Ueding v. Colorado Department of Corrections ( 2023 )

Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2023
_______________________________________
Christopher M. Wolpert
Clerk of Court
KENNETH UEDING,
Petitioner - Appellant,
v. No. 22-1417
(D.C. No. 1:22-CV-02166-LTB-GPG)
COLORADO DEPARTMENT OF (D. Colo.)
CORRECTIONS; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
_______________________________________
ORDER
_______________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
_______________________________________
Mr. Kenneth Ueding obtained a conviction in state court and asked a
federal district court for habeas relief based on the delay in bringing him
to trial. The district court denied habeas relief, and Mr. Ueding seeks a
certificate of appealability so that he can appeal. 28 U.S.C.
§ 2253(c)(1)(A). We deny this request.
Mr. Ueding based his habeas claim on both state law and the federal
constitution. The district court concluded that (1) habeas relief is
unavailable for violations of state law and (2) the constitutional claim is
procedurally barred.
Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 2
For the state-law claim, we consider whether Mr. Ueding has made “a
substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). Under this standard, any reasonable
jurist would reject the state-law claim because it doesn’t involve a
constitutional right. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)
(stating that habeas relief does not lie for the violation of state law). So
the state-law claim doesn’t merit a certificate of appealability.
For the constitutional claim, the district court declined to reach the
merits based on a procedural default. So here we consider whether a
reasonable jurist could debate the applicability of a procedural default.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In our view, the applicability
of a procedural default is not reasonably debatable.
A procedural default occurs when “a state court dismisses [a] federal
habeas claim on the basis of noncompliance with adequate and independent
state procedural rules.” Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir.
2012). A state procedural rule is “adequate” if it is “strictly or regularly
followed and applied evenhandedly to all similar claims.” Id. (quoting
Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012)). A rule is
“independent” “if it relies on state law, rather than federal law, as the basis
for the decision.” Simpson v. Carpenter, 912 F.3d 542, 571 (10th Cir.
2018) (quoting Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012)).
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Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 3
Here the federal district court concluded that the state court’s
application of the plain-error standard constituted an adequate and
independent defect. For this conclusion, the district court reasoned that the
application of the plain-error standard
 was adequate because it had been evenhandedly applied and
 independent because it had been based on state law.
In seeking a certificate of appealability, Mr. Ueding contests the
existence of a procedural default, arguing that application of the plain-
error standard was not independent because he had presented a
constitutional claim when objecting to joinder.
We disagree with Mr. Ueding’s interpretation of his objection in
state court. There he argued that joinder would lead to the admission of
unfairly prejudicial evidence. Here he’s asserting the denial of a speedy
trial. Mr. Ueding did not say anything in his objection to joinder that
would alert the state courts to a claim involving the denial of a speedy
trial. So any reasonable jurist would reject Mr. Ueding’s reliance on his
objection to joinder in state court. See Finlayson v. State, 6 F.4th 1235,
1241 (10th Cir. 2021) (concluding that when a state court recognizes or
assumes a constitutional error but denies relief because the error is not
plain, the plain-error standard “serves as an independent state rule” for
purposes of procedural default).
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Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 4
Given the procedural bar, we could consider the merits of the claim
only if Mr. Ueding satisfies the requirements for one of two exceptions: (1)
cause and prejudice or (2) a fundamental miscarriage of justice based on
actual innocence. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Mr.
Ueding has not invoked either exception.
We thus deny Mr. Ueding’s request for a certificate of appealability
and dismiss the appeal. 1
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
Mr. Ueding also requests leave to proceed in forma pauperis and
release on his own recognizance pending the appeal. We grant leave to
proceed in forma pauperis, but our dismissal moots the request for release
pending the appeal.
4