Decision: State v. Robertson

February 6th. The Kansas Supreme Court has issued its opinion in State v. Robertson (No. 95, 188 ) a collateral attack upon a life sentence without possibility of parole for 50 years. In a unanimous opinion, written by Justice Beier, the Court rejected Joshua Robertson’s claim of ineffective assistance of counsel at the original trial. It found that he had suffered received ineffective assistance of counsel during the proceedings under his habeas petition, however he had not suffered an injury as a result. Therefore his appeal was rejected.

Joshua Robertson was involved in the murder of his girlfriend’s mother and the burning of her home. He was convicted and sentenced to the ‘hard 50’. His direct appeal was rejected by the Kansas Supreme Court in 2005. In this case, he submitted a habeas petition that argued a great many claims, ranging from violations of his Miranda rights, to illegal searches under Terry v. Ohio to ineffective assistance at trial and on appeal. The Kansas Supreme Court found that all of these were either procedurally defaulted by failure to raise them at trial, or because he had brought them up (and lost) on his original appeal. Since a general exception to the various procedural default rules comes into play when ineffective assistance of Counsel is involved (since if proven it can re-open the door to the otherwise barred claims), the Court examined the record and found that his counsel had not been ineffective.

In the early stages of this action, the District Court which received the habeas petition chose to hold a non-evidentiary hearing and appointed counsel to represent Robertson at that hearing. The appointed counsel discussed the case with the Judge and concluded that many of his client’s claims were meritless, and the Judge denied the motion. In Robertson’s appeal  he argues that his appointed counsel for the habeas action was ineffective. The Court of Appeals agreed with him but asserted that since there was no Constitutional Right to Counsel in such proceedings (merely a statutory right) he needed to prove a higher degree of prejudice than he would have needed to had the right in question been a Constitutional one.

The Kansas Supreme Court overrules the Court of Appeals on this point: the origins of the effective counsel right may differ but the legal test remains the same. Having done so, the Court ruled that Robertson’s appointed counsel for the habeas petition had indeed been ineffective as he had not advocated for his client but had undermined his client’s arguments. However, despite returning to the normal test for prejudice the Court concluded that Robertson had not suffered any prejudice as a result of these deficiencies. [Note: It should also be noted that the Court decided to hear this allegation on this motion. Normally, ineffective assistance claims require a new habeas motion to be submitted to District Court. In this case the Court concluded that the record was sufficient, and the merits of the case clear cut enough to dispense with that requirement].

The Court therefore rejected or foreclosed all of Robertson’s habeas claims (noting that the case was so clear that had the District Court opted to simply summarily deny the claim without conducting a hearing it would have affirmed that decision as well). Robertson’s sentence is therefore upheld once again.


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