Deiterman v. State of Kansas

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 27, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
FRANK DEITERMAN,
Petitioner-Appellant,
v. No. 08-3031
(D.C. No. 5:05-CV-03398-CM)
STATE OF KANSAS; ROGER (D. Kan.)
WERHOLTZ, Secretary of
Corrections; DAVID MCKUNE,
Warden, Lansing Correctional
Facility; ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.
Petitioner-appellant Frank Deiterman, a Kansas state prisoner represented
by retained counsel, appeals the memorandum and order entered by the district
court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
After considering Mr. Deiterman’s application for a certificate of appealability
(COA) under 28 U.S.C. § 2253, we previously granted a COA on the following
issues: “Whether performance of [trial] counsel for petitioner was (1) deficient
under Strickland v. Washington[,] 466 U.S. 668 (1984), and (2) if counsel’s
performance was deficient, was it prejudicial.” Order of May 27, 2008, at 1.
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the
district court’s denial of habeas relief on Mr. Deiterman’s claims that his trial
counsel performed deficiently because counsel failed to renew a motion for a
change of venue after jury voir dire and failed to present additional alibi
witnesses at trial. Recognizing that Mr. Deiterman’s claim that his trial counsel
had a conflict of interest presents an ineffective assistance claim that is separate
and distinct from the claims of deficient performance on which we granted a
COA, we deny Mr. Deiterman’s request for a COA on the conflict of interest
claim and dismiss that portion of this appeal. Finally, because he failed to present
them to the district court, we decline to consider Mr. Deiterman’s claims that he
is entitled to habeas relief because his trial counsel failed to act as an advocate,
undermined his credibility, and committed prejudicial cumulative errors based on
counsel’s deficient performance, and we therefore dismiss those claims as well. 1
1
If Mr. Deiterman desires to pursue new claims not included in his original
§ 2254 petition, he must first seek authorization from this court to file a second or
successive habeas petition in accordance with 28 U.S.C. § 2244(b)(3)(A).
-2-
I. BACKGROUND.
Mr. Deiterman was convicted by a jury in a Kansas state district court of
capital murder, conspiracy to commit capital murder, and aggravated robbery.
He was sentenced to life imprisonment with the possibility of parole in 40 years
on the first count, 154 months imprisonment on the second count, and 51 months
imprisonment on the third count, with each sentence to run consecutively. The
facts of Mr. Deiterman’s crimes were recounted in detail by the Kansas Supreme
Court in his direct appeal, State v. Deiterman, 29 P.3d 411, 413-14 (Kan. 2001),
and we will not repeat those facts here.
In his direct appeal, Mr. Deiterman raised ten issues relating to venue,
evidentiary matters at trial, and sentencing, but the Kansas Supreme Court
affirmed each of his convictions and sentences. Id. at 413, 423. Mr. Deiterman
then filed a motion in the trial court for post-conviction relief under
Kan. Stat. Ann. § 60-1507, raising four issues: (1) his trial counsel provided
ineffective assistance; (2) his trial counsel had a conflict of interest because
counsel was related to the murder victim; (3) the prosecutor withheld exculpatory
evidence; and (4) his due process rights were violated because two of the State’s
witnesses lied. After conducting an evidentiary hearing, the trial court denied
Mr. Deiterman’s post-conviction motion. Mr. Deiterman then appealed to the
Kansas Court of Appeals, which affirmed the denial of post-conviction relief in
an unpublished memorandum opinion. Deiterman v. State, No. 91,489, 2005 WL
-3-
400408 (Kan. App. Feb. 18, 2005) (per curiam) (unpublished). Subsequently, in
June 2005, the Kansas Supreme Court summarily denied Mr. Deiterman’s petition
for review of the denial of post-conviction relief.
In October 2005, Mr. Deiterman filed his federal habeas petition under
28 U.S.C. § 2254 in the district court. In his petition, Mr. Deiterman claimed that
his trial counsel provided ineffective assistance, relying on three areas of alleged
deficient performance by counsel: (1) the failure to renew a motion for a change
of venue upon completion of jury voir dire; (2) the failure to request that the trial
court instruct the jury panel to disregard certain prejudicial statements that were
made by potential jurors during voir dire; and (3) the failure to adequately
investigate potential alibi witnesses and present additional alibi witnesses at trial.
Mr. Deiterman also claimed that his trial counsel provided ineffective assistance
because counsel was related to the murder victim and therefore had a conflict of
interest. 2 In January 2008, the district court entered a memorandum and order
denying habeas relief on each of Mr. Deiterman’s ineffective assistance claims,
and this appeal followed.
In his brief on appeal, Mr. Deiterman asserts the following ineffective
assistance claims: (1) “trial counsel was constitutionally ineffective by
2
In addition to his ineffective assistance claims, Mr. Deiterman also asserted a
number of other claims in his habeas petition. He has abandoned those claims in
this appeal, however, and we therefore do not need to address them.
-4-
intentionally tainting the jury against Deiterman and then failing to renew the
motion for a change of venue”; (2) “trial counsel was constitutionally ineffective
by failing to present alibi witnesses on Deiterman’s behalf”; (3) “trial counsel was
constitutionally ineffective by laboring under a conflict of interest without
disclosing the conflict to Deiterman”; (4) “trial counsel was constitutionally
ineffective by failing to act as an advocate on Deiterman’s behalf and by
undermining Deiterman’s credibility”; and (5) “trial counsel’s cumulative errors
prejudiced Deiterman and denied him of his right to effective assistance of
counsel and his right to a fair trial.” Amended Aplt. Br. at 7, 12, 25, 21, 28
(altered to lower case letters). As set forth below, we conclude that there is no
basis for habeas relief on Mr. Deiterman’s first, second, and third ineffective
assistance claims, and that his last two claims were not properly preserved for
purposes of this appeal.
II. STANDARD OF REVIEW.
“Because [Mr. Deiterman] filed his federal habeas petition well after the
effective date of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), AEDPA’s provisions apply to this appeal.” Johnson v. Mullin,
505 F.3d 1128, 1133 (10th Cir. 2007), cert. denied, 128 S. Ct. 2933 (2008).
We recently explained the key aspects of those provisions as follows:
“Under AEDPA, the appropriate standard of review depends on
whether a claim was decided on the merits in state court.”
[McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003)]. “If the
-5-
claim was not heard on the merits by the state courts, and the federal
district court made its own determination in the first instance, we
review the district court’s conclusions of law de novo and its
findings of fact, if any, for clear error.” Id. (internal quotations
omitted). If, however, the claim was adjudicated on the merits by the
state courts, the petitioner will be entitled to federal habeas relief
only if he can establish that the state court decision “was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding,” id., § 2254(d)(2). “When reviewing a state
court’s application of federal law, we are precluded from issuing the
writ simply because we conclude in our independent judgment that
the state court applied the law erroneously or incorrectly.”
McLuckie, 337 F.3d at 1197. “Rather, we must be convinced that the
application was also objectively unreasonable.” Id. “This standard
does not require our abject deference, . . . but nonetheless prohibits
us from substituting our own judgment for that of the state court.”
Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007) (internal
quotation marks omitted).
Johnson, 505 F.3d at 1133-34. In addition, in accordance with 28 U.S.C.
§ 2254(e)(1), we presume that a state court’s factual findings are correct unless a
petitioner rebuts the presumption of correctness by clear and convincing evidence.
See House v. Hatch, 527 F.3d 1010, 1019 (10th Cir. 2008).
III. DEFICIENT PERFORMANCE CLAIMS UNDER STRICKLAND.
As set forth above, Mr. Deiterman’s first and second ineffective assistance
claims allege deficiencies in his trial counsel’s performance. Regardless of the
standard of review that governs this appeal (i.e., AEDPA deference or
de novo/clear error), “we must examine [Mr. Deiterman’s deficient performance]
claims under the well-established framework set forth in Strickland v.
-6-
Washington, 466 U.S. 668 (1984), asking whether (a) his counsel’s performance
was constitutionally deficient, and (b) the deficient performance prejudiced the
defense, depriving him of a fair proceeding with a reliable result.” Gonzales v.
Tafoya, 515 F.3d 1097, 1122 (10th Cir.), petition for cert. filed (U.S. June 9,
2008) (No. 08-5021) (parallel citation omitted).
Under the deficient performance prong, [Mr. Deiterman] must show
that his counsel’s performance fell below an objective standard of
reasonableness in that it was outside the range of competence
demanded of attorneys in criminal cases. Under the prejudice prong,
[Mr. Deiterman] must show that but for counsel’s errors, there is a
reasonable probability that the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.
Id. (quotations omitted).
As the Supreme Court explained in Strickland, however, it is not necessary
“to address both components of the inquiry if the defendant makes an insufficient
showing on one.” 466 U.S. at 697.
In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies. The object of
an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course
should be followed.
Id.-7-
IV. ANALYSIS.
A. Failure to Renew Motion for Change of Venue.
In Mr. Deiterman’s direct appeal, the Kansas Supreme Court summarized
its standard of review for motions to change venue:
“The determination of whether to change venue is entrusted to
the sound discretion of the trial court; its decision will not be
disturbed on appeal absent a showing of prejudice to the substantial
rights of the defendant. [Citation omitted.] The burden is on the
defendant to show prejudice exists in the community, not as a matter
of speculation, but as a demonstrable reality. The defendant must
show that such prejudice exists in the community that it was
reasonably certain he or she could not have obtained a fair trial.
[Citation omitted.]”
Deiterman, 29 P.3d at 415 (quoting State v. Anthony, 898 P.2d 1109, 1116 (Kan.
1995)) (alterations in original). Applying these principles, the Court concluded
that the trial court did not abuse its discretion when it denied the initial motion
for a change of venue that Mr. Deiterman’s trial counsel filed before jury voir
dire:
The trial court denied the motion for a change of venue,
finding that the defense had failed to meet its burden to show that
Deiterman’s rights would be substantially prejudiced by not changing
the venue.
The defense pointed to articles from newspapers in Joplin,
Missouri, and Pittsburg, Kansas, but none were from the local
Columbus, Baxter Springs, or Galena newspapers. The articles
reflected facts that were shown in the charging documents and during
trial proceedings of all the codefendants. Two articles used language
that was inflammatory but was qualified as comments made by
prosecutorial witnesses and not represented as pure fact in stating:
“Prosecutors presented testimony that Deiterman was the
-8-
blood-thirsty trigger-man in the killing. . . . Deiterman’s lawyers
counter that he has been set up by his co-conspirators.”
The defense failed to produce affirmative evidence that public
opinion had actually been swayed in Cherokee County by these
reports. As is well established in Kansas law, “[m]edia publicity
alone has never established prejudice per se.” State v. Cravatt, 979
P.2d 679 [,695] ([Kan.] 1999). The trial court did not abuse its
discretion in denying Deiterman’s initial motion.
Deiterman, 29 P.3d at 415 (parallel citation omitted).
In the state post-conviction proceedings, Mr. Deiterman claimed, as he
claims in this appeal, that his trial counsel provided ineffective assistance in
failing to renew the change of venue motion after the completion of jury voir dire.
The Kansas Court of Appeals adjudicated this claim on the merits and denied
post-conviction relief on the change of venue issue. Consequently, the question
before us is whether the highly deferential standards of review set forth in 28
U.S.C. § 2254(d) bar habeas relief on Mr. Deiterman’s change of venue claim,
and we conclude that they do.
In its opinion affirming the denial of post-conviction relief, the Kansas
Court of Appeals began its analysis of the merits of Mr. Deiterman’s ineffective
assistance claims by noting that such claims are analyzed by applying the
two-pronged “deficient performance” and “prejudice” inquiry adopted by the
Kansas Supreme Court in Chamberlain v. State, 694 P.2d 468 (1985). See
Deiterman, 2005 WL 400408, at *3 (citing Chamberlain, 694 P.2d at 472-74).
This two-pronged inquiry is derived from the United States Supreme Court’s
-9-
decision in Strickland. See Chamberlain, 694 P.2d at 475 (adopting Strickland’s
“holdings as the prevailing yardstick to be used in measuring the effectiveness of
counsel under the Sixth Amendment”).
Next, the court addressed the merits of Mr. Deiterman’s change of venue
claim, noting that “Deiterman complains that [his trial counsel] was deficient
when he failed to renew their change of venue motion, since nearly all of the
people on the [jury] panel admitted that they had heard of [the victim’s] murder.”
Deiterman, 2005 WL 400408, at *3. The court also noted that Mr. Deiterman was
specifically relying on statements made by two members of the jury panel during
voir dire, and it quoted their statements at length. Id. at *3-5. The court then
concluded that Mr. Deiterman’s change of venue claim was without merit,
beginning its discussion with a quote from the post-conviction findings of the trial
court:
In dealing with this issue the trial court when ruling on the
[post-conviction] motion stated:
“[W]e were able to impanel a jury the first day of trial
relatively smoothly. But, frankly, had I had some
concern that you were not going to get a fair trial after
listening to the responses and questions by Court and
counsel, I could have addressed that issue sua sponte on
my own and I wouldn’t have had any hesitation in doing
that obviously because you must be given a fair trial. I
didn’t think there was any problem picking the jury . . . .
The jury was impaneled with little, if any, issues. So I
am finding that that issue is not significant.”
-10-
Deiterman concedes the jurors who were impaneled assured
counsel they could be impartial. The jury panel members all
remained silent when defense counsel asked if it were not possible to
decide the case based on what was introduced into evidence. An
officer who responded to the scene of the crime was immediately
excused. Those who indicated that they knew the victim’s family
well and could not set aside personal feelings were dismissed.
Neither party contends that it was difficult to impanel the jury;
the jury was impaneled in 1 day. . . .
The record shows substantial competent evidence supports the
trial judge’s finding that Deiterman’s claims about venue did not
merit a new trial.
Id. at *5 (second and third alterations in original).
Although the Kansas Court of Appeals’ final conclusion regarding the
merits of Mr. Deiterman’s change of venue claim is not specifically framed in
terms of one or both of the Strickland prongs, we believe the court’s analysis is
best treated as a legal determination that Mr. Deiterman failed to establish a
reasonable probability that his trial counsel would have succeeded on a renewed
change of venue motion. As such, we conclude that the court’s adjudication of
this claim was neither contrary to nor an objectively unreasonable application of
Strickland’s prejudice prong, as viewed in the context of the governing Kansas
law concerning motions to change venue. Mr. Deiterman has also made no
showing that the court’s decision “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
-11-
U.S.C. § 2254(d)(2). We therefore affirm the denial of habeas relief on the
change of venue claim.
One final point merits discussion. As noted above, Mr. Deiterman has
asserted a new argument in this appeal in support of his change of venue claim
that he did not assert in the state courts or the federal district court, namely that
his trial counsel intentionally tainted the jury during voir dire. 3 See Amended
Aplt. Br. at 7-12. While we could dispose of this argument based on
Mr. Deiterman’s failure to preserve it in the district court proceedings, we will
address it on the merits since it is tied to Mr. Deiterman’s change of venue claim,
which he did assert below, and is easily resolved in that context. Simply put,
with only one relevant exception, each of the venire-member statements that
Mr. Deiterman relies on in his opening brief to support his “tainting” argument
were made in response to questions from the trial judge or the prosecutor, not his
trial counsel. See Aplt. App. at I-135-37 (Juror Danny Jacquinet responding to
questions from prosecutor), I-110 (Juror Orvall Smith responding to questions
3
Although Mr. Deiterman argued in the state post-conviction proceedings
that his trial counsel intentionally tainted the jury during voir dire, he made this
argument to support a separate claim, which he has not asserted in this appeal,
that his trial counsel was ineffective in failing to request that the trial court
instruct the jury panel to disregard certain prejudicial statements that were made
by potential jurors during voir dire. See Deiterman, 2005 WL 400408, at *5-6.
The Kansas Court of Appeals rejected Mr. Deiterman’s arguments, concluding
that counsel’s questions to the jury panel were “certainly not an attempt to taint
the jury panel” and that Mr. Deiterman had “failed to establish the need for an
instruction to have been given to the panel.” Id. at *6.
-12-
from trial judge), I-155 (Juror Ronald Jenkins responding to questions from trial
judge). 4 The one exception is venire member Thomas Dietz, but Mr. Dietz’s
statement that a local newspaper article “swayed” him towards believing that
Mr. Deiterman was guilty of the murder, id. at I-149, is insufficient, by itself, to
support a claim that Mr. Deiterman’s trial counsel intentionally tainted the jury.
Most importantly, trial counsel did not ask Mr. Dietz to describe the specific
contents of the newspaper article, and, in response to further questioning from
trial counsel, Mr. Dietz acknowledged that he could decide the case based on
“what goes on here [at trial].” Id. at I-150.
B. Failure to Investigate and Present Additional Alibi Witnesses.
In the state post-conviction proceedings, Mr. Deiterman claimed, as he
claims in this appeal, that his trial counsel provided ineffective assistance in
failing to adequately investigate potential alibi witnesses and present additional
alibi witnesses at trial. The Kansas Court of Appeals adjudicated this claim on
the merits and denied post-conviction relief on Mr. Deiterman’s claim regarding
alibi witnesses. We therefore apply the highly deferential standards of review in
28 U.S.C. § 2254(d) in reviewing this claim.
4
Although Mr. Deiterman also notes that Juror Gary Collins stated, in response
to questioning from his trial counsel, that “[s]omebody is guilty,” Amended Aplt.
Br. at 9 and Aplt. App. at I-151, Mr. Collins gave no indication that he felt
predisposed to find Mr. Deiterman guilty. As a result, Mr. Collins’ response does
not support Mr. Deiterman’s claim that his trial counsel intentionally tainted the
jury during voir dire.
-13-
In its opinion affirming the denial of post-conviction relief, the Kansas
Court of Appeals summarized the evidence regarding potential alibi witnesses that
was presented at the post-conviction evidentiary hearing conducted by the trial
court. Deiterman, 2005 WL 400408, at *2, *8-9. Because Mr. Deiterman has
failed to rebut any of the factual findings contained in the court’s summary by
clear and convincing evidence, we presume they are correct. See 28 U.S.C.
§ 2254(e)(1).
Addressing the merits of Mr. Deiterman’s claim regarding alibi witnesses,
the Kansas Court of Appeals concluded that Mr. Deiterman had failed to establish
that his trial counsel’s performance in investigating and calling alibi witnesses
was deficient. Deiterman, 2005 WL 400408, at *9-10. The court’s conclusion is
well supported by the testimony that was presented at the post-conviction
evidentiary hearing.
To begin with, as the court found, the potential witnesses that
Mr. Deiterman identified either could not provide any helpful information (i.e.,
the bar patrons in Waco, Texas and the residents of the McClarity home) or were
not called to testify at trial for sound strategic reasons (i.e., the mechanic, Jeremy,
who was related to the people who owned the guns that were stolen and used in
the murder and Matt Snokhous, an inmate serving time in prison). Id. at *8-9.
Also, while Mr. Deiterman’s sister-in-law testified that she “saw Deiterman
almost every day during the time of the murder” and she “recalled being
-14-
awakened by Deiterman around 1 a.m. to talk about girlfriend problems on one of
the nights in question,” the court noted that this testimony was of dubious value
since “when Deiterman testified at trial regarding his alibi, he did not recount the
events provided by [his sister-in-law].” Id. at *9. Lastly, the court pointed out
that while “Deiterman also maintain[ed] that [his trial counsel] failed to
investigate and interview witnesses who resided near his father’s house who he
believed could have provided testimony to undermine [the trial testimony of his
co-conspirators],” the court rejected his contentions regarding these alleged
witnesses because “Deiterman did not include any affidavits in his [post-
conviction] motion nor [did] he point to any evidence presented at the
[evidentiary] hearing to substantiate this argument.” Id.We conclude that Mr. Deiterman has failed to show that the Kansas Court
of Appeals’ adjudication of his claim regarding alibi witnesses was contrary to or
an objectively unreasonable application of Strickland or that it involved an
unreasonable determination of the facts in light of the evidence presented at the
post-conviction evidentiary hearing. In sum, we agree with respondents that
Mr. Deiterman’s trial counsel “conduct[ed] an objectively reasonable
investigation, and made objectively reasonable strategic and tactical decisions
based on that investigation.” Aplees. Br. at 18-19. Moreover, Mr. Deiterman
“has failed to identify any evidence that his counsel would have discovered had
he conducted further investigation that would have likely changed the outcome of
-15-
the trial. Thus, [Mr. Deiterman] has failed to establish either prong of the
Strickland test with respect to this claim.” Id. at 19.
C. Alleged Conflict of Interest.
As recognized by the Kansas Court of Appeals in its post-conviction
decision, “[t]he Sixth Amendment right to the assistance of counsel further
guarantees a right to conflict-free counsel.” Deiterman, 2005 WL 400408, at *10
(citing Mickens v. Taylor, 535 U.S. 162, 179 (2002)). Importantly, this right,
though conceptually related, is separate and distinct from the right to effective
performance of counsel that is analyzed under the two-pronged Strickland test,
and it is governed by different standards. Thus, whereas a criminal defendant
must affirmatively prove prejudice to succeed on an actual ineffectiveness claim
based on deficient performance, Strickland, 466 U.S. at 693, “prejudice is
presumed when counsel is burdened by an actual conflict of interest,” id. at 692.
As the Supreme Court has explained, however, this is not a “per se rule of
prejudice.” Id. Instead, “[p]rejudice is presumed only if the defendant
demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an
actual conflict of interest adversely affected his lawyer’s performance.’” Id.(quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)).
In both his habeas petition and the brief that he submitted to this court,
Mr. Deiterman asserted a conflict of interest ineffectiveness claim that is separate
and distinct from his deficient performance claims. R., Vol. 1, Doc. 1 at 18;
-16-
Amended Aplt. Br. at 25-28. As noted above, however, we granted Mr.
Deiterman a COA only as to his deficient performance claims. See Order of May
27, 2008, at 1 (granting a COA on claims governed by the two-pronged test under
Strickland for deficient performance claims ). Consequently, we must now
determine whether Mr. Deiterman “has made a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(2), with respect to his conflict of
interest claim. We conclude that he has not.
Mr. Deiterman claims that his trial counsel had a conflict of interest
because he was related to the murder victim, Patrick Livingston. However, based
on the testimony that was presented at the post-conviction evidentiary hearing,
the Kansas Court of Appeals made a specific factual finding that no family
relationship existed between trial counsel and Mr. Livingston, and that, as a
result, “there is no conflict of interest here.” Deiterman, 2005 WL 400408, at
*11. As the court explained:
We also do not see a family relationship here. Patrick Livingston’s
great-great-grandfather was also the great-grandfather of Bill
Livingston who was married to [trial counsel’s] former wife’s aunt.
[Trial counsel] did not know the victim nor any members of the
victim’s immediate family.
Id. at *10.
Mr. Deiterman has failed to rebut these factual findings by clear and
convincing evidence, and we therefore agree with the Kansas Court of Appeals
-17-
that Mr. Deiterman’s trial counsel did not have an actual conflict of interest. As a
result, we decline to grant a COA on this claim.
D. Remaining Claims That Were Not Asserted in District Court.
In his brief on appeal, Mr. Deiterman argues that he is entitled to habeas
relief because his trial counsel failed to act as an advocate, undermined his
credibility, and committed prejudicial cumulative errors based on counsel’s
deficient performance. Amended Aplt. Br. at 21-25, 28-29. He did not include
these claims in his federal habeas petition, however, and he never sought leave to
amend his petition to include them. 5 Accordingly, the claims were not presented
to the district court, and we therefore decline to consider them. See Tele-
Communications, Inc. v. Comm’r, 104 F.3d 1229, 1232 (10th Cir. 1997)
(“Generally, an appellate court will not consider an issue raised for the first time
on appeal.”); see also Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005)
(declining to consider additional ineffective assistance of counsel claims that
habeas petitioner did not to present to district court); Jones v. Gibson, 206 F.3d
946, 958 (10th Cir. 2000) (declining to consider cumulative error argument that
habeas petitioner did not make in his revised habeas petition). We also note that
Mr. Deiterman must obtain prior authorization from this court under 28 U.S.C.
5
Although Mr. Deiterman asserted a cumulative error claim in his habeas
petition, it was limited to “the cumulative errors identified in [his] direct appeal,”
R., Vol. 1, Doc. 1 at 17, which did not include any ineffective assistance of
counsel claims.
-18-
§ 2244(b)(3)(A) before he can pursue any new substantive claims as part of a
second or successive habeas petition. See generally Ochoa v. Sirmons, 485 F.3d
538, 540-41 (10th Cir. 2007) (holding that authorization is required from this
court under 28 U.S.C. § 2244(b) whenever habeas petitioner is seeking to raise
new substantive claims after district court has adjudicated prior habeas action
filed by same petitioner).
V. CONCLUSION.
For the reasons set forth herein, we AFFIRM the district court’s denial of
habeas relief on Mr. Deiterman’s claims that his trial counsel provided ineffective
assistance because counsel failed to renew a motion for a change of venue after
jury voir dire and failed to present additional alibi witnesses at trial. We DENY
Mr. Deiterman’s request for a COA on his claim that his trial counsel was
ineffective because counsel had a conflict of interest, and we DISMISS that
portion of this appeal. Finally, we DISMISS Mr. Deiterman’s claims that he is
entitled to habeas relief because his trial counsel failed to act as an advocate,
undermined his credibility, and committed prejudicial cumulative errors based on
counsel’s deficient performance on the ground that he failed to raise them in his
federal habeas petition.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-19-