Barker v. Schnurr ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2020
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Christopher M. Wolpert
Clerk of Court
BILLY JOE BARKER, JR.,
Petitioner - Appellant, No. 19-3266
(D.C. No. 5:19-CV-03213-SAC)
v. (D. Kan.)
DAN SCHNURR,
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before HARTZ, PHILLIPS, and EID, Circuit Judges.
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Applicant Billy Joe Barker Jr., a pro se prisoner in the custody of the Kansas
Department of Corrections, requests a certificate of appealability (COA) to challenge the
denial by the United States District Court for the District of Kansas of his application for
relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a
prisoner in state custody to appeal from the denial of relief under § 2254). Because
Applicant has failed to make a substantial showing of the denial of a constitutional right,
as required by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal.
In 1998 Applicant was convicted on multiple charges including attempted first-
degree murder of three police officers and the aggravated assault of a fourth. He was
sentenced to a total term of 562 months’ imprisonment. On appeal the Kansas Court of
Appeals (KCOA) affirmed Applicant’s convictions and sentences except it dismissed the
conviction of aggravated assault and set aside one of the attempted-murder convictions,
permitting the State to retry that charge on remand. See State v. Barker, No. 81,092,
2000 Kan. App. LEXIS 609, at *1 (Kan. Ct. App. May 26, 2000) (unpublished). On
remand the State declined to retry the attempted-murder charge; and in 2001 the district
court resentenced Applicant on the remaining convictions again to 562 months’
imprisonment.
In 2016 Applicant claimed his sentence was illegal based on new case law
governing his criminal-history score. The Kansas district court reduced his sentence to
514 months, but it rejected his claim that the court had lacked jurisdiction to resentence
him in 2001. The KCOA affirmed on appeal, stating, among other things, that the
resentencing under a new statute did not violate Applicant’s due-process rights because
his sentence was not increased and the statute did not change existing law but merely
clarified it. See State v. Barker, No. 117,901, 2018 WL 5093294, at *3 (Kan. Ct. App.
Oct. 19, 2018).
Applicant filed his § 2254 application in federal district court on October 21,
2019. The application asserted only one ground for relief: “28 U.S.C. 2254 –
Rule 1.[a][1][2][b], Guarantee Fundamental 6th Amendment Right To A Fair And
Speedy Trial, Due Process Of Law.” R., Vol. 1 at 8. For supporting facts, the application
stated only:
The facts outlined in the Kansas Supreme Court’s decision [accompanying
as appendix i] substantially states the nature and procedural posture of this
case. No further statement of facts is necessary except for . . . the timeliness
of this petition’s one-year statute of limitation as contained in 28 U.S.C.
2244[d] October 19[], 2018, [does-not bar pro se petitioner’s petition].
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R., Vol. 1 at 8 (brackets in original, capitalization omitted). (We note, however, that in
response to a question on the court’s form (“Is there any ground in this petition that has
not been presented in some state or federal court? If so, which ground or grounds have
not been presented, and state your reasons for not presenting them[?]”), the application
stated: “In light of the court’s May 26th, 2000 decision for a ‘new trial,’ I still set in
state-prison beyond my right to a ‘speedy trial.’ Imprisonment beyond one’s
constitutional term violates U.S.A. the 8th amendment to cruel and unusual punishment
and the 14th amendment due process.” R., Vol. 1 at 14. (capitalization and citation
omitted).)
Unable to discern any comprehensible claim in the ground for relief stated in the
application, the district court issued a five-page order to show cause on October 24. The
order explained why the application did not appear to raise any cognizable claim and
ordered Applicant to show cause why the petition should not be summarily dismissed for
(1) failure to state a violation of a federal right; (2) failure to exhaust state-court
remedies; and (3) failure to state a clear and viable due-process claim. The order required
Applicant to respond by November 25, 2019. But Applicant submitted no response, and
on November 27 the district court dismissed the case and declined to issue a COA.
Applicant filed a timely notice of appeal.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the [application] should have been resolved in a different
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manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). In other words, the applicant must show that the district court’s resolution of
the constitutional claim was either “debatable or wrong.” Id.The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides
that when a claim has been adjudicated on the merits in a state court, a federal court can
grant habeas relief only if the applicant establishes that the state-court decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Thus, a federal court may not grant relief simply because it concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. See id. Rather, “[i]n order for a state court’s decision to be an
unreasonable application of this Court’s case law, the ruling must be objectively
unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc,
137 S. Ct. 1726, 1728 (2017) (per curiam) (internal quotation marks omitted).
“AEDPA’s deferential treatment of state court decisions must be incorporated into our
consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d
935, 938 (10th Cir. 2004).
Applicant’s brief in this court is scarcely more informative than his § 2254
application; and, of course, he cannot now raise claims not raised in the district court, see
Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005) (issues not raised in district
court in § 2254 proceeding are waived). We agree with the district court that the
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application is inadequate to state a claim for relief. Applicant does not explain how his
trial was unfair. Insofar as he is claiming that he has not obtained a speedy trial on the
remanded attempted-murder charge, the State’s dismissal of the charge on remand
eliminated any need for a new trial. And insofar as his due-process claim is a reiteration
of the state-court due-process claim he made in challenging his resentencing, he has
provided no argument (and we can think of none) why the KCOA’s resolution of the
claim was an unreasonable application of United States Supreme Court law. Thus, no
reasonable jurist could debate the propriety of the district court’s dismissal of the § 2254
application
We DENY a COA and DISMISS the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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