Braun v. Stovall ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 4/30/96
TENTH CIRCUIT
CONRAD J. BRAUN,
Petitioner - Appellant, Nos. 95-3275
95-3286
95-3324
v. (D.C. No. 95-3308-DES)
(D.C. No. 95-CV-3314)
CARLA J. STOVALL, Attorney General, (D.C. No. 95-CV-3372)
Respondent - Appellee. (D. Kan.)
ORDER AND JUDGMENT*
Before PORFILIO, McKAY, and KELLY, Circuit Judges.
After examining Appellant’s briefs and the 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Petitioner Conrad Braun is currently serving a sentence in a federal correctional
institution. Acting pro se, he filed three petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The district court dismissed all three petitions. In the interest of
judicial economy, we have consolidated Mr. Braun’s appeals of the district court’s
dismissal of his petitions. We grant Petitioner’s motion for leave to proceed on his
appeals without prepayment of costs or fees. The district court found these appeals
legally frivolous and denied Petitioner a certificate of probable cause necessary to
proceed under § 2254. We grant Petitioner’s certificate of probable cause and proceed to
the merits of the case.
In one petition, district court case number 95-3314-DES, Mr. Braun sought relief
from purported state restrictions on his contact with his children. Mr. Braun, acting on
behalf of his children, originally filed the action as a child-in-need-of-care petition. A
guardian ad litem was appointed to represent the children in the action. The district court
dismissed the petition for failing to state a cause of action. Mr. Braun then appealed that
dismissal to a Kansas Court of Appeals, which affirmed. The Kansas Supreme Court
denied review of the case. Having completely exhausted his state remedies, Mr. Braun
sought an order through federal habeas review directing the state courts to address the
merits of his claims.
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The merits of Mr. Braun’s complaint concerns the inability of his children to
contact him during his incarceration in federal prison. He cites several instances where
public officials and relatives have interfered with his contact with his children. The
district court correctly dismissed the petition because Mr. Braun’s allegations failed to
provide a legal basis for finding that Mr. Braun or his children are subject to unlawful
restraint for purposes of habeas corpus. Additionally, it appears Mr. Braun’s children are
in the custody of his ex-wife and that he is challenging his visitation rights. Federal
courts do not have jurisdiction under § 2254 to consider collateral challenges to state
child-custody decisions. Lehman v. Lycoming County Children’s Servs. Agency, 458
U.S. 502, 512 (1982). Therefore, we affirm the district court’s dismissal of Mr. Braun’s
habeas petition.
In his other petitions for habeas relief, Mr. Braun appears to be collaterally
attacking his prior state court convictions because his federal sentence was enhanced due
to his prior state court convictions. In his first petition, case number 95-3308-DES, Mr.
Braun challenged four convictions in the Kansas state courts: two for criminal
trespassing, one for terrorist threat, and one for battery. Mr. Braun claims he was denied
a fair trial in all four cases due to an alleged conspiracy encompassing his ex-wife, the
Leawood Police Department, Johnson County prosecutors, and his parole officer. He also
alleged that evidence of an unsuccessful sting operation in 1991 was withheld from him
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during his plea negotiations in 1992. The district court dismissed the petition without
prejudice because Mr. Braun had failed to exhaust his remedies in the Kansas state courts.
Soon thereafter, Mr. Braun filed a second petition, case number 95-3372-DES, asserting
that he had exhausted his state court remedies because the Kansas Supreme Court had
dismissed his habeas petition. Again the district court dismissed the petition.
Petitioner claims he has exhausted the state court remedies on all of his claims
regarding his four state court convictions. The record, however, shows that he did not
complete state habeas review in the four cases.1 Petitioner sought habeas review in state
district court. The state district court dismissed his petitions because it found no
cognizable claims and a lack of jurisdiction. Instead of appealing to the Kansas Court of
Appeals, petitioner filed an original state habeas corpus petition with the Kansas Supreme
Court. In his petition to the Kansas Supreme Court, Mr. Braun requested that court to
“immediately dismiss this case in order to fullfull [sic] the requirement of exhausting state
remedies.” The Kansas Supreme Court dismissed the petitions as original filings, not as
notices of appeal from the state district court’s dismissal. We deny Mr. Braun’s petition
for habeas relief in federal court because he failed to fully exhausted his state court
remedies and he is now procedurally defaulted on his state remedies. Coleman v.
1
We are unable to determine from the record whether Petitioner directly appealed
his state convictions.
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Thompson, 501 U.S. 722, 729-31 (1991); Dulin v. Cook, 957 F.2d 758, 759 (10th Cir.
1992). He failed to seek review of the state district court dismissal of his habeas petitions
by the Kansas Court of Appeals. The summary dismissal by the Kansas Supreme Court
did not represent a review of the habeas petition which was dismissed by the district
court. The district court correctly dismissed Mr. Braun’s petition because he is now
procedurally barred from filing a timely notice of appeal to the Kansas Court of Appeals
from the state court dismissal of his petition.
In his brief, Petitioner argues that he had cause for his default and that he will
suffer prejudice if we do not hear his claim. Wainwright v. Sykes, 433 U.S. 72, 87-91
(1977). A petitioner satisfies the “cause” standard by showing that “some objective factor
external to the defense” impeded his compliance with the state procedural rules. Dulin,
957 F.2d at 760 (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). In Dulin, we
held the petitioner had sufficiently alleged cause by claiming that he had no reasonable
access to, or notice of, the state appellate procedures. Id. As cause in this case, Petitioner
claims he believed he had exhausted his state remedies. Through the appeal of his
petition challenging his visitation rights, Petitioner has shown that he had knowledge of
and was familiar with the process for exhausting his state remedies. Mr. Braun correctly
exhausted his remedies by appealing to the Kansas Court of Appeals and then the Kansas
Supreme Court in his petition challenging his visitation rights. Additionally, “petitioner’s
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alleged lack of knowledge must be due to a lack of reasonable access to the rules as
distinguished from basic ignorance of the rules or law.” Watson v. New Mexico, 45 F.3d
385, 388 (10th Cir. 1995). Petitioner has not claimed a lack of access to Colorado’s
appellate procedures; instead, he claims that he believed he was in compliance with their
procedures. Mr. Braun failed to sufficiently allege that some externally objective factor
impeded his compliance with the state procedural rules. Petitioner has not shown good
cause for failing to exhaust his state remedies. We need not consider whether Mr. Braun
suffered actual prejudice because we conclude that he lacked cause for his default. See
Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982).
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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