Perry v. McKune , 150 F. App'x 899 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 17, 2005
TENTH CIRCUIT
Clerk of Court
MICHAEL JAMES PERRY,
Petitioner-Appellant, No. 05-3170
v. (D.C. No. 04-CIV-3329-SAC)
DAVID R. McKUNE, Warden, (D. Kan.)
Lansing Correctional Facility; PHILL
KLINE, Attorney General of Kansas,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining Petitioner’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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Petitioner Michael James Perry pleaded guilty to two counts of rape and
was sentenced in Kansas state court to 147 months’ imprisonment for each count,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to be served consecutively. Mr. Perry’s conviction was upheld on direct appeal to
the Kansas Court of Appeals. He then sought the discretionary review of the
Kansas Supreme Court, but, because he failed to take a timely appeal, the Kansas
Supreme Court refused to hear his appeal. Mr. Perry now relies on 28 U.S.C. §
2254 to challenge his conviction. He argues that he is entitled to relief from his
state court conviction because (1) of prosecutorial misconduct, (2) his plea
agreement was coerced, and (3) he received ineffective assistance of counsel.
The district court dismissed Mr. Perry’s claim for failure to exhaust available
state court remedies and denied Mr. Perry’s request for a Certificate of
Appealability.
Mr. Perry now seeks from this court a Certificate of Appealability. To
grant a Certificate of Appealability, Mr. Perry must make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994). To meet
this burden, he must demonstrate “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)
(quotation omitted). The relevant question regarding Mr. Perry’s petition is
whether he exhausted his state court remedies.
To qualify for relief under § 2254, Mr. Perry must first exhaust his state
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court remedies. 28 U.S.C. § 2254(b) (2004). We have held that “[t]he exhaustion
requirement is satisfied if the federal issue has been properly presented to the
highest state court, either by direct review of the conviction or in a postconviction
attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)
(citing Charles A. Wright et al., Federal Practice and Procedure § 4264.1 at 341
(1988)). Mr. Perry’s argument that he has exhausted his state court remedies fails
for the reason that, when review by the highest state court is denied for
procedural reasons, the exhaustion requirement is not satisfied. See Steele v.
Young, 11 F.3d 1518, 1521 (10th Cir. 1993).
To avoid losing his § 2254 claims after a procedural default at the state
level, Mr. Perry must either show cause for the procedural default or show that
the failure to hear his claim will lead to a miscarriage of justice. The Supreme
Court has explained:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show cause and excuse the
procedural default, a petitioner must establish that “some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural
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rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Absent cause for the
procedural default, a petitioner must make a “colorable showing of factual
innocence” to demonstrate a fundamental miscarriage of justice and avoid §
2254’s exhaustion requirement. Demarest v. Price, 130 F.3d 922, 941 (10th Cir.
1997) (citing Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995)).
Mr. Perry has failed to exhaust his state law remedies, has not shown cause
for his procedural default, and has not demonstrated that dismissal of his claim
will result in a fundamental miscarriage of justice. We have carefully reviewed
Mr. Perry’s brief, the district court’s orders dated October 5, 2004, and March 30,
2005, and the record on appeal. Nothing in the facts, the record on appeal, or
Mr. Perry’s filings raises an issue that requires granting a Certificate of
Appealability. For substantially the same reasons set forth by the district court in
its orders, we cannot say “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner.” Slack, 529 U.S. at 484.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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