Walker v. Heimgartner ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 7, 2017
Elisabeth A. Shumaker
Clerk of Court
MICHAEL D. WALKER,
Petitioner - Appellant,
v. No. 17-3151
(D.C. No. 5:15-CV-03230-DDC)
DAN SCHNURR, Interim Warden, El (D. Kansas)
Dorado Correctional Facility; DEREK
SCHMIDT, Attorney General of the State
of Kansas,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY 
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Michael D. Walker, a Kansas inmate appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his petition for writ of
habeas corpus under 28 U.S.C. § 2254. We deny a COA and dismiss this matter.

Pursuant to Fed. R. App. P. 43(c)(2), Warden James Heimgartner is replaced by
Dan Schnurr, Interim Warden, El Dorado Correctional Facility.
**
This order is not binding precedent, except under the doctrines of law of the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 Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
Because Mr. Walker is 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
Mr. Walker is serving a life sentence, having been convicted of first-degree felony
murder and criminal discharge of a firearm at an occupied dwelling. State v. Walker, 153
P.3d 1257, 1263 (Kan. 2007). His convictions and sentence arose from a gang-related
drive-by shooting. Id. In brief, evidence presented at trial established that gunshots
emanating from a vehicle driven by Mr. Walker struck a sixteen-month-old child as she
slept on a couch in her family’s living room, killing her. See id. at 1263–64.
In the federal court proceedings below, Mr. Walker asserted twelve grounds for
habeas relief, all of which the district court denied. See Walker v. Heimgartner, No. 15-
CV-3230-DDC, 2017 WL 1197645, at *1 (D. Kan. Mar. 31, 2017) (the “District Court
Order”). The court deemed none of the twelve grounds presented as close questions. To
the contrary, the district court opined that its rulings “are not the type that reasonable
jurists could debate or would conclude were wrong.” Id. at *13. As such, the district court
declined to issue a COA. Id.II. ANALYSIS
On appeal, Mr. Walker has trimmed his proposed grounds for relief from twelve to
three: he now bases his petition on alleged violations of (1) due process arising from the
trial court’s decision denying Mr. Walker’s motion to suppress statements and evidence
discovered during a police investigation; (2) the Fourth Amendment because his arrest
was not supported by probable cause; and (3) the Sixth Amendment due to ineffective
2
assistance of counsel.2 But because the district court declined to issue a COA, we lack
jurisdiction to consider the merits of any of these claims unless and until we issue a COA
as to one or more of the claims Mr. Walker wishes to appeal. See 28 U.S.C.
§ 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
A habeas petitioner is entitled to a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As in
the district court below, this standard requires Mr. Walker to demonstrate “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). Mr. Walker has not met that standard. To see why, we now turn to each of the
three issues he seeks to appeal.
A. Due Process Violations
Citing Wong Sun v. United States, 371 U.S. 471 (1963), Mr. Walker argues that
certain unspecified “vehicle evidence” should have been suppressed as tainted. As to this
first issue, Mr. Walker’s handwritten pro se brief states, in its entirety:
Their [sic] was no independent source and the lead Detective
Randall Reynolds said It was from me that the police got the Information
the lead [sic] to the car. and that came from the part of the statement that
was suppressed by the Court.
2
The first two issues correspond to the first and twelfth issues identified by the
district court. See Walker v. Heimgartner, No. 15-CV-3230-DDC, 2017 WL 1197645, at
*1 (D. Kan. Mar. 31, 2017) (the “District Court Order”). The third issue was raised for
the first time in Mr. Walker’s motion to alter or amend the district court’s judgment under
Fed. R. Civ. P. 59(e), which the district court denied. See Walker v. Heimgartner, No. 15-
CV-3230-DDC, 2017 WL 2591526, at *1 (D. Kan. June 15, 2017).
3
....
The District Court was wrong when it said the Kansas Supreme
Court was right when it denied my issue about the vehicle evidence and all
evidence that came from the police interrogation. Fourth, Fifth, and
Fourtee[n]th Amendment due process right. Under Wong Sun v. United
States, all the evidence must be suppressed as fruit of the poison tree. Their
[sic] was no independent source. The lead Detective said Good police work
would have lead [sic] them to it. Yet they relied on evidence from the
inadmissible portion. The lead Detective said without the name Scott that
evidence would have been almost impossible to find and he said that on the
stand.
Criminal defendants are indeed sometimes constitutionally entitled to the suppression of
evidence deemed to be “fruit of the poisonous tree,” i.e., evidence discovered as a result
of unlawful police activity. See Wong Sun, 371 U.S. at 485; United States v. Olivares-
Rangel, 458 F.3d 1104, 1108–09 (10th Cir. 2005). Relying on Mr. Walker’s brief alone,
it would be impossible for us to understand the factual underpinnings of his claim, much
less find that he has made “a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), or “that the issues presented [a]re adequate to deserve
encouragement to proceed further,” Slack, 529 U.S. at 484 (internal quotation marks
omitted).
Construing his filings liberally, however, we understand from prior court opinions
that Mr. Walker’s due process arguments under the Fifth and Fourteenth Amendments
arise from the state trial court’s decision denying his motion to suppress physical
evidence that came to light in part because of statements made by Mr. Walker after he
4
was unconstitutionally deprived of his right to counsel.3 See District Court Order, at *6–
8; Walker, 153 P.3d at 1269–71. In affirming Mr. Walker’s conviction on direct appeal,
the Kansas Supreme Court described the circumstances surrounding the police’s
interrogation of Mr. Walker and the evidence gathered therefrom:
The police interrogation of Walker occurred at the Wichita Police
Investigations Bureau. Walker came to the bureau voluntarily after hearing
that police wanted to speak with him. Walker was advised of his Miranda
rights, and Walker indicated that he understood and wished to waive those
rights and speak to the police. He initialed and signed a Miranda waiver
form. Several hours into the interview, Walker made inculpatory
statements, admitting to driving the car involved in the shooting.
Sometime after making that statement, Walker said, “If I could talk
to my grandma right now, I just need to talk to a lawyer, man—I can't wait
till I go downstairs.” In Walker I, this court held that the police were
required to honor that request to speak to an attorney and should have
stopped the interrogation. Their failure to cease questioning required the
suppression of all statements subsequent to Walker’s request for counsel.
Upon retrial, the trial court followed the holding in Walker I by
suppressing all statements made after Walker’s request for counsel.
However, Walker sought a broader order of suppression, arguing his
statements were not voluntary but rather were elicited through coercive
tactics. He also argued that because the detectives continued questioning
him after he asserted his right to counsel, all evidence discovered as a direct
result of the interrogation should have been excluded as “fruit of the
poisonous tree.”
Based upon the trial court’s ruling that the statement was voluntary,
the State, over defense counsel’s objection, introduced into evidence a
single statement from Walker’s police interrogation: his admission to being
the driver of the vehicle involved in the shooting.
3
Without explanation, Mr. Walker also cites the Fourth Amendment, but he
waived any Fourth Amendment claim in his reply brief filed in the district court. See
District Court Order, at *6 n.1
5
Walker, 153 P.3d at 1264–65 (citations omitted). On appeal to this court, Mr. Walker
focuses on the admission of physical evidence pertaining to the vehicle he was driving
during the shooting. He contends that evidence should have been suppressed because
there “was no independent source.” Rather, Mr. Walker says the vehicle was discovered
only on account of statements he made after requesting counsel, the point at which his
interrogation became unconstitutional.
The Kansas Supreme Court carefully considered Mr. Walker’s suppression
argument on direct appeal:
Walker further contends that the trial court erred in denying his
motion to suppress physical evidence discovered as the fruit of a Miranda
violation. Walker specifically argues that evidence pertaining to the vehicle
should have been suppressed because statements given by Walker in
violation of his right to counsel led law enforcement officers to locate the
evidence.
The State argues the evidence should not be suppressed under the
independent source test.
The exclusionary rule that prohibits the use of wrongfully obtained
confessions also prohibits the use of any evidence obtained as a result of
the wrongfully obtained statements under the fruit of the poisonous tree
doctrine. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40
S. Ct. 182, 64 L. Ed. 319 (1920) (“The essence of a provision forbidding
the acquisition of evidence in a certain way is that not merely evidence so
acquired shall not be used before the Court but that it shall not be used at
all.”) 251 U.S. at 392, 40 S. Ct. 182.
The evidence may be used, however, if police can trace the evidence
to an independent and lawful source. Wong Sun v. United States, 371 U.S.
471, 487–88, 83 S. Ct. 407, 9 L. Ed.2d 441 (1963). . . .
....
In this case, at the suppression hearing, the prosecutor acknowledged
that after Walker requested counsel, he described the car that was used in
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the crime and started telling officers about how he obtained the vehicle.
Also, in the inadmissible portion of the interrogation, Walker provided law
enforcement with the name “Scott” as the owner of the vehicle and the fact
that the vehicle was maroon in color. But, officers’ testimony revealed that
Walker gave the wrong make of the car and the wrong location. The trial
court ultimately found that the police used some information from the
admissible portion of the interrogation, in conjunction with independent
police investigation, to determine who owned the car, where it was located,
and how Walker got the car on the night of the drive-by shooting.
Substantial competent evidence supports the trial court’s conclusion
that the prosecution established, by a preponderance of the evidence, that
the unlawfully obtained evidence would have ultimately or inevitably been
discovered by lawful means. Detective Reynolds testified that, during the
admissible portion of the interview, Walker provided the police with the
name of “Shawntell” Thomas as an alibi witness. Walker also mentioned
that he and Thomas were in a car together on the night of the incident.
Later, officers talked to Thomas who described the car as maroon in color.
Officers’ testimony also revealed that Walker mentioned the names
of Shaun Bell and Reginald Hunt during the admissible portion of the
interview. Reynolds testified that, based on an address for a crack house
provided by Walker during the inadmissible portion of the interview, the
police went to Hunt's residence and talked to Hunt who admitted knowing
Walker. It was a narcotics search warrant executed at Hunt’s residence that
led police to Scott Shaffer and his vehicle—the one that was used in the
drive-by shooting. Regardless, Reynolds’ testimony also indicated that,
even if Walker had not given Hunt’s address and the name “Scott” during
the inadmissible portion of the interrogation, officers would have gone to
the house to interview Hunt because Walker and Lowe had been there on
the night of the drive-by shooting incident. Walker mentioned he had been
at Hunt’s house before he requested counsel.
The record shows that, while officers used evidence from both the
admissible and inadmissible portions of Walker’s interrogation to
investigate further into the details of the case, none of the statements made
by Walker in the inadmissible portion of the interrogation led officers
directly to the car used in the incident. The car was located only after law
enforcement followed other leads, conducted interviews of other witnesses,
and assimilated independent information.
The trial court correctly denied Walker’s motion to suppress the
vehicle evidence.
7
Id. at 1269–71.
On federal habeas review, the district court held that the above-quoted analysis “is
consistent with federal constitutional law” and “constitutes a reasonable determination of
the facts considering the evidence presented.” District Court Order, at *8. Against this
backdrop, Mr. Walker’s naked protestation that there “was no independent source” falls
far short of the “substantial showing of the denial of a constitutional right” that is
required for us to grant a COA. See 28 U.S.C. § 2253(c)(2).4
B. Fourth Amendment Violation
Mr. Walker next argues that he was arrested without probable cause, in violation
of his rights under the Fourth Amendment. As a result, Mr. Walker suggests that all
evidence obtained through exploitation of his illegal seizure should have been
suppressed. As the district court correctly noted, “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” District Court Order, at
*12 (quoting Stone v. Powell, 428 U.S. 465, 494 (1976)). The district court evaluated the
state-court proceedings in detail and determined that Mr. Walker was given an
opportunity for full and fair litigation of his Fourth Amendment claim in state court:
4
Mr. Walker also claims that Detective Reynolds testified at trial that “without the
name Scott that evidence would have been almost impossible to find.” But Mr. Walker
cites nothing in the record substantiating that claim, and our own review of the record
turned up no such testimony. We also note that Mr. Walker’s account seems to be
internally inconsistent, as he also asserts that Detective Reynolds “said Good police work
would have lead [sic] them to” the vehicle, anyway.
8
[T]he record shows that petitioner had a full and fair opportunity to litigate
this Fourth Amendment claim. Petitioner presented the issue to the trial
court in his Kan. Stat. Ann. § 60-1507 motion. Petitioner’s counsel fully
briefed the issue and argued the matter at a hearing before the district court
on October 5, 2012. At the conclusion of the hearing, the district court
found that probable cause existed to arrest petitioner, and it denied the
requested relief. Petitioner then had the opportunity to appeal the issue
directly to the Kansas Court of Appeals with the assistance of newly
appointed counsel. Petitioner’s counsel fully briefed the issue for the
appellate court’s consideration. The Kansas Court of Appeals sufficiently
considered the issue and denied petitioner’s claim for relief. See Walker,
2014 WL 3843084, at *6–8. In its opinion, the Kansas Court of Appeals
reasonably applied the correct and controlling constitutional standard. See
id. (citing Illinois v. Gates, 462 U.S. 213, 234–35 (1983); Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979); Dunaway v. New York, 442 U.S. 200,
208 n.9 (1979) (further citations omitted)). Under these facts, the State
provided petitioner a full and fair opportunity to litigate his Fourth
Amendment claim.
Id. The district court thus concluded that it could not grant federal habeas relief for any
Fourth Amendment violation based on Mr. Walker’s probable cause argument. Id. And it
further held that, even were his Fourth Amendment claim not barred by Stone, Mr.
Walker failed to show that the Kansas Court of Appeals’ decision was based on an
unreasonable application of Supreme Court precedent or involved an unreasonable
determination of the facts. Id. at *13.
On appeal, Mr. Walker offers no argument as to why the Kansas proceedings were
deficient, instead baldly claiming that the Kansas courts “did not hold a hearing” at all,
without providing any hint as to why the district court’s reading of the state court record
was in error. He further presents various arguments as to why the state courts’ merits
decisions were wrong under federal law. “But the ultimate accuracy of a state court’s
legal analysis is not relevant to the inquiry required by Stone unless ‘the state court
9
willfully refuse[d] to apply the correct and controlling standards.” Fuller v. Warden, Ark.
Valley Corr. Facility, 698 F. App’x 929, 941 (10th Cir. 2017) (alteration in original)
(quoting Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978)). That plainly was
not the case here, see supra, and we therefore conclude that reasonable jurists could not
debate the district court’s determination that Mr. Walker is not entitled to federal habeas
relief on his Fourth Amendment claim because the state courts provided him a full and
fair opportunity to litigate that claim.
C. Ineffective Assistance of Counsel
Finally, Mr. Walker argues that his lawyer was “ineffective for not filing a petition
for review” with the Kansas Supreme Court. To be sure, Mr. Walker’s counsel filed
multiple petitions for review with the Kansas Supreme Court, on both direct review, see
State v. Walker, 80 P.3d 1132 (Kan. 2003) (reversing and remanding for a new trial); see
also Walker, 153 P.3d 1257 (affirming Mr. Walker’s convictions and sentences on
retrial), and state habeas review, see District Court Order, at *4 (noting that the Kansas
Supreme Court granted Mr. Walker’s petition for review of the Kansas Court of Appeals’
2010 habeas decision, which it summarily reversed); id. (noting that Mr. Walker filed an
unsuccessful petition for review of the Kansas Court of Appeals’ 2014 habeas decision).
Mr. Walker’s contention is that his counsel was ineffective for not petitioning the Kansas
Supreme Court for review of the Kansas Court of Appeals’ 2012 habeas decision, see
Walker v. State, 270 P. 3d 1229, 2012 WL 686685, at *5–6 (Kan. Ct. App. Feb. 17, 2012)
(“Walker II”) (unpublished table opinion), which decision found that various issues were
procedurally barred but nonetheless remanded to the district court to determine whether
10
other issues not procedurally barred had merit. The district court held that Mr. Walker’s
failure to petition for review of Walker II’s holding that certain claims were procedurally
barred amounted to a failure to ever present those claims to the highest state court in
Kansas, which in turn means those claims are barred in federal court by the doctrines of
exhaustion and procedural default. See District Court Order, at *5. But Mr. Walker does
not argue the district court’s holding that these claims were barred is incorrect; instead,
he faults his attorney for ineffective assistance of counsel, an argument made for the first
time on reconsideration.
Even if we were to assume (which we do not) that Mr. Walker’s counsel was
ineffective in failing to petition for review of Walker II, this sort of ineffective-assistance
claim is not cognizable under federal habeas law. See 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a proceeding arising under
section 2254.”). It is thus not a matter that reasonable jurists could debate and we again
decline to issue a COA on this final ground for review.
III. CONCLUSION
The request for a COA is denied and this appeal is dismissed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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