Petition for Writ of Certiorari — Steve Kelly Moyer, Petitioner v. Kansas

No. ______

In the

Supreme Court of the United States

__________________

STEVE KELLY MOYER,

Petitioner,

v.

STATE OF KANSAS,

Respondent.

__________________

On Petition for a Writ of Certiorari

to the Supreme Court of the State of Kansas

__________________

PETITION FOR A WRIT OF CERTIORARI

__________________

Robert A. Anderson, Sr., Of Counsel

Counsel of Record

Law Office of Donald E. Anderson II, LLC

1324 Kansas Avenue

P.O. Box 1628

Great Bend, Kansas 67530

(620) 564-2923

(620) 564-0043 (facsimile)

E-mail: Robertsr@ewoodlaw.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether the Kansas Supreme Court Who Affirmed the

Remand Court’s Analysis and Findings on Moyer’s

Counsel’s Effectiveness under Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d

674 (1984) and Edgar v. State, 294 Kan. 828, 283 P.3d

132 (2012) and Held: “Giving Deference to the Lower

Court’s Credibility Assessments and Considering the

Overwhelming Evidence Against Moyer, We Agree

That There Was No Reasonable Probability That the

Outcome of the Case Would Have Been Different Had

J.T. Testified”, Failed to Consider the Prejudicial

Constitutional Errors Committed by Trial Counsel and

Applied an Incorrect Standard in Violation of the

Binding Principals of Stare Decisis, Contrary to this

Court’s Rulings in Chapman v. California, 386 U.S. 18,

87 S. Ct. 824, 17 L.Ed.2d 705 (1967) (Where this Court

Admonished Against Giving to Much Emphasis to

“Overwhelming Evidence” of Guilt, Stating That

Constitutional Errors Affecting the Substantial Rights

of the Aggrieved Party Could Not Be Considered to Be

Harmless); and Neder v. United States, 527 U.S. 1, 119

S. Ct. 1827, 144 L.Ed.2d 35 (1999) (Where this Court

Held: “A Limited Class of Fundamental Constitutional

Errors Is So Intrinsically Harmful as to Require

Automatic Reversal Without Regard to Their Effect on

a Trial’s Outcome. Such Errors Infect the Entire Trial

Process and Necessarily Render a Trial Fundamentally

Unfair”)?

ii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

I.

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . 1

II.

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . 2

III.

CONSTITUTIONAL PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

STATEMENT OF THE CASE . . . . . . . . . . . . 4

A. Facts Relevant to Arrest and Conviction

of Moyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Facts Relevant to Moyer’s First Appeal. . 10

C. Facts Relevant to the Van Cleave Remand

Hearing and Decision. . . . . . . . . . . . . . . . 11

V.

REASONS FOR GRANTING THE WRIT OF

CERTIORARI. . . . . . . . . . . . . . . . . . . . . . . . . 14

A. This Court should grant the Writ of

Certiorari, because the Kansas Supreme

Court who affirmed the remand court’s

findings on Mason’s effectiveness under

Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L.Ed.2d 674 (1984)

and Edgar v. State, 294 Kan. 828, 283

P.3d 132 (2012) failed to consider the

prejudicial constitutional errors

iii

committed by Mason and applied an

incorrect standard, in violation of the

binding principals of stare decisis,

contrary to Chapman v. California, 386

U.S. 18, 87 S. Ct.824, 17 L.Ed.2d 705

(1967) (where this Court admonished

against giving too much emphasis to

“overwhelming evidence” of guilt, stating

that constitutional errors affecting the

substantial rights of the aggrieved party

could not be considered to be harmless)

where the Kansas Supreme Court held:

“Giving deference to the lower court’s

credibility assessments and considering

the overwhelming evidence against

Moyer, we agree that there was no

reasonable probability that the outcome of

the case would have been different had

J.T. testified” . . . . . . . . . . . . . . . . . . . . . . 14

B. This Court should grant the Writ of

Certiorari because the Kansas Supreme

Court who affirmed the remand court’s

findings on Mason’s effectiveness under

Strickland v. Washington, 466 U.S. 668,

104 S. Ct 2052, 80 L.Ed.2d 674 (1984) and

Edgar v. State, 294 Kan. 828, 283 P. 3d

132 (2012) failed to consider the

prejudicial constitutional errors

committed by Mason and applied an

incorrect standard in violation of the

binding principals of stare decisis,

contrary to this Court’s decision in Neder

v. United States, 527 U.S. 1, 119 S. Ct.

iv

1827, 144 L.Ed. 2d 35 (1999) (where this

Court held: “A limited class of

fundamental constitutional errors is so

intrinsically harmful as to require

automatic reversal without regard to

their effect on a trial’s outcome. Such

errors infect the entire trial process and

necessarily render a trial fundamentally

unfair”), where the Kansas Supreme

Court held: “Giving deference to the lower

court’s credibility assessments and

considering the overwhelming evidence

against Moyer, we agree that there was

no reasonable probability that the

outcome of the case would have been

different had J.T. testified” . . . . . . . . . . . 20

VI.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX

Appendix A Syllabus by the Court in the Supreme

Court of the State of Kansas

(February 15, 2019) . . . . . . . . . . . App. 1

Appendix B Order in the Supreme Court of the

State of Kansas

(March 28, 2019) . . . . . . . . . . . . . App. 51

v

TABLE OF AUTHORITIES

CASES

PAGE

Anders v. California,

386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493

(1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Arizona v. Fulminante,

499 U.S. 279, 111 S. Ct. 1246, 113 L.Ed.2d 302

(1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Brecht v. Abrahamson,

507 U.S. 619, 113 S. Ct. 1710, 123 L.Ed.2d 353

(1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21

Brookhart v. Janis,

384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 314 (1966) 23

Chambers v. Mississippi,

410 U.S. 284, 302 S. Ct. 1038, 35 L.Ed.2d 297

(1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Chapman v. California,

386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705

(1967). . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 25

Cullen v. Pinholster,

563 U.S. 170, 131 S. Ct. 1388, 179 L.Ed.2d 557

(2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cuyler v. Sullivan,

446 U.S. 335, 100 S. Ct. 1708, 64 L.Ed.2d 333

(1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Davis v. Alaska,

415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347

(1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vi

Delaware v. Van Arsdall,

475 U.S. 673, 106 S. Ct. 1431, 89 L.Ed.2d 674

(1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Edgar v. State,

294 Kan. 828, 283 P.3d 132 (2012). . . . . 15, 20, 25

Fahy v. State of Connecticut,

375 U.S. 85, 84 S. Ct. 229, 11 L.Ed.2d 171

(1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Florida v. Nixon,

543 U.S. 175, 125 S. Ct. 551, 160 L.Ed.2d 565

(2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Giglio v. United States,

405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104

(1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Glasser v. United States,

315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680

(1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Harrington v. California,

395 U.S. 250, 89 S. Ct. 1726, 23 L.Ed.2d 284

(1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Herring v. New York,

422 U.S. 853, 95 S. Ct. 2550, 45 L.Ed.2d 593

(1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Holloway v. Arkansas,

435 U.S. 487, 98 S. Ct. 1189, 55 L.Ed.2d 426

(1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

Kyles v. Whitley,

514 U.S. 419, 115 S. Ct. 1555, 131 L.Ed.2d 490

(1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Neder v. United States,

527 U.S. 1, 119 S. Ct. 1827, 144 L.Ed.2d 35

(1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 25

Payne v. Arkansas,

356 U.S. 560, 78 S. Ct. 844, 2 L.Ed.2d 975

(1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Pennsylvania v. Ritchie,

480 U.S. 39, 107 S. Ct. 989, 94 L.Ed.2d 40

(1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Rose v. Clark,

478 U.S. 570, 106 S. Ct. 3101, 92 L.Ed.2d 460

(1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Smith v. Illinois,

390 U.S. 129, 88 S. Ct. 748, 19 L.Ed.2d 956

(1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

State v. Moyer,

302 Kan. 892, 360 P.3d 384 (2015), as modified

in 306 Kan. 342, 410 P.3d 71 (2017) . . . . . . . . . . 2

State v. Van Cleave,

239 Kan. 117, 716 P.2d 580 (1986). . . . . . . passim

Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674

(1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

viii

Taylor v. Illinois,

484 U.S. 400, 108 S. Ct. 646, 98 L.Ed.2d 798

(1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

United States v. Cronic,

466 U.S. 648, 104 S. Ct. 2039, 80 L.Ed.2d 657

(1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

United States v. Morrison,

449 U.S. 361, 101 S. Ct. 665, 66 L.Ed.2d 564

(1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

United States v. Ruiz,

536 U.S. 622, 122 S. Ct. 2450, 153 L.Ed.2d 586

(2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Valenzuela-Bernal,

458 U.S. 858, 102 S. Ct. 3440, 73 L.Ed.2d 1193

(1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Weatherford v. Bursey,

429 U.S. 545, 97 S. Ct. 837, 51 L.Ed.2d 30

(1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Williams v. Florida,

399 U.S. 78, 900 S. Ct. 1891, 26 L.Ed.2d 446

(1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONSTITUTIONAL

STATUTES

AMENDMENTS

AND

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . 18

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . 3, 18, 19

ix

28 U.S.C. § 1257(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

K.S.A.20-311d(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11

1

PETITION FOR WRIT OF CERTIORARI

_____________________________

Petitioner Steve Kelley Moyer (herein after Moyer),

respectfully requests a Writ of Certiorari be issued to

review the judgment of the Supreme Court of the State

of Kansas affirming the convictions of Moyer and

specifically affirming the remand court’s findings that

the constitutional errors committed by Mason did not

cause Moyer to suffer prejudice because of “the

overwhelming evidence of guilt”. Although the remand

court found Moyer’s court-appointed trial attorney

(herein after Mason) had a conflict of interest in

simultaneously representing both Moyer and J.T., a

crucial exculpatory witness for Moyer in separate and

unrelated cases and Mason waited until the third day

of Moyer’s jury trial to prepare a subpoena for J.T., and

Mason failed to make any arrangements to get the

unsigned subpoena properly served on J.T., the

Supreme Court of Kansas affirmed the remand court

by holding: “that because of the overwhelming evidence

against Moyer that there was no reasonable probability

that the outcome of the case would have been different

had J.T. testified”.

I.

OPINIONS BELOW

The 4-3 opinion of the Supreme Court of Kansas

issued on October 16, 2015 remanding the case for a

State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986)

hearing in the trial court to determine whether Moyer

was denied his Sixth Amendment right to counsel,

either because Mason, his trial counsel was not

2

constitutionally conflict free or was not constitutionally

competent is reported as State v. Moyer, 302 Kan. 892,

935, 360 P.3d 384 (2015), as modified in 306 Kan. 342,

410 P.3d 71 (2017). The 4-3 opinion of the Supreme

Court of Kansas issued February 15, 2019 affirming

Moyer’s convictions and the remand court’s decision

following the remand hearing by holding: “giving

deference to the lower court’s credibility assessments

and considering the overwhelming evidence against

Moyer, we agree that there was no reasonable

probability that the outcome of the case would have

been different had J.T. testified”, is listed in the

Appendix as “A”. The Kansas Supreme Court’s denial

of Moyer’s Motion for Rehearing or Modification was

issued on March 28, 2019 and is listed in the Appendix,

as “B”.

II.

JURISDICTION

The 4-3 decision of the Supreme Court of Kansas

was entered on February 15, 2019. Moyer’s Motion for

Rehearing or Modification was denied by the Supreme

Court of Kansas on March 28, 2019. This petition is

timely filed within ninety days of that date. This

Court’s certiorari jurisdiction is invoked pursuant to

Title 28 United States Code Section 1257 (3).

III.

CONSTITUTIONAL PROVISIONS INVOLVED

This Court has recognized that the Sixth

Amendment right to counsel exists, and is needed, in

order to protect the fundamental right to a fair trial.

3

The Constitution guarantees a fair trial through the

Due Process Clause, but it defines the basic elements

of a fair trial largely through the several provisions of

the Sixth Amendment, including the Counsel Clause:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the assistance of

counsel for his defense.”

The Sixth Amendment to the United States

Constitution provides that a criminal defendant shall

have the right to “the assistance of counsel for his

defense”. Inadequate assistance does not satisfy the

Sixth Amendment right to counsel made applicable to

the states through the Fourteenth Amendment.

The Fourteenth Amendment to the United States

Constitution provides in part:

. . . nor shall any state deprive any person of life,

liberty, or property without due process of law;

nor to deny any person within its jurisdiction the

equal protection of the laws.

4

IV.

STATEMENT OF THE CASE

A. Facts Relevant to Arrest and Conviction of

Moyer

On April 5, 2009 Moyer’s oldest daughter J.M.

alleged to her mother that Moyer had been engaging in

sex acts with her for several years. Moyer’s wife

reported this allegation by her daughter to a local

police detective. When Moyer went to work the next

day, after hearing from J.M., the police arranged to

have Moyer arrested when he finished work and was

waiting to be picked up by his family. The son of the

trial judge who signed the arrest and search warrants

and presided over Moyer’s jury trial, was a member of

the law enforcement team that arrested Moyer. The

trial judge’s son was also listed as a witness on the

amended complaint.

On April 7, 2009 J.M. was interviewed by the

executive director of the Western Kansas Child

Advocacy Center. Based upon J.M.’s interview, Moyer

was charged with five felony counts.

On April 9, 2009 the assigned District Court Judge,

court appointed Mason, a local attorney to represent

Moyer on two severity level 1 felonies which were filed

by the Sherman County Attorney. Despite there being

five attorneys on the 15th Judicial District’s Panel of

Indigent Defense Services List who were qualified to

handle the severity level 1 and off-grid felonies, the

trial judge appointed Mason, who was listed as

qualified only to handle severity levels 5-10 felonies.

5

On May 8, 2009 the Kansas Attorney General’s

Office filed an amended complaint charging Moyer with

three off-grid felonies and two severity level 3 felonies

and the son of the trial judge was listed as a witness.

On July 1, 2009 Moyer filed a pro se Motion to

Dismiss Mason as Public Defender. No hearing was

held on the merits of Moyer’s pro se motion. On October

29, 2009 a letter was filed by Moyer to his courtappointed attorney titled “I am fireing (sic) You as my

“court-appointed –Attorney”. Mason then prepared a

Motion to Change Attorney, with Moyer’s letter as an

attachment. On November 2, 2009 a hearing was held

on the Motion to Change Attorney and the trial judge

denied Mason’s request.

On January 7, 2010 Moyer filed a pro se Motion

entitled: “The Defendant” –Steve K. Moyer” Requests

an “Emergency Motion” to “Fire” Mr. Jeffrey A. Mason”

As my “Court Appointed Attorney”! and third “Motion

to Change Attorney”. There was no hearing held by the

district court on Moyer’s motion.

On January 13, 2010 a Motion to Recuse was filed

by Mason asking the assigned judge to recuse himself

because the State of Kansas listed the judge’s son as a

witness and alleged that it would create a conflict of

interest and have a prejudicial effect on the defendant.

A hearing was held on January 15, 2010 on the motion

and the assigned trial judge refused to recluse himself.

On January 20, 2010 Defendant’s Third Motion in

Limine was filed by Mason asking the Court for an

Order in Limine redacting from any exhibits used by

the State and asking that no reference be made to the

6

judge’s son by any of the witnesses during the trial

which was granted by the court. At a hearing on

January 21, 2010, Mason advised the court that he had

followed the statutory requirements under K.S.A. 20311d(b) to file an affidavit under seal with the Chief

Judge after the assigned judge refused to recluse

himself. The Chief Judge had no recall of receiving an

affidavit from Mason pursuant to K.S.A. 20-311d(b)

and the Sherman County District Court file did not

contain any such K.S.A. 20-311d(b) affidavit.

During Mason’s court-appointed representation of

Moyer, the Sherman County District Court also

appointed Mason as the Guardian ad Litem to “J.T.”,

a juvenile in a separate child-in-need of care case.

Mason learned from J.T. on January 11, 2010 following

a court hearing in the child-in-need of care case, that

she had been a guest in Moyer’s home and was friends

with Moyer’s two oldest daughters, J.M. and H.M.

Mason had a conversation with J.T. in which J.T. told

Mason that she had discussed the allegations that J.M.

had made against Moyer and that J.M. and H.M., had

told J.T. that Moyer had not done the things which

were alleged by J.M. which resulted in Moyer’s arrest

and that those allegations were made up by J.M. J.T.

told Mason that she would come to Moyer’s jury trial

and testify about her conversations with J.M. but

Mason failed to get J.T. properly served with a

subpoena which he prepared and sent unsigned by

facsimile transmission on the third day of the jury trial

to St. Catherine’s Hospital, the S.R.S. and to St.

Francis Academy employees in whose care J.T. was

assigned. On the fourth day of the jury trial, Mason

informed the trial judge of his conflict of interest in

7

representing Moyer and J.T. a crucial exculpatory

witness in Moyer’s defense. The assigned district court

judge did not make any meaningful inquiry about the

apparent conflict of interest that Mason had in

representing both Moyer and J.T. as their courtappointed attorneys in separate cases. When Mason

informed the court that Moyer’s crucial exculpatory

witness was a patient at the psychiatric ward of a

hospital in a town fifty miles from Sherman County

and that he was having trouble getting J.T. served with

the subpoena and transported to Moyer’s trial, the

assigned Judge gave Mason until the next morning to

produce J.T. and warned Mason if J.T. was not present,

Moyer’s jury trial would proceed without Moyer’s

exculpatory witness J.T.

During an in-chambers discussion with the assigned

judge on the fourth day of the jury trial, Mason and the

State’s attorney informed the assigned judge that

medical personnel at the psychiatric hospital would not

allow J.T. to leave the hospital because she needed to

be transferred to a residential treatment facility and

advised that J.T. was medicated; would not be a

credible witness; and was a danger to others. Mason

met with Moyer about the unavailability of J.T. and

after two conferences Moyer advised Mason that he

wanted to proceed with the completion of the jury trial.

The assigned judge was advised of Moyer’s decision but

Moyer was never asked to orally waive his right to

have J.T. present as an exculpatory witness, nor did

Mason or the court have the Moyer or J.T. sign any

written waiver of conflict. According to Mason’s

testimony at the Van Cleave hearing, he made no

efforts to preserve J.T.’s testimony prior to the jury

8

trial by written statement, audio-tape or video tape

deposition or any other means. After being advised by

J.T. of information that made her a crucial exculpatory

witness for Moyer, Mason took no steps to follow-up on

that information or to investigate further J.T.’s

information until the night of the third day of the jury

trial when he called and spoke with her, and later that

night when he prepared the unsigned subpoena for her

attendance at Moyer’s jury trial the next day. Mason

did not secure service of the subpoena nor did he

arrange for a process server.

The 102 pages of psychiatric medical records of

J.T.’s admission, diagnosis, stay, discharge plan and

mental status were a part of the exhibits marked and

admitted by the Van Cleave court and those records

clearly showed that the reports by the state’s attorney

and Mason to the trial judge during the in-chambers

meeting following Mason announcement that he had a

conflict of interest and was having difficulty getting

Moyer’s witness to court were not accurate. The S.R.S.

and St. Francis Academy e-mail records which were

marked as an exhibit and admitted by the Van Cleave

court also showed that it was not any medical

personnel from the hospital who was telling anyone

that J.T. could not testify or appear at Moyer’s trial,

but it was St. Francis workers who were upset that

they received a faxed unsigned subpoena on the

morning of the fourth day of Moyer’s jury trial listing

that J.T. needed to be in court, 50 miles away later that

day. J.T. was court ordered to be in St. Francis’ care

and it was their responsibility to transport her to the

jury trial if the subpoena was properly served. The

psychiatric records for J.T. and the St. Francis

9

Academy and S.R.S. exchange of e-mails were a part of

the appellate record provided by the Sherman County

District Court. Mason admitted at the Van Cleave

hearing that he never spoke with any medical

personnel at the psychiatric hospital were J.T. was a

patient and that he never saw or was told what J.T’s

hospital records stated. The transcript of the jury trial

shows that the state attorney who alleged during the

Van Cleave hearing to the assigned judge that she had

spoken with medical personnel about J.T., actually only

spoke with an attorney for St. Francis Academy whose

was trying to prevent his agency from having to

transport J.T. to Moyer’s jury trial. The Van Cleave

court ignored a majority of the 102 pages of psychiatric

medical records for J.T., and only commented on the

final discharge information. The Van Cleave court

ignored the e-mail exchanges between St. Francis

Academy employees and S.R.S. employees concerning

efforts to keep from having to transport J.T. to Moyer’s

jury trial.

J.T. was never served with the unsigned subpoena

and did not appear at Moyer’s trial as an exculpatory

witness. Moyer testified in his own defense and denied

all of J.M.’s allegations. Moyer was convicted of one

count of aggravated criminal sodomy, one count of

aggravated indecent liberties, and three counts of

criminal sodomy. Moyer was sentenced on August 6,

2010 to life in prison with a hard 25 years to serve

before being eligible for parole, plus an additional 177

months in prison consecutive to the life sentence.

10

B. Facts Relevant to Moyer’s First Appeal

Mason timely filed an appeal on August 10, 2010

citing 35 issues. Moyer filed a pro se appeal on August

12, 2010. On August 16, 2010 Moyer filed a second pro

se appeal.

On April 7, 2014, the Sherman County District

Court appointed Moyer’s current appellate attorney.

Moyer’s brief was filed on September 18, 2014. On

October 16, 2015, the Kansas Supreme Court issued

a 62 page 4-3 decision remanding the case to the

Sherman County District Court for a Van Cleave

hearing “to determine whether Moyer was denied his

Sixth Amendment right to counsel, either because trial

counsel was not constitutionally competent or was not

constitutionally conflict-free. The Kansas Supreme

Court could not determine from the initial appellate

record, “whether Mason’s duty to J.T. as her Guardian

ad Litem still existed at the time that Mason also owed

Moyer a duty to present the best possible defense at

trial. The Kansas Supreme Court questioned in their

opinion: “if those contradictory loyalties co-existed, was

it possible for Mason to objectively advise Moyer on

whether to attempt to force J.T.’s testimony. The

Kansas Supreme Court suggested in their first opinion:

“if J.T.’s apparent unavailability was a consequence of

Mason’s failure to properly issue and serve a subpoena

forcing her appearance … then Moyer’s Sixth

Amendment right to effective assistance of counsel

might well have been denied because of Mason’s

ineffectiveness, rather than, or in addition to, his

conflict of interest”. The Kansas Supreme Court stated

in their first opinion: “We have no findings as to

11

Mason’s deficiencies in obtaining J.T.’s presence at

Moyer’s trial or any inquiry into whether Mason should

have preserved J.T.’s testimony in some manner”.

Finally, in the October 16, 2015 opinion, the Kansas

Supreme Court remanded Moyer’s case to the Sherman

County District Court “to determine whether Moyer

was denied his Sixth Amendment right to counsel,

reserving the question of cumulative error until that

determination is made”.

C. Facts Relevant to the Van Cleave Remand

Hearing and Decision

Moyer’s current appellate counsel, after the trial

judge again refused to recluse himself, filed a K.S.A.

20-311d(b) Affidavit with the Chief Judge of the 15th

Judicial District, who ordered recusal of the trial judge

and assigned a judge from the 23rd Judicial District to

preside over the Van Cleave remand hearing. At a

status hearing prior to the Van Cleave hearing being

held the state and Moyer’s attorney stipulated to the

introduction of the 102 pages of the St. Catherine’s

Hospital’s psychiatric medical records of J.T. and the email exchanges between employees of St. Francis

Academy and the S.R.S. who were trying to keep from

having to transport J.T. to Moyer’s trial due to the

short notice. Those records were marked as exhibits

and the court accepted them as a part of the Van

Cleave court record.

The Van Cleave hearing was held on November 22,

2016. At the hearing Mason was called as a witness

and Moyer also testified. Moyer testified about the

unannounced jail visit by Mason where Mason

12

informed Moyer that on January 11, 2010 following a

child-in-need of care case hearing where Mason

represented J.T. as her Guardian ad Litem he spoke

with J.T. and learned that she had been a guest in the

Moyer home and had been told by the alleged victim

and her sister that Moyer had not done the things that

she had reported to the police and that she made up

those allegations that she reported to the police.

Mason testified that Moyer was asked if he wanted J.T.

to be a defense witness and testify at the jury trial and

that Moyer stated he did want J.T. as a witness.

Mason admitted he did not secure any statement or

voice recording from J.T. and waited until after the

third day of the jury trial to prepare a subpoena for J.T.

to appear the next day in the Sherman County District

Court because he did not want the State to know who

his defense witness was so the State could not

interview J.T. prior to Moyer’s trial.

The assigned Van Cleave judge ruled after

submission of written arguments by the state and

defense counsels that:

“This Court finds that Mason did have a conflict

of interest when the hospital disclosed that it

would be detrimental to J.T.;s health to testify.

This Court further finds that this conflict did not

result in ineffective assistance of counsel nor did

it prejudice the defendant. Further the court

rules that the strategy employed by Mason and

Moyer in not preserving the possible testimony

of J.T. and in not issuing a subpoena until after

the trial commenced, was reasonable under the

circumstances and did not rise to ineffective

13

assistance. Finally, the evidence in this case

was so overwhelming that J.T.’s participation

would not have affected the outcome and

therefore no prejudice resulted to the

defendant”.

A review of the 102 pages of J.T.’s psychiatric

hospital records which included J.T.’s admission, stay,

diagnosis, treatment, medications and ultimate

transfer to a drug treatment facility shows that no

medical personnel stated that it would be detrimental

to J.T.’s health to testify at Moyer’s jury trial.

On October 10, 2017 Moyer’s current appellate

counsel filed an Amended (Second) Brief of Appellant.

On February 15, 2019 the Kansas Supreme Court

issued their 38-page 4-3 decision affirming the

Sherman County District Court’s remand and Van

Cleave rulings. See Appendix “A”. The Kansas

Supreme Court specifically stated:

“The Van Cleave court found that ‘[t]he evidence

of guilt in this case was overwhelming.” and

“Although there were multiple errors in this

case, “the same reasons that led us to find that

the individual errors were not reversible lead us

to be firmly convinced beyond a reasonable

doubt that the result of this trial would have

been no different without errors”

“At the beginning of the Van Cleave hearing, the

Van Cleave court took judicial notice of J.T.’s

CINC file and the corresponding SRS records.

Although those records do not appear in the

record on appeal, we presume they supported

14

the Van Cleave court’s finding that Mason’s

representation of Moyer became materially

limited by his responsibilities to J.T. only upon

discovering that it may be detrimental to J.T.’s

health to testify at Moyer’s trial”.

The Kansas Supreme Court also specifically stated:

“But as noted above, the CINC files and S.R.S.

records which might give credence to such

speculation are not part of the record on appeal.

The Van Cleave court’s finding that Mason did

not anticipate an issue with J.T.’s attendance at

the trial is supported by substantial competent

evidence in the record”.

On February 25, 2019 Moyer’s current appellate

attorney filed a Limited Motion for Rehearing or

Modification, pursuant to Kansas Supreme Court Rule

7.06 and pointed out to the Kansas Supreme Court that

the S.R.S. records and St. Francis e-mail records were

a part of the appellate record provided to the Kansas

Supreme Court by the Sherman County District Court.

On March 28, 2019 the Kansas Supreme Court

issued their denial of the Appellant’s Motion for

Rehearing or Modification. See Appendix B.

V. REASONS FOR GRANTING THE

WRIT OF CERTIORARI

A. This Court should grant the Writ of Certiorari

because the Kansas Supreme Court who

affirmed the remand court’s findings on Mason’s

effectiveness under Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674

15

(1984) and Edgar v. State, 294 Kan. 828, 283

P.3d 132 (2012), failed to consider the prejudicial

constitutional errors committed by Mason and

applied an incorrect standard, in violation of the

binding principals of stare decisis, contrary to

Chapman v. California, 386 U.S. 18, 87 S. Ct.

824, 17 L.Ed.2d (1967)(where this Court

admonished against giving too much emphasis

to “overwhelming evidence” of guilt, stating that

constitutional errors affecting the substantial

rights of the aggrieved party could not be

considered to be harmless), where the Kansas

Supreme Court held: “Giving deference to the

lower court’s credibility assessments and

considering the overwhelming evidence against

Moyer, we agree that there was no reasonable

probability that the outcome of the case would

have been different had J.T. testified”.

The standard used by the Van Cleave court and

affirmed by the Kansas Supreme Court to judge

Mason’s effectiveness under the Sixth Amendment and

to determine under a constitutional error standard

whether Moyer suffered any prejudice was based upon

Strickland v. Washington, 466 U.S. 668,104 S. Ct.

2052, 80 L.Ed.2d 674 (1984) and the Kansas Supreme

Court’s decision in Edgar v. State, 294 Kan. 828, 283

P.3d 132 (2012). In Edgar v. State, the Kansas

Supreme Court stated: “See Cullen v. Pinholster, 563

U.S. 170, 131 S. Ct. 1388, 1403, 179 L.Ed.2d 557

(2011); See also Brecht v. Abrahamson, 507 U.S. 619,

637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (less

onerous non-constitutional error standard applies in

determining whether collateral relief must be granted

16

because of constitutional error rather than the

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17

L.Ed.2d 705[1967], harmless-beyond-a-reasonabledoubt standard).

The Kansas Supreme Court stated:

“The Van Cleave Court found that ‘[t]he evidence

of guilt in this case was overwhelming.” and

“Although there were multiple errors in this

case, “the same reasons that led us to find that

the individual errors were not reversible lead us

to be firmly convinced beyond a reasonable

doubt that the results of this trial would have

been no different without errors”.

The Kansas Supreme Court failed to consider the

prejudicial constitutional errors committed by Mason

and applied an incorrect standard, in violation of the

binding principals of stare decisis, contrary to this

Court’s opinion in Chapman v. California, 386 U.S. 18,

87 S. Ct. 824, 17 L.Ed.2d 705 (1967) on the issue of

whether a federal constitutional error can be held

harmless. This Court held in Chapman v. California,

386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967) that

“before a federal constitutional error can be held

harmless, the court must be able to declare a belief that

it was harmless beyond a reasonable doubt”. Id. at 24,

87 S. Ct., at 828. This Court further said in Chapman

v. California, Id.: that although “there are some

constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error” (Id.

at 23, 87 S. Ct. at 827), not all TRIAL ERRORS

WHICH VIOLATE THE CONSTITUTION

automatically call for reversal.” Ibid.

See e.g.,

17

Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726,

23 L.Ed.2d 284 (1969). In Harrington v. California,

this Court stated: “We admonished in Chapman, 386

U.S. at 23, 87 S. Ct., at 827, against giving too much

emphasis to ‘overwhelming evidence’ of guilt, stating

that constitutional errors affecting the substantial

rights of the aggrieved party could not be considered to

be harmless” and “We do not depart from Chapman,

nor do we dilute it by inference. We reaffirm it. We do

not suggest that, if evidence bearing on all the

ingredients of the crime is tendered, the use of

cumulative evidence, though tainted, is harmless

error”. Id.

The Van Cleave court ruled: “the strategy employed

by Mason and Moyer in not preserving the possible

testimony of J.T. and in not issuing a subpoena until

after the trial commenced, was reasonable under the

circumstances and did not rise to ineffective

assistance”. Moyer did not know or agree with Mason

that J.T. had not been subpoenaed and served to

appear as his crucial exculpatory defense witness. “An

attorney undoubtedly has a duty to consult with the

client regarding ‘important decisions’, including

questions of overarching defense strategy.” See Florida

v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L.Ed.2d

565 (2004) (quoting Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L.Ed.2d 674 [1984]). The Sixth

Amendment provides criminal defendants “compulsory

process for obtaining witnesses in [their] favor”. U.S.

Constitution, Amendment VI. The right then, affords

a defendant subpoena power to secure the appearance

of witnesses at trial to offer otherwise admissible

testimony. Taylor v. Illinois, 484 U.S. 400, 408, 108 S.

18

Ct. 646, 98 L.Ed.2d 798 (1988). Mason’s failure was not

a “justified strategic decision” as the Van Cleave court

had found and the Kansas Supreme Court affirmed.

This Court previously noted:

“…the Compulsory Process Clause cannot be

invoked without the prior planning and

affirmative conduct of the defendant. Lawyers

are accustomed to meeting deadlines. Routine

preparation involves location and interrogation

of potential witnesses and the serving of

subpoenas of those whose testimony will be

offered at trial. The burden of identifying them

in advance of trial adds little to these routine

demands of trial preparation. Taylor v. Illinois,

484 U.S. at 415-416. (citing Williams v. Florida,

399 U.S. 78, 85, 90 S. Ct. 1891, 1898, 26 L.Ed.2d

975 (1970).

The conflict of interest that Mason had in

representing Moyer and J.T. in separate cases where

Mason owed an absolute duty to each of his clients

should have caused special limitations on harmless

errors rules and were essential to the fundamental

fairness guaranteed by the Due Process Clauses of the

Fifth and Fourteenth Amendments. The Van Cleave

court held: “this conflict did not result in ineffective

assistance of counsel nor did it prejudice the

defendant”. Some constitutional errors this Court has

recognized as having an effect which is so devastating

or inherently indeterminate that as a matter of law

they cannot reasonably be found to be harmless. E.g.

Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2

L.Ed.2d 975 (1958) (confessions); See Fahy v. State of

19

Connecticut, 375 U.S. 85, 84 S. Ct. 2229, 11 L.Ed.2d

171 (1963) (dissenting opinion of Harlan, J.). Mason’s

failure to timely subpoena and secure proper service on

Moyer’s exculpatory witness, J.T. violated the

Compulsory Process Clause of the Sixth Amendment

and was on its face ineffective assistance of counsel in

violation of the Sixth Amendment made applicable to

the States through the Fourteenth Amendment. This

Court noted in United States v. Ruiz, 536 U.S. 622, 122

S. Ct 2450, 153 L.Ed.2d 586 (2002) that: “exculpatory

evidence is evidence the suppression of which would

‘undermine confidence in the verdict’(quoting Kyles v.

Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 131

L.Ed.2d 490 (1995)) exculpatory evidence includes

‘evidence affecting’ witness ‘credibility’ where the

witness’ ‘reliability’ is likely ‘determinative of guilt or

innocence’. (quoting Giglio v. United States, 405 U.S.

150, 154, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972). Mason’s

dual and concurrent representation of Moyer and J.T.,

Moyer’s exculpatory defense witness and Mason’s

failure to produce J.T. as an exculpatory witness for

Moyer violated the constitutional right of Moyer to

representation that is free from conflicts of interest.

Finally, Mason entirely failed to subject the

prosecution’s case to meaningful adversarial testing,

and as such, there was a denial of Moyer’s Sixth

Amendment rights that make the adversary process

itself presumptively unreliable in this case.

20

B. This Court should grant the Writ of Certiorari

because the Kansas Supreme Court who

affirmed the remand court’s findings on Mason’s

effectiveness under Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674

(1984) and Edgar v. State, 294 Kan. 828, 283

P.3d 132 (2012) failed to consider the prejudicial

constitutional errors committed by Mason and

applied an incorrect standard in violation of the

binding principals of stare decisis, contrary to

this Court’s decision in Neder v. United States,

527 U.S. 1, 119 S. Ct. 1827, 144 L.Ed.2d 35

(1999) (where this Court held: “A limited class of

fundamental constitutional errors is so

intrinsically harmful as to require automatic

reversal without regard to their effect on a trial’s

outcome. Such errors infect the entire trial

process and necessarily render a trial

fundamentally unfair”), where the Kansas

Supreme Court held: “Giving Deference to the

lower court’s credibility assessments and

considering the overwhelming evidence against

Moyer, we agree that there was no reasonable

probability that the outcome of the case would

have been different had J.T. testified”.

The Kansas Supreme Court failed to consider the

prejudicial constitutional errors committed by Mason

and applied their incorrect standard, in violation of the

binding principals of stare decisis, contrary to Neder v.

United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L.Ed.2d

35 (1999) where this Court held: “A limited class of

fundamental constitutional errors is so intrinsically

harmful as to require automatic reversal without

21

regard to their effect on a trial’s outcome. Such errors

infect the entire trial process and necessarily render a

trial fundamental unfair”).

This Court in Neder v. United States, Supra

discussed:

“…the constitutional violations we have found to

defy harmless-error review. Those cases, we

have explained, contain a ‘defect affecting the

framework within which the trial proceeds

itself’. Arizona v. Fulminante, 499 U.S. 279, 111

S. Ct. 1246, 113 L.Ed. 2d 302 (1991). Such

errors ‘infect the entire trial process.’ Brecht v.

Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710,

123 L.Ed.2d 353 (1993), and ‘necessarily render

a trial fundamentally unfair.’ Rose v. Clark, 478

U.S 570, 577, 106 S. Ct. 3101, 92 L.Ed.2d 460

(1986). Put another way, these errors deprive

defendants of ‘basis protections without which ‘a

criminal trial cannot reliably serve its function

as a vehicle for determination of guilt or

innocence … and no criminal punishment may

be regarded as fundamentally fair.’ Id. at 577578, 106 S. Ct. 3101.

This Court has also held that: “the erroneous

exclusion of evidence in violation of the right to

confront witnesses guaranteed by the Sixth

Amendment is subject to harmless-error analysis under

our cases”. See Delaware v. Van Arsdall, 475 U.S. 673,

106 S. Ct. 1431, 89 L.Ed.2d 674 (1986). (“The

Compulsory Process Clause of the Sixth Amendment is

not merely a guarantee that the accused shall have the

power to subpoena witnesses, but confers on the

22

accused the fundamental right to present witnesses in

his own defense”); See also Pennsylvania v. Ritchie, 480

U.S. 39, 56, 107 S. Ct. 989, 1000, 94L.Ed.2d 40 (1987)

where this Court held: “[O]ur cases establish, at a

minimum, that criminal defendants have the right to

the government’s

assistance in compelling the

attendance of favorable witnesses at trial and the right

to put before a jury evidence that might influence the

determination of guilt”.; See also Chambers v.

Mississippi, 410 U.S. 284, 302 S. Ct. 1038, 1049, 35

L.Ed. 2d 297 (1973) where this Court held: “Few rights

are more fundamental than that of an accused to

present witnesses in his own defense”.

In Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708,

64 L.Ed.2d 333 (1980) this Court held: “Where a

constitutional right to counsel exists, our Sixth

Amendment cases hold that there is a correlative right

to representation that is free from conflicts of interest”

and “Our decisions make clear that inadequate

assistance does not satisfy the Sixth Amendment right

to counsel made applicable to the states through the

Fourteenth Amendment”.

In Cuyler this Court stated: “The right to counsel

prevents the States from conducting trials at which

persons who face incarceration must defend themselves

without legal assistance.

In Cuyler this Court discussed Glasser v. United

States, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680 (1942)

and stated: “Glasser established that unconstitutional

multiple representation is never harmless error. Once

the Court concluded that Glasser’s lawyer had an

actual conflict of interest, it refused ‘to indulge in nice

23

calculations as to the amount of prejudice’ attributable

to the conflict. The conflict itself demonstrated a

denial of the ‘right to have the effective assistance of

counsel’. 315 U.S. at 76, 62 S. Ct., at 467. Thus, a

defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief. See

Holloway v. Arkansas, 435 U.S. 487-91, 98 S. Ct. at

1180-1182 (1978). But until a defendant shows that his

counsel actively represented conflicting interests, he

has not established the constitutional predicate for his

claim of ineffective assistance”. See Glasser, supra, 315

U.S., at 72-75, 62 S. Ct. at 465-467.

In United States v. Cronic, 466 U.S. 648, 104 S. Ct.

2039, 80 L.Ed.2d 657 (1984) this Court held: “The right

to the effective assistance of counsel is the right of the

accused to require the prosecution’s case to survive the

crucible of meaningful adversarial testing” and “If

counsel entirely fails to subject the prosecution’s case

to meaningful adversarial testing, then there has been

a denial of Sixth Amendment rights that make the

adversary process itself presumptively unreliable. No

specific showing of prejudice was required in Davis v.

Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347

(1974), because the petitioner had been ‘denied the

right of effective cross-examination’ which ‘would be

constitutional error of the first magnitude and no

amount of showing of want of prejudice would cure it.’”

Id. at 318, 94 S. Ct. at 1111 (citing Smith v. Illinois,

390 U.S. 129, 131, 88 S.Ct.748, 749, 19 L.Ed.2d 956

(1968), and Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct.

1245, 1246, 16 L.Ed.2d 314 (1966).

24

The failure of Mason to timely subpoena J.T. and to

make arrangements to have her served with the

subpoena to force her attendance at Moyer’s jury trial,

was a deprivation of Moyer’s right to effective crossexamination which is a constitutional error of the first

magnitude and no amount of showing of want of

prejudice would cure it, notwithstanding the holdings

of the Van Cleave court which their affirmation by the

Kansas Supreme Court was prejudicial error.

In United States v. Cronic, Supra, this Court

discussed the adversary system of criminal justice by

stating: “The very premise of our adversary system of

criminal justice is that partisan advocacy on both sides

of a case will best promote the ultimate objective that

the guilty be convicted and the innocent go free”.

Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550,

2555, 45 L.Ed.2d 593 (1975). It is that ‘very premise’

that underlies and gives meaning to the Sixth

Amendment. It ‘is meant to assure fairness in the

adversary criminal process’. United States v. Morrison,

449 U.S. 361, 364, 101 S. Ct. 665, 667, 66 L.Ed.2d 564

(1981). Unless the accused receives the effective

assistance of counsel, ‘a serious risk of injustice infects

the trial itself.’ Cuyler v. Sullivan, 446 U.S., at 343,

100 S. Ct., at 1715. Thus, the adversarial process

protected by the Sixth Amendment requires that the

accused have ‘counsel acting in the role of an advocate.’

Anders v. California, 386 U.S. 738, 743, 87 S. Ct. 1396,

1399, 18 L.Ed.2d 493 (1967).

This Court further stated in United States v. Cronic,

“the right to the effective assistance of counsel is

recognized not for its own sake, but because of the

25

effect it has on the ability of the accused to receive a

fair trial. Absent some effect of challenged conduct on

the reliability of the trial process, the Sixth

Amendment guarantee is generally not implicated. See

United States v. Valenzuela-Bernal, 458 U.S. 858, 867869, 102 S. Ct. 3440, 3446-3447, 73 L.Ed.2d 1193

(1982); United States v. Morrison, 449 U.S. at 364-365,

101 S. Ct., at 667-668; Weatherford v. Bursey, 429 U.S.

545, 97 S. Ct. 837, 51 L.Ed.2d 30 (1977).

VI.

CONCLUSION

The Kansas Supreme Court applied an incorrect

standard when affirming the Van Cleave Court’s ruling

on Mason’s effectiveness under Strickland v.

Washington, Supra and Edgar v. State, Supra and

failed to acknowledge that Mason’s trial errors and

conflict of interest were among the limited class of

fundamental constitutional errors that this Court has

held require automatic reversal without regard to their

effect on a trial’s outcome. See Chapman v. California,

Supra and Neder v. United States, Supra. Moyer

requests that a writ of certiorari be issued to the

Supreme Court of the State of Kansas.

26

Respectfully submitted,

Robert A. Anderson, Sr., Of Counsel

Counsel of Record

Law Office of Donald E. Anderson II, LLC

1324 Kansas Avenue

P.O. Box 1628

Great Bend, Kansas 67530

(620) 564-2923

(620) 564-0043 (facsimile)

E-mail: Robertsr@ewoodlaw.com

United States Supreme Court Bar #291131

Kansas Supreme Court Bar #12306

Counsel for Petitioner