Kaufman, Jr. v. Miller

FILED
United States Court of Appeals
Tenth Circuit
August 21, 2013
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JACK KAUFMAN, JR.,
Petitioner - Appellant,
v. No. 13-5020
(D.C. No. 4:10-CV-00024-GKF-TLW)
DAVID C. MILLER, Warden,
(N.D. Okla.)
Respondent - Appellee.
ORDER
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
In state court, Mr. Jack Kaufman, Jr. was convicted of drug trafficking.
After unsuccessfully seeking habeas relief in federal district court, Mr. Kaufman
appeals. We can only entertain the appeal if we find that Mr. Kaufman is entitled
to a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2006). Holding
that he is not, we dismiss the appeal.
Standard for a Certificate of Appealability
The threshold issue is whether to issue a certificate of appealability. The
certificate is available only if Mr. Kaufman “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006).
Background
Two police detectives stopped Mr. Kaufman for a traffic violation and
learned that one of the passengers had outstanding warrants. After learning of the
warrants, the detectives conducted a pat-search of Mr. Kaufman — and a bag of
cocaine fell out from his pants.
The cocaine was introduced into evidence in Mr. Kaufman’s trial. Trial Tr.,
Vol. I at 68, State v. Kaufman, No. CF-07-1669 (Tulsa Co. Dist. Ct. Jan. 22-23,
2008). 1 That trial resulted in a conviction for trafficking in illegal drugs after
conviction of a felony. Mr. Kaufman appealed the conviction to the Oklahoma
Court of Criminal Appeals, arguing in part that the detectives violated the Fourth
and Fourteen Amendments by initiating the traffic stop, making him continue to
stand next to the car, and conducting a pat-down search for weapons. The state
appeals court rejected Mr. Kaufman’s arguments and affirmed the conviction.
Mr. Kaufman then filed a petition for a writ of habeas corpus in federal
district court. The court denied habeas relief, and the present appeal followed.
1
The trial transcript is not part of the record on appeal. But, we can take judicial
notice of the transcript to determine whether the cocaine had been used in the trial.
Guttman v. Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (stating that we can take
judicial notice of the materials filed in the district court even when they are not included
in the record on appeal).
2
Mr. Kaufman’s Appellate Arguments
In his application for a certificate of appealability, Mr. Kaufman challenges:
(1) the traffic stop, (2) the officer’s directive for him to remain standing next to
the car, (3) the search, and (4) the sufficiency of evidence for a conviction.
Issues Relating to the Traffic Stop and the Search
Mr. Kaufman challenges the admissibility of the cocaine that fell out of his
pants, arguing that the detectives should not have initiated a traffic stop, made him
continue to stand next to the car, or conducted a pat-down search. For these
arguments, the federal district court denied relief on a procedural ground: Mr.
Kaufman could not obtain habeas relief because he had the opportunity to fully
and fairly litigate a Fourth Amendment claim in state court.
Because the district court rested on a procedural ground, we can grant a
certificate of appealability only if reasonable judges might regard the ruling as
debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard,
we deny a certificate of appealability because the district court’s ruling on the
search-and-seizure issues was not reasonably debatable.
Mr. Kaufman’s arguments are governed by Stone v. Powell, 428 U.S. 465(1976). There the Supreme Court held that a state prisoner cannot obtain habeas
relief when two elements exist: (1) The habeas claim is based on introduction of
evidence at trial that had been the result of an unconstitutional search or seizure;
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and (2) the State provided a full and fair opportunity to litigate a Fourth
Amendment claim. Stone, 428 U.S. at 494.
Both elements exist here: Mr. Kaufman claims that the state trial court
improperly allowed the introduction of cocaine based on an unconstitutional
search and seizure, and he had a full and fair opportunity to litigate a Fourth
Amendment claim through motions to suppress and a direct appeal. See Kaufman
v. State, No. F-2008-117, ECF No. 7, Ex. 3 (Okla. Crim. App. Jan. 14, 2009)
(unpublished op.). This opportunity prevents us from granting habeas relief even
if the cocaine had been found through an unconstitutional search and seizure.
Because the federal district court’s procedural ruling is not reasonably debatable,
we decline to issue a certificate of appealability on the claims involving an
unconstitutional search and seizure.
Insufficiency of the Evidence
Mr. Kaufman also challenges the sufficiency of the evidence. The district
court did not mention this claim, but we can take judicial notice of the contents of
the habeas petition to determine whether this claim had been presented in the
district court. See Guttman v. Khalsa, 669 F.3d 1101, 1130 n.5 (10th Cir. 2012)
(stating that we can take judicial notice of filings in the district court even when
they are not included in the record on appeal). When we exercise our discretion to
take judicial notice, we learn that Mr. Kaufman did not seek habeas relief based on
insufficiency of the evidence. Because this claim was not raised in the district
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court, we decline to consider it. See United States v. Viera, 674 F.3d 1214, 1220
(10th Cir. 2012).
Conclusion
Mr. Kaufman has not “made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). Accordingly, we deny Mr.
Kaufman’s request for a certificate of appealability and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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