Brown v. Kansas Department of Corrections

1
In the United States District Court
for the District of Kansas
_____________
Case No. 23-cv-03072-TC
_____________
RICO J. BROWN, SR.,
Plaintiff
v.
HAZEL M. PETERSON,
Defendant
_____________
MEMORANDUM AND ORDER
Rico Brown was convicted of aggravated human trafficking, bat-
tery, promoting the sale of sexual relations, and violation of a protec-
tive order. Doc. 17-3 at 190. He filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 on the grounds of ineffective assistance
of counsel and prosecutorial misconduct. Doc. 1. For the following
reasons, Brown’s petition is denied.
I
A
Over the centuries, several writs of habeas corpus evolved at com-
mon law. See Ex parte Bollman, 4 Cranch 75, 97–98 (1807); 3 W. Black-
stone, Commentaries on the Laws of England 129–131 (1768). The most
significant of these was the writ of habeas corpus ad subjiciendum, the so-
called Great Writ. 3 W. Blackstone, Commentaries at 131. Common law
courts employed the writ to force English monarchs to explain their
capricious fancies, and to correct them when necessary. Brown v. Dav-
enport, 596 U.S. 118, 128 (2022). In this way the Great Writ was “the
instrument by which due process could be insisted upon.” Hamdi v.
Rumsfeld, 542 U.S. 507, 555 (2004) (Scalia, J., dissenting).
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 1 of 9

2
The tradition persisted in the American colonies. It was codified in
the Suspension Clause of the Constitution, which provides that “[t]he
Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require
it.” U.S. Const., art. I, § 9, cl. 2. The Clause does not create a privilege,
but rather recognizes the existence of one. Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 116 (2020). In 1789, the Congress granted
federal courts the authority to issue the writ of habeas corpus against
the Federal Government. Stone v. Powell, 428 U.S. 465, 474–75 (1976).
This was followed by an extension of the writ to state prisoners in
1867. Id. at 475. Over the years, the Supreme Court has repeatedly
“emphasized the fundamental importance of the writ of habeas corpus
in our constitutional scheme, and the Congress has demonstrated its
solicitude for the vigor of the Great Writ.” Johnson v. Avery, 393 U.S.
483, 485 (1969).
But the writ was not without limits. At common law, prisoners
could not use it to challenge a final judgment issued by a court of com-
petent jurisdiction. Brown, 596 U.S. at 128. Courts saw trials as inherent
evidence that a defendant had received due process. Id. In Ex parte
Watkins, Chief Justice Marshall noted: “[A] court can undoubtedly in-
quire into the sufficiency of [a judgment]; but if it be the judgment of
a court of competent jurisdiction, especially a judgment withdrawn by
law from the revision of this court, is not that judgment in itself suffi-
cient cause?” Ex parte Watkins, 28 U.S. at 202. The view was that
“[m]ere error in the judgment or proceedings, under and by virtue of
which a party is imprisoned, constitutes no ground for the issue of the
writ.” Ex parte Siebold, 100 U.S. 371, 375 (1879). Thus, courts could
examine “only the power and authority of the court to act, not the
correctness of its conclusions.” Harlan v. McGourin, 218 U.S. 442, 448
(1910).
And in our system of dual sovereignty, where most aspects of crim-
inal law are administered in state courts, concerns of comity, federal-
ism, and finality urge caution. See generally Duncan v. Walker, 533 U.S.
167, 178–79 (2001). Reflective of those concerns, Congress passed the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
which govern petitions for writs of habeas corpus from state courts.
28 U.S.C. § 2254; Harrington v. Richter, 562 U.S. 86, 97 (2011); Martinez
v. Quick, 134 F.4th 1046, 1055 (10th Cir. 2025). “Because federal ha-
beas review overrides the States’ core power to enforce criminal law, it
‘intrudes on state sovereignty to a degree matched by few exercises of
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 2 of 9

3
federal judicial authority.’” Shinn v. Ramirez, 596 U.S. 366, 376 (2022)
(quoting Harrington, 562 U.S. at 103); see also Kansas v. Garcia, 589 U.S.
191, 212 (2020) (“From the beginning of our country, criminal law en-
forcement has been primarily a responsibility of the States, and that
remains true today.”).
AEDPA therefore limits when federal courts may grant state pris-
oners habeas relief. Federal courts may not grant habeas relief unless
the state’s adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal
law [or] was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). A decision is contrary to clearly established law “if it
applies a rule different from the governing law set forth in Supreme
Court cases, or if it decides a case differently than the Supreme Court
has done on a set of materially indistinguishable facts.” Underwood v.
Royal, 894 F.3d 1154, 1162 (10th Cir. 2018) (quoting Lockett v. Trammel,
711 F.3d 1218, 1231 (10th Cir. 2013)). And it involves an unreasonable
application of federal law “if it identifies the correct governing legal
principle but unreasonably applies that principle to the facts of peti-
tioner’s case.” Id. (quoting Lockett, 711 F.3d at 1231).
State courts’ factual determinations are “presumed to be correct.”
28 U.S.C. § 2254(e)(1). A defendant challenging a state court’s finding
has the burden of rebutting this presumption by “clear and convincing
evidence.” Id. Furthermore, federal courts are bound by state courts’
interpretation of state law. See Sumpter v. Kansas, 61 F.4th 729, 741 (10th
Cir. 2023) (quoting Bradshaw v. Richey, 546 U.S. 75, 76 (2005)) (“[A]
state court’s interpretation of state law binds a federal court sitting in
habeas corpus.”).
B
In 2013, Brown met seventeen-year-old A.L.H outside a grocery
store in Topeka, Kansas. Doc. 17-14 at 7.1 The two began to com-
municate on Facebook. Id. at 10. When her parents kicked her out of
their home, A.L.H. moved into an apartment with Brown and his girl-
friend, M.J. Id. at 11. While the three lived together, Brown and M.J.
began to teach A.L.H. how to work as a prostitute. Id. at 19–20. A.L.H.
1 All references to the parties’ briefs are to the page numbers assigned by
CM/ECF.
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 3 of 9

4
would give her prostitution earnings to M.J., who in turn would give
them to Brown. State v. Brown, 2016 WL 6910080 at *1 (Kan. Ct. App.
Nov. 23, 2016). Brown simultaneously arranged for M.J. to work as a
prostitute. Id.
The State of Kansas charged Brown with aggravated human traf-
ficking for his conduct regarding A.L.H. Brown, 2016 WL 6910080 at
*1. As to M.J., Brown was charged with human trafficking or promot-
ing the sale of sexual relations. Id. He was also charged with aggravated
battery for striking M.J. and with violating a protective order for com-
municating with M.J. after he appeared in the district court on the ini-
tial charges. Id. The district court held a two-day bench trial in October
2014. Brown was convicted of aggravated human trafficking, promot-
ing the sale of sexual relations, misdemeanor battery, and violation of
a protective order. Id. He was sentenced to 258 months in prison. Id.
Brown appealed. Brown, 2016 WL 6910080. The Kansas Court of
Appeals upheld his convictions. Id. The Kansas Supreme Court de-
clined to review. State v. Brown, 2017 Kan. LEXIS 362 (Kan. June 20,
2017).
Brown then filed a motion for post-conviction relief, which the
district court summarily denied. He appealed that denial to the Kansas
Court of Appeals. Brown v. State, 2019 WL 3242417 (Kan. Ct. App. July
19, 2019). That court reversed in part “for an evidentiary hearing lim-
ited to the question whether Brown’s counsel failed to advise him
about his right to testify and whether Brown waived that right.” Brown,
2019 WL 3242417 at *2. Given that Brown had alleged in his post-
conviction motion that his lawyer failed to advise him about his right
to testify, the Kansas Court of Appeals reasoned that the district court
should have held an evidentiary hearing because “if [Brown’s] claim is
true, what other facts could be alleged to support it?” Id. Thus, the
district court was wrong to summarily deny Brown’s motion. Id.
On remand, the district court held an evidentiary hearing. Brown v.
State, 2022 WL 188800 at *1 (Kan. Ct. App. Jan. 21, 2022). Brown at-
tested that he wanted to testify at trial but that his lawyer, Crystal Krier,
did not discuss that desire with him, and that no one explained to him
that it was his right to testify. Id. Krier testified that she did in fact
discuss the matter with Brown, and that Brown did not want to testify.
Id. The district court denied Brown’s motion, finding that Brown’s tes-
timony was not credible because he had previously filed a pro se mo-
tion for a new trial wherein he noted that he decided not to testify
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 4 of 9

5
based on Krier’s advice. Id. The Kansas Court of Appeals affirmed.
Brown v. State, 2022 WL 188800 (Kan. Ct. App. 2022).
Brown now brings a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Doc. 1. He asserts various claims of ineffective
assistance of counsel and prosecutorial misconduct. The State of Kan-
sas has responded to Brown’s petition, and the matter is ripe for re-
view.
II
Brown has failed to exhaust most of his claims. And he has not
shown that Krier’s representation was objectively unreasonable or that
he was prejudiced as to his exhausted claims. Accordingly, Brown’s
petition is denied.
A
Brown argues that Krier’s representation at trial was deficient for
various reasons. Doc. 1 at 15–16. He also argues that the prosecutor
engaged in misconduct regarding the admission of certain evidence. Id.
“A threshold question that must be addressed in every habeas case
is that of exhaustion.” Fontenot v. Crow, 4 F.4th 982, 1018 (10th Cir.
2021) (quotation marks omitted); see 28 U.S.C. § 2254(b)(1)(A). State
prisoners must exhaust available state-court remedies before a federal
court can entertain a habeas petition. Fontenot, 4 F.4th at 1018. This
exhaustion doctrine is rooted in federal-state comity and is designed to
avoid the unseemly result of a federal court upsetting a state court con-
viction without first affording the state courts an opportunity to cor-
rect a constitutional violation. Shinn v. Ramirez, 596 U.S. 366, 378
(2022).
Exhaustion occurs when a state prisoner’s claim goes through “one
complete round of the State’s established appellate review process, giv-
ing the state courts a full and fair opportunity to correct alleged con-
stitutional errors.” Fontenot, 4 F.4th at 1019 (quotation marks omitted).
This requires a claim to be “fairly presented” to the state court. Id. The
crucial inquiry is “whether the substance of the petitioner’s claim has
been presented to the state courts in a manner sufficient to put the
courts on notice of the federal constitutional claim.” Id.
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 5 of 9

6
Sometimes a habeas petition will contain some claims that have
been exhausted and others that have not. Courts refer to those peti-
tions as “mixed.” Jones v. Bock, 549 U.S. 199, 221 (2007). When faced
with a mixed petition, a federal district court has four options. Fairchild
v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009). First, it may dismiss
the petition in its entirety without prejudice and allow the petitioner
“to return to state court to present the unexhausted claims to that court
in the first instance.” Rhines v. Weber, 544 U.S. 269, 274 (2005). Second,
the district court may, if it determines that the petitioner had good
cause for failing to meet the exhaustion requirement and the claims are
not meritless, stay the petition in abeyance while the petitioner returns
to state court. See id. at 277. Third, the district court may determine
that the unexhausted claims would be procedurally barred in state
court and “instead of dismissing the entire petition, the court can deem
the unexhausted claims procedurally barred and address the properly
exhausted claims.” Fontenot, 4 F.4th at 1019; see also Wood v. McCollum,
833 F.3d 1272, 1274 (10th Cir. 2016) (“A district court may not dispose
of a mixed petition in a hybrid fashion by adjudicating the exhausted
claims on the merits and dismissing the unexhausted claim(s) without
prejudice.”). Finally, the court may disregard the exhaustion require-
ment and address the petition on the merits. 28 U.S.C. § 2254(b)(2).
Brown presents a mixed petition because he failed to exhaust seven
of his claims.2 Specifically, Brown claims that Krier withheld exculpa-
tory evidence, did not inform him of his right to file motions himself,
did not submit evidence at trial, did not call a witness on his behalf,
and had a conflict of interest. Doc. 1 at 8–9. None of these claims were
presented on direct appeal or in his state post-conviction motion. See
generally Brown, 2016 WL 6910080; Brown, 2019 WL 3242417. As a
2 Respondent filed a pre-answer response stating that “Petitioner has ex-
hausted his state court remedies in the sense that there are no more avenues
in the state courts through which he could raise his claims,” and that “Peti-
tioner has no further state litigation options through which to challenge his
convictions and sentence.” Doc. 10 at 1–2. That much is true because Brown
is barred from filing another post-conviction motion. Kan. Stat. Ann. § 60-
1507(f); see State v. Brown, 569 P.3d 909, 914 (Kan. 2025) (declining to review
an untimely post-conviction motion). But Brown’s claims have not been ex-
hausted because they were not fairly presented to the district court in his
original motion. See Fontenot v. Crow, 4 F.4th 982, 1019 (10th Cir. 2021) (“A
claim has been exhausted when it has been ‘fairly presented’ to the state
court.”) (quotation marks omitted).
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 6 of 9

7
result, they have not been exhausted. See Davis v. Sharp, 943 F.3d 1290,
1296 (10th Cir. 2019) (affirming the district court’s conclusion that pe-
titioner’s claims were unexhausted because he “never presented such
claims in state court, either on direct appeal or in his postconviction
application”). Brown also claims that Krier failed to suppress the ad-
mission of an exhibit at trial and that the prosecutor committed pros-
ecutorial misconduct by admitting the exhibit. Doc. 1 at 15. Those
claims are unexhausted because, although Brown raised them in the
state post-conviction motion he submitted to the trial court, he aban-
doned them on appeal and thus did not fully and fairly present them
to the state courts. See Brown, 2019 WL 3242417 at *1 (citing State v.
Arnett, 413 P.3d 787, 790 (Kan. 2018)) (declining to reach the merits
of those claims because Brown “did not brief [them] on appeal”);
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “state pris-
oners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s
established appellate review process”).
When state law bars a prisoner from returning to state court to
exhaust a claim, the claim faces an “anticipatory procedural bar.” Frost
v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014) (quoting Moore v. Schoe-
man, 288 F.3d 1231, 1233 n. 3 (10th Cir. 2002)). Federal courts may
not consider such claims unless the prisoner alleges sufficient cause for
failing to exhaust, and resulting prejudice, or if denying review would
result in manifest injustice. Id.
Brown’s unexhausted claims face an anticipatory procedural bar.
Were Brown to return to state court to fully exhaust his claims, state
law would deem his petition untimely. See Kan. Stat. Ann. § 60-
1507(f)(1)(C) (setting a limit of one year from the state supreme court’s
denial of review to file a post-conviction petition); 2023 Kan. LEXIS
245 (Kan. Feb. 17, 2023) (state supreme court’s order denying review).
State law also bars Brown from filing a second post-conviction motion
that seeks similar relief as his first motion. Kan. Stat. Ann. § 60-
1507(c). Accordingly, Brown’s unexhausted claims are procedurally
barred, and he has not demonstrated good cause for his misstep and
prejudice or manifest injustice. Cf. Frost, 749 F.3d at 1232 (declining to
analyze an exception when the prisoner did not assert that it applied).
B
Brown argues that his lawyer was ineffective because she did not
conduct a thorough investigation and failed to notify him of his right
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 7 of 9

8
to testify at trial. Doc. 1 at 8–9; Doc. 19. Those claims have been fully
preserved and exhausted. As a result, they may be considered in a
§ 2254 petition.
Claims for ineffective assistance of counsel are governed by Strick-
land v. Washington, 466 U.S. 668 (1984) and require two showings. First,
“the defendant must show that counsel’s performance was deficient.”
Strickland, 466 U.S. at 687; United States v. Maley, 1 F.4th 816, 820 (10th
Cir. 2021). The attorney’s representation must have fallen “below an
objective standard of reasonableness.” Maley, 1 F.4th at 820 (quoting
Strickland, 466 U.S. at 688). This inquiry is “highly deferential and must
be made without ‘the distorting effects of hindsight.’” Menzies v. Powell,
52 F.4th 1178, 1196 (10th Cir. 2022) (quoting Strickland, 466 U.S. at
689). Second, “the defendant must show that the deficient perfor-
mance prejudiced the defense.” Strickland, 466 U.S. at 687. This re-
quires a reasonable probability that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Maley,
1 F.4th at 820 (quoting Strickland, 466 U.S. at 694). Courts can address
these two prongs in any order, and failure is dispositive under either.
United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (“An in-
effective assistance claim may be resolved on either performance or
prejudice grounds alone.”).
Brown has not shown that Krier’s representation was objectively
unreasonable.3 He argues that Krier “failed to conduct a basic investi-
gation” into allegedly exculpatory letters and false police reports. Doc.
19 at 4. But the Kansas Court of Appeals considered that claim and
found no evidence that Krier conducted a poor investigation. In par-
ticular, the court noted that Brown failed to “support this allegation
with any citations to the record or with any other details, such as what
police reports or exculpatory letters and documents he was referring
to.” Brown, 2019 WL 3242417 at *3. That conclusion is presumed cor-
rect, and Brown has not met his burden to rebut it by clear and con-
vincing evidence. 28 U.S.C. § 2254(e)(1).
Brown also fails to show that Krier did not advise him of his right
to testify. Brown contends that Krier failed to “affirmatively advise
3 Because Brown fails to show objective unreasonableness, it is unnecessary
to analyze whether he was prejudiced. See Byrd v. Workman, 645 F.3d 1159, 1169
(10th Cir. 2011) (affirming the district court’s denial of the defendant’s habeas
petition where he failed to satisfy one prong of Strickland).
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 8 of 9

9
[him] that it was his choice alone whether to testify.” Doc. 19 at 5. Yet
the Kansas Court of Appeals affirmed the district court’s finding to
the contrary. Brown, 2022 WL 188800 at *2. After holding an eviden-
tiary hearing, the district court found Krier’s testimony credible that
she had advised Brown of his right to testify. Id. It also found Brown’s
testimony not credible given that he had filed a motion for a new trial
wherein he noted that “he decided not to testify based on his discus-
sions with Krier.” Id. As noted above, this factual finding is presumed
correct. 28 U.S.C. § 2254(e)(1). And Brown has not met his burden to
rebut that presumption by clear and convincing evidence.
III
For the foregoing reasons, Brown’s Petition for a Writ of Habeas
Corpus, Doc. 1, is DENIED.
It is so ordered.
Date: November 24, 2025 s/ Toby Crouse
Toby Crouse
United States District Judge
Case 5:23-cv-03072-TC Document 21 Filed 11/24/25 Page 9 of 9