Elston v. Roberts

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 18, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SC OTT ELSTO N ,
Petitioner - A ppellant,
No. 06-3404
v. Kansas
RO Y R OB ERTS; ATTO RN EY (D.C. No. 06-CV-3093-JTM )
GEN ERAL O F KANSAS,
Respondents - Appellees.
OR D ER D EN YING LEAVE TO PROCEED
ON APPEAL IN FORM A PAUPERIS,
D EN Y IN G C ER TIFICATE OF APPEALABILITY,
A ND DISM ISSIN G A PPLIC ATIO N
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Scott Elston, a state inmate appearing pro se, 1 filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition
1
W e liberally construe Elston’s pro se pleadings. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
and his subsequent requests for a certificate of appealability (COA) and to
proceed in form a pauperis (ifp) on appeal. Elston renew s his application for a
COA with this Court, as well as his request to proceed ifp. Because Elston has
failed to make “a substantial showing of the denial of a constitutional right,” see
28 U.S.C. § 2253(c)(2), we deny a COA and dismiss his application. W e also
deny his request to proceed ifp.
On June 23, 2001, Elston was arrested for aggravated robbery in Lawrence,
Kansas. He was arraigned on July 11, 2001, and the case was set for trial on
September 4, 2001. On August 29, 2001, Elston’s case was assigned to Judge
Adrian Allen, an out-of-district judge, because all of the district judges had
recused themselves. 2 Two days later, Judge Allen conducted a teleconference
with the attorneys. At that conference, the trial date was reset to October 17,
2001.
On the morning of October 17, 2001, Elston filed a motion to dismiss for
violation of his right to a speedy trial under the Sixth Amendment of the United
States Constitution, § 10 of the Kansas Bill of Rights and K AN . S TAT . A NN . § 22-
3402. Judge Allen granted the motion and dismissed the case. The State
immediately filed a notice of appeal, followed by a motion to reconsider. The
next day, Judge Allen granted the motion to reconsider. On November 26, 2001,
2
The district judges recused themselves because after his arrest, Elston
married a non-judicial district court employee.
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Elston entered a plea of no contest to aggravated robbery. On M ay 1, 2002, he
was sentenced to 100 months imprisonment. He did not file a direct appeal.
On February 13, 2003, Elston filed a petition for post-conviction relief in
state court alleging he was denied his right to a speedy trial in violation of the
Sixth Amendment of the United States Constitution, § 10 of the Kansas Bill of
Rights and K AN . S TAT . A NN . § 22-3402. Counsel was appointed to represent
Elston. In addition to alleging a violation of Elston’s speedy trial rights, counsel
argued Judge Allen lacked jurisdiction to reconsider his October 17, 2001
dismissal order. On August 4, 2004, Judge Allen denied Elston’s post-conviction
petition. The Kansas Court of Appeals affirmed on October 21, 2005, and the
Kansas Supreme Court denied review on February 14, 2006.
On M arch 28, 2006, Elston filed a petition for writ of habeas corpus under
28 U.S.C. § 2254 in the United States District Court for the District of Kansas.
He alleged (1) his right to a speedy trial under the Sixth Amendment and K AN .
S TAT . A NN . § 22-3402 was violated and (2) Judge Allen lacked jurisdiction to
reconsider his O ctober 17, 2001 dismissal order (a matter of state law). On
November 16, 2006, the district court denied Elston’s § 2254 petition, finding his
Sixth Amendment right to a speedy trial was not violated and his alleged
violations of state law were not cognizable under § 2254. See Elston v. Robert,
No. 06-3093-JTM , 2006 W L 3337504 (D. Kan. Nov. 16, 2006).
Unless we issue a CO A, Elston may not appeal the denial of his § 2254
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petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the issuance of a
COA only where a petitioner has made a substantial showing of the denial of a
constitutional right.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted). To make the requisite showing, a petitioner must demonstrate “that
reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Id. (quotations omitted). “W hen the
district court denies a habeas petition on procedural grounds . . ., a COA should
issue when the prisoner shows, at least, 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.” Slack v. M cDaniel, 529 U.S. 473, 484
(2000).
W ith these principles in mind, we have carefully reviewed the record and
the district court’s order. W e agree Elston’s state law claims are not cognizable
in a § 2254 action. See 28 U.S.C. § 2254(a) (stating a court “shall entertain” a
§ 2254 petition “only on the ground that [the state prisoner] is in custody in
violation of the Constitution or laws or treatises of the United States”) (emphasis
added); Estelle v. M cGuire, 502 U.S. 62, 67-68 (1991) (“[I]t 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
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whether a conviction violated the Constitution, laws, or treaties of the United
States.”).
W e also agree Elston’s Sixth Amendment right to a speedy trial was not
violated. W hether a defendant’s Sixth Amendment right to a speedy trial has been
violated requires us to balance (1) the length of the delay, (2) the reason for the
delay, (3) whether the defendant asserted his right to a speedy trial and (4)
whether the delay prejudiced the defendant. Barker v. Wingo, 407 U.S. 514, 530-
32 (1972). “The length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.” Id. at 530. Here,
approximately five months passed from the time of Elston’s arrest to his plea of
no contest and four months from his arrest to his October 17, 2001 trial date. See
United States v. Batie, 433 F.3d 1287, 1290 (10th Cir.) (“The length of delay is
measured from the time at which the speedy trial right attaches: the earlier of
either arrest or indictment.”), cert. denied, 126 S.Ct. 2949 (2006). These delays
are not presumptively prejudicial. See United States v. Dirden, 38 F.3d 1131,
1138 (10th Cir. 1994) (seven and one-half month delay between arraignment and
trial not presumptively prejudicial). Even considering the remaining Barker
factors, they do not favor Elston. The reason for the delay was not chargeable to
the State. Rather, it was due to Elston’s post-arrest marriage to a district court
employee, which required the case to be assigned to an out-of-district judge.
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M oreover, while Elston could have asserted his right to a speedy trial at the
conference setting the case for trial on October 17, 2001, he w aited until the first
day of trial to raise it. Lastly, there is no evidence Elston was prejudiced by the
delay.
W e D EN Y Elston’s request for a COA and DISM ISS the application.
Because Elston has not shown “the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal,” his
motion to proceed ifp on appeal is DENIED. DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991). He is directed to remit the full amount of the filing fee
within twenty days from the date of this order.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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