Pecht v. State of Utah

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 25, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
KEVIN LEE PECHT,
Petitioner-Appellant,
No. 04-4168
v. (D.C. No. 2:02-CV-1231-DB)
(Utah)
STATE OF UTAH,
Respondent-Appellee.
ORDER
Before SEYMOUR, HARTZ and McCONNELL, Circuit Judges.
Kevin Lee Pecht appears before this court pro se. 1 He seeks a certificate of
appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1) in an effort to appeal the
district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. §
2254. He has also filed a motion to proceed in forma pauperis (ifp). Exercising
jurisdiction under 28 U.S.C. § 2253(c)(1), we see no basis for an appeal, deny
COA, and reject Mr. Pecht’s request to proceed ifp.
A jury convicted Mr. Pecht on two counts of sodomy upon a child and one
count of aggravated sexual abuse of a child, under Utah state law. Mr. Pecht was
sentenced to ten years to life imprisonment on each sodomy conviction, and five
1
We liberally construe Mr. Pecht’s pro se application. See Hall v. Scott,
292 F.3d 1264, 1266 (10th Cir. 2002).
years to life on the aggravated sexual abuse conviction. On direct appeal he
raised several issues not presented at trial, including whether the trial court erred
by allowing into evidence videotaped statements made by the victim’s brother.
State v. Pecht, 48 P.3d 931, 936 (Utah 2002). The Utah Supreme Court ruled that
although admitting the evidence constituted error that was plain, the error was
harmless because nearly all of the information in the videotape was also presented
in trial testimony. Id. at 939. The court also held that Mr. Pecht’s constitutional
right to confront witnesses was not violated because both the victim and her
brother testified and were cross-examined. Id. at 939-40.
Mr. Pecht sought habeas relief, asserting inter alia violation of his due
process rights by the admission of the videotape and by the Utah Supreme Court’s
conclusion that the admission was harmless. 2 The district court denied relief
because Mr. Pecht failed to raise the due process claim in state court and it was
thus unexhausted. It also held his claim procedurally defaulted because it could
have been raised in state court and was therefore now procedurally barred under
state law. See U TAH C ODE A NN . § 78-35a-106(1)(c). Mr. Pecht did not assert
cause and prejudice or a fundamental miscarriage of justice to excuse this
procedural default. See Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000).
In support of his current application for COA, Mr. Pecht reasserts his due process
2
Although the district court addressed other issues, Mr. Pecht has not
asserted that the court erred in its resolution of them. Those issues are therefore
waived. United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004).
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argument.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). A COA can issue only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El, 537 U.S. at 327. When a district court has
dismissed a habeas petition on procedural grounds, a prisoner must also show that
“jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA
determination under § 2253(c) requires an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-El, 537 U.S. at 336.
“This threshold inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims. In fact, the statute forbids it.” Id. While
Mr. Pecht, in applying for a COA, is not required to prove the merits of his case,
he must demonstrate “something more than the absence of frivolity or the
existence of mere good faith on his or her part.” Id. at 338 (internal quotations
and citation omitted).
With these principles in mind, we have carefully reviewed the record of
these proceedings and the well reasoned and detailed order of the district court.
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We conclude that reasonable jurists would not debate the resolution of the
constitutional claims presented nor the district court’s procedural ruling. We
therefore DENY Mr. Pecht’s request for COA and his motion to proceed ifp.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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