Pabst v. McKune , 438 F. App'x 674 ( 2011 )


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  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    August 30, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    TOD A. PABST,
    Petitioner - Appellant,                    No. 10-3256
    v.                                               (D. Kansas)
    DAVID MCKUNE, Warden, Lansing                  (D.C. No. 5:08-CV-03258-SAC)
    Correctional Facility; STEPHEN SIX,
    Kansas Attorney General,
    Respondents - Appellees.
    ORDER AND JUDGMENT *
    Before KELLY, HARTZ, and HOLMES, Circuit Judges.
    I.    INTRODUCTION
    Tod Pabst (Defendant), an inmate in a Kansas correctional facility, seeks
    habeas relief under 
    28 U.S.C. § 2254
     on the ground that his trial was rendered
    fundamentally unfair by the involvement of a private prosecutor who had a
    conflict of interest. He further alleges that the failure of both trial and appellate
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment 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    not binding precedent except under the doctrines of law of the case, res judicata,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.
    counsel to challenge the use of the private prosecutor denied him effective
    assistance of counsel. The United States District Court for the District of Kansas
    denied relief but granted a certificate of appealability enabling Defendant to
    appeal the denial. See 
    28 U.S.C. § 2253
    (c)(1)(A). Defendant filed a timely
    appeal and we have jurisdiction under 
    28 U.S.C. §§ 1291
     and § 2253. We affirm.
    II.   BACKGROUND
    In March 1997, Defendant killed his fiancee. See Pabst v. State, 
    996 P.2d 321
    , 324 (Kan. 2000). A jury convicted him of murder but the conviction was
    overturned on appeal. See 
    id. at 331
    . The victim’s parents hired a private
    attorney, Pedro Irigonegaray, under 
    Kan. Stat. Ann. § 19-717
     to assist the
    prosecutor at the retrial. See Pabst v. State, 
    192 P.3d 630
    , 633 (Kan. 2008).
    Although Irigonegaray was assigned the handling of several parts of the trial, the
    state prosecutor controlled the case and “everything that Irigonegaray did on the
    case was subject to [his] prior approval.” 
    Id. at 634
    ; see 
    id. at 635
     (state court
    found that private prosecutor acted under “direct supervision” of public
    prosecutor). The jury convicted Defendant of premeditated first-degree murder,
    and he was sentenced to life imprisonment. See State v. Pabst, 
    44 P.3d 1230
    ,
    1232 (Kan. 2002). The Kansas Supreme Court affirmed his conviction. See 
    id.
    Defendant sought state postconviction relief that challenged Irigonegaray’s
    role in the second trial. See Pabst, 192 P.3d at 633. The state district court
    denied relief and the Kansas Supreme Court affirmed. The supreme court ruled
    -2-
    that Irigonegaray’s prosecutorial role conflicted with his role in representing the
    decedent’s family in proceedings to terminate Defendant’s parental rights and
    adopt the decedent’s child. But it concluded that the violation was not structural
    error and the error was harmless. See id. at 637–40. It also held that Defendant
    had not been deprived of effective assistance of either trial or appellate counsel.
    See id. at 640–41.
    III.   DISCUSSION
    The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
    provides that when a claim has been adjudicated on the merits in a state court, a
    federal court can grant habeas relief only if the applicant establishes that the
    state-court decision was “contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme Court of the
    United States,” or “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), (2). As we have explained:
    Under the “contrary to” clause, we grant relief only if the state court
    arrives at a conclusion opposite to that reached by the Supreme Court
    on a question of law or if the state court decides a case differently
    than the [Supreme] Court has on a set of materially indistinguishable
    facts.
    Gipson v. Jordan, 
    376 F.3d 1193
    , 1196 (10th Cir. 2004) (brackets and internal
    quotation marks omitted). Relief is provided under the “unreasonable
    application” clause only if the state court identifies the correct governing legal
    -3-
    principle from the Supreme Court’s decisions but unreasonably applies that
    principle to the facts of the prisoner’s case. 
    Id.
     (internal quotation marks
    omitted). “Thus we may not issue a habeas writ simply because we conclude in
    our independent judgment that the relevant state-court decision applied clearly
    established federal law erroneously or incorrectly. Rather, that application must
    also be reasonable.” 
    Id.
     (internal quotation marks omitted.)
    Defendant’s first contention is that Irigonegaray’s conflicted role in his
    murder trial violated constitutional due process. On this issue we need not rely
    on AEDPA deference to the state court. We held in Erikson v. Pawnee County
    Board of County Commissioners, 
    263 F.3d 1151
     (10th Cir. 2001), that “the
    participation of a privately-retained attorney in a state criminal prosecution does
    not violate the defendant’s right to due process under federal law unless the
    private attorney effectively controlled critical prosecutorial decisions,” 
    id. at 1154
    . Here, both the state trial court and the federal district court found that
    Irigonegaray did not have such control. Accordingly, this contention fails.
    Defendant next contends that his trial counsel’s failure to move for
    Irigonegaray’s removal as an associate prosecutor denied him effective assistance
    of counsel. To establish a claim of ineffective assistance of counsel, Defendant
    must show (1) that his counsel’s performance fell below an objective standard of
    reasonableness, i.e., that “counsel made errors so serious that counsel was not
    functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”
    -4-
    and (2) that Defendant was prejudiced by the deficient performance. Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984). The Kansas Supreme Court applied this
    standard in reviewing Defendant’s claim. See Pabst, 192 P.3d at 640. It ruled
    that Defendant had not overcome the strong presumption that his trial counsel’s
    performance was adequate because there was no testimony on the issue by
    Defendant’s trial counsel and trial counsel may well have preferred Irigonegaray
    to an alternative who might have replaced him. See id. at 641. Defendant has not
    persuaded us that the Kansas Supreme Court’s ruling was unreasonable, so we
    affirm the district court’s rejection of this contention.
    Finally, Defendant contends that his appellate counsel was constitutionally
    ineffective for failing to raise on direct appeal that Irigonegaray operated under a
    conflict of interest at his second murder trial. But the Kansas Supreme Court
    ultimately ruled in Defendant’s postconviction proceedings that the error created
    by Irigonegaray’s conflict was harmless. Thus, if Defendant’s appellate attorney
    had pursued the issue, he would have failed to obtain relief. Because Defendant
    cannot show prejudice, we affirm the district court’s denial of relief on this
    contention.
    IV.   CONCLUSION
    -5-
    We AFFIRM the district court’s denial of Defendant’s application for relief
    under 
    28 U.S.C. § 2254
    .
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -6-
    

Document Info

Docket Number: 10-3256

Citation Numbers: 438 F. App'x 674

Judges: Hartz, Holmes, Kelly

Filed Date: 8/30/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023