of costume jewelry were gotten from some other source." In the same context, trial
counsel argued that Wilson's possession of objects similar to property taken in the various
burglaries did not prove that they were the actual objects taken during the burglaries. Although
trading on inferences, the lawyer presented the argument Wilson wanted him to make more
explicitly. Therefore, if Ogle had argued that trial lawyer provided deficient representation for
failing to make the argument, this court fairly would have concluded the lawyer did indeed make
the argument.

Even if this court were to conclude otherwise, Wilson still can demonstrate no prejudice.
Wilson testified at trial, and his lawyer essentially permitted Wilson to provide his own narrative.
Wilson did not provide any explanation for his possession of the stolen property. While he had
no burden to disprove the State's case, he offered the jury no version of the facts to counter the
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State's explanation for his possession of that property. Had the trial lawyer argued explicitly that
Wilson's possession of stolen property did not establish the commission of the uncharged
burglaries, the argument had no reasonable chance to persuade the jurors because it lacked any
support in the evidence and defied the common sense conclusion drawn from the circumstantial
evidence actually admitted.

As summarized in the Kansas Supreme Court's discussion of the evidence of the
uncharged burglaries, Wilson's possession of the stolen property was not the only circumstance
tying him to the murder of Scott Noel and to the burglaries.

"But Wilson ignores numerous similar factual circumstances that raise a
reasonable inference that Wilson committed all nine offenses. For instance, the rural
residences were all relatively isolated with no near or adjacent neighbors; the residences
were all near a highway; the residences were within a limited area in north-central Kansas
and south-central Nebraska; and the residences were all unoccupied at the time of the
burglary.
"Moreover, the burglaries all were committed within the same general time frame
as the charged burglaries. Four of the burglaries occurred between March 12, 2008, and
March 14, 2008 (Tracy Noel, Blakely, Hagelgantz, and Andrews homes). Another four
burglaries occurred between March 24, 2008, and March 25, 2008 (Scott and Carol Noel,
Fink, Pope, and Livgren homes). The remaining burglary occurred sometime in March
2008 while the owners were out of state (Switzer home). Significantly, the evidence
established that Wilson was away from his home in Salina on trips around the time of the
burglaries.
"Other similarities exist between some of the uncharged burglaries and the
charged burglaries. For instance, at the Scott Noel and Blakely homes, previously
unloaded guns were removed from their customary locations, loaded, and left out in an
obvious location. Also, officers found cigarette butts at the Noel, Blakely, and Livgren
homes; and Loa Hagelgantz reported smelling cigarette smoke immediately after Wilson
left her home. The evidence showed that the Noels, the Blakelys, and the Hagelgantzes
do not smoke while Wilson does smoke. DNA profiles from the cigarette butts found at
the Noel and Livgren homes matched Wilson's DNA profile. Further, Hagelgantz
identified Wilson in a photo lineup as the man she saw and spoke to outside her home the
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morning of the burglary. And finally, while Wilson recognizes that items of value were
taken during all robberies [sic]; he fails to point out that items taken during the burglaries
of the Fink, Tracy Noel, Blakely, Switzer, Andrews, Pope, and Livgren homes later were
found in Wilson's home and RV." Wilson I, 295 Kan. at 619.

Based upon the circumstantial evidence presented at trial, had Wilson's trial
lawyer directly argued that possession of stolen items did not prove that Wilson
committed the charged and uncharged burglaries (as Wilson now wants), the argument
would have been plainly hollow and, as a result, likely would have alienated the jurors
and undermined their willingness to listen objectively to other defense points.
Accordingly, Ogle's failure to challenge the trial lawyer's representation of Wilson for
that reason did not abandon an otherwise effective collateral attack on the convictions.

5. Failure to Challenge Sufficiency of the Evidence.

Wilson's fifth allegation of ineffective assistance of counsel against Ogle contends
that Ogle failed to challenge the sufficiency of the evidence against Wilson. Again,
Wilson's argument on appeal is little more than restating the claim, which is not a legally
sufficient presentation of the point. See Arnett, 307 Kan. at 650. In addition, a challenge
to the sufficiency of the evidence is a trial error that should have been brought in
Wilson's direct criminal appeal, not in Wilson's first habeas corpus proceeding. See
Calhoun, 56 Kan. App. 2d at 193-94. Even if Wilson surmounted those valid procedural
barriers, his claim fails because he cannot establish prejudice.

To convict a person of a crime, the State is required to prove every element of the
crime beyond a reasonable doubt. But, when a criminal defendant challenges the
sufficiency of the evidence supporting a conviction, an appellate court reviews the
evidence in a light most favorable to the State as the prevailing party and considers
whether a rational fact-finder could have found that the State carried that burden. In
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reviewing a sufficiency challenge, an appellate court does not weigh evidence, resolve
evidentiary conflicts, or make credibility determinations. See State v. Parker, 309 Kan. 1,
14, 430 P.3d 975 (2018).

In this case, the death of Scott Noel during the commission of a burglary was not
seriously contested. The evidence presented at trial unquestionably established that Scott
Noel was murdered. Carol Noel, his wife, found him lying on the floor with his hands
tied behind his back and a contact gunshot wound to the back of his head. He had been
severely beaten. Items in the house were out of order, and $50 in cash that Carol had left
on the dining room table for Scott was missing. The only issue at trial pertained to
Wilson's participation in the crimes. Similarly, there was little question that the home of
Elinor Fink had been burglarized the same day that Noel was killed. Again, the issue at
trial focused on the identity of the perpetrator or perpetrators.

The State established Wilson's involvement in the crimes circumstantially. Two
witnesses testified they observed an unknown car in the vicinity of the Noel residence on
the day of the murder. One witness saw the unknown car leaving the Noel lot. The other
witness saw the unknown car traveling toward the Noel property. The description of the
unknown car the witnesses provided matched the description of Wilson's car. A cigarette
butt found in the sunroom of the Noel residence and another found outside one of the
other burglaries were tested for DNA. A DNA profile obtained from the butts matched
Wilson's DNA profile. Further investigation led law enforcement to discover a rash of
burglaries of rural residences in north-central Kansas and south-central Nebraska during
March 2008. One of the burglary victims spoke to a man driving a gray car as he left her
property. The woman was unable to positively identify the man in a photo lineup, but she
selected a picture of Kenneth Wilson as the person most like the person she saw. Wilson's
wife told law enforcement that Wilson went on a couple of trips during March with a
friend, Delbert McBroom, and was gone from home for several days each time. Some of
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the stolen property was discovered in a search of Wilson's residence and in the
recreational vehicle where McBroom was living in Wilson's backyard.

The State did not present any direct evidence that Wilson murdered Noel or
committed any of the burglaries, but the circumstantial evidence of Wilson's involvement
is substantial. Wilson's DNA was found on cigarette butts at two different crime scenes.
A car resembling Wilson's car was seen leaving the Noel farm on the date of the murder.
Items taken from various burglaries were found in Wilson's possession. Together, the
evidence is sufficient to lead a reasonable person to conclude that Wilson committed the
murder or was an accessory to it. See State v. Lowery, 308 Kan. 1183, 1236, 427 P.3d
865 (2018) (stating that circumstantial evidence has no less probative value than direct
evidence and may entirely support a conviction of the gravest offenses). Consequently,
even if Wilson's appellate counsel in his direct appeal had raised the sufficiency of the
evidence (or Wilson's appellate counsel in his first habeas corpus proceeding had
challenged the efficacy of Wilson's lawyer handling the direct appeal), the issue would
not have led to a favorable outcome. Wilson cannot establish prejudice.

6. Lack of Limiting Instruction.

Wilson also challenged Ogle's representation in failing to argue that Wilson's trial
lawyer was ineffective in failing to request a limiting instruction regarding the admission
of the uncharged burglaries as K.S.A. 60-455 evidence. This claim of ineffective
assistance of counsel also fails.

At Wilson's criminal trial, the district court provided a general limiting instruction.
In Wilson's direct appeal, the Kansas Supreme Court found this instruction sufficient to
guide the jury in considering the K.S.A. 60-455 evidence. See Wilson I, 295 Kan. at 621.
If Ogle had raised the issue of the limiting instruction in Wilson's first habeas corpus
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proceeding, the issue would have failed based on the court's analysis of the point in
Wilson I. Wilson cannot demonstrate prejudice in Ogle's failure to raise the issue.

7. Impermissible Inference Stacking.

Wilson next contends that Ogle provided deficient representation by failing to
argue that the State's case was supported by impermissible inference stacking. Given the
way that Wilson frames the issue in his appellate brief, it is indistinguishable from his
argument regarding the sufficiency of the evidence.

Nevertheless, Wilson correctly notes that a conviction may not be premised upon
stacked inferences. See State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). Wilson,
however, confuses stacked inferences with evidence of multiple circumstances that
establish an essential element of a crime. See 306 Kan. at 859 ("[T]he prosecution is not
required to use the same circumstance for each and every element of the crime or for
every fact it wants the jury to infer."). Wilson's DNA on a cigarette butt at two crime
scenes is a circumstance that permits an inference that Wilson visited each of those crime
scenes. The observation of a vehicle matching Wilson's vehicle leaving the Noel farm on
the date of the murder creates a circumstance that Wilson was at the Noel farm on that
date. Wilson was seen at the site of the other charged burglary. The other burglaries,
which required an inference that Wilson committed the burglaries from the items found at
his property, also required an inference that, because he committed some of the
burglaries, he committed all of the burglaries. But those burglaries were not charged. In
examining the admission of evidence of these uncharged burglaries, the Kansas Supreme
Court found the burglaries sufficiently similar in character to permit an inference of
identity. Wilson I, 295 Kan. at 619-20.

"[E]vidence of the underlying facts showing the manner in which the Tracy Noel,
Blakely, Switzer, Andrews, Pope, and Livgren burglaries were committed—particularly
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evidence of the locations of the crimes and general time frame of the crimes, and
evidence that stolen items from these homes were recovered in Wilson's home or RV—
raises a reasonable inference that the same person—Wilson—committed those burglaries
and the Fink burglary. Evidence of the underlying facts showing the manner in which the
Hagelgantz burglary was committed—particularly evidence surrounding the smell of
cigarette smoke, Hagelgantz' identification of Wilson as outside her home, and Wilson's
DNA profile on the cigarette butt found at the Noels' home—raises a reasonable
inference that the same person—Wilson—committed the Hagelgantz burglary and the
aggravated burglary of the Noels' home." Wilson I, 295 Kan. at 619-20.

The argument that Wilson raises regarding stacked inferences seeks to revisit this
ruling by the Kansas Supreme Court. Any attempt to relitigate the decision in Wilson I is
itself procedurally barred. See Venters v. Sellers, 293 Kan. 87, 98, 261 P.3d 538 (2011).
While Wilson's convictions were supported by circumstantial evidence, the State did not
rely on impermissible inference stacking to obtain the convictions. Wilson cannot
demonstrate prejudice arising from Ogle's failure to raise this issue in his first habeas
corpus proceeding.

8. Cumulative Evidence.

Wilson's final issue is less than clear. He complains that Ogle failed to raise
cumulative trial error in his first habeas corpus proceeding. In his first habeas corpus
motion, Wilson did indeed argue cumulative trial error. Trial errors may not properly be
raised in a habeas corpus proceeding. Calhoun, 56 Kan. App. 2d at 193-94. More
importantly, cumulative trial error requires an appellant to demonstrate multiple mistakes
that individually would not require reversal but collectively undermined the defendant's
ability to obtain a fair trial. See State v. King, 308 Kan. 16, 38, 417 P.3d 1073 (2018).
Wilson must first establish that some trial error occurred. He was unsuccessful in
establishing such error in his direct appeal to the Kansas Supreme Court. See Wilson I,
295 Kan. at 625.
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In his second habeas corpus motion, however, Wilson appears to contend that
Ogle should have argued the cumulative impact of the ineffective assistance of the
lawyers representing him in his direct criminal case in the district court and on appeal.
This argument appears to be a repetition of each of the allegations of ineffective
assistance of counsel against Ogle, which Wilson contends cumulatively undermined his
first habeas corpus proceeding. Even this argument does not provide a basis for relief.
First, Wilson did not make a cumulative error argument in his first habeas corpus motion
as to the lawyers in the direct criminal case. Since he did not make the argument as it is
now presented, Ogle cannot be deemed to have provided deficient representation for
failing to present an issue that was not properly preserved. Or, alternatively, Wilson
cannot demonstrate a reasonable probability that Ogle's presentation of the issue would
have produced a different result in his first habeas corpus proceeding. See Robertson, 288
Kan. at 227. Second, Wilson has failed to establish that any claims Ogle failed to pursue
in his first habeas corpus proceeding possessed legal merit. Therefore, there is no
cumulatively deficient representation to consider.

Conclusion

None of the underlying claims that Wilson complains Ogle should have raised in
the appeal of his first habeas corpus motion have substantive merit under the
circumstances of this case. Whether Ogle deliberately opted to focus on more meritorious
issues or simply neglected to raise the issues is immaterial because Wilson cannot
establish prejudice arising from any ostensible failing he has identified in Ogle's
representation. As a matter of law, Wilson's claims of ineffective assistance of counsel in
the appeal of his first habeas corpus motion therefore lack merit. The district court
properly resolved the motion against Wilson without first holding an evidentiary hearing.

Affirmed.