Ray v. Simmons , 125 F. App'x 943 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
ORVAL NATHAN RAY,
Petitioner-Appellant,
No. 04-3290
v. (03-CV-3006-GTV)
(D. Kan.)
CHARLES SIMMONS, ATTORNEY
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.
Orval Nathan Ray, a state prisoner proceeding pro se, requests a certificate
of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas
corpus petition. For substantially the same reasons set forth by the district court
in its Order of July 19, 2004, we DENY Ray’s request for a COA and DISMISS.
Following a 1997 jury trial, Ray was convicted of conspiracy to commit
aggravated robbery, aggravated robbery, aggravated burglary, and kidnaping in
Kansas state courts. During state appellate proceedings, the Kansas Court of
Appeals (“KCA”) reduced the aggravated robbery and conspiracy to commit
aggravated robbery convictions to the lesser included offenses of robbery and
conspiracy to commit robbery, and affirmed the remainder of the convictions.
The Kansas Supreme Court denied further review on March 22, 2000. Ray then
sought post-conviction relief in state court pursuant to Kan. Stat. Ann. § 60-1507,
which was denied. The KCA affirmed the denial, and Ray’s counsel sought to
file a petition for review out of time with the Kansas Supreme Court, which it
denied.
In January 2003, Ray filed the instant petition in federal district court
pursuant to 28 U.S.C. § 2254, raising seven claims encompassing the following:
(1) insufficient evidence to support his kidnaping, robbery, and conspiracy to
commit robbery convictions; (2) prejudice resulting from the trial court’s failure
to sever his trial from that of his co-defendant; (3) ineffective assistance of
counsel because his counsel failed to contemporaneously object to the admission
of three pieces of evidence; (4) violation of his Fifth Amendment right against
self-incrimination; (5) violation of his Fourteenth Amendment due process rights
by admitting evidence establishing his prior felony conviction despite Ray’s
willingness to stipulate to the underlying conviction; (6) the state court’s
erroneous admission of evidence of his prior crimes; and (7) cumulative error.
Ray’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
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(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Ray to 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 v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
Under AEDPA, if a claim is adjudicated on the merits in state court, we
will grant habeas relief only if that adjudication resulted in a decision “that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Because
the district court denied Ray a COA, he may not appeal the district court’s
decision absent a grant of COA by this court. After careful review of Ray’s
application, the district court’s order denying relief, and the material portions of
the record on appeal, we conclude that Ray’s claims are without merit.
Accordingly, Ray has failed to make “a substantial showing of the denial of a
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constitutional right.” § 2253(c)(2).
In response to Ray’s allegations of insufficiency of the evidence, the
district court determined that the KCA decision on these claims was neither an
unreasonable determination of facts or an unreasonable application of the
standards for determining sufficiency of the evidence, and denied habeas relief on
that basis. We agree. Federal habeas relief does not lie for errors of state law
absent a determination that the state court’s finding was so arbitrary and
capricious as to constitute an independent due process violation. Fields v. Green,
277 F.3d 1203, 1220 (10th Cir. 2002) (citing Lewis v. Jeffers, 497 U.S. 764, 780
(1990)). We conclude that is not the case here.
The district court next ruled that the KCA reasonably concluded that the
evidence against Ray and his co-defendant were “similar,” and therefore properly
determined that Ray had not shown a constitutional deprivation on his severance
claim. We agree.
Finally, the district court determined that Ray’s claims based on ineffective
assistance of counsel, self-incrimination, due process, and the admission of prior
crimes were procedurally barred. When a petitioner seeks a COA to review the
district court's application of procedural bar, "a COA should issue only when . . .
jurists of reason would find it debatable whether the district court was correct in
its procedural ruling." Slack, 529 U.S. at 484.
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Federal courts may not review claims defaulted in state court in accordance
with an independent and adequate state procedural rule “unless the petitioner can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that the failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). “An independent state procedural ground is ‘adequate’ if it has
been strictly or regularly followed and applied evenhandedly to all similar
claims.” Rogers, 173 F.3d at 1290 (internal quotation marks and citation
omitted).
The district court determined that Ray’s ineffective assistance and self-
incrimination claims were procedurally defaulted because he untimely appealed
the denial of his § 60-1507 (post-conviction relief) motion to the Kansas Supreme
Court. It also determined that Ray’s due process claims and his objection to the
admission of prior crimes were procedurally barred because Ray had failed to
comply with Kansas’s contemporaneous objection rule, thereby waiving his right
to directly appeal these claims.
Ray contends that because Kansas created an exception to the
contemporaneous objection rule permitting courts, in exceptional circumstances,
to review alleged trial errors affecting constitutional rights, see Kan. Ct. R.
183(c)(3); see also Johnson v. State, 271 Kan. 534, 24 P.3d 92, 93 (Kan.2001);
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State v. Sperry, 978 P.2d 933, 948 (Kan. 1999), the rule is not “strictly or
regularly followed and applied evenhandedly to all similar claims.” Ray fails to
argue that specific exceptional circumstances excused the default of his
constitutional claims, and therefore fails to show that his case falls within the
ambit of this narrow exception. Ray does not establish that Kansas’s
contemporaneous objection rule is not strictly or regularly followed or that it is
not applied evenhandedly to claims similar to those he raises. Jurists of reason
would not debate whether the district court was correct in its procedural ruling
that the state courts resolved the issues upon independent and adequate state
procedural grounds.
Having determined that the procedural default was based on independent
and adequate state grounds, the district court next considered whether Ray:
1) showed cause for the default and actual prejudice as a result of the alleged
violation of federal law; or 2) demonstrated that failure to consider the claim will
result in a fundamental miscarriage of justice, usually evidenced by actual or
factual innocence. See Demarest v. Price, 130 F.3d 922, 941-42 (10th Cir. 1997).
To show cause, Ray attempts to rely on his attorney’s ineffectiveness at the state
post-conviction relief appeal, which can constitute cause only if it is an
independent constitutional violation. See Coleman, 501 U.S. at 755. Because
Ray had no constitutional right to counsel on appeal from the state post-
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conviction relief district court judgment, see Coleman, 501 U.S. at 757, we agree
with the district court’s conclusion that Ray failed to establish cause for the
procedural default. 1 We also agree that Ray’s conclusory claim of actual
innocence does not establish the required showing that applying the procedural
bar will result in a fundamental miscarriage of justice.
Finally, Ray claims cumulative errors rendered his trial fundamentally
unfair. The district court correctly noted that in a cumulative error analysis, a
court may consider only actual errors in determining whether the defendant’s right
to a fair trial was violated, and may not consider claims that are procedurally
defaulted. (Order at 18). Because we find no constitutional errors in this review,
no prejudicial cumulative error can exist. See Workman v. Mullin, 342 F.3d
1100, 1116 (10th Cir. 2003).
1
The Kansas Supreme Court has clarified that the right to counsel under Kan.
Stat. Ann. § 60-1507 is statutory, not constitutional, and that therefore “Kansas
law is clear that in collateral post-conviction proceedings, an inmate does not
have a constitutional right to counsel and without a constitutional right, there can
be no claim of ineffective assistance of counsel.” McCarty v. Kansas , 83 P.3d
249, 251, 252 (Kan. 2004); see also Robinson v. Kansas , 767 P.2d 851 (Kan.
1989) (holding no ineffective assistance of counsel by counsel’s failure to file a
timely appeal of the denial of a § 60-1507 motion because no constitutional right
to counsel).
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Ray’s application for a COA is DENIED and the appeal is DISMISSED.
Ray’s motion to proceed without prepayment of costs and fees is GRANTED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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