Appleby v. Cline

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BENJAMIN APPLEBY,
Petitioner - Appellant,
v. No. 17-3002
(D.C. No. 5:15-CV-03038-JTM)
SAM CLINE, Warden; ATTORNEY (D. Kan.)
GENERAL OF KANSAS,
Respondents - Appellees.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Benjamin Appleby, a Kansas prisoner, seeks a certificate of appealability
(COA) to challenge the district court’s denial of his habeas petition filed under
28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be
taken from a final order denying a § 2254 petition unless the petitioner obtains a
COA). We deny a COA and dismiss the appeal.
*
After examining the brief 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. This order is not binding precedent, except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.
I
A Kansas jury convicted Mr. Appleby for the 2002 capital murder and
attempted rape of a 19-year-old college student. After the murder, Mr. Appleby fled
Kansas and eventually was apprehended in Connecticut in 2004. He was arrested by
Connecticut police on an outstanding warrant from 1998 on unrelated charges—risk
of injury to a minor, disorderly conduct, and public indecency. See State v. Appleby,
221 P.3d 525, 532, 538-39 (Kan. 2009). Kansas detectives were present for the arrest
and questioned Mr. Appleby, who confessed to committing both the murder and the
attempted rape. The state trial court sentenced him to a life sentence without the
possibility of parole for 50 years (“hard 50”) on the capital murder conviction and a
consecutive 19-year term on the attempted rape conviction. On direct appeal, the
Kansas Supreme Court vacated as multiplicitous the attempted rape conviction and
sentence but otherwise affirmed. Mr. Appleby unsuccessfully sought post-conviction
relief in the state courts and then filed a federal habeas petition under 28 U.S.C.
§ 2254.
Relevant here, Mr. Appleby claimed that (1) submitting his confession to the
jury violated his Fifth and Fourteenth Amendment rights against compelled
self-incrimination; (2) Kansas’s hard 50 sentencing scheme violates Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151
(2013), because it permits sentencing courts to find aggravating factors by a
preponderance of the evidence; (3) trial and appellate counsel were ineffective in
failing to raise suppression issues based on arguments that (a) the Connecticut
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warrant was stale and (b) the Kansas detectives acted outside of their geographic
jurisdiction; and (4) trial and appellate counsel were ineffective in failing to present
evidence from a mental health expert and raising the issue on appeal. The district
court determined these claims, all of which the state courts rejected on the merits, did
not warrant relief. Mr. Appleby now seeks a COA from this court.
II
A COA is a jurisdictional prerequisite to our review. See 28 U.S.C.
§ 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a
COA, a petitioner must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). This requires a petitioner to demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336
(internal quotation marks omitted).
Because the state courts denied Mr. Appleby’s claims on the merits, the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “requires federal
courts to give significant deference to [the] state court decisions.” Lockett v.
Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). Under AEDPA, a petitioner is not
entitled to federal habeas relief unless the state-court decisions were “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or were “based on an
unreasonable determination of the facts in light of the evidence presented in the State
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court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “A state-court decision is contrary to
clearly established federal law under 28 U.S.C. § 2254(d)(1) if it applies a rule that
contradicts the governing law set forth in Supreme Court cases or confronts a set of
facts that are materially indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from that precedent.” Smith v. Duckworth,
824 F.3d 1233, 1241 (10th Cir. 2016) (internal quotation marks omitted),
cert. denied, 137 S. Ct. 1333 (2017). “A state-court decision is an unreasonable
application of Supreme Court precedent if the decision correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular prisoner’s
case.” Id. (internal quotation marks omitted). A state court’s factual determinations
are presumed correct and are rebuttable only by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). We consider only “the record that was before the state court
that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011).
A. Confession
Mr. Appleby first claims that submitting his confession to the jury violated his
Fifth and Fourteenth Amendment rights against compelled self-incrimination because
he confessed after repeatedly asking about an attorney. During the book-in process
on the Connecticut charges, and before ever speaking with the Kansas detectives or
even knowing they were present, Mr. Appleby asked a Connecticut detective if he
could speak to an attorney about refusing to submit to a DNA swab; three other times
during the book-in process on the Connecticut charges, he asked more generally if he
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would have an opportunity to speak with an attorney. But once he was transferred to
the Kansas detectives, Mr. Appleby agreed to answer their questions about the
murder, waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966),
and gave the Kansas detectives a two-and-a-half hour interview without requesting to
speak with or have the assistance of an attorney.
The Kansas Supreme Court rejected this claim on direct appeal, and the federal
district court denied habeas relief, concluding that the Kansas Supreme Court applied
legal standards consistent with federal law in a reasonable manner.1 Under the
controlling COA standards, no reasonable jurist could debate the district court’s
resolution of the claim.
Initially, the district court noted that the Kansas Supreme Court reasonably
applied Davis v. United States, 512 U.S. 452 (1994), in declining to broadly construe
any mention of an attorney as a request for counsel for purposes of interrogation. In
Davis, the Supreme Court held that a “suspect must unambiguously request counsel.”
Id. at 459. As the Court explained, “if a suspect makes a reference to an attorney that
is ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to counsel,
our precedents do not require the cessation of questioning.” Id. In light of Davis, the
1
Mr. Appleby asserts the Kansas Supreme Court’s decision was contrary to, or
involved an unreasonable application of, Davis v. United States, 512 U.S. 452 (1994);
McNeil v. Wisconsin, 501 U.S. 171 (1991); Minnick v. Mississippi, 498 U.S. 146
(1990); Arizona v. Roberson, 486 U.S. 675 (1988); Smith v. Illinois, 469 U.S. 91
(1984); Edwards v. Arizona, 451 U.S. 477 (1981); and Miranda.
5
Kansas Supreme Court evaluated the circumstances of Mr. Appleby’s inquiries to
determine whether he invoked his Fifth Amendment right to counsel and, applying
McNeil v. Wisconsin, 501 U.S. 171 (1991), and Montejo v. Louisiana, 556 U.S. 778
(2009), concluded he did not.
In McNeil, the Supreme Court distinguished the Sixth Amendment right to
counsel in criminal prosecutions from the Fifth Amendment right to counsel to assist
with custodial interrogations. “The Sixth Amendment right,” the Court explained, is
“offense specific” and “cannot be invoked once for all future prosecutions.”
501 U.S. at 175. But the right to counsel emanating from the Fifth Amendment’s
guarantee against compelled self-incrimination is intended “to counteract the
inherently compelling pressures of custodial interrogation.” Id. at 176 (internal
quotation marks omitted). Although it is not offense specific, given its purpose, it is
invoked “only when the suspect has expressed his wish for the particular sort of
lawyerly assistance that is the subject of Miranda.” Id. at 178 (brackets and internal
quotation marks omitted). The suspect must express “a desire for the assistance of an
attorney in dealing with custodial interrogation by the police.” Id.
Building on McNeil, the Montejo Court dismissed concerns that a suspect
could anticipatorily invoke his Fifth Amendment right to counsel at a preliminary
hearing, in advance of interrogation:
“We have in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than ‘custodial interrogation’ . . . .”
McNeil, 501 U.S. at 182 n.3. What matters for Miranda and Edwards
[v. Arizona, 451 U.S. 477 (1981),] is what happens when the defendant
is approached for interrogation, and (if he consents) what happens
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during the interrogation—not what happened at any preliminary
hearing.
556 U.S. at 797.
Applying these authorities, the Kansas Supreme Court analyzed the timing,
content, and context of Mr. Appleby’s inquiries and concluded that he failed to
unambiguously invoke his Fifth Amendment right to counsel for purposes of
interrogation on the Kansas charges. See Appleby, 221 P.3d at 542, 548. As the
district court observed, the Kansas Supreme Court determined that Mr. Appleby’s
request for counsel in response to the DNA swab sought only limited assistance for
purposes of refusing the DNA swab, not to assist with his custodial interrogation.
See id. at 542. His other references to an attorney, the Kansas Supreme Court ruled,
generally inquired during the book-in process on the Connecticut charges whether he
would have an opportunity to talk to a lawyer. See id. at 548. At that time, he did
not know about the Kansas case, nor had he been questioned on any charges from
either Connecticut or Kansas. Id. Moreover, the Connecticut detective to whom he
inquired told him that someone else would be questioning him. Id. Under these
circumstances, the district court concluded that the Kansas Supreme Court’s decision
was consistent with, and a reasonable application of, federal law. No reasonable
jurist could debate the district court’s conclusion. Consequently, Mr. Appleby fails
to show he is entitled to a COA on this claim.2
2
Mr. Appleby refers in passing to what he asserts is the Kansas Supreme
Court’s unreasonable determination of the facts. Citing testimony he gave later at his
(continued)
7
B. Hard 50 Sentencing Scheme Under Apprendi
Mr. Appleby was sentenced to life in prison without the possibility of parole
for 50 years under Kansas’s hard 50 sentencing scheme, which at the time permitted
sentencing courts to find aggravating circumstances based on a preponderance of the
evidence. On direct appeal, he claimed the hard 50 sentence violated Apprendi,
530 U.S. at 490, which held that other than a prior conviction, any fact that increases
the maximum sentence is an element of the offense that must be submitted to the jury
and proven beyond a reasonable doubt. The Kansas Supreme Court rejected
Mr. Appleby’s claim in its 2009 decision, holding that Kansas’s hard 50 sentencing
scheme was constitutional because it enhanced the minimum sentence a defendant
must serve, without exposing a defendant to a greater maximum sentence.
See Appleby, 221 P.3d at 558 (citing State v. Johnson, 159 P.3d 161, 166
(Kan. 2007)). Nearly four years later, the Supreme Court extended Apprendi to
require that any fact that increases the mandatory minimum sentence is an element
that must be submitted to a jury and proven beyond a reasonable doubt. Alleyne,
133 S. Ct. at 2155. Mr. Appleby now seeks a COA, claiming the Kansas Supreme
Court’s decision is contrary to, or an unreasonable application of, Apprendi and
Alleyne.
state post-conviction evidentiary hearing, he says he asked to call his lawyer as soon
as he was brought into the interrogation room and realized he was being questioned
about the Kansas case. We decline to consider this issue because Mr. Appleby did
not raise it in the district court. See Ochoa v. Workman, 669 F.3d 1130, 1146 n.15
(10th Cir. 2012).
8
We deny a COA on this claim because no reasonable jurist could debate the
district court’s conclusion that federal courts measure the state-court decisions
against Supreme Court precedent “as of the time the state court renders its decision.”
Cullen, 563 U.S. at 182 (internal quotation marks omitted); see Smith, 824 F.3d at
1241 (“In analyzing a state-court decision’s compliance with clearly established
federal law, we measure the decision against the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its
decision.”). When the Kansas Supreme Court adjudicated this claim in 2009, its
decision complied with Apprendi; Alleyne was not decided until nearly four years
later.
C. Ineffective Assistance
We turn now to Mr. Appleby’s ineffective-assistance claims, which were
rejected by the state courts on post-conviction review. Under Strickland v.
Washington, 466 U.S. 668 (1984), Mr. Appleby “must show both that his counsel’s
performance fell below an objective standard of reasonableness and that the deficient
performance prejudiced the defense.” Hooks v. Workman, 689 F.3d 1148, 1186
(10th Cir. 2012) (internal quotation marks omitted). “These two prongs may be
addressed in any order, and failure to satisfy either is dispositive.” Id. “Surmounting
this high bar is not an easy task,” and “[a] state prisoner in the § 2254 context faces
an even greater challenge.” Id. at 1187 (internal quotation marks omitted). In the
§ 2254 context, a federal court must “defer to the state court’s determination that
counsel’s performance was not deficient and, further, defer to the attorney’s decision
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in how to best represent a client.” Id. (brackets and internal quotation marks
omitted). Thus, habeas review of counsel’s performance is “doubly deferential.”
Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). To show prejudice, a
prisoner “must demonstrate a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Premo v. Moore, 562 U.S. 115, 122 (2011) (internal quotation marks omitted).
1. Suppression Arguments
Mr. Appleby contends his trial and appellate attorneys were ineffective in
failing to raise suppression arguments based on the outstanding Connecticut warrant
from 1998 and the extra-jurisdictional work of the Kansas detectives. Reasonable
jurists could not debate the district court’s denial of relief on these claims because in
each instance, the Kansas Court of Appeals reasonably applied Strickland in
concluding that Mr. Appleby failed to show either that counsel’s performance was
deficient or that he was prejudiced.
a. Outstanding Warrant
The state courts rejected Mr. Appleby’s claims that his attorneys were
ineffective in failing to seek the suppression of evidence based on the delay in
executing the Connecticut warrant from 1998. The Kansas Court of Appeals ruled
that even if his trial attorneys acted deficiently in failing to pursue this theory,
Mr. Appleby showed no prejudice because his arrest was legal, given that he caused
the delay by eluding Connecticut authorities to prevent them from executing the
warrant. See Appleby v. State, No. 108,777, 2014 WL 801921, at *13-15 (Kan. Ct.
10
Ohio App. 2014) (per curiam) (unpublished). The court explained that delay in executing
an arrest warrant may be reasonable under Connecticut law if a suspect “consciously
eluded the authorities[] or for other reasons was difficult to apprehend.” Id. at *13
(internal quotation marks omitted). The court then detailed Mr. Appleby’s efforts to
evade the Connecticut police, which included giving them his alias—Teddy
Hoover—and fleeing the state less than two months after he confessed to committing
the crime (risk of injury to a minor). Id. at *14. The court also described
information indicating that Mr. Appleby had been in Connecticut, Missouri, and
Kansas, and possibly Nevada and Texas as well, using both his real name and his
alias. Id. Thus, the court concluded that the delay in executing his warrant was not
unreasonable and his stale-warrant argument failed. Id. at *14-15.
The district court, citing the Kansas Court of Appeals’ conclusion that any
motion to suppress based on staleness would have failed, determined that the Kansas
Court of Appeals reasonably applied Strickland. This conclusion is not subject to
reasonable debate because the outstanding-warrant determination, which precluded
Mr. Appleby from showing the result of the proceedings would have been different,
reasonably applied Strickland’s prejudice prong.
Also, absent evidence that Mr. Appleby’s appellate counsel unreasonably
declined to raise this issue on appeal or that Mr. Appleby was prejudiced by her
failure to do so, the Kansas Court of Appeals determined that appellate counsel was
not ineffective in failing to challenge the warrant on direct appeal. Id. at *20. The
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district court concluded this was a reasonable application of Strickland. Again,
jurists of reason could not debate the district court’s conclusion.
b. Geographic Jurisdiction of Kansas Detectives
Mr. Appleby also contends his attorneys were ineffective in failing to pursue
suppression issues based on the Kansas detectives’ extra-jurisdictional work in
Connecticut. The Kansas Court of Appeals examined the relevant Kansas statute,
which authorized officers to exercise their police powers anywhere their assistance is
requested or when they are in fresh pursuit. Id. at *15. The court observed that trial
counsels’ performance was not objectively unreasonable in failing to object on this
basis because they sought to suppress evidence from his interview on numerous other
grounds. Id. at *15-16. Further, the court concluded that Mr. Appleby was not
prejudiced because the statute did not prohibit the Kansas detectives from
questioning him in Connecticut, and although the Kansas detectives collaborated with
Connecticut officers, it was Connecticut officers who executed the warrant, which
was issued by that state, in that state, for charges filed in that state, and Mr. Appleby
agreed to talk with the Kansas detectives. Id. at *18. Additionally, the court noted
the lack of any evidence either that appellate counsel was deficient in failing to raise
this issue on appeal or that Mr. Appleby was prejudiced by her failure to do so.
Under these circumstances, the district court determined that this, too, was a
reasonable application of Strickland, both as it relates to trial counsel and appellate
counsel. Again, no reasonable jurist would debate the district court’s resolution of
these claims.
12
2. Mental Health Expert
Finally, Mr. Appleby contends his trial counsel rendered ineffective assistance
by failing to proffer the testimony of Dr. George Hough, a clinical psychologist and
mental health expert. Before trial, Dr. Hough diagnosed Mr. Appleby with
intermittent explosive disorder and antisocial personality disorder. According to
Mr. Appleby, Dr. Hough’s testimony would have supported his theory of defense that
he lacked the requisite intent of premeditation to commit capital murder due to a
mental disease or defect. The Kansas Court of Appeals rejected this claim and
concluded that defense counsel’s decision not to call Dr. Hough failed to satisfy
either prong of the Strickland test. Id. at *10-11. Here again, no reasonable jurist
could debate the district court’s conclusion that the Kansas Court of Appeals
reasonably applied Strickland.
In evaluating counsel’s performance, courts “apply a strong presumption that
counsel’s representation was within a wide range of reasonable professional
assistance.” Premo, 562 U.S. at 121. Consistent with this standard, the Kansas Court
of Appeals concluded there were several reasons why trial counsel acted reasonably
in declining to call Dr. Hough. First, Mr. Appleby’s trial attorney did not believe his
diagnosis of antisocial personality disorder would benefit their case, and indeed,
Dr. Hough acknowledged that his testimony would not be helpful. See Appleby,
2014 WL 801921, at *10. Second, Dr. Hough refused to offer an opinion whether
Mr. Appleby could form the requisite criminal intent of premeditation and counsel
believed there was other evidence that Mr. Appleby did form the requisite intent. Id.
13
Third, co-counsel agreed that Dr. Hough could be a detrimental witness and that the
better strategy was to attack the prosecution’s timeline of events. Id. Last,
Mr. Appleby’s trial attorneys consulted with a nationally recognized capital defense
attorney, who concurred that Dr. Hough’s testimony would not benefit the defense.
Id. Under these circumstances, the Kansas Court of Appeals determined that
counsels’ strategy not to call Dr. Hough was not so unreasonable as to fall outside of
prevailing professional norms. Id. Further, the court determined there was no
evidence that appellate counsel was ineffective in failing to raise this issue on appeal.
Id. at *20.
The district court concluded that the Kansas Court of Appeals’ decision
reasonably applied Strickland’s deficient-performance prong as it related to trial
counsel and also reasonably applied the relevant Strickland standards to deny the
claims of ineffective assistance of appellate counsel. Because the district court’s
conclusions are not subject to reasonable debate, Mr. Appleby is not entitled to a
COA.
III
Accordingly, we deny a COA and dismiss this appeal.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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