Strong v. Heimgartner ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 23, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
CALVIN LEE STRONG,
Petitioner - Appellant,
No. 20-3044
v. (D.C. No. 5:16-CV-03101-SAC)
(D. Kansas)
JAMES HEIMGARTNER,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
Petitioner Calvin Strong, a prisoner in Kansas state custody proceeding pro se,1
seeks a Certificate of Appealability (“COA”) to challenge the district court’s denial of his
28 U.S.C. § 2254 petition for a writ of habeas corpus. We deny Mr. Strong’s request for a
COA and dismiss the matter.
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
As Mr. Strong is proceeding pro se, “we liberally construe his filings, but we will
not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
I. BACKGROUND
In February of 1982, a jury convicted Mr. Strong of rape in the District Court of
Shawnee County, Kansas. In April of 1983, the Kansas Supreme Court affirmed his
conviction, and the clerk issued the mandate on May 25, 1983. See State v. Strong, No.
54, 746 (Kan. Apr. 29, 1983) (unpublished). Mr. Strong then filed a document entitled
“Motion to Dismiss” in the state district court on June 20, 1983, seeking release from
custody based on an alleged violation of his speedy trial rights. Mr. Strong subsequently
filed a document entitled “Motion for Supplemental Exhibit” on July 5, 1983, raising six
alleged trial errors for post-conviction review. These motions remain pending in the state
district court. See Strong v. Hrabe, 750 F. App’x 731, 736 (10th Cir. 2018)
(unpublished).
In 2016, Mr. Strong filed a § 2254 petition for a writ of habeas corpus in federal
district court, raising two grounds for relief. First, Mr. Strong alleged his “rights under
the Due Process Clause of the [Fourteenth] Amendment of [the] U.S. Constitution were
violated when [the state district court] failed to process and rule on his [June 20, 1983]
petition for relief.” ROA, Vol. I at 11. Second, Mr. Strong alleged, “The trial court lacked
subject matter jurisdiction to enter judgment against [him] pursuant to [Kansas’s speedy
trial statute], voiding the conviction.” ROA, Vol. I at 12.
On October 19, 2016, the district court dismissed Mr. Strong’s petition as
time-barred. Mr. Strong appealed. We granted a COA and reversed. Strong, 750 F. App’x
at 736. We reasoned that Mr. Strong’s § 2254 petition was timely because his Motion to
Dismiss, a properly filed motion for post-conviction relief that remains pending in the
2
state district court, tolled the statute of limitations. See 28 U.S.C. § 2244(d)(2) (“The time
during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.”); Strong, 750 F. App’x at 736
(“Respondent has not presented any persuasive reason as to why [Mr. Strong’s June 20,
1983] motion would not be considered a ‘properly filed’ motion for post-conviction relief
under Kansas law.”).
On remand, the district court denied Mr. Strong’s § 2254 petition and a COA in a
decision dated February 19, 2020. Strong v. Heimgartner, No. 16-3101-SAC, 2020 WL
816040 (D. Kan. Feb. 19, 2020) (unpublished). The district court concluded that neither
of Mr. Strong’s two grounds for relief provided a valid basis for federal habeas corpus
relief. Id. at *3–5. The court explained that Mr. Strong’s first ground for relief does not
challenge the validity of the judgment upon which he is incarcerated, and his second
ground for relief “is based entirely on state law.” See id.; see also 28 U.S.C. § 2254(a)
(directing federal courts to “entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States”
(emphasis added)). The district court also concluded that Mr. Strong’s second ground for
relief was procedurally defaulted. Id. at *4–5.
Mr. Strong timely filed a Notice of Appeal. He subsequently filed a Motion to
Alter or Amend Judgment pursuant to Federal Rule of Civil Procedure 59(e), and we
abated this matter pending the district court’s disposition of the motion. On April 8, 2020,
3
the district court denied the motion, Strong v. Heimgartner, No. 16-3101-SAC, 2020 WL
1700354 (D. Kan. Apr. 8, 2020) (unpublished), and we lifted the abatement. Mr. Strong
did not file an amended notice of appeal or a new notice of appeal seeking review of the
denial of his Motion to Alter or Amend Judgment. Consequently, the scope of this matter
is limited to the district court’s February 19, 2020, decision. See Fed. R. App. P.
4(a)(4)(B)(ii).
II. ANALYSIS
Absent a COA, we are without jurisdiction to review a petition for a writ of habeas
corpus. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Under 28 U.S.C.
§ 2253(c)(2), “[a] certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” This requires the petitioner
to “show[ ] 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
Mr. Strong seeks a COA on the two grounds for relief he raised in his petition
below: (1) that the state district court violated Mr. Strong’s due process rights by failing
to rule on his June 20, 1983, petition for relief, and (2) that the trial court lacked subject
matter jurisdiction to enter judgment against him by violating Kansas’s speedy trial
statute. We review each ground in turn.2
2
Mr. Strong’s request for a COA also includes an actual innocence claim. It is
unclear if he raises this as an independent basis for habeas relief, or if he only included it
4
A. Due Process Claim
Mr. Strong’s due process claim challenges the state district court’s failure to rule
on his June 20, 1983, petition for relief, a petition that we previously concluded should
“be considered a ‘properly filed’ motion for post-conviction relief under Kansas law.”
Strong, 750 F. App’x at 736. But “no constitutional provision requires a state to grant
post-conviction review.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (citing
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). And, “because the constitutional error
he raises focuses only on the State’s post-conviction remedy and not the judgment which
provides the basis for his incarceration, it states no cognizable federal habeas claim.” Id.Thus, we deny Mr. Strong’s request for a COA on his first claim because he has made no
“showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United
States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (“[A] delay in post-conviction
proceedings does not give rise to an independent due process claim that would justify
granting a defendant habeas relief.”).
B. Kansas Speedy Trial Claim
Mr. Strong’s second claim challenges the state trial court’s subject matter
jurisdiction based on an alleged violation of Kansas’s speedy trial statute. We can issue a
COA only if Mr. Strong “has made a substantial showing of the denial of a constitutional
to challenge the district court’s finding of procedural default. To the extent Mr. Strong’s
request for a COA raises this and other independent grounds for habeas relief that were
not presented in his petition to the district court, “we adhere to our general rule against
considering issues for the first time on appeal.” United States v. Viera, 674 F.3d 1214,
1220 (10th Cir. 2012).
5
right.” 28 U.S.C. § 2253(c)(2) (emphasis added). “[A] COA cannot issue when the
habeas petitioner has shown the denial of only a statutory right.” United States v. Taylor,
454 F.3d 1075, 1079 (10th Cir. 2006). Mr. Strong alleges only a violation of a Kansas
statute as the basis for his second claim. His § 2254 petition does not raise a Sixth
Amendment speedy trial claim. Thus, we deny Mr. Strong’s request for a COA on his
second claim because he has made no “showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (emphasis added).3
III. CONCLUSION
For the reasons stated, we DENY Mr. Strong’s request for a COA and DISMISS
the matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
3
Because Mr. Strong’s second claim does not meet the threshold requirement for a
COA—raising the denial of a constitutional right—we do not reach the district court’s
procedural default ruling.
6