Jones v. McKune ( 2007 )

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
January 26, 2007
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
DAVID U. JONES ,
Petitioner - A ppellant ,
No. 06-3342
v. (D.C. No. 05-CV-3248-M LB )
( D. Kan.)
DAVID R. M CKUNE, W arden,
Lansing Correctional Facility;
A TTO RN EY G EN ER AL O F
KANSAS ,
Respondent - Appellees .
ORDER
D E N Y IN G C E R T IF IC A T E O F A PP E A L A B IL IT Y
Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges.
Petitioner-Appellant David Jones, a state inmate appearing pro se, seeks a
certificate of appealability (COA) allowing him to appeal from the district court’s
order denying relief on his habeas petition filed pursuant to 28 U.S.C. § 2254.
Because M r. Jones has failed to make a “substantial showing of the denial of a
constitutional right,” see id. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-
84 (2000), w e deny a COA and dismiss the appeal.
In 1999, M r. Jones w as convicted of rape following a bench trial in state
district court. The trial court found that M r. Jones was one of four men who
raped victim C.F. in a hotel room. C.F. testified that after a night of drinking and
drug use, she awoke to find M r. Jones in her hotel room. She testified that,
shortly thereafter, three other men entered the room. According to C.F., two of
the men held her down on either side while she was raped by M r. Jones and
another man. Although C.F. did not open her eyes during the actual rape, she
testified that she w as raped by two men and that the two men holding her down
remained the same; therefore she had to have been raped by M r. Jones. M r. Jones
was sentenced to 220 months imprisonment.
The only testimony presented by the state was that of C.F. Three witnesses
were presented by M r. Jones in an attempt to discredit C.F.’s testimony. The trial
court ultimately convicted M r. Jones based on its determination that C.F.’s
testimony was credible.
The Kansas Court of Appeals affirmed M r. Jones’s conviction on direct
review, see State v. Jones, No. 84,395 (Kan. Ct. App. June 22, 2001), and the
Kansas Supreme Court denied review . Thereafter, M r. Jones sought post-
conviction relief under Kan. Stat. Ann. § 60-1507. The state district court denied
relief, see I R. Doc. 2, Ex. C, the Kansas Court of Appeals affirmed, see I R. Doc.
2, Ex. H , and the K ansas Supreme Court denied review.
M r. Jones next filed a federal habeas petition claiming (1) insufficiency of
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the evidence, (2) prosecutorial misconduct based upon the use of perjured
testimony, and (3) ineffective assistance of counsel based on (a) counsel’s alleged
conflict of pecuniary interest, (b) failure to locate and investigate a witness
(Kareena Hickles), (c) failure to investigate the victim’s reputation for veracity,
(d) failure to seek recusal of the trial judge, and (e) alleged cocaine use.
The district court determined that issues (2) and (3)(b), were procedurally
barred because they had not been raised before the state courts, and M r. Jones had
not shown cause, prejudice, or a fundamental miscarriage of justice. It rejected
claim (1), concerning sufficiency of the evidence, after concluding that the
Kansas Court of Appeals’ decision on direct appeal was not an unreasonable
application of Jackson v. Virginia, 443 U.S. 307 (1979). See 28 U.S.C.
§ 2254(d)(1). It rejected claim (3)(a), concerning counsel’s alleged conflict of
pecuniary interest, because the Kansas Court of Appeals ultimately determined
that no fee dispute existed and M r. Jones had failed to overcome this factual
determination. See id. §§ 2254(d), 2254(e)(1). The court rejected claim (3)(c),
concerning the failure to investigate the victim’s veracity, because M r. Jones
failed to develop this theory in a state post-conviction hearing, see id.
§ 2254(e)(2), and because the Kansas Court of Appeals’ rejection of this claim
was not an unreasonable application of Strickland v. W ashington, 466 U.S. 668(1984). See 28 U.S.C. § 2254(d)(1). W ith respect to claim (3)(d), concerning
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failure to seek recusal of the trial judge, the district court noted that the state
court’s finding of no actual bias left little basis for recusal, and that the state
court’s determination of no deficient performance or prejudice under Strickland
was not an unreasonable application of federal law . See 28 U.S.C. §§ 2254(d)(1),
2254(e)(1). Finally, the district court concluded that claim (3)(e), concerning
counsel’s alleged cocaine use, was unsupported by the facts and that the state
court’s rejection of the claim based on lack of deficient performance or prejudice
under Strickland was not an unreasonable application of federal law. See id.§ 2254(d).
On appeal, M r. Jones seeks to raise only his sufficiency of the evidence
claim. He contends that the state failed to prove its case beyond a reasonable
doubt and that the court erred in applying the sufficiency of the evidence
standard. To make a substantial showing of the denial of a constitutional right,
M r. Jones must show 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, 529 U.S. at 484 (internal quotation omitted).
W e have not yet decided whether the review of a state court’s sufficiency
of the evidence determination is a legal question reviewable under 28 U.S.C. §
2254(d)(1) or a factual matter reviewable under 28 U.S.C. § 2254(d)(2). See
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Hamilton v. M ullin, 436 F.3d 1181, 1194 (10th Cir. 2006); but see Spears v.
M ullin, 343 F.3d 1215, 1238 (10th Cir. 2003) (reviewing sufficiency of the
evidence as a question of law). Regardless, our review is limited to determining
whether the Kansas Court of Appeals applied a standard that was contrary to that
for sufficiency of the evidence as set forth in Jackson or whether it unreasonably
applied the Jackson standard itself to the facts of this case. See Spears, 343 F.3d
at 1238. W e look at the state court’s result, even in the absence of extensive
reasoning or citation of federal authority. Early v. Packer, 537 U.S. 3, 8 (2002);
M aynard v. Boone, 468 F.3d 665, 677-78 (10th Cir. 2006). Under the
Jackson standard, habeas relief may only be granted if “no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.” Spears, 343 F.3d at
1238.
As the district court found, the Kansas Court of Appeals applied the
Jackson standard as identified and described in State v. M ason, 986 P.2d 387, 389
(K an. 1999). Thus, M r. Jones must show that the Kansas Court of Appeals
unreasonably applied the standard. A review of C.F.’s testimony shows that (1)
she found herself in a motel room with four men, (2) two of those men held her
down on a bed, (3) M r. Jones and another man stood at the foot of the bed, (4) she
was raped by two different men, and (5) that the two men holding her down never
let go. Accordingly, she reasoned that M r. Jones had to be one of the two men
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who raped her. This testimony established all the elements of rape under Kansas
law: that M r. Jones had intercourse with C.F., without her consent, and when she
was overcome by fear or force. See Kan. Stat. Ann. § 21-3502(a)(1)(A).
The witnesses offered by M r. Jones only attacked the credibility of C.F.
None were present at the time of the rape. The trial court made a credibility
determination that C.F. was telling the truth and that determination is owed great
deference. See Patton v. Yount, 467 U.S. 1025, 1038 (1984); M arshall v.
Lonberger, 459 U.S. 422, 434 (1983). The testimony of the victim in this case is
not inherently incredible or contradicted by objective evidence such that it could
not support a finding of each essential element beyond a reasonable doubt. Given
our standard of review, we do not think that the district court’s resolution of M r.
Jones’ sufficiency of the evidence claim is reasonably debatable.
W e DENY a COA, DENY IFP status, and DISM ISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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