Bradford v. McKune ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2005
TENTH CIRCUIT
Clerk of Court
VIRGIL BRADFORD,
Petitioner - Appellant, No. 05-3286
v. D. Kansas
DAVID MCKUNE, Warden, Lansing (D.C. No. 03-CV-3459-SAC)
Correctional Facility; ATTORNEY
GENERAL OF KANSAS,
Respondents - Appellees.
ORDER
Before HARTZ, Circuit Judge, SEYMOUR, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
Virgil Bradford was convicted by a jury in Kansas state court of capital
murder and other offenses, and the conviction was affirmed on appeal. See State
v. Bradford, 34 P.3d 434, 437 (Kan. 2001). On December 2, 2003, he filed a pro
se habeas application under 28 U.S.C. § 2254 in the United States District Court
for the District of Kansas. He alleged that the Double Jeopardy Clause was
violated by imposition of consecutive sentences for the multiple offenses, and that
the Ex Post Facto Clause was violated by his being sentenced under a statute
enacted after his offense. The district court dismissed the application on the
ground of procedural default, and denied a certificate of appealability (COA), see
28 U.S.C. § 2253(c)(1) (requiring COA). Mr. Bradford now seeks a COA from
this court on his double-jeopardy claim and on a claim that the judge’s fact
finding at his sentencing violated his rights under Apprendi v. New Jersey, 530
U.S. 466 (2000). We deny a COA.
I. BACKGROUND
Mr. Bradford was convicted of capital murder, aggravated robbery,
aggravated burglary, and two counts of theft. He was sentenced to life
imprisonment without parole (“hard 40") on the capital-murder conviction, 380
months’ imprisonment on the aggravated-robbery conviction, 68 months’
imprisonment on the aggravated-burglary conviction, and 14 months’
imprisonment on each felony theft conviction. The sentences were to run
consecutively.
Mr. Bradford appealed his convictions to the Kansas Supreme Court, which
affirmed the conviction and sentence on the capital-murder charge, but vacated
his other sentences as unconstitutional under State v. Gould, 23 P.3d 801 (2001),
and Apprendi. See Bradford, 34 P.3d at 447-48. The court remanded for
resentencing. On remand the terms of imprisonment on the noncapital sentences
were cut in half. Mr. Bradford then brought a second appeal in state court. In the
appeal he unsuccessfully renewed an Apprendi-based challenge to the hard-40
sentence that the Kansas Supreme Court had rejected in his first appeal. Also, in
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a pro se motion to make corrections in his brief, he raised two new arguments, a
double-jeopardy claim and an ex post facto claim. The Kansas Supreme Court
held that these arguments were barred because Mr. Bradford had not raised them
before the trial court or on his first appeal; it also held that his arguments were
“without merit.”
Mr. Bradford then filed his application under 28 U.S.C. § 2254 in the
district court, raising these same two claims. The district court dismissed the
application on the ground that the procedural bar applied by the state court to Mr.
Bradford’s claims constituted an independent and adequate state ground for the
disposition of his constitutional claims and that there was no basis to excuse Mr.
Bradford’s procedural default. The district court denied a COA, which Mr.
Bradford now seeks from us.
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (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.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted). In other words, the applicant must
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show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. If the application was denied on procedural grounds,
the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show
“that jurists of reason would find it debatable whether . . . the district court was
correct in its procedural ruling.” Id. “Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of a case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.” Id. Therefore, in order
for us to grant Mr. Bradford a COA we must conclude both that the district
court’s application of the procedural-default doctrine and the merit of Mr.
Bradford’s substantive constitutional claims are debatable among jurists.
We need not dwell long on Mr. Bradford’s Apprendi claim. Although he
raised his Apprendi challenge to the hard-40 sentence before the state court, he
did not raise it in the district court habeas proceeding. Therefore, we will not
consider this claim. Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).
As for the double-jeopardy claim, Mr. Bradford is procedurally barred.
“[A]n adequate and independent finding of procedural default will bar federal
habeas review of [a] federal claim, unless the habeas petitioner can show cause
for the default and prejudice attributable thereto, or demonstrate that failure to
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consider the federal claim will result in a fundamental miscarriage of justice.”
Harris v. Reed, 489 U.S. 255, 262 (internal quotation marks and citation omitted).
This rule applies if the “last state court rendering a judgment in the case rests its
judgment on the procedural default.” Id. The adequate-and-independent-state-
ground doctrine bars habeas review of Mr. Bradford’s double-jeopardy claim here
because the Kansas Supreme Court, in his second and final appeal in the state
courts, clearly rested its decision on this claim on his failure to have raised the
issue in the trial court or on his previous appeal. Mr. Bradford argues that the
procedural-bar doctrine was improperly applied to him for three reasons: (1) he
had previously raised the double-jeopardy claim in state court; (2) Kansas law
provides for “automatic review” of all cases in which a hard-40 sentence is
applied, regardless of whether the defendant follows procedural rules governing
the appeal; and (3) the state supreme court actually ruled on the merits of his
claims. We disagree.
First, Mr. Bradford has failed to show that he raised his double-jeopardy
claim before presenting it to the Kansas Supreme Court on his second appeal.
That court said that he had not previously raised the issue. This is a fact finding
that is presumed correct unless there is clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1). The district court found no support for Mr.
Bradford’s contention. Nor does Mr. Bradford offer us supporting evidence. He
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does claim that he raised double jeopardy on his first appeal. But that claim
related to whether he could be subject to the death penalty at retrial if his appeal
was successful; he did not challenge the imposition of consecutive sentences on
multiple convictions, his current double-jeopardy claim.
Second, Mr. Bradford is incorrect in arguing that Kansas law required the
state court to review his claims even though they would normally be procedurally
defaulted. He relies on State v. Alford, 896 P.2d 1059, 1065 (Kan. 1995), which
interpreted Kan. Stat. Ann. § 21-4627 (1992 Supp.), a Kansas statute providing
for “automatic review” of hard-40 sentences. Alford held that “the only possible
interpretation of the phrase ‘automatic review’ is that review must be given even
though the criminal defendant fails to properly follow the normal procedural rules
for perfecting the appeal.” 896 P.2d at 1065. The flaw in Mr. Bradford’s
argument is that Kan. Stat. Ann. § 21-4627 (2004), which formerly provided for
automatic review of sentences resulting in a “mandatory term of imprisonment”
(such as hard-40 sentences), Kan. Stat. Ann. § 21-4647 (1992 Supp.), was
amended in 1994 to apply only to convictions “resulting in a sentence of death.”
Kan. Stat. Ann. § 21-4627 (2004). Furthermore, the Kansas legislature expressly
provided that Kan. Stat. Ann. § 21-4627, as it existed prior to July 1, 1994, “shall
be applicable only to persons convicted of crimes committed on or after July 1,
1990, and before July 1, 1994.” Kan. Stat. Ann. §21-4631(b) (2004). Mr.
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Bradford committed his crimes on February 17, 1997. Thus, Kansas’s normal
procedural rules applied to Mr. Bradford’s appeal.
Finally, Mr. Bradford is incorrect in arguing that the state court’s
alternative merits holding defeats the procedural bar. As the Supreme Court
stated in Harris, 489 U.S. at 264 n.10: “[A] state court need not fear reaching the
merits of a federal claim in an alternative holding. By its very definition, the
adequate and independent state ground doctrine requires the federal court to
honor a state holding that is a sufficient basis for the state court’s judgment, even
when the state court also relies on federal law.” Nor has Mr. Bradford attempted
to show cause and prejudice or that a fundamental miscarriage of justice will
result from applying procedural bar here.
Because no reasonable jurist could determine that the district court’s
application of the procedural-default doctrine was debatable, we DENY a COA
and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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