Conley v. McKune , 150 F. App'x 762 ( 2005 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    September 29, 2005
    TENTH CIRCUIT
    Clerk of Court
    ANTHONY DEAN CONLEY,
    Petitioner-Appellant,
    No. 05-3068
    v.
    (D.C. No. 04-CV-3144-KHV)
    (Kansas)
    DAVID MCKUNE; PHILL KLINE,
    Attorney General of Kansas,
    Respondents-Appellees.
    ORDER *
    Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
    Anthony D. Conley applies pro se 1 for a certificate of appealability (COA)
    of the district court’s denial of his petition for writ of habeas corpus under 
    28 U.S.C. § 2254
    . Exercising jurisdiction under 
    28 U.S.C. § 2253
    (c)(1), we deny a
    COA and dismiss the appeal.
    On August 7, 1998, a jury found Mr. Conley guilty of first degree murder in
    After examining appellant’s brief and the appellate record, this panel has
    *
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G). The case is therefore submitted without oral argument.
    1
    We liberally construe Mr. Conley’s pro se application. See Hall v. Scott,
    
    292 F.3d 1264
    , 1266 (10th Cir. 2002).
    violation of K.S.A. § 21-3401(a). He was sentenced to life in prison with no
    possibility of parole for forty years. The Kansas Supreme Court affirmed and the
    United States Supreme Court denied his petition for a writ of certiorari. Mr.
    Conley then filed a motion for state post-conviction relief, which was
    subsequently denied by the trial court and the Kansas Court of Appeals. He did
    not seek review of that decision in the Kansas Supreme Court. Instead, Mr.
    Conley petitioned the federal district court for a writ of habeas corpus, which it
    denied initially and after Mr. Conley’s motion to reconsider. 2 In support of his
    application for a COA, Mr. Conley asserts the criminal complaint against him was
    jurisdictionally defective because it lacked a penalty provision. As a result, he
    argues, the maximum authorized sentence was zero and the sentence he received
    violated Apprendi v. New Jersey, 
    530 U.S. 466
     (2000). 3
    Issuance of a COA is jurisdictional, Miller-El v. Cockrell, 
    537 U.S. 322
    (2003), and can issue only “if the applicant has made a substantial showing of the
    denial of a constitutional right,” 
    28 U.S.C. § 2253
    (c)(2). “A petitioner satisfies
    2
    The district court did not act on the issue of a certificate of appealability,
    and it is therefore deemed denied. See United States v. Kennedy, 
    225 F.3d 1187
    ,
    1193 n.3 (10th Cir. 2000).
    3
    In his petition to the district court, Mr. Conley also claimed the affidavit
    which supported the arrest warrant contained false elements, counsel was
    ineffective, and the trial court denied his right to confront witnesses. He has not
    raised these issues in his COA application, and we consider them abandoned. See
    Tran. v. Trs. of State Colls. in Colo., 
    355 F.3d 1263
    , 1266 (10th Cir. 2004).
    -2-
    this standard by demonstrating that jurists of reason could disagree with the
    district court’s resolution of his constitutional claims or that jurists could
    conclude the issues presented are adequate to deserve encouragement to proceed
    further.” Miller-El, 
    537 U.S. at 327
    . When a district court has dismissed a
    habeas petition on procedural grounds, a prisoner must also show that “jurists of
    reason would find it debatable whether the district court was correct in its
    procedural ruling.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). “The COA
    determination under § 2253(c) requires an overview of the claims in the habeas
    petition and a general assessment of their merits.” Miller-El, 
    537 U.S. at 336
    .
    “This threshold inquiry does not require full consideration of the factual or legal
    bases adduced in support of the claims. In fact, the statute forbids it.” 
    Id.
     While
    Mr. Conley is not required to prove the merits of his case, he must demonstrate
    “something more than the absence of frivolity or the existence of mere good
    faith” on his part. 
    Id. at 338
     (internal quotations and citation omitted).
    The district court dismissed Mr. Conley’s claim regarding an alleged
    defective complaint because it determined the claim was procedurally defaulted.
    A state prisoner may not petition for federal habeas corpus relief “unless it
    appears that . . . the applicant has exhausted the remedies available in the courts
    of the State.” 
    28 U.S.C. § 2254
    (b)(1)(A). Exhaustion of the federal issue is
    satisfied if it has been properly presented to the highest state court, either by
    -3-
    direct review of the conviction or in a post-conviction attack. Dever v. Kan. State
    Penitentiary, 
    36 F.3d 1531
    , 1534 (10th Cir. 1994).
    Mr. Conley contends the issue was properly exhausted because on direct
    appeal he argued the Kansas sentencing scheme violated Apprendi, and that
    argument was presented to the Kansas Supreme Court. But in his direct appeal,
    he contended Apprendi was violated because he was denied a jury determination
    of the facts necessary to sentence him to forty years without parole. In his federal
    habeas petition, however, Mr. Conley claims that the criminal complaint against
    him contained jurisdictional defects resulting in a violation of Apprendi. He thus
    essentially made two distinct Apprendi arguments. He raised the jurisdictional
    defect issue in his post-conviction proceedings, but then failed to properly present
    that claim to the highest court of Kansas. Because the time for appeal has passed,
    the district court concluded the claim was procedurally defaulted. We agree that
    Mr. Conley failed to properly exhaust the issue of the defective complaint and it
    is now procedurally barred.
    The procedural default doctrine precludes federal habeas review of Mr.
    Conley’s unexhausted claim unless he shows (1) both cause and prejudice or (2) a
    fundamental miscarriage of justice. Coleman v. Thompson, 
    501 U.S. 722
    , 749
    (1991). Mr. Conley contends his state appointed post-conviction counsel failed to
    advise him of the statute of limitations for his post-conviction appeal to the
    -4-
    Kansas Supreme Court, which resulted in his missing the deadline and not
    presenting all his issues to the highest court in the state. Accordingly, he
    contends his attorney’s incompetence is the cause of the procedural default
    resulting in prejudice. But there is no constitutional right to counsel in collateral
    proceedings, Pennsylvania v. Finley, 
    481 U.S. 551
    , 555 (1987), and therefore a
    failure of post-conviction counsel resulting in procedural default “cannot
    constitute cause to excuse default in federal habeas.” Coleman, 
    501 U.S. at 757
    .
    Mr. Conley does not assert a fundamental miscarriage of justice and would not
    succeed had he done so. See McClesky v. Zant, 
    499 U.S. 467
    , 494 (1991) (cases
    involving a fundamental miscarriage of justice “are extraordinary instances when
    a constitutional violation probably has caused the conviction of one innocent of
    the crime”). Consequently, we agree with the district court that he has
    procedurally defaulted his defective complaint claim for purposes of federal
    habeas review.
    We have carefully reviewed the record of these proceedings and the order
    of the district court. We adopt the district court’s reasoning and conclude that
    reasonable jurists would not debate its procedural ruling. We DENY the request
    for a certificate of appealability, and DISMISS the appeal.
    SUBMITTED FOR THE COURT
    Stephanie K. Seymour
    Circuit Judge
    -5-