Hughes v. Kansas Attorney General , 567 F. App'x 570 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 22, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JESSIE D. HUGHES,
Petitioner - Appellant,
No. 13-3032
v. (D.C. No. 5:11-CV-03140-SAC)
(D. Kan.)
KANSAS ATTORNEY GENERAL,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY *
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Proceeding pro se, 1 Kansas prisoner Jessie Hughes seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his habeas
petition. We now deny Mr. Hughes’s application for a COA and dismiss this
*
This order is not binding precedent except under the doctrines of law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. Hughes is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
matter. 2
I
In 2003, Mr. Hughes was convicted in Kansas state court of murder in the
second degree and sentenced to a term of 272 months. Mr. Hughes’s conviction
and sentence were upheld on direct appeal, and in September 2007, Mr. Hughes
filed a motion for post-conviction relief under Kan. Stat. Ann. § 60-1507 in the
District Court of Shawnee County, Kansas. The district court denied Mr.
Hughes’s motion, and the Kansas Court of Appeals affirmed. The Kansas
Supreme Court denied review. On July 21, 2011, Mr. Hughes filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District
Court for the District of Kansas. The district court denied this petition on the
merits and declined to issue a COA.
II
A
Before a prisoner “who was denied habeas relief in the district court” may
appeal, he “must first seek and obtain a COA.” Miller-El v. Cockrell, 537 U.S.
322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). We may issue a COA “only
if the applicant has made a substantial showing of the denial of a constitutional
2
Mr. Hughes additionally asks us to appoint him counsel. Because of
our ultimate disposition of his request for a COA (i.e., our denial of it), we deny
his request for appointed counsel as moot.
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right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, an applicant must show
“that reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Allen v. Zavaras, 568 F.3d 1197,
1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))
(internal quotation marks omitted).
B
In his habeas petition, Mr. Hughes made a single claim for relief alleging
ineffective assistance of counsel. Under the Supreme Court’s two-part test set
forth in Strickland v. Washington, 466 U.S. 668 (1984), an ineffective-assistance-
of-counsel claim requires a showing (1) “that counsel’s representation fell below
an objective standard of reasonableness,” id. at 688, and (2) “that the deficient
performance prejudiced the defense,” id. at 687. In this case, because we
conclude that Mr. Hughes failed to satisfy the heavy burden of showing deficient
representation under Strickland’s first prong, we need not reach the question of
prejudice under its second.
“[R]eview of counsel’s performance” under Strickland’s first prong
is “highly deferential.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)
(quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010)) (internal
quotation marks omitted). “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
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reasonable professional judgment.” Id. (quoting Dever v. Kan. State Penitentiary,
36 F.3d 1531, 1537 (10th Cir. 1994)) (internal quotation marks omitted). The
burden on a petitioner alleging ineffective assistance of counsel is even higher
when the alleged ineffective assistance resulted from an informed, strategic
decision: counsel’s “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Strickland,
466 U.S. at 690.
A party who, like Mr. Hughes, asserts an ineffective-assistance-of-counsel
claim in a § 2254 case faces a still more difficult task, because the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) constrains a habeas court’s
review of claims adjudicated on the merits in state court proceedings and
“demands that [such] state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). That is to say, habeas
review of ineffective-assistance claims adjudicated on their merits by a state court
is “doubly deferential,” Byrd, 645 F.3d at 1168 (quoting Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)) (internal quotation marks omitted), because “[w]e
defer to the state court’s determination that counsel’s performance was not
deficient and, further, defer to the attorney’s decision in how to best represent a
client,” id. (alteration in original) (quoting Crawley v. Dinwiddie, 584 F.3d 916,
922 (10th Cir. 2009)) (internal quotation marks omitted). The question regarding
deficiency thus “is not whether counsel’s actions were reasonable. The question
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is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012)
(quoting Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 788 (2011)) (internal
quotation marks omitted).
C
Mr. Hughes stated in his habeas petition that his “sole claim” was that:
trial counsel was ineffective . . . for failing to hire and utilize a
ballistics expert to counter the State’s expert witnesses and to
explain that the forensic ballistic evidence was not only
inconsistent with the State’s theory of the case and the purported
eye-witnesses offered by the State, but that the ballistics
evidence at the crime scene rendered the State’s theory
completely impossible.
R., Vol. 1, at 14 (Pet. for Writ of Habeas Corpus, filed July 21, 2011). The
federal district court denied Mr. Hughes’s petition, finding from its review of the
record that “[i]t was at least arguable that a reasonable attorney could decide to
forgo inquiry into additional forensics evidence under the circumstances here,” id.
at 112 (Mem. & Order, filed Jan. 8, 2013), and accordingly that the Kansas Court
of Appeals’s “conclusion that trial counsel’s strategy was not deficient under
Strickland was ‘well within the bounds of a reasonable judicial determination,’”
id. at 110 (quoting Richter, 131 S. Ct. at 789). We agree and find that reasonable
jurists could not debate the correctness of the district court’s holding.
In reaching this conclusion, we note, as the Kansas Court of Appeals did,
that Mr. Hughes’s trial counsel has offered a convincing explanation of his
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strategic choice not to call a ballistics expert for the defense. See Hughes v.
Kansas, 246 P.3d 413, 2011 WL 420712, at *2–3 (Kan. Ct. App. 2011)
(unpublished table decision). At an evidentiary hearing held in connection with
Mr. Hughes’s state proceedings for post-conviction relief, his trial counsel
testified that he did not feel it was necessary to call his own expert to rebut the
State’s ballistics evidence because he believed he had established through his
examination of the deputy county coroner that the shots fired “could not have
been made in the . . . manner that the coroner said they were made because of the
. . . locations of the spent projectiles and the casings that were discovered.” Id. at
*2 (internal quotation marks omitted). Mr. Hughes’s trial counsel further testified
that he did not feel it was necessary to call an expert because he felt that the
coroner’s testimony for the State, in particular, “was so outside the bounds that
. . . I didn’t feel that an expert was necessary . . . . Sometimes you can take [the
prosecution’s] expert and make them our witnesses.” Id. (alteration in original).
This court has independently reviewed the trial record, and we find no
reason to doubt the reasonableness of trial counsel’s strategic choices, let alone
the Kansas Court of Appeals’s assessment of the same, to which we owe
considerable deference. That being the case, it is plain that reasonable jurists
could not debate the correctness of the district court’s ruling, and accordingly, we
are obliged to deny Mr. Hughes’s request for a COA.
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III
For the forgoing reasons, we deny Mr. Hughes’s request for a COA and
dismiss this matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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