Brown v. Roberts ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DAVID R. BROWN,
Petitioner-Appellant, No. 05-3314
v. District of Kansas
RAY ROBERTS; ATTORNEY (D.C. No. 05-CV-3160-SAC)
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.
David R. Brown, a state prisoner proceeding pro se, seeks a certificate
of appealability (COA) that would allow him to appeal from the district court’s
order which denied his habeas corpus petition under 28 U.S.C. § 2254. See 28
U.S.C. § 2253(c)(1)(B).
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
I. Factual and Procedural Background
Mr. Brown was convicted of aggravated armed robbery in 1981 (“the 1981
conviction”) and sentenced as a habitual offender to ten to forty years in prison.
Brown v. Nelson, 33 Fed. App’x 976, 976–77 (10th Cir. Apr. 26, 2002). In 1992
he won postconviction relief and received a reduced sentence, from which he
received an immediate conditional release. Id. at 977. Soon after, in 1996, he
violated the conditions of his release by committing attempted aggravated robbery
and five counts of kidnapping (“the 1996 conviction”), and he was sentenced as a
parole violator. Id.In previous postconviction litigation, Mr. Brown challenged his 1981
conviction, arguing that pursuant to Kansas administrative regulations he was
entitled to an unconditional release in 1992. Id. If successful, that petition would
have invalidated the parole-violator term imposed as part of the sentence for the
1996 conviction. Id. Mr. Brown first pressed this argument before the Kansas
courts, but the Kansas Court of Appeals found no merit to the claim in 1998, and
the Kansas Supreme Court denied a subsequent petition for review as untimely.
Id. He then advanced the same argument in a petition for a writ of habeas corpus
in federal court. The district court dismissed the petition as procedurally
defaulted, and in 2002 both the district court and this Court denied requests for a
COA. Id. at 977–78.
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Mr. Brown filed a new petition for a writ of habeas corpus in March 2005,
challenging both the 1981 and 1996 convictions on due process and equal
protection grounds. His principal claim was that court-appointed attorneys were
ineffective because they failed to pursue appeals in a timely manner. The district
court dismissed the petition as time barred with respect to both convictions. As to
the 1981 conviction, the district court held that “Petitioner’s bare claim that
appointed counsel failed to file a petition for review in [a] state habeas appeal for
over thirteen years is clearly time barred.” Order of Apr. 13, 2005, at 2. As to
the 1996 conviction, the district court noted that Mr. Brown had failed to file for
habeas relief within the one-year limitation period of 28 U.S.C. § 2244(d)(1), and
that no extraordinary circumstances justified equitable tolling of the limitations
period.
II. Discussion
A. 1981 Conviction
This petition under 28 U.S.C. § 2254 is a “second or successive habeas
corpus application” insofar as it challenges the 1981 conviction. See 28 U.S.C. §
2244(b)(2). Before filing this claim in his petition before the district court, Mr.
Brown was required to “move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” Id. § 2244(b)(3)(A).
Had he done so, a three-judge panel of this Court would have determined within
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30 days whether the application “makes a prima facie showing that the application
satisfies the requirements of [subsection 2244(b)].” Id. § 2244(b)(3)(B)–(D). In
a second or successive petition, claims already presented in a prior application are
dismissed automatically, and claims not presented in a prior application must be
dismissed unless they rely on a “new rule of constitutional law” or on new facts
that could not have been discovered previously through the exercise of due
diligence. Id. §2244(b)(1)–(2).
In this case, Mr. Brown neither sought nor obtained authorization from this
Court to file a second or successive petition concerning the 1981 conviction.
Accordingly, the district court lacked subject-matter jurisdiction over claims
related to the 1981 conviction. See United States v. Gallegos, 142 F.3d 1211,
1212 (10th Cir. 1998) (per curiam). As we explained in Coleman v. United
States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam), “when a second or
successive petition for habeas corpus relief under § 2254 or a § 2255 motion is
filed in the district court without the required authorization by this court, the
district court should transfer the petition or motion to this court in the interest of
justice pursuant to [28 U.S.C.] § 1631.” Although we must vacate the district
court’s April 13, 2005 order dismissing the petition with respect to the 1981
conviction, see United States v. Avila-Avila, 132 F.3d 1347, 1348–49 (10th Cir.
1997) (per curiam), we will construe Mr. Brown’s request for a COA as an
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application for leave to file a successive petition for habeas corpus relief under §
2254, see Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (per curiam).
Based on our review of Mr. Brown’s application, we hold that he has failed
to make a prima facie showing that the successive petition satisfies the
requirements of § 2244(b). Mr. Brown invokes no new rule of constitutional law
made retroactive to cases on collateral review by the Supreme Court, and he does
not rely on a factual predicate that was previously undiscoverable through due
diligence. His arguments instead emphasize readily available facts about the
sequence of events in the procedural history of his earlier habeas petition and
request for postconviction relief in state court. Accordingly, we deny his
application for leave to file a successive petition for habeas corpus relief in the
district court.
B. 1996 Conviction
This petition represents Mr. Brown’s first application for habeas relief with
respect to the 1996 conviction, and the district court properly exercised
jurisdiction over those claims. The denial of a petition for habeas corpus relief
under § 2254 may be appealed only if the district court or this Court first issues a
COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id. §
2253(c)(2). When the district court denies the application on procedural grounds,
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a petitioner must demonstrate that jurists of reason would find two issues
debatable: (1) whether the district court was correct in its procedural ruling; and
(2) whether the petition states a valid claim of the denial of a constitutional right.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
1. The District Court’s Procedural Ruling
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
sets a one-year limitations period for filing petitions for habeas corpus relief. See
28 U.S.C. § 2244(d)(1). That period runs from the latest of several dates,
including “the date on which the judgment became final by the conclusion of
direct review or the expiration of time for seeking such review.” Id. §
2244(d)(1)(A). Mr. Brown contends that his direct appeal is still pending before
the state courts, and that the one-year period has not yet started to run. 1
According to Mr. Brown, his direct appeal in state court “filed on 7-1-97, is
still legally pending under Kansas law.” Petitioner’s Op. Br. 3a-2. At first
glance, that claim seems preposterous. Mr. Brown indeed filed a notice of appeal
1
More precisely, Mr. Brown argues that he is eligible for statutory tolling of
the one-year period based on 28 U.S.C. § 2244(d)(2), which tolls the limitation
period during the pendency of an application for state post-conviction relief. He
contends that his direct appeal remains valid and unresolved before the state
courts, and thus that his application for relief is still pending. Section 2244(d)(2)
applies only to applications for “State post-conviction or other collateral review,”
however, not to a direct appeal in state court. Because Mr. Brown is proceeding
pro se, we liberally construe his argument as a claim that his conviction never
became final in state court for purposes of § 2244(d)(1)(A).
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with the Kansas district court on July 1, 1997, but neither Mr. Brown nor his
counsel took any action to pursue the appeal in the Kansas courts for the next
seven years. Specifically, so far as the record discloses, Mr. Brown has not filed
a docketing statement with the appellate courts, as required by Kansas Supreme
Court rules. See Kan. Sup. Ct. R. 2.041(a) (requiring the appellant to file a
docketing statement within 21 days after filing a notice of appeal). An August
2005 letter from the office of the clerk of the Appellate Courts of Kansas
confirms that “[n]o appeal has been docketed” concerning the 1996 conviction.
Id. Ex. 6. Under the procedural rules that governed Mr. Brown’s appeal in 1997,
failure to file a timely docketing statement “shall be deemed to be an
abandonment of the appeal and the district court shall enter an order dismissing
the appeal.” Kan. Sup. Ct. R. 5.051 (1997 ed.) (amended Sept. 6, 2005).
On closer inspection, however, Mr. Brown’s direct appeal may remain
alive, having fallen into a kind of appellate limbo in the Kansas court system.
Under Kansas law, the “[f]ailure of the appellant to take any of the further steps
to secure the review of the judgment appealed from does not affect the validity of
the appeal.” Kan. Stat. Ann. § 60-2103(a). For reasons that are not clear, the
district court never entered an order dismissing Mr. Brown’s appeal despite the
mandatory language of Rule 5.051. See Petitioner’s Op. Br. 3a-2, Ex. 5 (state
district court docket containing an entry for the notice of appeal on July 1, 1997,
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but no subsequent entry dismissing the appeal). Deepening the mystery over the
status of Mr. Brown’s appeal, the Kansas Supreme Court revised Rule 5.051 in
2005 such that the failure to file a timely docketing statement “shall be presumed
to be an abandonment of the appeal and the district court may enter an order
dismissing the appeal.” Kan. Sup. Ct. R. 5.051 (2005 ed.) (emphasis added). It is
not clear, as a matter of Kansas procedural law, whether Mr. Brown’s direct
appeal is now governed by the old “deemed” abandoned language and mandatory
dismissal, or the new “presumed” abandoned language and optional dismissal.
Moreover, Kansas law may yet permit Mr. Brown to docket the appeal. For
example, he may be able to request permission to docket the appeal out of time,
which immediately deprives the state district court of jurisdiction to dismiss the
appeal under Rule 5.051 until the appellate courts can consider the request. See
Sanders v. City of Kansas City, 858 P.2d 833, 835 (Kan. Ct. App. 1993).
Alternatively, before any district court order dismissing the appeal “shall be
final,” Mr. Brown is entitled to a period of 30 days in which to request
reinstatement of the appeal “for good cause shown.” Kan. Sup. Ct. R. 5.051.
Because no such order ever issued, and Mr. Brown’s appeal remains “valid” by
statute, direct review in the Kansas courts may not have reached its “conclusion”
for purposes of § 2244(d)(1)(A), notwithstanding the fact that neither the parties
nor the courts have acted on it for seven years.
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Of course, none of this confusion over the status of Mr. Brown’s direct
appeal means that his petition should be granted. To the contrary, a live direct
appeal in state court dooms the petition because of the separate requirement that
an application “shall not be granted 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). Thus the district court was unquestionably correct to dismiss the
petition: either the conviction became final in 1997 and Mr. Brown failed to file
within the one-year limitations period, or some combination of direct and
collateral review remains available to Mr. Brown in state court and he has failed
to exhaust those remedies.
The reason given by the district court for dismissing the petition may have
significant consequences. Dismissal of a petition as time barred operates as a
dismissal with prejudice, meaning that future applications will be treated as
“second or successive” petitions subject to the heightened requirements of §
2244(b). Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003). When the
petitioner fails to exhaust state court remedies, however, we generally dismiss the
petition without prejudice, giving the petitioner an opportunity to pursue those
remedies in state court. Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997).
Following a dismissal without prejudice and proper exhaustion in state court, a
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petitioner may re-file a habeas application in federal court without satisfying the
requirements for “second or successive” petitions. Slack, 529 U.S. at 485–86.
Given the uncertainty surrounding the status of Mr. Brown’s direct appeal
in state court and the potentially significant consequences for Mr. Brown of a
dismissal with prejudice, reasonable jurists could debate whether the district court
was correct in its procedural ruling dismissing the petition as time barred.
2. Mr. Brown’s Claim of the Denial of a Constitutional Right
Even if the district court erred in its procedural ruling, this Court may not
grant a COA unless Mr. Brown makes “a substantial showing of the denial of a
constitutional right,” which “includes showing that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.”
Id. at 483–84 (internal quotation marks omitted).
Mr. Brown’s chief argument is that his court-appointed counsel was
deficient for failing to perfect any direct appeal in state court. This Court has
held that “[w]here . . . appellate counsel negligently fails to perfect an appeal,
counsel’s failure necessarily constitutes ineffective assistance.” Johnson v.
Champion, 288 F.3d 1215, 1229–30 (citing Evitts v. Lucey, 469 U.S. 387, 397
(1985)). In this case, Mr. Brown’s counsel inexcusably neglected to pursue the
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direct appeal at all. In a January 2005 letter to a state prosecutor, the attorney
explained that shortly after he was ordered to handle the state-court appeal in July
1997, “[t]he file somehow wound up being stored in a closed files box.”
Petitioner’s Op. Br., Ex. A. As a result, the attorney filed a notice of appeal in
the Kansas courts, but promptly forgot about the case and took no action for more
than seven years. The letter expresses embarrassment about the error: “it would
appear that we dropped the ball big time!” Id. We can hardly defer to counsel’s
professional judgment about the issues deserving appellate review under the
circumstances.
In his brief, Mr. Brown sets forth each of his potential claims on direct
appeal in a single, concise sentence. His only challenge to the conviction is that
his trial counsel “did not get records of denial of federal prosecutor to prosecute
case, due to no evidence’s [sic] of crime.” Petitioner’s Op. Br. 2-2. He
challenges two aspects of his counsel’s performance at sentencing: first, that
counsel failed to request a downward departure; and second, that Mr. Brown “had
to object to criminal history [him]self.” Id. at 2-2 to 2-3. Finally, he complains
that his two co-defendants, Orlando Mitchell and David E. Carter, faced the same
charges but received probation, while he was sentenced to a prison term of 261
months. Id. Although the record discloses few details about these claims, and we
intimate no view on the merits, there is no dispute that Mr. Brown’s counsel
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failed to raise any of them—or indeed any other potential issues—on direct
appeal. We therefore hold that reasonable jurists could debate whether the
petition raises a valid constitutional claim of ineffective assistance of appellate
counsel.
3. Disposition on the Merits
Because we have concluded that reasonable jurists could question whether
the district court was correct in its procedural ruling to dismiss the petition with
prejudice, and reasonable jurists could question whether the petition states a valid
claim of the denial of a constitutional right, Slack, 529 U.S. at 484, we grant a
COA.
At this stage, however, there is no point in further appellate proceedings.
Given the uncertain status of Kansas procedural law, we believe the best course is
to vacate the decision below and remand to the district court with instructions to
dismiss Mr. Brown’s petition without prejudice, for failure to exhaust his state-
court remedies. See 28 U.S.C. § 2254(b)(1)(A) (providing that a habeas petition
shall not be granted unless it “appears” that the petitioner has exhausted his state
court remedies). This will enable Mr. Brown to pursue his 1997 state court
appeal and give the state courts an opportunity to determine the status of his
direct appeal in the first instance.
III. Conclusion
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We VACATE the order of the district court insofar as it dismissed claims
related to the 1981 conviction, and DENY Mr. Brown’s implied request for
authorization to file those claims with the district court. We GRANT Mr. Brown
a COA and VACATE the judgment of the district court as to claims related to the
1996 conviction. We REMAND claims related to the 1996 conviction with
instructions to dismiss the petition without prejudice for failure to exhaust
available remedies in state court. We DENY Mr. Brown’s motion for production
of documents as moot.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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