Cook v. McKune , 334 F. App'x 867 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
May 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
KENNETH M. COOK,
Petitioner–Appellant, No. 08-3156
v. (Case No. 07-CV-03149-RDR)
DAVID R. McKUNE, Warden, (D. Kan.)
Lansing Correctional Facility;
ATTORNEY GENERAL OF
KANSAS,
Respondents–Appellees.
ORDER *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Petitioner, a state prisoner represented by pro bono counsel, seeks a
certificate of appealability to appeal the district court’s dismissal of his § 2254
habeas petition. Petitioner was originally convicted in 1993 of first degree
murder, and his conviction was affirmed by the Kansas Supreme Court in State v.
Cook, 913 P.2d 97 (Kan. 1996). His federal habeas petition was denied by the
district court, but on appeal we held that Petitioner’s Sixth Amendment rights had
been denied because the prosecution had not made a reasonable, good-faith effort
*
This order is not binding precedent, except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
to produce a key witness whose testimony from a preliminary hearing was
admitted as evidence at the trial. Cook v. McKune, 323 F.3d 825, 839-40 (10th
Cir. 2003). Petitioner was retried by the state and convicted of second degree
murder, and his conviction was affirmed by the Kansas Supreme Court in State v.
Cook, 135 P.3d 1147 (Kan. 2006). He subsequently filed the instant habeas
petition, raising the same claims he had raised before the Kansas Supreme Court.
Because the claims raised in this habeas petition were rejected on the
merits by the state court, Petitioner cannot obtain habeas relief unless the state
court’s decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2).
To obtain a certificate of appealability, Petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to meet this burden, he must demonstrate “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted).
After carefully reviewing Petitioner’s brief, the relevant state court
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decisions, the district court’s disposition, and the record on appeal, we conclude
that Petitioner has not met the standard required to obtain a certificate of
appealability as to any of the issues he seeks to appeal. 1
Petitioner’s first two claims are based on the Confrontation Clause of the
Sixth Amendment. Specifically, he argues that he was deprived of the right to
effectively cross examine the witnesses against him when the trial court (1)
refused to order a psychological evaluation of a key prosecution witness and (2)
refused his request for a continuance to search for and obtain medical records and
other information pertaining to this witness’s mental health history. However,
Petitioner cites to no Supreme Court precedent indicating that the Confrontation
Clause provides a defendant with a constitutional right to require a psychiatric
examination of a witness or to obtain a continuance based on speculation that
further impeachment information may exist. Indeed, the “Confrontation Clause
guarantees only an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense
might wish.” United States v. Owens, 484 U.S. 554, 559 (1988) (internal
quotation marks omitted). Moreover, as the district court noted, the record
indicates that the trial court allowed Petitioner’s counsel sufficient latitude in the
scope of his cross-examination of the witness’s mental problems. We conclude
1
Although Petitioner’s habeas petition raised a fifth claim related to his
sentencing, he does not seek a certificate of appealability as to that issue.
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that reasonable jurists would not debate whether the district court erred in
concluding that Petitioner’s Confrontation Clause challenges did not constitute a
violation of established federal law.
Petitioner also argues that he is entitled to habeas relief based on the trial
court’s denial of his motion for a new trial based upon newly discovered
evidence. Specifically, he argues that the court erred in concluding that this
evidence—testimony given by an individual who shared a jail pod with Petitioner
that implicated a different individual in the crime—was not sufficiently credible
to make a different result reasonably likely upon retrial. Petitioner cites to no
clearly established federal law barring such a credibility assessment in the context
of a motion for a new trial based upon newly discovered evidence. Instead, he
argues that the trial court’s decision that this testimony was not credible was “an
unreasonable determination of the facts in light of the evidence presented,” 28
U.S.C. § 2254(d)(2). After carefully reviewing the record, however, we conclude
that reasonable jurists would not debate whether the trial court’s credibility
assessment was objectively unreasonable.
Petitioner’s fourth claim is premised on the trial court’s denial of his
motion to recall the jury. After trial, defense counsel submitted to the court an
affidavit from a juror attesting that during deliberations he heard another juror say
that this case was a retrial and that Petitioner had been convicted of the same
crime in the first trial. Defense counsel accordingly asked the court to recall the
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jury to determine whether this information influenced the jury’s deliberations. In
response, the government submitted affidavits from other jurors generally
indicating that they speculated the case was a retrial based on references to
witnesses’ prior testimony. In denying the motion to recall, the trial court noted
the lack of specificity in the first juror’s affidavit as to which juror said the case
was a retrial and as to whether that juror was merely speculating or actually knew
of the prior trial. On appeal, the Kansas Supreme Court held that this juror’s
affidavit was not conjectural but instead described another juror’s specific
personal knowledge regarding the fact of a retrial and Petitioner’s previous
conviction of this crime. Cook, 135 P.3d at 1159-61. However, the court
affirmed the trial court’s decision not the recall to jury, concluding that this
decision did not constitute an abuse of discretion because it was in accordance
with clear Kansas law. Id. at 1161. Kansas law permits a juror to testify to
conditions or occurrences having a material bearing on the validity of the
indictment, but it prevents an inquiry into the subjective effect of such conditions
or occurrences on the individual jurors’ mental processes or the jury’s
deliberations. Id. at 1158. Thus, the question before the court was whether this
type of evidence would, by its nature, be likely to have a prejudicial effect on the
jury, not whether there was an actual effect in this specific case. Id. This
objective question of prejudice was resolved by the Kansas Supreme Court
decades ago in State v. Farrar, 176 P. 987, 988 (Kan. 1918), in which the court
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held that jurors’ knowledge that a defendant was previously convicted for the
same crime is not inherently prejudicial. Therefore, the court held that the trial
court did not err in this case by denying Petitioner’s motion to recall the jury.
Petitioner argues that the Kansas Supreme Court erred in holding that the
trial court did not need to recall the jury to explore the effects of the extrinsic
information regarding Petitioner’s prior conviction and retrial on the jury’s
deliberations. He also argues that the state court erred in holding that this
information was not inherently prejudicial, and he argues that the court should
have applied a presumption of prejudice to the extrinsic information pursuant to
Remmer v. United States, 347 U.S. 227, 229 (1954). As for the first argument,
the Kansas rule preventing an inquiry into the subjective effect of extrinsic
information on the jury’s deliberations is not contrary to clearly established
federal law. Indeed, our federal rules prevent such an inquiry as well. See Fed.
R. Evid. 606(b); see also United States v. Hornung, 848 F.2d 1040, 1045 (10th
Cir. 1988) (“The court’s questioning of a juror who is the recipient of extraneous
information is limited to the circumstances and nature of the improper contact, as
Fed. R. Evid. 606(b) precludes the court from delving into the subjective effect of
the contact on the juror’s decision-making. Accordingly, an objective test should
be applied in making an assessment of whether the defendant was prejudiced by
the extraneous information.”). As for Petitioner’s second argument, the Kansas
court’s holding that this information was not inherently prejudicial is not contrary
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to clearly established Supreme Court authority, and the Remmer presumption of
prejudice is inapplicable to this state habeas case because it is “a rule of federal
criminal procedure, rather than a rule of federal constitutional law.” Crease v.
McKune, 189 F.3d 1188, 1193 (10th Cir. 1999).
For the foregoing reasons, we conclude that reasonable jurists would not
debate whether the district court’s ruling was correct. We therefore DENY
Petitioner’s request for a certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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