Taylor v. Hannigan ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES EUGENE TAYLOR,
Petitioner-Appellant,
v. No. 98-3071
(D.C. No. 93-CV-3147-DES)
ROBERT D. HANNIGAN and THE (D. Kan.)
ATTORNEY GENERAL OF THE
STATE OF KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and LUCERO , Circuit Judges.
After examining the briefs and 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.
*
This order and judgment is not binding precedent, except under the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.
Petitioner James Eugene Taylor, a Kansas state inmate proceeding pro se,
seeks to appeal the district court’s order dismissing his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. 1
We deny a certificate of probable
cause and dismiss the appeal.
Mr. Taylor was convicted by a state jury of the first-degree murder of his
wife, on or about May 28, 1982. See State v. Taylor , 673 P.2d 1140 (Kan. 1983)
(upholding the conviction on direct appeal). He filed a post-conviction motion
under Kan. Stat. Ann. § 60-1507, seeking a new trial. The state trial court held an
evidentiary hearing and entered an order denying relief. Mr. Taylor appealed the
denial of his motion to the Kansas Court of Appeals. At his request, that court
remanded the case to the trial court for consideration of newly discovered
evidence which he contended should afford him a new trial. The trial court
conducted another evidentiary hearing, then issued a supplemental memorandum
of decision again denying relief. The denial was affirmed by the Kansas Court of
Appeals, see Taylor v. State , No. 64,388, 818 P.2d 359 (Kan. Ct. App. Oct. 4,
1991) (Table), and the Kansas Supreme Court on petition for review, see Taylor
v. State , 834 P.2d 1325 (Kan. 1992).
1
This matter was fully briefed by an attorney of record. On August 14,
1998, this court granted the attorney’s motion to withdraw and allowed appellant
to proceed pro se.
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Mr. Taylor then filed a petition for writ of habeas corpus in federal district
court. The parties agreed that the matter could be decided on the record, which
included the transcripts of pretrial proceedings, the trial, the section 60-1507
hearings, and other state court records, the written opinions of the reviewing state
courts, and the parties’ submissions in federal court. The district court denied
habeas relief.
During his direct appeal and post-conviction proceedings, Mr. Taylor has
proceeded pro se at times and has been represented by counsel at other times.
According to Mr. Taylor’s count, six attorneys have been involved in his case. In
his numerous counseled and pro se filings, filed over more than a decade, scores
of issues have been raised and resolved.
In this habeas proceeding, Mr. Taylor raises thirteen issues on appeal:
(1) his constitutional rights were violated by the state’s failure to disclose a tape
recording made during the autopsy of his wife’s body; (2) he was denied due
process, equal protection and effective assistance of counsel on the issue of newly
discovered pathology evidence; (3) he was denied due process, equal protection,
and effective assistance of counsel on the issue of entomology evidence; (4) he
was denied due process by the destruction of evidence in the victim’s car and by
the unlawful release of the car prior to defense testing; (5) his Fifth Amendment
rights were violated by the admission at trial of statements taken prior to Miranda
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warnings during custodial interrogations; (6) his Fourth Amendment rights were
violated by admission at trial of statements taken after he was seized and held
without probable cause; (7) his Fifth Amendment rights were violated by
admission at trial of statements taken after request for counsel; (8) his due
process and equal protection rights were violated by the admission of erroneous
ballistics evidence at trial and by the withholding of ballistics evidence by the
state; (9) his due process and equal protection rights were violated by the denial
of his right to self-representation during a section 60-1507 hearing; (10) his due
process and equal protection rights were violated by the withholding of evidence
of surveillance procedures employed against petitioner and the victim during the
investigation of the case; (11) his due process and equal protection rights were
violated by the use of a lay witness as an expert during the 1990 habeas hearing
and on appeal from that hearing; (12) he was denied effective assistance of
counsel at trial and on direct appeal; and (13) his constitutional rights were
violated by the cumulative effect of the above and other violations which
deprived him of a fair trial. See Petitioner-Appellant’s Opening Br. at 1-3. He
also asserts that, under Supreme Court precedent, his case qualifies as an actual
innocence case. See id. at 1.
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Before Mr. Taylor may proceed on appeal, he must secure a certificate of
probable cause from this court, pursuant to 28 U.S.C. § 2253. 2
A habeas
petitioner is entitled to a certificate of probable cause only if he makes “a
substantial showing of the denial of an important federal right by demonstrating
that the issues raised are debatable among jurists, that a court could resolve the
issues differently, or that the questions deserve further proceedings.” Gallagher
v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994) ( citing Barefoot v. Estelle , 463 U.S.
880 (1983).
Mr. Taylor, in his submissions to this court, fails to show a factual or legal
error in the fifty-nine page memorandum and order issued by the district court on
February 4, 1998. Rather, he reargues his contentions. The order of the district
court accurately sets forth the significant facts and correctly analyzes applicable
law on each of Mr. Taylor’s appeal issues. Were we to reach the merits, we
would affirm the judgment of the district court for substantially the reasons set
2
Since Mr. Taylor filed his § 2254 petition on April 1, 1993, the
Antiterrorism and Effective Death Penalty Act of 1996 does not apply. See
Lindh v. Murphy , 117 S. Ct. 2059, 2062-68 (1997); United States v. Kunzman ,
125 F.3d 1363, 1364 n. 2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998)
(footnote circulated en banc). Therefore, we construe his request for a certificate
of appealability as a request for a certificate of probable cause. Regardless of the
label we attach to the issue, the requirements are the same. See Lennox v. Evans ,
87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), overruled
in part by Kunzman , 125 F.3d at 1364 n.2.
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forth in the district court’s order. A copy of that order is attached to this order
and judgment.
As Mr. Taylor has failed to show the denial of an important federal right by
demonstrating that the issues raised are debatable among jurists, or that a court
could resolve the issues differently, or that the questions deserve further
proceedings, we deny his request for a certificate of probable cause. Accordingly,
the appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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Attachment not available electronically.