Karl KRAUS, Jr., Petitioner-Appellant, v. Clark TAYLOR, Warden, Respondent-Appellee.
Nos. 10-5261, 10-5262.
United States Court of Appeals, Sixth Circuit.
Argued: Jan. 23, 2013. Decided and Filed: May 3, 2013.
713 F.3d 589
III. CONCLUSION
Although we hold that the district court did not abuse its discretion in admitting a redacted version of Dotson‘s statement at trial, we determine that, as in Inman and Maxwell, a remand is necessary so the district court can reconsider several of the conditions imposed on Dotson‘s supervised release. The error here—fаilure to articulate the reasons for imposing the conditions of supervised release at issue—is plain. See, e.g., Inman, 666 F.3d at 1006 (observing that “[a] sentence that is not adequately explained is procedurally erroneous“). We find that the error affected Dotson‘s substantial rights because the district court might have imposed less restrictive conditions had it fully considered and explained its basis for doing so on the record. See id. The error affected the fairness, integrity, or public reputation of the proceedings because the conditions are pоtentially more severe than those that would have been imposed had the district court followed the procedure required by our precedent. See id. at 1006-07. We therefore VACATE the judgment with respect to the special conditions of supervised release and REMAND for further proceedings consistent with this opinion.
Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.
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 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
Kraus‘s petitiоns 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 Con
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 deter
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 remаining 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 abuse 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 judge sentenced Kraus to sixty-five years in prison with a life enhancement. The trial court used substantially the same remote tеstimony 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 convictiоn 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
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
B.
Kraus brought a pair of pro se
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. Whеn 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 distriсt court denied all of these requests and ruled on the narrow record Taylor provided.
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
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 аdditional 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 rehearing. So construed, the motions were untimely under
Kraus has asked us tо 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.”
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 [
In addition, the untimeliness of Kraus‘s application to reconsider the initial COA must be viewed from the appropriate pеrspective. 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 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 reconsiderаtion. 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).
In a typical habeas case, our standard of review would be dictated by the
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 habеas 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
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
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.
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 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 pаnts 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 therе?” 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 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 othеr 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
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
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 сonsideration 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.
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.