Scott v. McKune , 180 F. App'x 36 ( 2006 )

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
May 26, 2006
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
JEFFREY LYN N SCO TT,
Petitioner-A ppellant,
No. 05-3424
v.
(District of K ansas)
(D.C. No. 04-CV-3360-KHV)
DA VID R . M cKU NE; ATTO RN EY
GEN ERAL O F KANSAS,
Respondents-Appellees.
ORDER
Before M U R PH Y , SE Y M O U R and M cC O N N E L L , Circuit Judges.
Proceeding pro se, Jeffrey L. Scott seeks a certificate of appealability
(“COA”) from this court so he can appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Because Scott has not “made a substantial
showing of the denial of a constitutional right,” this court denies his request for a
COA and dism isses this appeal. Id. § 2253(c)(2).
A Kansas jury convicted Scott of one count of first degree murder, in
violation of Kan. Stat. Ann. § 21-3401(a). Scott appealed his conviction, raising
the following five arguments: (1) the evidence was insufficient to show
premeditation, (2) the premeditation instruction was improper, (3) the trial court
erroneously responded to a jury question outside his presence, (4) the prosecutor’s
statements during closing argument were improper, and (5) the self-defense
instruction was improper. In addition to the five issues raised in his counseled
brief, Scott filed a pro se supplemental brief raising issues related to the
introduction of a pretrial statement he made to police. The Supreme Court of
Kansas considered all the arguments but affirmed Scott’s conviction. State v.
Scott, 21 P.3d 516 (K an. 2001).
Scott then filed a motion for post-conviction relief pursuant to Kan. Stat.
Ann. § 60-1507. In this motion, Scott raised several claims that his trial attorney
was constitutionally ineffective. Scott also asserted the trial court erred by failing
to hold a hearing on the voluntariness of his pretrial statement. See Jackson v.
Denno, 378 U.S. 368 (1964). Counsel was appointed by the K ansas district court
to represent Scott in the post-conviction proceeding. After a bench trial, the post-
conviction motion was denied. The Kansas Court of Appeals affirmed the denial.
Scott v. State, 88 P.3d 807 (K an. App. 2004) (unpublished disposition).
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Scott filed the instant § 2254 habeas petition on August 7, 2002. In his
petition, Scott raised all the issues he presented in his direct appeal and in his
state motion for post-conviction relief and also included a cumulative error claim.
Scott also asserted the K ansas district court improperly denied him an evidentiary
hearing on his ineffective assistance claims and he raised several additional
claims based on alleged errors of state law. The district court addressed each of
Scott’s claims in turn. The court concluded that, to the extent Scott’s claims
involved only allegations of state law error, the claims were not cognizable in a
federal habeas corpus proceeding. See Estelle v. M cGuire, 502 U.S. 62, 67-68
(1991). However, to the extent those claims also implicated Scott’s constitutional
rights, the court analyzed their merits and concluded Scott was not entitled to
relief because he failed to demonstrate his trial was rendered fundamentally
unfair. See D onnelly v. DeChristoforo, 416 U.S. 637, 642-48 (1974); Duckett v.
M ullin, 306 F.3d 982, 999 (10th Cir. 2002). The district court also reviewed the
constitutional claims that were previously adjudicated by the Kansas state courts.
Applying the standard set forth in the Antiterrorism and Effective Death Penalty
Act, the district court concluded that the state courts’ adjudication of those claims
was not contrary to, nor an unreasonable application of clearly established federal
law. 28 U.S.C. § 2254(d). The court addressed two of Scott’s ineffective
assistance claims on the merits, but concluded he was not entitled to habeas relief
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on those claims because he had not established prejudice under the second prong
of the test set out in Strickland v. Washington. 466 U .S. 668, 687 (1984). It also
addressed the merits of Scott’s claim that the trial court erroneously failed to hold
a Denno hearing to determine whether his statement to police was voluntary but
denied relief on that claim. Finally, the district court concluded Scott
procedurally defaulted several of his claims because he did not raise them in state
court. See Coleman v. Thom pson, 501 U.S. 722, 735 n.1 (1991). The court did
not review of the merits of the defaulted claims because it concluded Scott failed
to show cause for the default and actual prejudice or that the failure to review his
claims would result in a fundamental miscarriage of justice. See id. at 750.
To be entitled to a COA, Scott must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate “that reasonable jurists could debate w hether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted). In evaluating whether Scott has satisfied his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Id. at 338. Although Scott need not
demonstrate his appeal will succeed to be entitled to a COA, he must “prove
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something more than the absence of frivolity or the existence of mere good faith.”
Id. (quotations omitted).
This court has reviewed Scott’s application for a COA and appellate brief, 1
the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in M iller-El and concludes that Scott is
not entitled to a COA. The district court’s resolution of Scott’s claims is not
reasonably subject to debate and the claims are not adequate to deserve further
proceedings. Accordingly, Scott has not “made a substantial showing of the
denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §
2253(c)(2).
This court denies Scott’s request for a COA and dism isses this appeal.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
1
Scott’s M otion for Leave to File Extended Brief is granted.
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