Everette (ID 99197) v. Schnurr

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FOSTER L. EVERETTE,
Petitioner,
v. 	Case No. 24-3217-JWB
DAN SCHNURR,
in his capacity as warden of the Hutchinson
Correctional Facility,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the court on Foster Everette’s petition for writ of habeas corpus
under 28 U.S.C. § 2254. (Doc. 1.) Respondent has filed a response opposing the petition for writ
(Doc. 11), and Petitioner has filed a traverse. (Doc. 14.) The court has reviewed those portions of
the state court record which are pertinent to the issues raised in the petition and finds that an
evidentiary hearing is not warranted. The petition for writ of habeas corpus is DENIED for the
reasons stated herein.
Petitioner was convicted of intentional second degree murder and sentenced to 272 months
in prison. 	In a federal habeas proceeding, the state court’s factual findings are presumed to be
correct, and Petitioner bears the burden of rebutting that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Here, Petitioner does not challenge the state court’s findings
regarding the evidence as discussed below. 1 Accordingly, the court incorporates the Kansas Court
of Appeal’s version of the facts:
[Foster Lee] Everette and Andrea Garrison were in a romantic relationship for about
two years before her death. While the couple did not live together, Everette
1 Petitioner does challenge a factual finding as to his trial counsel’s representation of a trial witness which is discussed
infra.
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occasionally spent the night at Garrison's home. Their relationship was notable for
frequent discord and arguments.
On January 2, 2015, Officer Robert Breeden was dispatched to Garrison’s residence
at 11:51 a.m. in response to a report of possible domestic violence. Mariah Lopez,
one of Garrison’s sisters, had called the police after Lopez and her boyfriend, Mario
Comacho, took Garrison to her home and found Everette inside the residence.
Lopez did not like Everette and disapproved of the relationship.
An argument ensued between Lopez, Comacho, and Everette. According to
Everette, Comacho lunged at him several times with a knife. Lopez testified that
Everette was angry during the incident. After Lopez called the police, Everette and
Garrison walked across the street to an alley to discuss the matter. When Everette
saw the police arrive, he walked to his home. Before leaving, Officer Breeden noted
that Garrison was calm and had no visible injuries. Lopez testified that she last saw
her sister alive when she left the residence about noon. Of note, at 1:48 p.m. on
January 2, 2015, Garrison called the county jail to make arrangements to serve some
days in custody.
At about 3 p.m., Lopez returned to Garrison’s home. When Garrison did not
respond to her arrival, Lopez broke in through the backdoor. Lopez discovered
Garrison’s lifeless body hanging from a belt attached to a rod in the closet of an
empty bedroom. Lopez called the police at 3:38 p.m. to report the incident. She
informed responding officers that Everette had killed her sister.
When the officers cut the belt suspending Garrison’s body, it slipped from an
officer's grasp, and Garrison's head and right side of the body “hit a portion of the
closet.” Observing Garrison's body, the officers noticed several red marks around
her neck, red marks on her upper right arm, and a bruise around her right shoulder.
Officer Breeden opined that Garrison had been dead for some time before the
officers arrived.
Detective Josh Olson found Garrison’s cell phone in her bedroom. The detective
examined the phone and noticed that Everette had texted Garrison a series of angry
messages the day before she died . . . Later, on January 2, 2015, at about 5 p.m.,
Everette called the police after he learned that Lopez had reported that he had killed
Garrison. At the request of police, Everette went to the police station where he was
interviewed by Detective Olson. The interview was recorded and later played for
the jury.
During the interview, Everette initially told Detective Olson that he only was at
Garrison's house once that day. Everette said that he last saw Garrison at about
12:30 p.m., after the disturbance at her home. Everette allowed Detective Olson to
review the call history, texts, and other information contained on his cell phone.
The detective noticed that Everette had called Garrison several times at about 1:51
p.m. Detective Olson asked Everette if he returned to Garrison's home when he
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could not get ahold of her. Everette repeatedly denied returning to Garrison's home
after he had left about 12:30 p.m. Instead, Everette claimed that he had spent the
afternoon visiting friends and relatives.
Detective Olson then asked Everette if his cell phone’s GPS would show that he
was at Garrison's home between 2 p.m. and 4 p.m. In fact, the GPS on Everette's
cell phone did not show that Everette had been in Garrison's home during the
afternoon. The detective suggested there could be an innocent reason for Everette's
cell phone to be at Garrison's home during that time period, explaining that Everette
could have left his cell phone after the earlier disturbance. In response, Everette
said there was no reason why his cell phone's GPS would show he was at Garrison's
home during that time.
After examining Everette for injuries, Detective Olson left the interrogation room
to further examine and photograph the messages on Everette’s cell phone. While
Everette was alone in the room, he put his jacket on and said, “Oh, shit” and
“Damn.” When Detective Olson returned to the interrogation room, Everette
informed him that he forgot and that he did, in fact, leave his cell phone at
Garrison's home and returned there in the afternoon to retrieve it after making
several unsuccessful calls to her about 1:51 p.m. Detective Olson then confronted
Everette that his latest account made no sense. According to the detective, “I asked
him how he could possibly call her if his phone was there with her.” Detective
Olson testified that Everette “was silent. He was confused. He didn't really have an
answer.” Everette denied killing Garrison, and he stated that although she had
previously threatened suicide, he did not think she would do it.
Doctor Hubert Peterson, the Seward County coroner, performed an autopsy on
Garrison's body and opined that the cause of Garrison's death was “she lost the
ability to breathe, because of the ligature around the neck, and it causes
asphyxiation, which is loss of the ability to breathe.” While Dr. Peterson concluded
that Garrison died by strangulation from the belt, he did not opine as to how the
strangulation occurred, deferring to the police investigation. The coroner placed the
time of Garrison's death at about 2 p.m. on January 2, 2015.
During his examination, Dr. Peterson noted that Garrison had a bruise on the right
side of her forehead and various contusions on her lower legs. Laboratory tests
indicated the presence of methamphetamine and amphetamines in the body. While
processing the scene, Dena Allen, an evidence technician, collected items for
testing which included the portion of the belt attached to the closet rod, the closet
rod, the portion of the belt around Garrison's neck, a syringe, and Garrison's cell
phone. Allen measured the distance between the floor and the closet rod at 6 feet,
5 inches. Allen observed a dresser next to the closet with a drawer halfway open
and two shoes under it. Of note, at trial Lopez testified that she and Garrison
frequently shared clothing, including a few belts. According to Lopez, the belt used
in Garrison's hanging “didn't look like [Garrison's]. It looked large. It looked like it
was somebody else's.”
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Eric Moore, a forensic scientist for the Kansas Bureau of Investigation, examined
a latent fingerprint on the closet rod and identified it as coming from Everette's right
thumb. DNA testing was performed on two portions of the belt, swabs from the
interior of the closet, and Garrison's fingernails. On the portion of the belt attached
to the closet rod, Moore found DNA consistent with Everette and Garrison's DNA
profile. On the portion of the belt around Garrison's neck, Moore found DNA
consistent with Garrison's DNA profile and consistent with Everette's known DNA
allotype (which included his male family members). Everette's DNA was also
found inside the closet door. Everette's DNA was not found underneath Garrison's
fingernails. Because investigators suspected that Garrison had a rug burn on her
shoulder, the carpet was tested for blood evidence but none was not [SIC] found.
Everette was charged with first-degree murder and a jury trial commenced on
November 30, 2015.
At trial, friends and acquaintances testified about their encounters with Everette on
the day Garrison died, and the various threatening statements he made about her.
Shroy Spradley testified that Everette came over to his house before 2 p.m. While
at Spradley's house, Everette was angry and told Spradley that “he was going to
strangle [Garrison], put a belt around her neck and make it look like that she had
committed suicide.”
Jamel Irons, who lived with Spradley, testified that Everette came to Spradley's
house at about 1:45 p.m. Irons did not hear Everette state that he was going to
strangle Garrison and make it look like she committed suicide. Irons heard Everette
say, however, that “he was going to smoke the bitch and everyone else there.” After
Garrison's death, Irons told Everette that she had been interviewed by the police.
According to Irons, Everette told her that she should have told Detective Olson that
he was with Garrison the day before she died instead of the day she died.
Doahnte Barner, Everette's neighbor who testified that he considered Everette his
brother, testified that he took Everette to Garrison's home about 2 p.m. on January
2, 2015. Barner stated that when he dropped Everette off at Garrison's home he did
not see whether he walked to the front door.
In addition to Everette's threatening statements made on the day of Garrison's death,
two other witnesses testified to earlier threats made by Everette. Stephanie Jones,
Garrison's other sister, testified about a conversation she had with Everette a few
days before Garrison's death. According to Jones, Everette said he was very angry
at Garrison, he hated her, and he was going to kill her. . . .
The State presented four witnesses to testify about prior incidents where Everette
was violent towards Garrison. . . .
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Everette testified in his own defense at trial. He acknowledged that his relationship
with Garrison was at times “hostile” and the couple “would argue a lot.” Everette
denied killing Garrison and contended that she had committed suicide. He pointed
out that Garrison had just lost her job, needed money for rent, was about to serve
jail time, had pending criminal charges, and had troubled relationships. Although
Everette acknowledged that his text messages to Garrison sounded bad, he
explained that he was being sarcastic and a smart aleck. . . .
Everette testified that when the police arrived at Garrison's home the first time, he
threw marijuana out of his pocket before leaving the area. Later, Everette explained
that he got a ride back to the alley adjacent to Garrison's home. He did not return to
Garrison's home, but he found the marijuana which was in the nearby alley and then
ran back to his house. Everette did not recall telling Detective Olson during the
interview that he went to Garrison's home to retrieve his cell phone. Everette
explained 	that 	he 	said 	“shit” 	and 	“damn” 	when 	Detective 	Olson 	left 	the
interrogation room because he suddenly realized the marijuana was still in his
jacket pocket.
The jury found Everette guilty of second-degree murder. Everette's motion for a
new trial was denied. The district court then sentenced him to 272 months in prison.
State v. Everette, Case No. 115,645, 425 P.3d 1274 (Table), 2018 WL 4517575, at *1–5 (Kan. Ct.
App. Sept. 21, 2018) (“Everette I”). 	Petitioner filed a direct appeal, and the court of appeals
affirmed his convictions and sentence. 	Id. 	The Kansas Supreme Court affirmed Petitioner’s
sentence. (Doc. 1 at 2.) In 2020, Petitioner filed a K.S.A. § 60-1507 post-conviction relief action
with the Seward County District Court. (Id. at 3; Doc. 11 at 3.) Petitioner received an evidentiary
hearing in the district court on some of the grounds he raised in his motion, and the district court
denied his motion in October 2022. (Doc. 1 at 3; Doc. 11 at 4.) The state court of appeals affirmed
the denial of Petitioner's § 60-1507 motion and the Kansas Supreme Court denied review. Everette
v. State, Case No. 126,047, 549 P.3d 1149 (table), 2024 WL 2873489 (Kan. Ct. App. 2024), rev.
denied (Sept. 27, 2024) (“Everette II”). 	Petitioner then filed this petition for a writ of habeas
corpus. (See Doc. 1, filed Dec. 2, 2024.)
II. 	Standard
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Habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir. 1999). A federal court shall
not grant a writ of habeas corpus unless the state’s adjudication on the merits “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law”
or the decision “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)(1) and (2). A “decision is ‘contrary
to’ a 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)). 	A “decision is an
‘unreasonable application’ of clearly established federal law if it identifies the correct governing
legal principle . . . but unreasonably applies that principle to the facts of petitioner's case.” 	Id.
(quoting Lockett, 711 F.3d at 1231).
An unreasonable application of federal law is a higher bar than even an incorrect or
erroneous application of federal law. Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018)
(“Even a clearly erroneous application of federal law is not objectively unreasonable. . . . Rather,
a state court's application of federal law is only unreasonable if all fairminded jurists would agree
the state court decision was incorrect.”) (alterations and quotations omitted)). “[A] determination
of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).
The petitioner's burden is to rebut this presumption by clear and convincing evidence. 	Id.
Moreover, a reviewing federal court is bound by the state court’s interpretation of state law.
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's
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interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”).
Petitioner’s application states two grounds for relief related to ineffective assistance of
counsel: 1) conflict of interest; and 2) failing to admit certain text messages and phone records. A
claim of ineffective assistance of counsel in violation of the Sixth Amendment requires Petitioner
to show that 1) his counsel's performance fell below an objective standard of reasonableness; and
2) but for his counsel's unreasonable errors, there is a reasonable probability that the outcome of
the proceeding would have been different. 	Williams v. Taylor, 529 U.S. 362, 390-91 (2000);
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “These two prongs may be addressed
in any order, and failure to satisfy either is dispositive.” Grant v. Royal, 886 F.3d 874, 903 (10th
Cir. 2018).
In reviewing the decision by the state court, it is clear that the claims pertaining to
ineffective assistance of trial counsel were decided on the merits after an evidentiary hearing.
Further, the Kansas Court of Appeals applied the Strickland standard in reviewing Petitioner’s
claims. Because the trial court conducted an evidentiary hearing on the issues relating directly to
trial counsel’s performance when considering Petitioner’s motion, the court finds that an
evidentiary hearing is not warranted. 	Petitioner has not identified what testimony would be
presented at a hearing nor has he raised any issue which may be addressed that was not already
covered in the evidentiary hearing held by the state trial court. See Davis v. Workman, 695 F.3d
1060, 1076–77 (10th Cir. 2012) (“We have said that district courts are not required to hold
evidentiary hearings in collateral attacks without a firm idea of what the testimony will encompass
and how it will support a movant's claim.”)
III. 	Analysis
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Petitioner raises two issues in his application for writ of habeas corpus. First, that his trial
counsel had a conflict of interest in representing both Petitioner and Shroy Spradley. Second, that
his trial counsel was ineffective for failing to introduce evidence of text messages and phone calls.
The court will address the arguments in turn.
A. Conflict of Interest
A criminal defendant has a constitutional right to representation by an attorney that is free
from conflicts of interest. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Petitioner argues that
he was deprived of his right to conflict free counsel.
In March 2015, Razmi Tahirkheli was appointed to represent Petitioner. Everette II, 2024
WL 2873489, *1. Based on the record below, Petitioner’s trial counsel also represented Spradley
on unrelated charges until mid-August 2015. Petitioner asserts before this court that Tahirkheli
actually represented Spradley until mid-November 2015. 	Petitioner attached Spradley’s docket
sheet as evidence. (Doc. 1-3.) According to the docket sheet, new counsel for Spradley did not
enter Spradley’s case until November 12, 2015.2 	(Id. at 8.) 	Based on this record, trial counsel
represented Spradley until approximately two weeks before Petitioner’s trial. 	There is no
evidence, however, that Spradley testified in any hearing during the time he was represented by
Tahirkheli. Further, Petitioner does not contend nor does the record show that Petitioner objected
to the representation.3 	In his briefing to the Kansas Court of Appeals, Petitioner also failed to
“explain how any duty Tahirkheli continued to owe Spradley as a former client compromised
2 The court has also undertaken to review the state court’s docket sheet that is available online. The exhibit appears
to be an accurate reflection of the state court docket.
3 In his reply, Petitioner makes an assertion that his rights were violated due to Tahirkeheli’s false testimony at the
state court hearing regarding the dates of representation. Petitioner, however, fails to show that his trial counsel
knowingly made false statements at the hearing. Tahirkeheli was attempting to recall his representation of both
Petitioner and Spradley which had occurred several years prior. In any event, given that Petitioner and Spradley were
not co-defendants in this matter, any dual representation requires a showing of prejudice as discussed herein.
Petitioner cannot meet that standard.
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Tahirkheli's representation of him in the trial.” 	Everette II, 2024 WL 2873489, *4. 	Rather,
Petitioner appeared to rest solely on the alleged conflict from Tahirkheli’s representation of
Spradley. The Kansas Court of Appeals found that Tahirkheli had a conflict of interest while he
represented both Spradley and Petitioner, given what Spradley testified that Petitioner told him at
trial about harming Garrison. The court held, however, that Petitioner failed to show prejudice.
The court first addresses the factual discrepancy raised by Petitioner. Petitioner asserts that
trial counsel actually represented Spradley until mid-November 2015 instead of mid-August 2015.
According to the Kansas Court of Appeals, the dates pertaining to the representation were
undisputed by the parties. Everette II, 2024 WL 2873489, *4 (“The parties agree that Tahirkheli
withdrew from representing Spradley as a defendant in a different criminal case in mid-August
2015.”) In review of Petitioner’s brief to the Kansas Court of Appeals, Petitioner does not assert
that his trial counsel represented Spradley until mid-November 2015, nor is there evidence that the
Kansas Court of Appeals was presented with Spradley’s criminal case docket sheet. (Doc. 12-19.)
Further, the testimony below was that trial counsel was allowed to withdraw in mid-August 2015.
In reviewing Petitioner’s claim, the court does not consider evidence that was not presented to the
court below in ruling on an exhausted claim. See Eaton v. Pacheco, 931 F.3d 1009, 1018 (10th
Cir. 2019). Therefore, Petitioner cannot establish that the Kansas Court of Appeals’ decision “was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” § 2254(d)(2). Further, the factual determination that Petitioner takes fault with
was not a material determination for the court’s decision. Regardless of whether trial counsel had
terminated his representation in mid-August or mid-November, the termination was still prior to
Petitioner’s trial. 	Therefore, the only material, factual determination for the Kansas Court of
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Appeals’ decision was the determination that Spradley was a former client at the time of trial. This
factual determination is not disturbed by the evidence presented by Petitioner.
Next, the court determines whether the Kansas Court of Appeals’ decision was contrary to
or unreasonable in light of Supreme Court precedent. In deciding this issue, the Kansas Court of
Appeals discussed that both the Kansas Supreme Court and the United States Supreme Court have
not clearly identified whether the conflict at issue utilizes the standard of review under Strickland
or Cuyler. 	The Kansas Court of Appeals essentially held that Petitioner could not meet either
standard because he had not shown that the conflict affected the representation at trial. Notably,
Petitioner fails to identify the relevant standard for the present matter and fails to make any
argument that the Kansas Court of Appeals’ determination was contrary to federal law.
Typically, the clearly established law for a claim of ineffective assistance of counsel is the
two-prong test in Strickland. The United States Supreme Court has identified a different standard
for certain cases in which there is a complete denial of counsel or conflicted counsel. 	In cases
where there is an “[a]ctual or constructive denial of the assistance of counsel altogether,” prejudice
is presumed. Strickland, 466 U.S. at 692. A more “limited[] presumption” of prejudice applies
“if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an
actual conflict of interest adversely affected [counsel's] performance.’” Id. (quoting Cuyler, 446
U.S. at 348, 350). However, as noted by the Kansas Court of Appeals, the Supreme Court has not
applied Cuyler's presumption of prejudice to cases that do not involve trial counsel's concurrent
representation of multiple defendants in the same proceeding. Everette II, 2024 WL 2873489, *3–
4; see also Mickens v. Taylor, 535 U.S. 162, 175–76 (2002)); Watson v. Fairbairn, No. 23-1392,
2024 WL 1005070, at *5 and n.2 (10th Cir. Mar. 8, 2024), cert. denied sub nom. Watson v.
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Bergman, 145 S. Ct. 1131 (2025), reh'g denied, 145 S. Ct. 2695 (2025) (only “the concurrent
representation of multiple defendants creates an actual conflict of interest” under Mickens).
The Kansas Court of Appeals then discussed that the Kansas Supreme Court has identified
three different tests courts have used to determine an adverse effect on representation, “assuming
the Cuyler standard rather than the Strickland standard were to apply.” 	Everette II, 2024 WL
2873489, *4 (citing State v. Moyer, 309 Kan. 268, 279-80, 283–84 (2019) (recognizing lack of
governing standard)). The Kansas Court of Appeals then identified the three different standards
of showing an adverse effect on representation. 	In this case, the differences between those
standards was not material because Petitioner made no argument to show that his trial counsel’s
representation was “in any way compromised.” 	Id. 	The Kansas Court of Appeals held that
Petitioner was not entitled to relief because he could not show that the conflict adversely affected
his trial attorney’s performance and “failed to show any trial prejudice tied to Tahirkheli's past
representation of Spradley.” Id. at *5.
In his petition in this court, Petitioner fails to address how he is entitled to relief. His claim
is not based on concurrent representation of multiple defendants in the same proceeding; therefore,
there is no clearly established federal law to be applied under § 2254(d)(1). See Watson, 2024 WL
1005070, at *5. Liberally construing Petitioner’s filings, it appears he believes that he is entitled
to a presumption of prejudice. As discussed herein, that standard does not apply. Further, even if
the court would apply Cuyler’s test to Petitioner’s claim, he would not succeed. Petitioner has not
established that trial counsel’s performance was adversely affected by the conflict of interest.
After review, the court finds that the Kansas Court of Appeals acted reasonably under
Mickens and Strickland in requiring Petitioner to show that the conflict adversely affected his
attorney’s performance. 	Further, the Kansas Court of Appeals reasonably concluded that
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Petitioner failed to show prejudice. Moreover, in this matter before the court, Petitioner again fails
to address prejudice. Rather, he continues to assert that he is entitled to relief due to trial counsel’s
conflict of interest based on his former representation of Spradley. Petitioner fails to identify how
the Kansas Court of Appeals erred in applying the federal law. Rather, Petitioner merely asserts
that he never waived the conflict of interest and that it was never addressed while he was present.
(Doc. 1 at 5.) Petitioner fails to identify any alleged prejudice due to trial counsel’s representation
of Spradley. Rather, Petitioner appears to rest on a “mere theoretical division of loyalties” which
is not sufficient. Mickens, 535 U.S. at 171. Petitioner makes no argument that would indicate that
his trial counsel was not able to effectively cross examine Spradley due to his prior representation.
See Church v. Sullivan, 942 F.2d 1501, 1511 (10th Cir. 1991). Rather, the record shows that trial
counsel did cross examine Spradley and questioned him regarding his statements. There is nothing
in the record to indicate that trial counsel’s representation of Spradley was somehow hindered.
The cases were not related and Spradley was not implicated in Petitioner’s crime. See id. (finding
a conflict when trial counsel’s theory of defense involved inculpating his former client).
The court concludes that the Kansas Court of Appeals’ resolution of Petitioner’s Sixth
Amendment conflict-of-interest claim was not contrary to, nor an unreasonable application of,
clearly established federal law.
B. Phone Records
Next, Petitioner asserts that his trial counsel was ineffective for failing to have a witness
available to lay a foundation for the records of text messages from Garrison and her phone records
before her death. At trial, the State admitted some text messages from screenshots taken by officers
without objection but did not move for the admission of the phone records that were obtained from
the warrant. (Doc. 12-15; see also Doc. 12-10 at 129 (discussing that exhibits of text messages
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were photographs of the text messages taken by the officer)). 	The admitted messages included
Petitioner’s statements to Garrison the day before she died that the “cop wasn’t bullshiting when
he said [I] will kill you,” “the games and bullshit will only lead to some terrible shit happening,”
and “I don’t want us to end up as a newspaper article.” Everette I, 2018 WL 4517575, *2.
The phone records obtained by the warrant and not admitted at trial would have shown that
Garrison’s phone made three calls to Petitioner’s phone between 2:00 and 2:40 which Petitioner
argued would have contradicted the time of death at 2 p.m. 	The text messages at issue contain
language “suggesting Garrison was threatening to kill herself or displaying suicidal ideation”
which would support the defense theory of her death. Everette II, 2024 WL 2873489, *5. During
trial, defense counsel moved for the admission of these messages. The government objected on
the basis that the officer testifying could not establish the foundation for the messages. The court
sustained the objection. The jurors did not see the messages. After trial, counsel moved for a new
trial on the basis that the court improperly excluded the exhibits. The motion was denied.
Petitioner raised this issue in the state court collateral proceeding after appeal. Petitioner’s
trial counsel testified at the hearing on this issue. He testified that he did not have a witness who
could establish an evidentiary foundation for the phone records. 	He made a strategic decision
regarding the records to not have a witness to lay a foundation because he was concerned about
opening the door for additional messages in the phone records that would be detrimental to the
defense. Id. He testified that if the government objected then he planned to argue that the State
was trying to hide relevant information supporting the defense. He did in fact argue in closing that
the government failed to offer the records of the messages even though the State had the records
in its possession. 	In reviewing counsel’s strategy, the Kansas Court of Appeals applied the
Strickland standard and determined that trial counsel’s decision was reasonable and did not rise to
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a violation. The court held that “[g]iven the great deference accorded strategic choices under the
Strickland standard for assessing constitutional ineffectiveness, we are not prepared to say
Tahirkheli's decision lacked an anchor in at least a colorably competent trial tactic to deal with
evidence that might wind up both advancing the defense theory in some ways and impeding it in
other ways.” Id. at *6.
The Kansas Court of Appeals correctly identified that strategic choices are accorded great
deference. 	“Strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Anderson v. Sirmons, 476 F.3d 1131, 1145 (10th
Cir. 2007). To rise to the level of a constitutional violation, trial counsel’s decisions must have
been “completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible
defense strategy.” 	Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (internal quotations
omitted). Here, trial counsel testified that he made the strategic decision not to lay a foundation
for the records in the hopes that the government would not object to the admission of the messages
and phone records that could support Petitioner’s defense. Trial counsel, however, was concerned
about opening the door to the admission of all of the records and testified that there were additional
messages that were detrimental to his client. Further, he utilized the objection to the evidence at
closing to argue that the State didn’t want to admit these records.
After review of the records, there was a message from Garrison in the early hours of
January 2 in which she stated that she was going to “leave this hell one way or the other.” (Doc.
12-4 at 14.) While this message was not admitted into evidence, there were messages from the
previous day where Garrison told her sister that she was alone for New Year’s Eve and she didn’t
like 2015 already. Trial counsel used these messages to argue during closing that she had problems
and this led to suicide. The complete text messages from the phone records, however, do portray
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Petitioner “as an angry, controlling and jealous person who had an unhealthy obsession with
Garrison” and he repeatedly accused her of cheating on him. 	(Doc. 12-2 at 91; 12-4 at 1–33.)
Given the nature of the messages sent by Petitioner, the court cannot find that trial counsel’s
strategy was unreasonable given his concern that the complete record of text messages would be
detrimental to Petitioner if admitted.
With respect to the phone calls, Petitioner asserts counsel was ineffective for failing to
introduce the call logs showing that there were calls from Garrison’s phone after 2 p.m. on the day
of Garrison’s death. According to the record, Garrison’s phone made three outgoing calls between
2:00 and 2:40 p.m. (Doc. 12-4 at 34.) While the jury heard that Garrison made a call to the jail at
1:48 p.m., the jury did not hear about the calls placed between 2:00 and 2:40 p.m. Notably, these
calls were to Petitioner’s phone. During this timeframe, however, Petitioner was unaccounted for
as he had been dropped off at Garrison’s home around 1:50 p.m. Tahirkheli testified that he feared
that the calls from 2:00 to 2:40 p.m. could be viewed as Petitioner using the phone after killing
Garrison. 	Therefore, he believed the best strategy was to argue that the State was hiding
information from the jury. (Doc. 12-3 at 39–41.) Given the facts presented to the jury, Tahirkheli’s
decision not to admit the phone and text records does not rise to the level of constitutional
ineffectiveness. See Harrington, 562 U.S. at 108 (“Even if it had been apparent that expert blood
testimony could support Richter's defense, it would be reasonable to conclude that a competent
attorney might elect not to use it.”).
Moreover, even if Petitioner could satisfy his burden of showing deficient performance
under Strickland’s deferential standard, he has not shown prejudice. To show prejudice, Petitioner
must establish a reasonable probability that the outcome would have been different. 	Petitioner
makes no attempt to meet this burden. Further, given the evidence at trial, the court finds that he
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cannot. There were four witnesses who testified about Petitioner’s prior violence against Garrison,
Petitioner’s own text messages to Garrison indicated that he was contemplating violence the day
before she died, Petitioner told two individuals that he was going to kill Garrison just a couple of
hours before she died, and evidence that Petitioner was dropped off at Garrison’s house shortly
before she died. Given this evidence and the fact that the jury clearly considered whether Garrison
committed suicide based on the presentation of the defense, Petitioner has not established a
reasonable probability that the outcome of the trial would have been different but for counsel's
failure to call a witness in order to admit the text messages and phone records.
IV. 	Conclusion
For all the reasons stated above, Petitioner's petition for a writ of habeas corpus (Doc. 1) is
DENIED. Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts
instructs that “[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” 	Pursuant to 28 U.S.C. § 2253, this court may issue a
certificate of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right,” and the court must indicate “which specific issue or issues satisfy the
showing.” 	This requires Petitioner to show that this court's ruling was “debatable among
reasonable jurists.” Harris v. Sharp, No. 17-6109, 2019 WL 5541416, at *37 (10th Cir. Oct. 28,
2019) (citing Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)). The court finds that a certificate
of appealability should not issue in this case. Nothing in the record suggests that the Tenth Circuit
would resolve these issues differently.
IT IS SO ORDERED. Dated this 12th day of December, 2025.
__s/ John W. Broomes__________
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
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