Gordon v. Cline

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 17, 2019
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
WILLIS SHANE GORDON,
Petitioner - Appellant,
v. No. 18-3210
(D.C. No. 5:17-CV-03184-DDC)
SAM CLINE, (D. Kan.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
Petitioner Willis Shane Gordon, a state prisoner representing himself pro se, seeks
a certificate of appealability to appeal the district court’s dismissal of his § 2254 habeas
corpus petition.
Petitioner was charged in Kansas state court of one count each of rape, aggravated
kidnapping, attempted robbery, and aggravated battery. The first three counts involved a
female victim, while the fourth involved a male victim. The female victim testified at
trial that she met up with Petitioner to see an apartment he had told her he would help her
*
This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
to rent, but soon after they entered the apartment, Petitioner threatened her with a knife,
attempted to take her phone away from her—breaking it in the process—then forced her
to go into a bedroom, where he raped her. When she was able to escape from the
apartment, she saw the male victim, who had given her a ride to the apartment earlier that
evening, standing outside. The male victim testified at trial that he had come back to the
apartment to see if anything was wrong because he was concerned that the female victim
had not been answering his phone calls and texts. He testified that soon after he got there,
he saw the female victim running out of the apartment wearing nothing and screaming
that “he” had raped her. Petitioner then followed the female victim out of the apartment
and began chasing her, so the male victim tackled Petitioner. After Petitioner cut him in
the face with a knife, the male victim yelled at the female victim to get the knife away
from Petitioner. She was able to do so, and then she ran and found other help. The police
arrived soon thereafter.
Petitioner did not deny either that he had sex with the female victim or that he was
involved in a fight with the male victim. Instead, he testified at trial that the sex was both
consensual and paid, that the male victim came into the apartment and attempted to extort
him by threatening to have the female victim run out of the apartment crying rape if
Petitioner did not give him the rest of the money he was carrying, and that the male
victim began the fight with Petitioner and was cut with his own knife when Petitioner
tried to defend himself.
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The jury found Petitioner guilty on all of the charges against him. He was
sentenced to 460 months of imprisonment based in part on his criminal history. The
Kansas Court of Appeals affirmed his convictions and sentence on direct appeal. See
State v. Gordon, No. 103,029, 2011 WL 420743 (Kan. Ct. App. Jan. 28, 2011). Petitioner
then filed a pro se state court motion for habeas relief. The state trial court appointed
counsel to represent him in the state habeas proceeding, and counsel filed a modified
habeas motion. Following a limited evidentiary hearing, the state trial court denied relief.
On appeal, the state appellate court held that Petitioner was procedurally barred from
raising most of his appellate arguments because these arguments either were required to
be brought on direct appeal or had not been properly raised below; however, the court
then analyzed several of these claims on the merits and held that they were alternatively
subject to dismissal on the merits. See Gordon v. State, No. 112,591, 2016 WL 6137901
(Kan. Ct. App. Oct. 21, 2016). The appellate court accordingly affirmed the dismissal of
Petitioner’s state habeas motion. The Kansas Supreme Court denied certiorari.
Petitioner then filed the instant petition for federal habeas relief. Construed
liberally, this petition asserted five grounds for relief: (1) the government violated Brady
v. Maryland, 373 U.S. 83 (1963), by failing to provide the defense with (a) photographs
taken by a police officer of Petitioner’s injured finger, which appeared to have been
almost severed by a knife, and (b) a police report detailing the female victim’s statements,
including her statement that Petitioner’s finger was cut because he was holding onto the
blade of the knife when she pulled it out of his hands; (2) the prosecutor violated Doyle v.
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Ohio, 426 U.S. 610 (1976), by asking questions about Petitioner’s silence at the time of
arrest; (3) trial and appellate counsel were ineffective for failing to realize and/or argue
that the government had violated Brady and Doyle; (4) Petitioner’s convictions for rape
and aggravated kidnapping were multiplicitous; and (5) Petitioner’s sentence was
impermissibly increased based on facts not found by a jury. The district court held that
the Brady claim, Doyle claim, and related ineffective assistance claim were all
procedurally barred based on the state appellate court’s conclusion that Petitioner had not
properly raised these claims. The district court considered Petitioner’s multiplicity claim
on the merits, concluding that Petitioner had not shown that the state court’s denial of this
claim constituted an unreasonable application of federal law. Finally, the district court
declined to consider Petitioner’s sentencing claim on the ground that he had only raised it
in his traverse, not in his habeas petition. Petitioner seeks a certificate of appealability to
appeal the dismissal of all of these claims.
To receive a certificate of appealability for a claim that the district court addressed
on the merits—here, only the multiplicity claim—a petitioner “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claim[]
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For claims that were
dismissed on procedural grounds—all of the other claims in this case—Petitioner must
show both “that jurists of reason would find it debatable whether the 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.” Id. “Each
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component of [this] showing is part of a threshold inquiry, and a court may find that it can
dispose of the application in a fair and prompt manner if it proceeds first to resolve the
issue whose answer is more apparent from the record and arguments.” Id. at 485.
We begin by considering Petitioner’s argument that the government violated Brady
by failing to provide the defense with evidence that would have corroborated his self-
defense theory. Petitioner does not dispute that he failed to raise this claim in his direct
criminal appeal; however, he argues that this procedural default should be excused for
cause and prejudice because the Brady violations only came to light during his state
habeas proceedings and the withheld evidence would likely have had an impact on the
jury’s verdict. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“[F]ederal habeas
review of [procedurally defaulted] claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.”).
After reviewing the record in this case, we are persuaded that reasonable jurists
could not debate the district court’s conclusion that Petitioner failed to satisfy the
“prejudice” prong of this test. At trial, all three participants testified that at one point both
Petitioner and the female victim had their hands on the knife, and then the female victim
pulled it away from Petitioner. It was also undisputed that both Petitioner and the female
victim sustained cuts to their fingers, and a police officer agreed that one of Petitioner’s
fingers was cut badly enough that it was almost to the point of falling off. Petitioner
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argues that if the jury had seen the photographs of his injuries and heard that the victim
originally told a police officer that Petitioner’s hand was on the blade when she pulled the
knife away from him, then the jury would likely have believed his theory of self-defense.
We are not persuaded. Contrary to Petitioner’s contentions, it was in fact entirely
possible for his hand or finger to have ended up on the blade during the course of the
struggle even if—as the jury apparently believed—he was the one who originally
produced and used the knife. The alleged Brady evidence was largely consistent with the
evidence introduced at trial, and to the extent it was not, we are not persuaded that it was
significant enough to create a reasonable probability that the jury’s verdict would have
been different if this evidence had been disclosed to the defense. See United States v.
Cooper, 654 F.3d 1104, 1119–20 (10th Cir. 2011) (holding that defendant seeking new
trial based on Brady violation must show that suppressed evidence was “material,”
meaning “there is a reasonable probability that . . . the result of the proceeding would
have been different” if the evidence had been disclosed to the defense; evidence that
“would have provided only marginal additional support for the defense” fails to meet this
standard (internal quotation marks and brackets omitted)).
We turn then to Petitioner’s claim that the prosecutor violated Doyle by asking
questions about Petitioner’s silence at the time of his arrest. The district court denied
habeas relief on procedural grounds, which Petitioner contests for numerous reasons. We
need not consider his arguments on the procedural question, however, because we are
persuaded that reasonable jurists could not debate the state court’s resolution of this issue
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on the merits. See Slack, 529 U.S. at 485. The state appellate court held that this claim
failed on the merits because defense counsel opened the door by asking Petitioner if the
police had ever asked to hear his side of the story, and the prosecutor only introduced
rebuttal testimony from a police officer to clarify that the police were not permitted to
question Petitioner about the incident—even though they spent some hours together in the
hospital room where he was receiving treatment for his injured fingers—because he had
invoked his right to an attorney. See Gordon, 2016 WL 6137901, at *7–9. Petitioner has
not shown that this holding constituted an unreasonable application of clearly established
federal law, nor has he shown that it was based on an unreasonable determination of the
facts in light of the evidence presented. See 28 U.S.C. § 2254(d); see also United States
v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir. 2008) (“We, and other circuits, have
continued to recognize this ‘open the door’ or ‘reply’ exception to Doyle . . . .”). We thus
conclude that Petitioner is not entitled to a certificate of appealability on this issue.
We are likewise persuaded that reasonable jurists could not debate the state court’s
resolution on the merits of Petitioner’s claim of ineffective assistance relating to the
alleged Doyle and Brady violations. Under the circumstances of this case, the state court
could reasonably conclude that Petitioner was not prejudiced by defense counsel’s alleged
failures to discover or pursue these claims at trial or on direct appeal.
Petitioner’s next argument is that his convictions for rape and aggravated
kidnapping were multiplicitous and thus contrary to the Supreme Court’s decision in
Blockburger v. United States, 284 U.S. 299 (1932). However, the Kansas appellate court
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held, based on the language of the pertinent statutes, that each of these offenses required
proof of an element that the other offense did not. See Gordon, 2016 WL 6137901, at
*4–5. This is all that Blockburger requires, and we see no error in the state court’s
application of this test to the two offenses at issue here. See Blockburger, 284 U.S. at
304; see also, e.g., Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975) (“If each
[offense] requires proof of a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.”).
Thus, reasonable jurists could not debate the correctness of the state court’s resolution of
this issue.
Finally, Petitioner argues that his sentence was impermissibly increased based on
facts not found by a jury. The district court did not address this claim because the court
believed Petitioner had not raised this argument in his habeas petition. Reading the
petition liberally, we agree with Petitioner that this argument was actually raised.
Nevertheless, we conclude that Petitioner is not entitled to a certificate of appealability on
this issue because reasonable jurists could not debate the state court’s resolution of this
claim on the merits. See Slack, 529 U.S. at 485. Petitioner contends that his sentencing
violated the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” He argues that the Kansas sentencing scheme goes
beyond “the fact of a prior conviction” because it considers whether prior offenses were
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“person” or “nonperson” offenses and recommends increased sentences for a defendant
who has committed “person” offenses. See Kan. Stat. Ann. § 21-6811; see also Kan.
Sentencing Guidelines Desk Reference Manual App. D at 2 (2009). However, it is clear
from the record that the sentencing court did not look at the underlying facts of
Petitioner’s past criminal offenses. Certain prior offenses were classified as “person”
offenses based on the statutory elements of those offenses, not based on any
individualized factfinding about Petitioner’s specific conduct in those cases. Petitioner
has not shown that this constituted an unreasonable application of federal law; indeed,
this approach appears to be consistent with the Supreme Court’s categorical approach for
federal courts to apply in determining whether a defendant’s prior offense should be
characterized as a “violent felony”—a characterization which, like Kansas’s “person”
characterization of prior offenses, may affect the length of the defendant’s sentence. See
Taylor v. United States, 495 U.S. 575, 600 (1990). Accordingly, Petitioner has not shown
that reasonable jurists could debate the state court’s resolution of this claim under the
deferential standard required by § 2254(d).
We therefore DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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