Bowen v. State of Kansas

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 29, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
MICHAEL KENNETH BOWEN,
Petitioner-Appellant,
v. No. 08-3022
STATE OF KANSAS; ROGER (D.C. No. 06-CV-3341-WEB)
WERHOLTZ, Secretary of (D. Kansas)
Corrections; JAY SHELTON, Warden,
Norton Correctional Facility;
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, SEYMOUR, and PORFILIO, 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, submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Michael Kenneth Bowen was convicted of four methamphetamine-related
offenses under Kansas law. Bowen has now filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254, arguing (1) that he did not voluntarily,
knowingly, or intelligently waive his right to a jury trial, and (2) ineffective
assistance of counsel. The district court addressed both of Bowen’s claims on the
merits and denied relief. We granted a certificate of appealability (“COA”) on
the jury trial waiver issue. We have jurisdiction under 28 U.S.C. § 1291 and 28
U.S.C. § 2253, and we now vacate the COA as improvidently granted and dismiss
the appeal as to all claims.
I.
On March 5, 1996, officers from the Ness County Sheriff’s Office entered a
residence in Ness City, Kansas, to serve outstanding arrest warrants on Bowen
and his girlfriend, Christine Ridpath. The outstanding arrest warrants were drug-
related, but they did not involve methamphetamine.
Upon entering the residence, one of the officers detected an odor of iodine,
a chemical commonly used to manufacture methamphetamine. The officers
applied for, and received, a search warrant to search the residence for drugs and
items used in the process of manufacturing methamphetamine. The search of the
residence revealed bulk quantities or empty containers of ephedrine, iodine, lye,
paint thinner, acetone, and muriatic acid. All of these chemicals are precursors
for the manufacture of methamphetamine. The officers did not discover any red
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phosphorus—another precursor—but they did find a large number of matchbooks
with the striker plates removed, a common source of red phosphorus for
manufacturing methamphetamine. The officers also found a reaction vessel,
coffee filters, and a pipe and set of scales with traces of methamphetamine on
them. A book called “Secrets of Methamphetamine Manufacture,” and a diary
describing the preparation of a batch of methamphetamine, were likewise
discovered at the residence. The residence was located within 1000 feet of a
public school in Ness City.
In a seven-count criminal complaint, Bowen was charged in Kansas state
court with various methamphetamine-related offenses. After a joint trial of
Bowen and Ridpath as to four of the counts, a jury convicted Bowen of
manufacturing methamphetamine within 1000 feet of a school, in violation of
Kan. Stat. Ann. § 65-4159 (Count 1); possession of methamphetamine within
1000 feet of a school, in violation of Kan. Stat. Ann. § 65-4160 (Count 2);
conspiracy to manufacture, or to assist in manufacturing, methamphetamine
within 1000 feet of a school, in violation of Kan. Stat. Ann. §§ 21-3302, 65-4159
(Count 3); and possession of drug paraphernalia, in violation of Kan. Stat. Ann. §
65-4152 (Count 4). Bowen was sentenced to a total of 330 months’
imprisonment.
Bowen appealed his conviction to the Kansas Court of Appeals, arguing
that his trial counsel was constitutionally ineffective. The Kansas Court of
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Appeals remanded the case to the trial court for an evidentiary hearing to
determine whether Bowen had received ineffective assistance of counsel. The
trial court denied relief, concluding that Bowen had failed to establish that his
trial counsel’s performance was constitutionally ineffective. Bowen again
appealed, and the Kansas Court of Appeals determined that Bowen’s trial counsel
had been constitutionally ineffective because counsel’s joint representation of
Bowen and Ridpath created a conflict of interest. See State v. Bowen, 999 P.2d
286, 292-94 (Kan. Ct. App. 2000). The Kansas Court of Appeals reversed
Bowen’s conviction and remanded for a new trial. Id. at 294.
Bowen was appointed new counsel, and the case was set for a second trial.
Prior to trial, Bowen’s counsel reached a procedural agreement with the Ness
County Attorney. The agreement provided that Bowen would give up his right to
a jury trial, and the trial court would conduct a bench trial on stipulated
facts—specifically, the trial transcript and evidence presented at the first trial,
minus Bowen’s testimony. Bowen would still retain the right to testify in his own
defense, if he so desired. In return, the Ness County Attorney agreed to leave
Bowen on bond until the completion of the state appellate process. At a hearing
on January 12, 2001, after Bowen’s counsel recited the terms of the agreement on
the record, the following exchange occurred:
[BOWEN’S COUNSEL]: I believe Mr. Bowen understands that he
has a right to a jury trial, a right to have
this determined by jurors, which he would
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in fact [be] giving up, and you would have
to try both the facts and the law in this
matter.
Obviously, I told Mr. Bowen and I
believe the law to be that were he to
do that, [he would] not [be] giving up
his rights to appeal, and to follow the
-- you know, to go through the
appellate process as far as it goes.
I suppose the Court had other
questions of Mr. Bowen and if the
Court needs to ask those.
***
THE COURT: Mr. Bowen, I’m sure you heard the
conversation your attorney has had
with the Court and with the
prosecutor -- the County Attorney?
MR. BOWEN: Uh-huh.
THE COURT: And you understand what [your
attorney] is saying?
MR. BOWEN: Yes.
THE COURT: He’s saying that we’re going to take
the trial transcript of the first trial
and that would be the stipulated facts
that would be presented to the Court.
The only thing that would be redacted
or taken [away] from that would be
your testimony.
You understand that? So that
everything else that went in at that
trial, the way I understand, would be
everything but your testimony at that
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trial.
01/12/01 Hearing, ROA at F38-F39.
On February 1, 2001, the trial court reiterated the terms of the parties’
procedural agreement. The parties then stipulated to the testimony and other
evidence presented at the first trial—with the exception of Bowen’s testimony.
Bowen was given the opportunity, but chose not to testify. Both parties presented
closing arguments, and the trial court found Bowen guilty of the same four
counts. The trial court sentenced Bowen to 318 months’ imprisonment.
Bowen again appealed his conviction to the Kansas Court of Appeals. The
same counsel who had represented him at the second trial also represented him on
appeal. Bowen argued that (1) the trial court erred in failing to suppress evidence
obtained pursuant to a search warrant; (2) the trial court erred in refusing to
conduct a new preliminary examination; (3) the evidence was insufficient to
support his conviction; and (4) Bowen and Ridpath were not afforded equal plea
agreement opportunities. The Kansas Court of Appeals rejected Bowen’s
arguments and affirmed his conviction, see State v. Bowen, No. 86-963, slip op.
1-7 (Kan. Ct. App. Feb. 28, 2003), and the Kansas Supreme Court denied review.
Bowen then filed a state habeas motion in Kansas state court, pursuant to
Kan. Stat. Ann. § 60-1507. Bowen was represented by new counsel, and he raised
four issues: (1) ineffective assistance of counsel; (2) denial of his right to a jury
trial; (3) denial of his right to confront witnesses; and (4) the illegality of his
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sentence under State v. McAdam, 83 P.3d 161 (Kan. 2004). At an evidentiary
hearing, Bowen testified that he had never discussed or agreed to the waiver of
his right to a jury trial. He testified that he never intended to waive his right to a
jury trial, never signed any document waiving his right to a jury trial, and never
told the trial court that he waived his right to a jury trial. Bowen admitted that he
had been present at the hearing on January 12, 2001, but he stated that he had not
understood what was happening at the time. He also testified that he did not
remember his attorney stating the terms of the procedural agreement. Finally,
Bowen stated that he had wanted to appeal the jury trial issue on direct appeal,
but his trial counsel continued to represent him on direct appeal and refused to
raise the issue.
The court denied Bowen’s state habeas motion, and the Kansas Court of
Appeals affirmed. The Kansas Court of Appeals held that Bowen’s second
argument—denial of his right to a jury trial—alleged a “trial error.” Bowen had
not raised this trial error in his direct appeal, and the court refused to consider it
on habeas. See Bowen v. State, No. 93-894, 2006 WL 2043021 (Kan. Ct. App.
July 1, 2006). The Kansas Supreme Court denied review.
On December 11, 2006, Bowen filed a petition for writ of habeas corpus in
federal court under 28 U.S.C. § 2254. He raised two issues: (1) he did not
voluntarily, knowingly, or intelligently waive his right to a jury trial, and (2)
ineffective assistance of counsel. The government responded, arguing that (1)
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Bowen had procedurally defaulted on the jury trial waiver issue, and (2) Bowen
had failed to show ineffective assistance of counsel. The district court first
concluded that Bowen had exhausted both issues in state court. Then, the district
court denied Bowen’s claims on the merits, holding that (1) Bowen’s waiver of
his right to a jury trial was knowing, voluntary, and intelligent, and (2) Bowen
had failed to show ineffective assistance of counsel. The district court denied
Bowen a COA under 28 U.S.C. § 2253.
Bowen appealed, and on April 11, 2008, we issued a COA on the following
issue:
Whether Mr. Bowen’s waiver of his right to a jury trial was knowing,
voluntary, and intelligent.
04/11/08 Order at 1. The government filed a response brief, again arguing that
Bowen procedurally defaulted on the jury trial waiver issue. Alternatively, the
government contends that Bowen’s decision to waive his right to a jury trial was
knowing, voluntary, and intelligent. Bowen has not filed a reply brief.
II.
Bowen has procedurally defaulted on the issue of whether the waiver of his
right to a jury trial was knowing, voluntary, and intelligent, and he has not shown
“cause and prejudice” sufficient to excuse the default. “Before a federal court
may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies
in state court. In other words, the state prisoner must give the state courts an
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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); 28
U.S.C. § 2254(b)(1)(A). “In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the 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.” Coleman v. Thompson, 501
U.S. 722, 750 (1991). “The procedural default doctrine and its attendant ‘cause
and prejudice’ standard are grounded in concerns of comity and federalism, and
apply alike whether the default in question occurred at trial, on appeal, or on state
collateral attack.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citations and
some internal quotation marks omitted).
Bowen failed to raise the jury trial waiver issue on direct appeal from his
second trial. When he later attempted to raise the issue in his state habeas
motion, the Kansas Court of Appeals refused to consider it, citing Kan. Sup. Ct.
R. 183(c)(3). 1 Bowen’s failure to comply with Rule 183(c)(3) was an independent
1
Rule 183(c)(3) provides:
[A] proceeding under [Kan. Stat. Ann. § 60-1507] cannot ordinarily
be used as a substitute for direct appeal involving mere trial errors or
as a substitute for a second appeal. Mere trial errors are to be
(continued...)
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and adequate basis on which the Kansas Court of Appeals could reject Bowen’s
claim. See Love v. Roberts, 259 F. App’x 58, 60 (10th Cir. 2007) (unpublished)
(finding a procedural default where the defendant failed to comply with Rule
183(c)(3)); Nash v. McKune, 44 F. App’x 378, 382-84 (10th Cir. 2002)
(unpublished) (same).
Further, Bowen cannot show “cause and prejudice” for his failure to raise
the jury trial waiver issue on direct appeal in Kansas state court. 2 Bowen argues
that he has established “cause” for the procedural default because “his appellate
and trial counsel were the same,” creating “a conflict of interest” that precluded
appellate counsel from “appeal[ing] or challeng[ing] his acts as trial counsel.”
Opening Br. at 7. As the government notes, Bowen’s argument here appears to be
“that appellate counsel was ineffective.” Gov’t Br. at 12-13.
In Edwards, 529 U.S. at 451, the Supreme Court acknowledged that,
1
(...continued)
corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on
appeal, provided there were exceptional circumstances excusing the
failure to appeal.
Kan. Sup. Ct. R. 183(c)(3).
2
Bowen has not argued that we should excuse his procedural default
because “failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750. Nor could he. To satisfy the “fundamental
miscarriage of justice” exception, “a criminal defendant must make a colorable
showing of factual innocence.” Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir.
2000). A cursory review of the record indicates that Bowen is not factually
innocent of the crimes for which he was convicted.
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“[a]lthough we have not identified with precision exactly what constitutes ‘cause’
to excuse a procedural default, we have acknowledged that in certain
circumstances counsel’s ineffectiveness in failing properly to preserve the claim
for review in state court will suffice.” For ineffective assistance of counsel to
constitute “cause,” however, “the assistance must have been so ineffective as to
violate the Federal Constitution”—i.e., “ineffective assistance adequate to
establish cause for the procedural default of some other constitutional claim is
itself an independent constitutional claim.” Id. (emphasis omitted). As a result,
an ineffective assistance of counsel claim must itself “‘be presented to the state
courts as an independent claim before it may be used to establish cause for a
procedural default.’” Id. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 489
(1986)). If the ineffective assistance of counsel claim is procedurally defaulted, it
cannot be used to establish “cause” excusing procedural default of the other
constitutional claim, unless the defendant has also established “cause” excusing
default of the ineffective assistance of counsel claim. Id. at 453; see also Spears
v. Mullin, 343 F.3d 1215, 1256 (10th Cir. 2003); Johnson v. Gibson, 254 F.3d
1155, 1159-60 (10th Cir. 2001).
Bowen raised an ineffective assistance of counsel claim in his state habeas
motion, but the claim did not encompass his counsel’s failure to challenge the
jury trial waiver on direct appeal. Nor has Bowen attempted to show “cause” for
his failure to raise this ineffective assistance of counsel claim in Kansas state
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court. Bowen, therefore, cannot establish “cause” excusing his procedural default
on the issue of whether the waiver of his right to a jury trial was knowing,
voluntary, and intelligent. See Edwards, 529 U.S. at 451-53.
III.
Finding that Bowen has procedurally defaulted on the issue of whether the
waiver of his right to a jury trial was knowing, voluntary, and intelligent, we
withdraw the prior grant of COA as improvidently granted. We likewise
conclude, for the same reasons as the district court, that Bowen has not made the
necessary showing for the issuance of a COA as to his ineffective assistance of
counsel claim. Accordingly, we VACATE this court’s grant of COA as to the
jury trial waiver claim, DENY the application for a COA as to the ineffective
assistance of counsel claim, and DISMISS the appeal as to all claims raised by
Bowen.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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