Blaurock v. State of Kansas

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 25, 2017
Elisabeth A. Shumaker
Clerk of Court
ROBERT D. BLAUROCK,
Petitioner - Appellant,
v. No. 16-3356
(D.C. No. 5:15-CV-03274-DDC)
STATE OF KANSAS; REX PRYOR, (D. Kan.)
Warden, Lansing Correctional Facility;
DEREK SCHMIDT, Attorney General of
the State of Kansas,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Robert D. Blaurock, a Kansas state prisoner proceeding pro se,1 seeks a certificate
of appealability (“COA”) in order to challenge the district court’s denial of his Petition
Under 28 U.S.C. § 2254 For Writ of Habeas Corpus (“§ 2254 petition”). In separate
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
Because Mr. Blaurock is appearing pro se, we liberally construe his pleadings.
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). “[T]his rule of liberal
construction stops, however, at the point at which we begin to serve as his advocate.”
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
motions, Mr. Blaurock also seeks to clarify the record on appeal and requests
reconsideration of the Clerk’s order denying his motion for leave to file a pro se
appendix.2 Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr. Blaurock’s
application for a COA. In addition, we deny his motions for reconsideration of the
Clerk’s order and to clarify the record on appeal, and dismiss the appeal in its entirety.
I. BACKGROUND
In November 2005, after being charged with committing “numerous crimes,
including rape, [which carried alternative counts of aggravated indecent liberties with a
child,] aggravated kidnapping, aggravated criminal sodomy, and sexual exploitation of
child,” Mr. Blaurock was convicted on one count of aggravated indecent liberties with a
child following a three-day jury trial. Blaurock v. State, No. 108,591, 2015 WL 1122935,
at *1 (Kan. Ct. App. Mar. 6, 2015) (unpublished), review denied, 2015 Kan. LEXIS 894
(Kan. Sept. 14, 2015); see also State v. Blaurock, 201 P.3d 728, 734 (Kan. Ct. App.
2009), review denied, 289 Kan. 1280, 2009 Kan. LEXIS 1166 (2009). The jury acquitted
Mr. Blaurock on seven counts of rape and one count of aggravated kidnapping, but was
unable to reach a verdict on two counts of rape, one count of aggravated criminal
sodomy, and one count of sexual exploitation of a child. Blaurock, 201 P.3d at 734. As a
result of the mistrial on these counts, the State brought Mr. Blaurock to trial a second
time in April 2006. Id. at 734. After a five-day trial, the jury found Mr. Blaurock guilty
2
Mr. Blaurock also requests leave to proceed in forma pauperis. We dismiss this
request as unnecessary because the district court granted Mr. Blaurock leave to proceed
in forma pauperis.
2
on individual counts of rape, aggravated criminal sodomy, and sexual exploitation of a
child. Id. at 738.
Mr. Blaurock filed a direct appeal of his convictions to the Kansas Court of
Appeals. On appeal, Mr. Blaurock raised the following six issues: (1) whether the trial
court erred in the second trial by admitting evidence related to the conviction and
acquittals from the first trial, including admission of DNA evidence from a sexual
encounter that allegedly occurred on June 1, 2005, even though the rape charge at issue
was for conduct alleged to have occurred on May 25, 2005; (2) whether the trial court
erred in admitting evidence regarding his parole status; (3) whether the trial court
violated his right to a speedy trial under Kansas law; (4) whether the trial court erred in
granting the State’s motion for a continuance between the first and second trials;
(5) whether a combination of errors at trial deprived him of his right to a fair trial; and
(6) whether the trial court erred by using his criminal history score to increase his
sentence. Id. at 733–34. The Kansas Court of Appeals rejected Mr. Blaurock’s
contentions and affirmed his convictions. Id.
Mr. Blaurock then petitioned the Kansas Supreme Court to review three of the six
issues he had previously raised on direct appeal: (1) whether the trial court erred in the
second trial by admitting evidence related to the conviction and acquittals from the first
trial; (2) whether the trial court violated Mr. Blaurock’s right to a speedy trial; and (3)
whether the trial court erred by using his criminal history score to increase his sentence.
The Kansas Supreme Court denied review. State v. Blaurock, 289 Kan. 1280, 2009 Kan.
LEXIS 1166 (2009).
3
In late 2010, Mr. Blaurock filed a lengthy pro se motion challenging his
convictions under Kansas Statutes Annotated § 60-1507 (“60-1507 motion”). In his
60-1507 motion, Mr. Blaurock asserted forty-one separate grounds for reversing his
convictions, ranging from alleged violations of constitutional rights to trial errors and
prosecutorial misconduct. During a hearing on September 8, 2011, at which Mr. Blaurock
was represented by counsel, the Wyandotte County District Court orally denied Mr.
Blaurock’s 60-1507 motion in its entirety, and subsequently entered a written order
denying the 60-1507 motion “for the reasons set out in . . . the hearing.”
Mr. Blaurock, represented by counsel, appealed this decision to the Kansas Court
of Appeals. In his appeal, Mr. Blaurock raised two issues: (1) whether the trial court had
failed to make explicit findings of fact and conclusions of law on all forty-one issues
presented in his 60-1507 motion, in violation of Kansas Supreme Court Rule 183(j); and
(2) whether Mr. Blaurock’s counsel was ineffective during the 60-1507 motion hearing
for failing to object to this alleged violation, and for failing to advocate in the manner
required by the Code of Professional Conduct. In addition to the appellate brief filed by
his appointed attorney, Mr. Blaurock filed a pro se supplemental brief in which he raised
the following two additional issues: (1) the trial court erred in failing to dismiss the jury
and grant a mistrial; and (2) the trial court erred in not finding Mr. Blaurock’s trial
counsel ineffective for failing to inform him of the terms and conditions of a plea offer
from the State. The Kansas Court of Appeals affirmed the trial court’s judgment on the
two issues raised by Mr. Blaurock’s appellate counsel, but declined to address the two
additional issues argued by Mr. Blaurock in his supplemental brief because they were not
4
presented to the trial court. Blaurock, 2015 WL 1122935, at *6–7. Mr. Blaurock
petitioned the Kansas Supreme Court to review the Kansas Court of Appeals’ substantive
decisions regarding Kansas Supreme Court Rule 183(j) and the alleged ineffectiveness of
his counsel at the 60-1507 hearing, as well as its decision to decline review of his
supplemental claims. The Kansas Supreme Court again denied review. Blaurock v. State,
No. 108.591. 2015 Kan. LEXIS 894 (Kan. Sept. 14, 2015).
On December 18, 2015, Mr. Blaurock filed his § 2254 petition in the United States
District Court for the District of Kansas, and asserted thirty-one separate grounds for
relief. Shortly thereafter, Mr. Blaurock filed a lengthy brief in support of his petition. The
district court accurately summarized Mr. Blaurock’s grounds for relief as follows:
1. Ineffective assistance of counsel based on counsel’s failure “to pursue”
an 8-year plea offer and advise [Mr. Blaurock] about the offer.
2. Denial of Sixth Amendment right to a “fair, impartial, and competent
jury” based on failure to grant a mistrial [notwithstanding two jurors’
alleged impairments or impartiality].
3. The trial court did not gain jurisdiction over [Mr. Blaurock] at his initial
appearance [because the magistrate judge failed to inform him of the
charges against him or provide him a copy of the criminal information or
indictment].
4. Ineffective assistance of counsel based on trial counsel’s failure to
investigate [Mr. Blaurock’s] alibi.
5. Ineffective assistance of counsel based on trial counsel denying [Mr.
Blaurock access to] “Brady Rule exculpatory/exclusionary evidence.”
6. “The State’s information, and jury instructions alleged multiplicative
crimes, double punishments at sentencing [and the State used evidence
multiplicatively to prove crimes on various dates].”
5
7. Trial court denied [Mr. Blaurock] a speedy preliminary hearing and
arraignment.
8. “Trial counsel was ineffective, and trial court abused its discretion [by]
failing to investigate” a conflict of interest between [Mr. Blaurock] and the
prosecutor.
9. The trial court’s Fourth Amendment and attorney-client privilege rulings
were erroneous.
10. [Mr. Blaurock] “was too far removed from the crime scene . . . before
discovery of evidence admitted in trials [was discovered].”
11. Fourth Amendment violation based on failure to exclude evidence
seized as fruit of the poisonous tree.
12. No one conducted fingerprint analysis on evidence that was used during
the commission of the crime.
13. “The State was allowed to use the DNA evidence from a 6/1/05 sexual
assault to corroborate/prove a 5/25/05 rape.”
14. Erroneous jury instructions [regarding prior crimes evidence].
15. Error based on the trial court allowing “the State and State witnesses to
violate a limiting instruction 95 times.”
16. Prosecutorial misconduct based on the prosecutor threatening and
intimidating defense witnesses.
17. “The [trial] court erred in making the defendant wear restraint devices
throughout his trial.”
18. “The [trial] court erred in allowing the jurors to keep and view all
evidence[ ] and exhibits in [the] deliberat[ion] room.”
19. Error based on inadmissible evidence about gang affiliation and
“allowing the State to present [non-existent] evidence.”
20. Error based on trial court instructing the jury to deliberate longer when
it came back “hung” on five of the 13 counts [in Mr. Blaurock’s first trial].
6
21. Error based on jury foreperson’s failure to sign the verdict form in [Mr.
Blaurock’s] first trial.
22. Prosecutorial misconduct based on improper remarks in the
prosecutor’s opening and closing statements.
23. Prosecutorial misconduct based on the prosecutor’s comments about
[Mr. Blaurock’s] and other witnesses’ veracity as well as about the
credibility of the evidence.
24. Prosecutorial misconduct based on the prosecutor being “rude and
interruptive during defense witness testimony, and defense counsel
questioning.”
25. Ineffective assistance of counsel on direct appeal.
26. Ineffective assistance of counsel [during Mr. Blaurock’s] 60-1507
motion hearing.
27. Error based on the [trial court’s] failure to comply with Kansas
Supreme Court Rule 183(j) [when ruling on Mr. Blaurock’s 60-1507
motion].
28. Error based on admission of inadmissible hearsay testimony.
29. “The Court Services Reporters failed to record all proceedings trial
related, erased, deleted, and omitted transcripts.”
30. 90-day speedy trial violation under Kansas Statutes Annotated section
22-3402.
31. Cumulative error resulting in deprivation of a fair trial.
In response, the State of Kansas argued all thirty-one claims were procedurally defaulted
and barred from federal habeas review, and, in the alternative, that each claim lacked
merit.
After a comprehensive review of Mr. Blaurock’s claims and the relevant standards
set forth by Congress in the Antiterrorism and Effective Death Penalty Act of 1996
7
(“AEDPA”), the district court determined that Mr. Blaurock had properly exhausted his
claims regarding ineffective assistance of counsel during the 60-1507 motion hearing
(claim 26), the Kansas trial court’s alleged violation of Kansas Supreme Court Rule
183(j) when ruling on his 60-1507 motion (claim 27), and violation of his right to a
speedy trial under Kansas law (claim 30). However, the district court found Mr. Blaurock
had failed to properly exhaust the remaining twenty-eight claims in his § 2254 petition
because he had not raised them in his petitions for review submitted to the Kansas
Supreme Court. Faced with a petition containing both exhausted and unexhausted claims,
the district court first determined that each of the twenty-eight unexhausted claims were
procedurally defaulted and therefore barred from federal habeas review. It then examined
the three remaining exhausted claims and denied them on the merits. Accordingly, the
district court denied the entirety of Mr. Blaurock’s § 2254 petition and further denied a
COA.
Mr. Blaurock timely filed a combined application for a COA and opening brief
challenging the district court’s denial of his § 2254 petition.
II. CERTIFICATE OF APPEALABILITY
To appeal the district court’s order and judgment denying him relief under § 2254,
Mr. Blaurock must first obtain a COA.3 The standards for obtaining a COA are the same
regardless of whether the applicant is a state or federal prisoner: a petitioner must make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
3
“A COA is a jurisdictional pre-requisite to our review.” Clark v. Oklahoma, 468
F.3d 711, 713 (10th Cir. 2006); accord 28 U.S.C. § 2253(c)(1)(A).
8
In instances where the district court denies a habeas petition on procedural
grounds—such as failure to exhaust or procedural default—without reaching the merits
of the underlying constitutional claims, the Supreme Court has held that a petitioner must
satisfy a two-part standard to obtain a COA. This standard requires Mr. Blaurock to
show, with respect to the twenty-eight claims dismissed on procedural grounds, “that
jurists of reason would find it debatable whether [his] petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling[s].” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (emphasis added); see also Coppage v. McKune, 534 F.3d 1279, 1281
(10th Cir. 2008). Mr. Blaurock must satisfy both factors, as “[e]ach component . . . is part
of a threshold inquiry.” Slack, 529 U.S. at 485. Rather than address the threshold
requirements in order, we may first “resolve the issue whose answer is more apparent
from the record and arguments,” though because we ordinarily “will not pass upon a
constitutional question . . . if there is also present some other ground upon which the case
may be disposed of,” we generally resolve procedural issues first. Id. “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the
[claims], a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at
484; see also Coppage, 534 F.3d at 1281. However, if we conclude that reasonable jurists
could debate the district court’s resolution of the procedural issues, we must then
consider whether Mr. Blaurock’s claims state a valid constitutional claim. In doing so, we
“simply take a quick look at the face of the [petition] to determine whether the petitioner
9
has facially alleged the denial of a constitutional right.” Paredes v. Atherton, 224 F.3d
1160, 1161 (10th Cir. 2000) (internal quotation marks omitted).
With respect to Mr. Blaurock’s remaining three claims, which the district court
reviewed and ruled on the merits, Mr. Blaurock must only satisfy the first factor of the
previously identified standard in order for a COA to issue as to those claims. That is, he
must show that reasonable jurists “would find it debatable whether [any of these claims]
state[ ] a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 484. When
determining if Mr. Blaurock has satisfied this standard, we are limited to “an overview of
the claims in the habeas petition and a general assessment of their merits,” rather than
“full consideration of the factual or legal bases adduced in support of the claims.” Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003); see also Buck v. Davis, 137 S. Ct. 759, 773
(2017) (“When a court of appeals sidesteps [the COA] process by first deciding the
merits of an appeal, and then justifying its denial of a COA based on its adjudication of
the actual merits, it is in essence deciding an appeal without jurisdiction.” (alteration in
original) (quoting Miller-El, 537 U.S. at 336–37)). Mr. Blaurock need not show his
appeal will be successful to be entitled to a COA; rather, he must show “something more
than the absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at
338 (internal quotation marks omitted). “Indeed, a claim can be debatable even though
every jurist of reason might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail.” Id.
Finally, because Mr. Blaurock’s § 2254 motion is governed by the standards set
forth in AEDPA, we keep in mind the deference owed to state-court determinations on
10
the merits when determining whether Mr. Blaurock is entitled to a COA.4 Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004) (“AEDPA’s deferential treatment of state court
decisions must be incorporated into our consideration of a habeas petitioner’s request for
COA.”); see also Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (“Conversely,
if the state court did not decide a claim on the merits, and the claim is not otherwise
procedurally barred, [federal courts] address the issue de novo and the § 2254(d)(1)
deference requirement does not apply.”). As a result, our review and general assessment
of the district court’s ruling on the merits primarily consists of examining the district
court’s “application of AEDPA to [Mr. Blaurock’s] constitutional claims and ask[ing]
whether that resolution was debatable amongst jurists of reason.” Miller-El, 537 U.S. at
336.
After careful consideration of the district court’s order and the record on appeal,
we conclude Mr. Blaurock has failed to satisfy the required standards for a COA to issue
as to any of his thirty-one claims, as reasonable jurists could not “debate whether (or, for
4
AEDPA prohibits federal courts from granting habeas relief for claims
adjudicated on the merits in state court proceedings unless the petitioner “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,’ or ‘was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Charlton v. Franklin, 503 F.3d 1112,
1114–15 (10th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(1), (2)). State court adjudications
are contrary to clearly established law “if the state court arrives at a conclusion opposite
to that reached by the Supreme Court on a question of law or if the state court decides a
case differently than the Court has on a set of materially indistinguishable facts.” Gipson
v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks omitted).
Factual determinations “made by a State court shall be presumed to be correct,” and a
petitioner bears the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
11
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, 529 U.S. at 484 (internal quotation marks omitted). Accordingly, we deny
Mr. Blaurock’s request for a COA and dismiss his appeal for the reasons set forth below.
A. Review of the District Court’s Procedural Rulings
To successfully challenge a conviction under 28 U.S.C. § 2254 in federal court, a
petitioner must first properly exhaust his available remedies in state court, or, in the
alternative, demonstrate that “there is an absence of available State corrective process” or
that “circumstances exist that render such process ineffective to protect” his rights. 28
U.S.C. § 2254(b)(1). In general, to exhaust state remedies, a petitioner “must give the
state courts an opportunity to act on his claims before he presents those claims to a
federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
This is accomplished by providing “the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” Id. at 845. Thus, any of Mr. Blaurock’s claims that were not included in
a petition to the Kansas Supreme Court are unexhausted, unless one of the
aforementioned exceptions applies.
After a thorough review of the state record, the district court determined Mr.
Blaurock had failed to exhaust all but three of the claims he raises in his § 2254 petition.
In particular, the district court found Mr. Blaurock had properly exhausted claims 26, 27,
and 30. The district court found the remaining twenty-eight claims to be unexhausted.
After review of the state record, we conclude that a reasonable jurist could not debate the
12
district court’s findings regarding the unexhausted nature of the twenty-eight claims5—
with two exceptions.6
5
Before the district court, and again in his petition for a COA, Mr. Blaurock
argues he properly exhausted claims 3 through 20, 22 through 25, and 28 through 29 by
raising them in his appeal and subsequent petition for review of the Kansas trial court’s
order denying his 60-1507 motion. It is undisputed that Mr. Blaurock did not raise each
individual claim on appeal or in his petition for review; rather, he argues these twenty-
four claims were incorporated in his argument that the trial court violated Kansas
Supreme Court Rule 183(j) by not making explicit findings of fact and conclusions of law
with respect to each of the forty-one claims asserted in his 60-1507 motion. The federal
district court considered this argument and found it unpersuasive, noting that, for
purposes of exhaustion, a state court has not had an opportunity to hear a claim unless it
has been “fairly presented” and “the substance of . . . [the] claim[s] ha[ve] been presented
. . . in a manner sufficient to put the courts on notice of the federal constitutional claim.”
Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (internal quotation marks
omitted). Mr. Blaurock’s 60-1507 appeal and petition for review did not sufficiently
present the substance of these issues to the Kansas Court of Appeals or the Kansas
Supreme Court. Consequently, reasonable jurists could not disagree with the district
court’s conclusion that these issues were not properly exhausted by Mr. Blaurock’s 60-
1507 appeal.
6
Although the district court initially describes claims 1 and 2 as unexhausted, it
later notes that both claims are “technically exhausted” because the Kansas Court of
Appeals declined to hear them pursuant to its procedural rules and, as a result, “no
Kansas court is left to hear [an] appeal.” See 28 U.S.C. § 2254(b)(1)(B)(i); see also
Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas petitioner who has defaulted
his federal claims in state court meets the technical requirements for exhaustion; there are
no state remedies any longer ‘available’ to him.”). Although the district court may have
erred in initially describing the claims as unexhausted, it dismissed both claims, not for a
failure to exhaust, but because the Kansas Court of Appeals dismissed both claims on an
independent and adequate state procedural ground—thus barring federal courts from
reviewing the claims. See Coleman, 501 U.S. at 729–32 (noting that “[i]n the absence of
the independent and adequate state ground doctrine . . . habeas petitioners would be able
to avoid the exhaustion requirement by defaulting their federal claims in state court”). We
review the district court’s determination in this regard infra at Part II.A.1, concluding that
reasonable jurists could not debate that both claims are procedurally barred under the
independent and adequate state doctrine. As a result, the district court’s description of the
claims as unexhausted is immaterial to the determination of whether Mr. Blaurock is
entitled to a COA.
13
In claim 13, Mr. Blaurock asserts as a ground for relief that the State was allowed
to use DNA evidence from the alleged sexual assault on June 1, 2005, to corroborate and
prove the sexual assault that allegedly occurred on May 25, 2005. Relatedly, in claim 14,
Mr. Blaurock argues the trial court provided erroneous jury instructions in his second trial
regarding the use of prior crimes evidence stemming from the allegations raised in the
first trial, including the DNA evidence from June 1, 2005.7 On direct appeal of his
conviction, Mr. Blaurock argued the trial court erred during his second trial by admitting
evidence of his prior crimes, including “DNA evidence from the sexual encounter that
allegedly occurred on” June 1, 2005, and that, in the alternative, the trial court erred by
failing to provide an adequate limiting instruction regarding this evidence. After the
Kansas Court of Appeals found the prior crimes evidence admissible and that any defect
in the limiting instruction amounted to harmless error, see State v. Blaurock, 201 P.3d
728, 738–47 (Kan. Ct. App. 2009), Mr. Blaurock filed a petition for review with the
Kansas Supreme Court. In his petition, Mr. Blaurock again contended that the trial court
erred by admitting the prior crimes evidence, including “[t]he DNA evidence showing
7
Mr. Blaurock’s sixth claim, which he describes as the “State’s information, and
jury instructions alleged multiplicative crimes, double punishments at sentencing,”
arguably contains a similar challenge to those asserted in claims thirteen and fourteen. In
his recitation of facts supporting claim 6, Mr. Blaurock, among other things, argues the
“State used testimony, photographs, and DNA test results, multiplicatively to prove
crimes on both [May 25, 2005 and June 1, 2005].” This theory is fully encompassed by
claims 13 and 14, and appears to only be a subordinate argument within claim 6, as the
bulk of the claim relates to the State’s information and the trial court’s jury instructions.
As a result, our discussion and resolution of claims 13 and 14 encompasses the related
theory identified in claim 6.
14
that Mr. Blaurock engaged in sexual intercourse with [the victim] on June 1, 2005,” and,
in the alternative, that the trial court failed to provide a proper limiting instruction to the
jury.
Construing Mr. Blaurock’s pleadings liberally, we conclude claims 13 and 14 may
embody the claims Mr. Blaurock raised in his direct appeal and petition for review
regarding admission of prior crimes evidence and the trial court’s related jury
instructions. Consequently, reasonable jurists could debate the district court’s finding that
claims 13 and 14 were not properly exhausted in state court. Having established the first
requirement for a COA to issue as to these claims, we address if reasonable jurists could
debate whether claims 13 and 14 assert valid claims of the denial of constitutional rights
infra at Part II.B.
As a result, Mr. Blaurock’s § 2254 petition presents five exhausted claims and
twenty-six unexhausted claims. Ordinarily, as Mr. Blaurock notes in his brief, when faced
with a mixed petition, a district court must “either (1) dismiss the entire petition without
prejudice in order to permit exhaustion of state remedies, or (2) deny the entire petition
on the merits.” Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016) (internal
quotation marks omitted); see also Rose v. Lundy, 455 U.S. 509, 522 (1982) (“[A] district
court must dismiss habeas petitions containing both unexhausted and exhausted
claims.”); but see Walker v. Martin, 562 U.S. 307, 314 n.3 (2011) (“Rather than dismiss a
petition containing both exhausted and unexhausted claims, a district court might stay the
petition and hold it in abeyance while the petitioner returns to state court to exhaust his
15
previously unexhausted claims.”). But we have held that this general rule is not absolute.
As we explained in Harris v. Champion, 48 F.3d 1127, 1131 n.3 (10th Cir. 1995):
If a federal court that is faced with a mixed petition determines that the
petitioner’s unexhausted claims would now be procedurally barred in state
court, “there is a procedural default for purposes of federal habeas[.]”
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Therefore, instead of
dismissing the entire petition, the court can deem the unexhausted claims
procedurally barred and address the properly exhausted claims.
The district court employed this method, determining Mr. Blaurock’s unexhausted claims
were procedurally barred because they either: (1) were dismissed by a state court on an
adequate and independent state procedural ground, or (2) would be procedurally barred
under state law if Mr. Blaurock returned to state court to exhaust them. In particular, the
district court found claims 1 and 2 to be procedurally defaulted on adequate and
independent state procedural grounds, and therefore barred from consideration by a
federal court. With respect to the remaining unexhausted claims, the district court found
Mr. Blaurock would be procedurally barred from presenting them in state court. For the
reasons set forth below, we find a reasonable jurist could not debate the district court’s
determination that these claims were procedurally defaulted and therefore properly
denied.
1. Adequate and Independent State Grounds
“AEDPA strictly limits a federal court’s ability to consider issues on habeas
review that the state court deemed procedurally barred . . . .” Hammon v. Ward, 466 F.3d
919, 925 (10th Cir. 2006). Accordingly, federal courts generally cannot “review a
question of federal law decided by a state court if the decision of that court rests on a
16
state law ground that is independent of the federal question and adequate to support the
judgment.”8 Coleman, 501 U.S. at 729. To be considered adequate, “a state procedural
ground must be ‘firmly established and regularly followed.’” Livingston v. Kansas, 407
F. App’x 267, 271 (10th Cir. 2010) (unpublished) (quoting Smith v. Workman, 550 F.3d
1258, 1274 (10th Cir. 2008)). And a state ground is independent “if it relies on state law,
rather than federal law.” Smith, 550 F.3d at 1274.
This “doctrine applies to bar federal habeas when a state court declined to address
a prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement. In these cases, the state judgment rests on independent and adequate state
procedural grounds.” Coleman, 501 U.S. at 729–30. Such procedural defaults can only be
overcome if “the petitioner can demonstrate cause and prejudice or a fundamental
miscarriage of justice.” Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir. 2009)
(internal quotation marks omitted); see also Frye v. Raemisch, 546 F. App’x 777, 781
(10th Cir. 2013) (“In addition to unexhausted claims, claims that have been procedurally
defaulted—claims denied on adequate and independent state law grounds—generally
may not be reviewed. A habeas petitioner may only overcome procedural default by
showing either ‘cause’ and ‘actual prejudice,’ or that he was ‘actually innocent.’”
(citation omitted)).
The district court found Mr. Blaurock’s first and second claims procedurally
barred because the Kansas Court of Appeals declined to address them on grounds that
8
“This rule applies whether the state law ground is substantive or procedural.”
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
17
Mr. Blaurock “never raised these issues below, and . . . does not explain why they should
be addressed here for the first time.” Blaurock v. State, No. 108,591, 2015 WL 1122935,
at *7 (Kan. Ct. App. Mar. 16, 2015) (unpublished). Next, it determined that Mr. Blaurock
had failed to overcome this procedural bar by demonstrating cause and actual prejudice
or actual innocence. In reaching this conclusion, the district court held that Mr.
Blaurock’s arguments regarding his inability to afford transcripts and the lack of legal
support for the Kansas Court of Appeals’ decision were insufficient to establish cause
and prejudice. The district court also determined that Mr. Blaurock had not made a
colorable showing of actual innocence. Accordingly, the district court held it could not
review either claim.
Reasonable jurists could not debate the district court’s rulings with respect to
claims 1 and 2. The record demonstrates that Mr. Blaurock failed to raise either claim in
his direct appeal or 60-1507 motion before the district court. Although he raised both
claims in his supplemental brief during his 60-1507 appeal, the Kansas Court of Appeals
found the claims procedurally barred because Mr. Blaurock failed to raise them before
the district court. These circumstances fall squarely within the procedural bar established
by the adequate and independent state grounds doctrine. Coleman, 501 U.S. at 729–30
(explaining the “doctrine applies to bar federal habeas when a state court declined to
address a prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement”).
In addition, Mr. Blaurock did not argue before the district court or in his
application for a COA that the Kansas rule against raising arguments for the first time on
18
appeal is not an adequate and independent state procedural ground. We therefore need not
address the question here, but simply note that courts addressing the precise question
have routinely concluded that it is. See Reynolds v. Hannigan, No. 95-3559-DES, 1999
WL 33177300, at *7 (D. Kan. Mar. 22, 1999) (unpublished) (collecting cases in support
of its finding that “Kansas courts routinely, strictly, and regularly bar litigants from
raising a point on appeal that was not raised in the lower court”), adopted by Reynolds v.
Hannigan, 53 F. Supp. 2d 1149 (D. Kan. 1999); see also Robinson v. Kansas, No. 10-
3082-MLB, 2011 WL 2118635, at *6 (D. Kan. May 27, 2011) (unpublished) (finding a
petitioner’s claim was not reviewable because the Kansas Supreme Court’s “decision was
based on Kansas precedent of refusing to hear issues on direct appeal where the
defendant failed” to raise the issues before the trial judge); Hartfield v. Simmons, No. 03-
3191-JTM, 2004 WL 2030256, at *6 (D. Kan. Sep. 3, 2004) (unpublished) (finding
“Kansas . . . law is that issues not raised before the trial court cannot be raised on appeal,”
and therefore concluding petitioner’s claim should be denied “on the grounds of an
independent and adequate state procedural bar” (internal quotation marks omitted)).
Finally, no reasonable jurist could debate the district court’s conclusion that Mr.
Blaurock failed to demonstrate: (1) cause for the default and actual prejudice as a result
of the alleged constitutional violation; or (2) that failure to consider the claims will result
in a fundamental miscarriage of justice because he is actually innocent. See Bondy v.
Scott, 43 F. App’x 168, 173 (10th Cir. 2002) (unpublished). “Cause under the cause and
prejudice test must be something external to the petitioner, something that cannot fairly
be attributed to him.” Griffin v. Scnurr, 640 F. App’x 710, 720 (10th Cir. 2016)
19
(unpublished) (internal quotation marks omitted). Mr. Blaurock cannot establish cause by
asserting that his inability to afford transcripts or obtain them from his attorney prevented
him from raising these claims in his 60-1507 motion. As the district court noted, Mr.
Blaurock’s procedural default was not caused by a failure to cite to the record; rather, it
was the result of his failure to even facially raise the claims in his 60-1507 motion. And
there is nothing to suggest the transcripts were required to identify and raise these claims.
Moreover, in his application for a COA, Mr. Blaurock states that before the state trial
court ruled on his 60-1507 motion, he was afforded eleven volumes of transcripts free of
cost and subsequently submitted an amended 60-1507 petition. He also indicates he
purchased certain portions of the transcripts before filing his 60-1507 appeal. These facts
belie Mr. Blaurock’s contentions that any alleged lack of transcripts was the cause of his
default. Furthermore, Mr. Blaurock’s claim that the Kansas Court of Appeals prevented
him from properly raising these claims as a result of its “untruthful” and legally deficient
decision is unsupported by the record and without merit. Finally, Mr. Blaurock did not
make any claim or showing of actual innocence and therefore he fails to demonstrate a
fundamental miscarriage of justice will occur if we do not consider his procedurally
barred claims. See Griffin, 640 F. App’x at 721 (“The actual innocence standard is
demanding and generally requires the petitioner to demonstrate that more likely than not,
in light of new evidence, no reasonable juror would find the petitioner guilty beyond a
reasonable doubt.” (internal quotation marks omitted)).
Accordingly, we deny a COA as to claims 1 and 2.
20
2. Anticipatory Procedural Bar
Procedural default may also occur when a “petitioner fail[s] to exhaust state
remedies and the court to which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims procedurally
barred.” Coleman, 501 U.S. at 735 n.1. “In such a case there is a procedural default for
purposes of federal habeas regardless of the decision of the last state court to which the
petitioner actually presented his claims.” Id. We often refer to this principle as an
“anticipatory procedural bar” to claims raised under § 2254. See Rouse v. Romero, 531 F.
App’x 907, 909 n.5 (10th Cir. 2013) (unpublished) (“As we explained, anticipatory
procedural bar occurs when the federal courts apply procedural bar to an unexhausted
claim that would be procedurally barred under state law if the petitioner returned to state
court to exhaust it.” (internal quotation marks omitted)); Anderson v. Sirmons, 476 F.3d
1131, 1139 n.7 (10th Cir. 2007) (same); Moore v. Schoeman, 288 F.3d 1231, 1233 n.3
(10th Cir. 2002) (same). As with a procedural bar arising under the adequate and
independent state grounds doctrine,
[t]here are two circumstances where a federal court may nevertheless
consider claims subject to an anticipatory procedural bar: (1) if the prisoner
has alleged sufficient “cause” for failing to raise the claim and resulting
“prejudice” or (2) if denying review would result in a fundamental
miscarriage of justice because the petitioner has made a “credible” showing
of actual innocence.
Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). Applying these principles, the
district court found Mr. Blaurock’s remaining unexhausted claims, consisting of claims 3
21
through 12, 15 through 25, 28 through 29, and 31, to be procedurally barred and not
subject to the cause and prejudice or miscarriage of justice exceptions.9
Mr. Blaurock presented all but one of these claims in state court, raising claim 31
in the direct appeal of his conviction and claims 3 through 12, 15 through 20, 22 through
25, and 28 through 29 in his 60-1507 motion.10 Although they were presented at various
levels in state court, Mr. Blaurock did not raise any of these claims before the Kansas
Supreme Court. And it is beyond dispute that he would now be procedurally barred from
raising any of these claims in state court. In particular, Mr. Blaurock would be
procedurally barred from raising these claims before the Kansas Court of Appeals or the
Kansas Supreme Court as any appeal or petition would be untimely. See Kan. Sup. Ct. R.
8.03(a)(1) (providing a jurisdictional thirty-day period for filing a petition for review with
the Kansas Supreme Court); Albright v. State, 251 P.3d 52, 56 (Kan. 2011) (noting the
appeal of a trial court’s ruling on a 60-1507 motion is subject to the thirty-day time limit
imposed by Kansas Statutes Annotated § 60-2103(a) to file an appeal). Mr. Blaurock
would also be procedurally barred from raising these claims in a successive 60-1507
motion because they would be untimely and because, in large measure, a Kansas court
9
Although the district court also found claims 13 and 14 to be procedurally barred
under this doctrine, as previously detailed, we conclude claims 13 and 14 may have been
properly exhausted and thus not subject to the anticipatory procedural bar. As a result,
they are omitted from this discussion.
10
The district court noted that claim 6 of Mr. Blaurock’s § 2254 petition presents
multiple theories of relief, some of which were presented to state courts, and others that
were not. In either case, the anticipatory procedural bar applies to both sets of theories,
regardless of whether they were raised in state court, as explained herein.
22
has already ruled on their merits. See Kan. Stat. Ann. § 60-1507(f) (establishing a one-
year time limit on bringing post-conviction motions unless “extended . . . to prevent a
manifest injustice”); Kan. Sup. Ct. R. 183(d) (barring a trial court from hearing a second
or successive 60-1507 motion if the grounds for relief were previously ruled on adversely
to the movant, the prior determination was on the merits, and justice would not be served
by reaching the merits of the successive motion).
Similarly, the time has long since passed for Mr. Blaurock to raise claim 21, which
he has never raised before any state court. Kan. Stat. Ann. § 60-2103(a) (providing a
thirty-day limit on filing an appeal); Kan. Stat. Ann. § 60-1507(f) (establishing a one-year
time limit on bringing post-conviction motions unless “extended . . . to prevent a manifest
injustice”); see also Griffin, 640 F. App’x at 718–19 (concluding petitioner’s due process
claim was waived because he did not raise it on direct appeal or during one full round of
post-conviction review, and that even if it was not waived it would be untimely under
Kansas law); Frost, 749 F.3d at 1231 (concluding a petitioner’s claims that were not
included in his petition for review before the Kansas Supreme Court were untimely under
Kansas state law). In addition, he would also be barred from bringing this claim by
Kansas Supreme Court Rule 183(c)(3), which indicates “[m]ere trial errors must be
corrected by direct appeal” and therefore a post-conviction challenge cannot be used to
redress those errors if not raised on direct appeal unless they affect constitutional rights
and there are “exceptional circumstances excus[ing] the failure to appeal.” Kan. Sup. Ct.
R. 183(c)(3); see also Livingston, 407 F. App’x at 271–72 (noting petitioner would be
barred from bringing four claims in a second application for post-conviction relief
23
because it would be untimely under Kansas Statutes Annotated § 60-1507(f) and further
barred by Kansas Supreme Court Rule 183(c)).
Mr. Blaurock cannot overcome this procedural default, as it is beyond dispute that
he failed to show sufficient cause for the defaults, or that denying review of his claims
would result in a fundamental miscarriage of justice. Before the district court, Mr.
Blaurock argued the cause of his default was the Kansas Court of Appeals’ “gross
negligence and incompetence,” as evidenced by its failure to fully address a number of
issues he raised in his 60-1507 motion. But the record clearly shows that on direct review
and during the 60-1507 appeal, the Kansas Court of Appeals addressed each issue Mr.
Blaurock properly presented to the court. The cause of Mr. Blaurock’s defaults was not
the Kansas Court of Appeals’ failure to address the issues, but his failure to raise each
individual claim in his 60-1507 motion to the trial court, his 60-1507 appeal to the
Kansas Court of Appeals, and his two petitions for review filed with the Kansas Supreme
Court. In addition, before the district court and again in his application for a COA, Mr.
Blaurock contends his default was also caused by an inability to obtain his transcripts. As
we previously noted, Mr. Blaurock asserts he had access to transcripts at the relevant
stages of his case, and it is clear his procedural default was not caused by a failure to
obtain those transcripts or cite to the record—rather, it was his complete failure to raise
the claims in his appeals and petitions for review. Finally, before the district court and in
his application for a COA, Mr. Blaurock makes no attempt to claim or demonstrate actual
innocence.
24
We therefore conclude that reasonable jurists could not debate the district court’s
assessment that Mr. Blaurock’s remaining twenty-four unexhausted claims are
procedurally defaulted. Accordingly, we deny a COA as to each of those claims.
B. Review of the District Court’s Rulings on the Merits
In order for a COA to issue for any of his five remaining claims,11 Mr. Blaurock
must show that “jurists of reason would find it debatable whether the [claims state] a
valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). To do so, Mr. Blaurock must sufficiently allege that the state-court decisions he
challenges are “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or . . .
resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),
(2). Keeping in mind the deference owed to state-court determinations on the merits
under AEDPA, see Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004), and limiting
our review to a general assessment of Mr. Blaurock’s claims, we find jurists of reason
could not debate the district court’s denial of claims 13, 14, 26, 27, and 30 of Mr.
Blaurock’s § 2254 petition.
11
Mr. Blaurock’s exhausted claims consist of claims regarding the admission and
use of prior crimes evidence, and the trial court’s deficient limiting instructions related to
that evidence (claims 13 and 14), ineffective assistance of counsel during his 60-1507
proceedings (claim 26), the Kansas trial court’s alleged violation of Kansas Supreme
Court Rule 183(j) (claim 27), and violation of his right to speedy trial under Kansas law
(claim 30).
25
In claims 13, 14, 27, and 30, Mr. Blaurock raises arguments challenging the
application of state, as opposed to federal, law. The Supreme Court has reiterated “many
times that ‘federal habeas corpus relief does not lie for errors of state law.’” Swarthout v.
Cooke, 562 U.S. 216, 219 (2011) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
Accordingly, “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle, 502 U.S. at 67–68; see Dockins, 374 F.3d at 940 (“Federal habeas
courts will not . . . review issues of purely state law . . . .”). At most, our review may
encompass a determination of “whether the state court’s finding was so arbitrary or
capricious as to constitute an independent due process or [other constitutional] violation.”
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Harmon v. McCollum, 652 F. App’x
645, 651 (10th Cir. 2016) (unpublished) (determining the state court’s ruling “on its own
state law [was not] ‘so arbitrary or capricious as to constitute an independent due process
. . . violation’” (quoting Lewis, 497 U.S. at 780)); Pimenta v. Crandell, No. 99-2055,
1999 WL 1009518, at *4 (10th Cir. Nov. 8, 1999) (noting “a state court’s arbitrary
disregard of the state sentencing law and imposition of an unauthorized sentence may
violate the defendant’s due process rights.”). As described below, application of these
principles to claims 13, 14, 27, and 30 leaves no room for reasonable jurists to debate that
these claims allege state-law violations that are not cognizable grounds for federal habeas
relief, and that the Kansas Court of Appeals’ decisions regarding these claims were not
arbitrary or capricious and thus did not violate Mr. Blaurock’s constitutional rights.
26
In claim 13, Mr. Blaurock asserts the State was allowed to use DNA evidence
from the alleged sexual assault on June 1, 2005, to corroborate and prove the sexual
assault that allegedly occurred on May 25, 2005. In claim 14, Mr. Blaurock asserts a
related theory, arguing the trial court provided erroneous jury instructions in his second
trial regarding the use of the prior crimes evidence stemming from allegations raised in
the first trial, including the June 1, 2005, DNA evidence. Both claims present issues of
state law that are not cognizable grounds for habeas relief. In addition, nothing in the
Kansas Court of Appeals’ comprehensive decision, in which it found the prior crimes
evidence admissible and any defects in the limiting instruction to constitute harmless
errors, suggests its rulings were arbitrary or capricious, let alone so arbitrary or capricious
as to amount to a violation of Mr. Blaurock’s constitutional rights. See State v. Blaurock,
201 P.3d 728, 738–47 (Kan. Ct. App. 2009).
In claim 27, Mr. Blaurock argues that in deciding his 60-1507 motion, the
Wyandotte County District Court violated Kansas Supreme Court Rule 183(j) by failing
to explicitly make findings of facts and conclusions of law on all issues presented.12 This
claim presents a purely procedural state law issue, and “federal habeas review does not
extend to the correction of purely state law procedural errors that do not rise to the level
of a constitutional due process violation.” Shipley v. Oklahoma, 313 F.3d 1249, 1251
(10th Cir. 2002) (internal quotation marks omitted); see also id. at 1250–51 (finding
12
Rule 183(j) requires Kansas trial courts to “make findings of fact and
conclusions of law on all issues presented” when ruling on a 60-1507 motion. Kan. Sup.
Ct. R. 183(j).
27
petitioner’s claim that the state trial court failed “to provide adequate conclusions of law
in its order denying . . . post-conviction relief” did “not amount to a federal constitutional
claim that is cognizable in . . . a federal habeas action”); Hurt v. McKune, No. 09-3142-
SAC, 2009 WL 2106125, at *1 n.1 (D. Kan. July 16, 2009) (unpublished) (holding a
claim under Kansas Supreme Court Rule 183(j) “involve[d] matters of state law and [is]
not ground[ ] for federal habeas corpus relief”). The Kansas Court of Appeals addressed
this issue at length in its opinion affirming the trial court’s denial of Mr. Blaurock’s 60-
1507 motion. See Blaurock v. State, No. 108,591, 2015 WL 1122935, at *1–5 (Kan. Ct.
App. Mar. 6, 2015) (unpublished). And there is nothing to suggest that its decision was so
arbitrary or capricious as to constitute an independent violation of his constitutional
rights.
In claim 30, Mr. Blaurock contends his right to a speedy trial, as provided for in
Kansas Statutes Annotated § 22-3402, was violated when the Kansas trial court granted
the State’s request for a continuance of his second trial in order to allow the State to
analyze the DNA evidence. The continuance resulted in a 122-day delay between the end
of Mr. Blaurock’s mistrial and the beginning of his second trial. See Blaurock, 201 P.3d
at 749. In its opinion affirming Mr. Blaurock’s conviction on direct appeal, the Kansas
Court of Appeals addressed at length whether Mr. Blaurock’s right to a speedy trial under
Kansas law had been violated, and whether the trial court erred in granting the state a
continuance. See id. The Kansas Court of Appeals concluded that: (1) Mr. Blaurock did
not have a right to a speedy trial under Kansas Statutes Annotated § 22-3402 during the
period between his trials because he was being held in custody as a result of his
28
conviction in the first trial, not solely for the criminal charges at issue in the second trial,
see State v. Mann, 56 P.3d 212 (Kan. 2002); and (2) the factors required to merit a
continuance under Kansas Statutes Annotated § 22-3402(5)(c)13 were satisfied by the
State’s need of additional time to complete an analysis of relevant DNA evidence.
Blaurock, 201 P.3d at 748–751.
Again, Mr. Blaurock’s challenge to the Kansas Court of Appeals’ decision
presents issues of state law that are not cognizable on federal habeas review.14 In
addition, the Kansas Court of Appeals undertook a detailed review of Mr. Blaurock’s
claim, applying relevant statutory and case law in reaching its determination on both
grounds. We conclude a reasonable jurist could not debate that the Kansas Court of
13
These factors are now found in Kansas Statutes Annotated § 22-3402(e).
14
Mr. Blaurock only alleges a violation of his right to a speedy trial under Kansas
law. But even if we assume that Mr. Blaurock’s claim implicates a violation of his
constitutional right to a speedy trial, issuance of a COA is not warranted. “In determining
whether a defendant’s Sixth Amendment right to a speedy trial has been violated, a court
must balance four factors: (1) the length of delay; (2) the reason for delay; (3) the
defendant’s assertion of his right; and (4) any prejudice to the defendant.” United States
v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009). However, we only reach the final three
factors of this analysis if we first determine the delay is presumptively prejudicial. Id.
(“The first factor, length of delay, functions as a triggering mechanism and the remaining
factors are examined only if the delay is long enough to be presumptively prejudicial.”
(internal quotation marks omitted)); Jackson v. Ray, 390 F.3d 1254, 1262 (10th Cir.
2004). Delays approaching one year are generally considered presumptively prejudicial.
United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (“Delays approaching one
year generally satisfy the requirement of presumptive prejudice.”); Jackson, 390 F.3d at
1262. Because a delay of 122 days falls far short of a presumptively prejudicial delay,
reasonable jurists could not debate whether Mr. Blaurock has made a valid claim of the
denial of a constitutional right.
29
Appeals’ decision was not arbitrary or capricious, and thus no reasonable jurist could
debate the district court’s determination.
Finally, in claim 26, Mr. Blaurock contends his counsel was ineffective during the
60-1507 hearing conducted by the trial court because counsel: (1) failed to object to the
court’s alleged violation of Kansas Supreme Court Rule 183(j); (2) did not advocate in
the manner required by the Code of Professional Conduct; and (3) did not introduce into
evidence certain defense witness statements or testimony. After determining Mr.
Blaurock had properly exhausted this claim, the district court denied it on the merits,
finding § 2254 specifically prohibits claiming ineffective counsel at collateral post-
conviction proceedings as a ground for habeas relief. No reasonable jurist could disagree
with the district court’s determination. Section 2254(i) clearly provides: “The
ineffectiveness or incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a proceeding arising under
section 2254.” And 60-1507 motions are collateral post-conviction proceedings. See Kan.
Stat. Ann. 60-1507; Nunez v. McKune, 816 F. Supp. 660, 661–62 (D. Kan. 1993)
(discussing § 60-1507 as a post-conviction collateral proceeding).
For the foregoing reasons, we find no reasonable jurist could debate the district
court’s denial of claims 13, 14, 26, 27, and 30. Accordingly, we deny Mr. Blaurock’s
request for a COA on those claims.
III. MISCELLANEOUS MOTIONS
On February 27, 2017, Mr. Blaurock filed a motion with this court seeking
permission to submit an appendix to his combined application for a COA and opening
30
brief. The Clerk denied Mr. Blaurock’s request, as it was unnecessary under Federal Rule
of Appellate Procedure 11(b), and Tenth Circuit Rules 11.1(A) and 30.1. On March 13,
2017, Mr. Blaurock simultaneously filed an objection to the Clerk’s order denying him
permission to submit an appendix, which we construe as a motion to reconsider, and a
motion requesting to clarify the record on appeal. With these motions, Mr. Blaurock
seeks to present attorney-client communications, portions of transcripts from his trials
and post-conviction hearings, and two tables of contents in order to clarify the state court
records included in the record on appeal. After review of the existing record, we find it to
be in accordance with the Federal Rules of Appellate Procedure and Tenth Circuit Rules.
In addition, the proposed supplementary material is either already included in the record
before the court, not required by Tenth Circuit Rules, or immaterial to the COA
application and appeal. Accordingly, Mr. Blaurock’s motions are denied.
IV. CONCLUSION
For the reasons set forth above, we conclude that reasonable jurists could not
debate the district court’s denial of Mr. Blaurock’s § 2254 petition. We therefore deny a
COA as to all claims raised in his § 2254 petition, and dismiss the appeal. We also deny
Mr. Blaurock’s motions regarding the record on appeal.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
31