King v. Wyoming Attorney General , 656 F. App'x 387 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
July 11, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
LASHAWN KING,
Petitioner - Appellant,
No. 16-8013
v.
(D.C. No. 2:15-CV-00083-SWS)
(D. Wyo.)
WYOMING ATTORNEY GENERAL;
STATE OF WYOMING,
Respondents -Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, HOLMES, and MORITZ, Circuit Judges.
LaShawn King, a state prisoner proceeding pro se, 1 seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. In addition, he responds to our
order asking him to state why this appeal should not be dismissed for lack of
subject-matter jurisdiction. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
*
This order is not binding precedent except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Mr. King appears pro se, we construe his filings liberally,
see, e.g., Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not
craft arguments or otherwise advocate for him, see Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
we conclude that we have jurisdiction over this appeal, and that Mr. King has not
made the required showing for a COA. Accordingly, we deny his application for
a COA, and dismiss this matter.
I
A
A Wyoming state jury found Mr. King guilty of attempted first-degree
murder, kidnapping, and aggravated assault and battery. He was sentenced to life
imprisonment. The Wyoming Supreme Court affirmed his convictions. Mr. King
filed a motion for postconviction relief, and a state trial court denied the motion.
The Wyoming Supreme Court then denied certiorari review.
On July 20, 2015, Mr. King filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the
District of Wyoming. He asserted the following grounds for relief: (1) the trial
court erred in allowing the prosecution to introduce—without proper
authentication or foundation—an exhibit containing a recording of a prior call
between him and the victim, thereby denying him due process and a fair trial; (2)
the prosecution deliberately withheld Brady material pertaining to that exhibit,
thereby denying him due process; and (3) the prosecution engaged in
prosecutorial misconduct by eliciting false testimony regarding both that exhibit
and certain GPS coordinates, and by admitting an altered version of a recording of
a 911 call, thereby denying him due process.
2
In a thorough order issued on January 6, 2016, the district court concluded
that Mr. King was not entitled to habeas relief. Specifically, the court concluded
that Mr. King’s claims—which he had not raised on direct appeal—were
procedurally defaulted, and that he could not demonstrate cause for the default or
actual prejudice, or a fundamental miscarriage of justice. Accordingly, the court
dismissed the action and denied a COA.
In reaching this procedural conclusion, the district court rejected each of
Mr. King’s arguments regarding the cause of his default. First, it rejected his
argument that the cause was appellate counsel’s constitutional ineffectiveness for
failing to raise his claims on direct appeal. The court determined that the claims
were not so plainly meritorious that appellate counsel acted unreasonably in
refusing to raise them, and that there was no substantial likelihood that Mr.
King’s appeal would have been successful had appellate counsel raised them.
Next, the court rejected Mr. King’s argument that his procedural default was
caused by the Wyoming Supreme Court’s denial of his motion for trial transcripts
and his motion to proceed pro se, because this argument derived from his
ineffective-assistance claim. Finally, the court rejected Mr. King’s argument that
his procedural default was caused by the prison’s ban on possessing certain
exculpatory items, because the court had accessed those items and found no
support for Mr. King’s claims.
On January 6, 2016, the district court entered judgment against Mr. King.
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B
The following month, Mr. King filed a motion for a certificate of
appealability (“COA”); this court treated the motion as a notice of appeal. The
notice was dated February 5, 2016, but the court received it on February 8,
2016—not within the thirty-day time to appeal. Furthermore, the notice’s
certificate of service did not contain the necessary information to satisfy the
prison mailbox rule—specifically, it did not indicate that Mr. King gave the
motion to prison officials for mailing, and it was not sworn under penalty of
perjury. For these reasons, we issued a show-cause order challenging the
timeliness of Mr. King’s appeal. On March 4, 2016, Mr. King filed a response to
the show-cause order in which he declared, under penalty of perjury, that on
February 5, 2016, he placed the notice of appeal in a legal mailbox at the
Wyoming State Penitentiary.
On appeal, Mr. King challenges the denial of his habeas petition and the
denial of a COA. He simply reasserts, however, the claims he raised before the
district court, and argues that: the state trial court erred in admitting, without
proper authentication or foundation, the exhibit containing the prior call
recording, thereby violating his rights to due process and a fair trial; the
prosecution engaged in prosecutorial misconduct by eliciting false testimony
regarding that exhibit, eliciting false testimony regarding certain GPS
coordinates, and offering the 911-call recording, thereby violating his due-process
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rights; and appellate counsel was ineffective for failing to raise a Brady claim and
a prosecutorial misconduct claim. With regard to his procedural default, Mr.
King asserts only that the ineffectiveness of his appellate counsel and the prison’s
ban on possessing certain exculpatory items constitute sufficient causes, and that
enforcing the procedural rule would result in a fundamental miscarriage of
justice.
II
A
We must first address the timeliness of Mr. King’s appeal. 2 Judgment was
entered on January 6, 2016, which means that the notice of appeal was due by
February 5, 2016. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A) (requiring
notice of appeal to be filed within thirty days of judgment). However, Mr. King’s
notice of appeal was docketed as filed on February 8, 2016, beyond the
established thirty-day period.
Consequently, “we have subject-matter jurisdiction” only if Mr. King’s
notice of appeal was timely filed under the prison mailbox rule—that is, if it
“comports with the provisions of Fed. R. App. P. 4(c)(1) or if he has subsequently
filed a declaration or notarized statement that does.” United States v. Ceballos-
2
“[E]very federal appellate court has a special obligation to ‘satisfy
itself . . . of its own jurisdiction . . .’ even though the parties are prepared to
concede it.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998)
(alteration in original) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)).
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Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). Rule 4(c)(1) states that for an
inmate confined in an institution, “the notice is timely if it is deposited in the
institution’s internal mail system on or before the last day for filing,” and that an
inmate may demonstrate timely filing “by a declaration in compliance with 28
U.S.C. § 1746 or by a notarized statement, either of which must set forth the date
of deposit and state that first-class postage has been prepaid.” Fed. R. App. P.
4(c)(1).
In response to the jurisdictional show-cause order issued by this court, Mr.
King filed a declaration under 28 U.S.C. § 1746, stating that he placed the notice
in the prison mail system on February 5, 2016, and that he was making the
declaration under penalty of perjury. We conclude that Mr. King’s declaration
conforms with our requirements to show that the notice of appeal was timely
filed. 3 See Price v. Philpot, 420 F.3d 1158, 1166–67 (10th Cir. 2005).
B
We next turn to the question of whether to grant Mr. King a COA. A COA
is a jurisdictional prerequisite to our adjudication of the merits of an appeal from
the district court’s denial of a petition under 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005); see also
Gonzalez v. Thaler, --- U.S. ----, 132 S. Ct. 641, 649 (2012) (citing the “‘clear’
3
The certificate of service on Mr. King’s notice of appeal already
stated that he had pre-paid first class postage.
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jurisdictional language . . . in § 2253(c)(1)”). We will not issue a COA unless
“the applicant has made a substantial showing of the denial of a constitutional
right.” Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting 28
U.S.C. § 2253(c)(2)). An applicant “satisfies this standard by demonstrating that
jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003); accord Dulworth v. Jones, 496 F.3d 1133, 1136–37
(10th Cir. 2007). In addition,
[w]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.
Harris, 642 F.3d at 906 (emphasis added) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)); see Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008)
(“If the application was denied on procedural grounds, the applicant faces a
double hurdle.”).
This threshold determination of whether a COA should issue “does not
require full consideration of the factual or legal bases adduced in support of the
claims”—“[i]n fact, the statute forbids it.” Miller-El, 537 U.S. at 336. Instead,
7
the statute “requires an overview of the claims in the habeas petition and a
general assessment of their merits”; specifically, we must “look to the District
Court’s application of AEDPA to petitioner’s constitutional claims and ask
whether that resolution was debatable amongst jurists of reason.” Id.; see also
Dockins v. Hines, 374 F.3d 935, 937 (10th Cir. 2004) (noting that the Supreme
Court has made “clear” that “our COA decision is to be based on a review of the
district court’s application of AEDPA”). In accord with Miller-El, this court has
emphasized “that in determining whether to issue a COA, a ‘full consideration of
the factual or legal bases adduced in support of the claims’ is not required.”
United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Miller-El,
537 U.S. at 336).
Pursuant to this analytical framework, we have reviewed Mr. King’s
opening brief and the record. Based on our review, which includes our “general
assessment of the[ ] merits” of Mr. King’s stated grounds for relief, Miller-El,
537 U.S. at 336, we conclude that reasonable jurists would not debate the
correctness of the district court’s decisions dismissing Mr. King’s claims on
procedural grounds. Not only do those decisions appear sound, but Mr. King has
offered us no reason why they are not. Mr. King’s failure to make an argument
regarding the district court’s error in handling his petition is itself dispositive.
See, e.g., Rouse v. Darr, 478 F. App’x 511, 515 (10th Cir. 2012) (concluding that
pro se petitioner failed to carry his burden in his COA application because he did
8
not adequately point out why the district court erred in its order of dismissal);
United States v. Celio, 463 F. App’x 755, 759 (10th Cir. 2012) (same).
Accordingly, we deny Mr. King a COA.
III
Based on the foregoing, we DENY Mr. King’s request for a COA. This
matter is hereby DISMISSED.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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