Sawyer v. Kinlen

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 23, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MYOUN L. SAWYER,
Petitioner - Appellant,
No. 17-3007
v. (D.C. No. 5:16-CV-03036-SAC)
(D. Kan.)
THOMAS KINLEN,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Petitioner-Appellant Myoun Sawyer, a civilly-committed inmate appearing
pro se, seeks to appeal from the district court’s dismissal of his habeas petition.
Sawyer v. Kinlen, No. 5:16-cv-03036-SAC (D. Kan. Jan. 4, 2017) (unpublished);
see also 1 Rawle 30. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a),
and we deny a certificate of appealability (“COA”) and dismiss the appeal.
Mr. Sawyer has been in and out of prison since 1991 for either pleading
guilty to or being convicted of attempted aggravated sexual battery, aggravated
battery, domestic battery, eight counts of lewd and lascivious behavior, and
criminal threat. In re Care & Treatment of Sawyer, No. 107,269, 2013 WL
5870034, at *1 (Kan. Ct. App. Oct. 25, 2013) (unpublished). A trial was held to
determine whether Mr. Sawyer qualified as a sexually violent predator (“SVP”), a
person who “ha[s] a mental abnormality or personality disorder and [is] likely to
engage in repeat acts of sexual violence if not treated for [his] mental abnormality
or personality disorder.” Kan. Stat. Ann. § 59-29a01. The Kansas Court of
Appeals agreed with the trial court that there was overwhelming evidence that Mr.
Sawyer was an SVP. In re Care & Treatment of Sawyer, 2013 WL 5870034,
at *6.
On February 5, 2016, Mr. Sawyer filed his § 2254 petition, in which he
asserted that his SVP trial was not timely held under Kan. Stat. Ann. § 59-
29a06(a). 1 Rawle 7. The district court dismissed the petition because this argument
was not made before the state court and was therefore procedurally defaulted as
unexhausted. Id. at 31. Mr. Sawyer’s contention that ineffective assistance of
counsel caused the procedural default was unavailing because it too was
unexhausted. Id. at 32.
To receive a COA, Mr. Sawyer must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell,
537 U.S. 322, 327 (2003). Because the district court dismissed the petition on a
procedural ground, Mr. Sawyer must also show that “jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
The district court’s decision is not reasonably debatable. Neither the
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timeliness argument nor the ineffective assistance of counsel argument was made
before the state court. Therefore, the district court could not address the merits of
Mr. Sawyer’s claims. 28 U.S.C. § 2254(b)(1)(A); see also Edwards v. Carpenter,
529 U.S. 446, 453 (2000); Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Furthermore, Mr. Sawyer has not demonstrated that “denying review would result
in a fundamental miscarriage of justice” because he has not alleged actual
innocence. Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014).
We DENY a COA, DENY IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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