Briscoe v. Meyer ( 2022 )

Appellate Case: 22-3054 Document: 010110689285 Date Filed: 05/26/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 26, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ALPHONSO GRAHAM BRISCOE,
Petitioner - Appellant,
No. 22-3054
v. (D.C. No. 5:18-CV-03300-SAC)
(D. Kan.)
SHANNON MEYER,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Petitioner-Appellant Alphonso Briscoe, a state inmate appearing pro se, seeks a
Certificate of Appealability (COA) to appeal from the district court’s dismissal of his
habeas petition, 28 U.S.C. § 2254. See Briscoe v. Meyer, No. 18–3300, 2022 WL
670212, at *7 (D. Kan. Mar. 7, 2022). He argues that he was denied effective assistance
of counsel on several grounds, the exclusion of expert testimony denied him due process
and a fair trial, there was insufficient evidence to support his convictions, and cumulative
error violated his right to due process and a fair trial. For the first time on appeal, he also
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 22-3054 Document: 010110689285 Date Filed: 05/26/2022 Page: 2
argues that the excessive delay of his state post-conviction proceedings denied him due
process. We deny a COA and dismiss the appeal.
Background
A jury convicted Mr. Briscoe of two counts of attempted first-degree murder and
one count of criminal possession of a firearm and the convictions were affirmed on direct
appeal. State v. Briscoe, 238 P.3d 763 (Kan. Ct. App. 2010) (unpublished table
decision). The case arose out of a shooting that occurred outside a movie theatre. At
trial, three eyewitnesses identified Mr. Briscoe as the shooter. Two of the eyewitnesses
knew Mr. Briscoe previously, one for approximately 10 years. The trial court also
refused to allow the testimony of Mr. Briscoe’s expert witness.
After unsuccessfully pursuing state post-conviction relief, see Briscoe v. State,
412 P.3d 1039 (Kan. Ct. App. 2018) (unpublished table decision), Mr. Briscoe filed this
federal habeas petition, asserting 12 grounds for relief. The district court found that he
had failed to exhaust several of his claims. See Pavatt v. Carpenter, 928 F.3d 906, 916
(10th Cir. 2019). The district court rejected the exhausted claims. Mr. Briscoe appeals
his exhausted claims.
Discussion
To obtain a COA from this court, Mr. Briscoe must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Thus, he “must
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demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This court reviews the state court’s decisions under the deferential standards of 28 U.S.C.
§ 2254(d).
A. Excessive Delay
As a preliminary matter, Mr. Briscoe argues that Kansas excessively delayed his
post-conviction proceedings.1 However, as Mr. Briscoe did not raise this issue before the
district court, we decline to consider the argument. See United States v. Viera, 674 F.3d
1214, 1220 (10th Cir. 2012).
B. Ineffective Assistance of Counsel
Before the district court, Mr. Briscoe made four exhausted ineffective assistance
of counsel claims. To establish ineffective assistance, Mr. Briscoe must show deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Regarding his claim that counsel was ineffective for not cross-examining witness Mary
Taylor, the Kansas Court of Appeals determined that he was not prejudiced,
notwithstanding that counsel failed to recognize that certain information had been
omitted before trial. Insofar as he claims that counsel failed to impeach witness Shawn
Delforge with a prior conviction, the federal district court deemed the claim abandoned.
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To the extent Mr. Briscoe argues the district court improperly dismissed his
unexhausted claims, he admits he did not exhaust the claims so that he did not “risk[]
another 6 or 7 year delay.” Aplt. Br. at 8. In addition, Mr. Briscoe has not argued cause
and prejudice. Consequently, he is not entitled to a COA on these claims as the district
court’s procedural resolution is not reasonably debatable. See Slack, 529 U.S. at 484.
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As to failing to qualify Dr. Lyman as an expert, the Kansas Court of Appeals rejected it
for lack of deficient performance and prejudice. Finally, that court rejected the
cumulative error claim as a single error would not suffice. Mr. Briscoe has not
demonstrated that the district court’s deferential review of these issues is reasonably
debatable.
C. Exclusion of Expert Testimony
Mr. Briscoe also challenges the trial court’s decision not to allow his expert
witness. This court does not disturb a trial court’s evidentiary ruling on habeas review
unless it “render[s] the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights.” Parker v. Scott, 394 F.3d 1302, 1317 (10th Cir. 2005) (quoting
Elliott v. Williams, 248 F.3d 1205, 1214 (10th Cir. 2001)). Here, the district court
recognized that the Kansas Court of Appeals upheld the district court’s exercise of
discretion in excluding this testimony on direct appeal. On post-conviction, that court
again recognized that the trial court’s decision did not prevent Mr. Briscoe’s counsel
from using the materials provided by the expert witness to challenge the state’s
investigation. The district court’s resolution of this issue is not reasonably debatable.
D. Insufficient Evidence
Additionally, Mr. Briscoe argues there is insufficient evidence to support his
convictions. This court will not disturb a conviction if “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
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U.S. 307, 319 (1979). Here, the district court relied upon the Kansas Court of Appeals
decision on direct appeal recognizing that three separate witnesses, two of whom knew
Mr. Briscoe previously, identified him as the shooter. Its decision to deny relief on this
claim is not reasonably debatable.
E. Cumulative Error
Finally, Mr. Briscoe argues that the cumulative prejudice of these alleged errors
constituted a denial of due process. However, Mr. Briscoe has failed to demonstrate
multiple errors by the trial court. Consequently, this claim fails.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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