F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 27, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
VERNON J. AM OS,
Petitioner-A ppellant, No. 06-3093 v. District of Kansas RAY ROBERTS, W arden, El Dorado (D.C. No. 04-CV-3138-SAC) Correctional Facility; ATTO RN EY GEN ERAL O F KANSAS,
Respondents-Appellees.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Vernon J. Amos, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that M r. Amos has failed to make “a
substantial showing of the denial of a constitutional right,” we DENY his request
for a COA and dismiss the appeal. Id. § 2253(c)(2).
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. I. Factual and Procedural Background
M r. Amos and others, including Philip M iller, were in a car with Antwuan
James when M r. James was shot and killed in 1999. M r. M iller, who was sitting
in the back seat at the time of the murder, provided the information that led to M r.
Amos’s arrest and later served as the State’s primary witness at trial. M r. Amos
was convicted by a jury of first-degree murder and conspiracy to commit
aggravated robbery, and is currently serving a sentence in the El Dorado, Kansas,
correctional facility.
M r. Amos appealed his conviction, and the Kansas Supreme Court affirmed
on June 1, 2001. State v. Amos, 23 P.3d 883, 889 (Kan. 2001). After an
unsuccessful request for postconviction relief in state court, he petitioned for a
writ of habeas corpus under § 2254 on M ay 4, 2004, seeking relief on four
grounds: (1) that the prosecutor secured the conviction through the use of coerced
and perjured testimony; (2) that defense counsel was constitutionally ineffective
at trial; (3) that the charging documents were fatally defective; and (4) that the
prosecutor w ithheld exculpatory evidence.
On February 15, 2005, the district court denied M r. Amos’s application for
a writ of habeas corpus, in part because he failed to give the state courts a “full
and fair” opportunity to resolve his claims, and in part because his challenge to
the charging document arose under state law, which cannot serve as the basis for
federal habeas relief. M r. Amos sought a COA from the district court and
-2- requested leave to proceed in form a pauperis on appeal. The district court, on
M arch 24, 2006, denied his request for a COA, but allowed him to proceed in
form a pauperis.
II. Discussion
A COA will issue only if a petitioner makes a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
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.”
Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
To the extent that the district court dismissed the petition on procedural grounds,
a petitioner must also show that “jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Id. In his request for a
COA, M r. Amos objects to the district court’s dismissal, on procedural grounds,
of his claims regarding prosecutorial misconduct. He also repeats his challenge to
the charging documents, and raises a number of additional issues for the first
time.
A. Claims Dismissed as Procedurally Barred
M r. Amos challenges the district court’s ruling that he is procedurally
barred from pursuing two prosecutorial misconduct claims: (1) that the
-3- prosecution secured his conviction through the use of coerced and perjured
testimony; and (2) that the prosecution withheld exculpatory evidence.
M r. Amos raised these claims for the first time in a motion for
postconviction relief in state court under K.S.A. § 60-1507. The state district
court denied M r. Amos’s requests for an evidentiary hearing, appointment of
counsel, and postconviction relief on the ground that he had not shown good
cause for using a postconviction proceeding as a second appeal. Under Kansas
law, “those issues that could have been presented, but were not presented, are
deemed waived. W here a defendant’s claim has not been raised at trial or on
direct appeal, such a default prevents the defendant from raising the claim in a
second appeal or a collateral proceeding.” State v. Neer, 795 P.2d 362, 365-66
(Kan. 1990). The state district court found that the claims raised in the motion
for postconviction relief should have been raised in M r. Amos’s direct appeal, and
therefore summarily denied the motion.
M r. Amos appealed that decision in state court, but he admits in his petition
that the appeal concerned only the denial of an evidentiary hearing and
appointment of counsel. The state appellate court therefore did not address
whether his prosecutorial misconduct claims were barred on procedural grounds.
Accordingly, those claims are procedurally defaulted: the state court deemed the
arguments waived, and M r. A mos never challenged that ruling in state court. See
Smith v. M ullin, 379 F.3d 919, 925-26 (10th Cir. 2004) (finding procedural
-4- default based on failure to raise claims on direct appeal under state procedural
rules).
A federal district court may review procedurally defaulted claims under §
2254 only if the petitioner “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. Thom pson, 501 U.S. 722, 750 (1991). M r. Amos contends that he had
“cause” for failing to raise his claims on direct appeal for two reasons: (1) that his
counsel was constitutionally ineffective, and (2) that he had limited access to
legal resources.
Although attorney error can constitute “cause” for a defendant’s procedural
default, it must rise to the level of a constitutional violation and, accordingly,
must be presented as an independent claim to state courts. Edwards v. Carpenter,
529 U.S. 446, 451-52 (2000). Because M r. Amos has never presented an
independent claim of ineffective assistance of counsel to the state courts, any
attorney error cannot serve as cause for the procedural default.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 27, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
VERNON J. AM OS,
Petitioner-A ppellant, No. 06-3093 v. District of Kansas RAY ROBERTS, W arden, El Dorado (D.C. No. 04-CV-3138-SAC) Correctional Facility; ATTO RN EY GEN ERAL O F KANSAS,
Respondents-Appellees.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Vernon J. Amos, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that M r. Amos has failed to make “a
substantial showing of the denial of a constitutional right,” we DENY his request
for a COA and dismiss the appeal. Id. § 2253(c)(2).
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. I. Factual and Procedural Background
M r. Amos and others, including Philip M iller, were in a car with Antwuan
James when M r. James was shot and killed in 1999. M r. M iller, who was sitting
in the back seat at the time of the murder, provided the information that led to M r.
Amos’s arrest and later served as the State’s primary witness at trial. M r. Amos
was convicted by a jury of first-degree murder and conspiracy to commit
aggravated robbery, and is currently serving a sentence in the El Dorado, Kansas,
correctional facility.
M r. Amos appealed his conviction, and the Kansas Supreme Court affirmed
on June 1, 2001. State v. Amos, 23 P.3d 883, 889 (Kan. 2001). After an
unsuccessful request for postconviction relief in state court, he petitioned for a
writ of habeas corpus under § 2254 on M ay 4, 2004, seeking relief on four
grounds: (1) that the prosecutor secured the conviction through the use of coerced
and perjured testimony; (2) that defense counsel was constitutionally ineffective
at trial; (3) that the charging documents were fatally defective; and (4) that the
prosecutor w ithheld exculpatory evidence.
On February 15, 2005, the district court denied M r. Amos’s application for
a writ of habeas corpus, in part because he failed to give the state courts a “full
and fair” opportunity to resolve his claims, and in part because his challenge to
the charging document arose under state law, which cannot serve as the basis for
federal habeas relief. M r. Amos sought a COA from the district court and
-2- requested leave to proceed in form a pauperis on appeal. The district court, on
M arch 24, 2006, denied his request for a COA, but allowed him to proceed in
form a pauperis.
II. Discussion
A COA will issue only if a petitioner makes a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
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.”
Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
To the extent that the district court dismissed the petition on procedural grounds,
a petitioner must also show that “jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Id. In his request for a
COA, M r. Amos objects to the district court’s dismissal, on procedural grounds,
of his claims regarding prosecutorial misconduct. He also repeats his challenge to
the charging documents, and raises a number of additional issues for the first
time.
A. Claims Dismissed as Procedurally Barred
M r. Amos challenges the district court’s ruling that he is procedurally
barred from pursuing two prosecutorial misconduct claims: (1) that the
-3- prosecution secured his conviction through the use of coerced and perjured
testimony; and (2) that the prosecution withheld exculpatory evidence.
M r. Amos raised these claims for the first time in a motion for
postconviction relief in state court under K.S.A. § 60-1507. The state district
court denied M r. Amos’s requests for an evidentiary hearing, appointment of
counsel, and postconviction relief on the ground that he had not shown good
cause for using a postconviction proceeding as a second appeal. Under Kansas
law, “those issues that could have been presented, but were not presented, are
deemed waived. W here a defendant’s claim has not been raised at trial or on
direct appeal, such a default prevents the defendant from raising the claim in a
second appeal or a collateral proceeding.” State v. Neer, 795 P.2d 362, 365-66
(Kan. 1990). The state district court found that the claims raised in the motion
for postconviction relief should have been raised in M r. Amos’s direct appeal, and
therefore summarily denied the motion.
M r. Amos appealed that decision in state court, but he admits in his petition
that the appeal concerned only the denial of an evidentiary hearing and
appointment of counsel. The state appellate court therefore did not address
whether his prosecutorial misconduct claims were barred on procedural grounds.
Accordingly, those claims are procedurally defaulted: the state court deemed the
arguments waived, and M r. A mos never challenged that ruling in state court. See
Smith v. M ullin, 379 F.3d 919, 925-26 (10th Cir. 2004) (finding procedural
-4- default based on failure to raise claims on direct appeal under state procedural
rules).
A federal district court may review procedurally defaulted claims under §
2254 only if the petitioner “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. Thom pson, 501 U.S. 722, 750 (1991). M r. Amos contends that he had
“cause” for failing to raise his claims on direct appeal for two reasons: (1) that his
counsel was constitutionally ineffective, and (2) that he had limited access to
legal resources.
Although attorney error can constitute “cause” for a defendant’s procedural
default, it must rise to the level of a constitutional violation and, accordingly,
must be presented as an independent claim to state courts. Edwards v. Carpenter,
529 U.S. 446, 451-52 (2000). Because M r. Amos has never presented an
independent claim of ineffective assistance of counsel to the state courts, any
attorney error cannot serve as cause for the procedural default.
M r. Amos also argues that his limited access to legal resources is sufficient
cause for his failure to comply with state procedural rules. To overcome
procedural default based on a claim of limited access to legal materials, a
petitioner must provide “specificity regarding the alleged lack of access and the
steps he took to diligently pursue his federal claim.” M iller v. M arr, 141 F.3d
-5- 976, 978 (10th Cir. 1998). Here, M r. Amos alleges simply that he has “been
unable or hindered at various times from filing or preparing legal pleadings.”
App. for COA 3i. Such allegations lack “specificity” concerning the pleadings or
filings he was unable to complete as a result of his allegedly limited access to
legal materials.
M oreover, the record suggests that M r. Amos had ample opportunity to
raise these claims on direct appeal. In a motion for a new trial, M r. Amos in fact
raised both of his prosecutorial misconduct claims, but his appellate counsel
elected not to pursue them further. M r. Amos subsequently sought and obtained
permission to file a supplemental brief pro se on direct appeal, expressly for the
purpose of addressing additional issues not raised by counsel. Despite receiving
two extensions, M r. Amos never filed a supplemental brief. After four months,
the Kansas Supreme Court deemed the brief abandoned and proceeded to hear
arguments on the issues raised by his appellate counsel. Given the lack of
specificity concerning M r. Amos’s access to legal materials, and the Kansas
courts’ commendable efforts to accommodate his desire to raise additional issues,
we cannot say that M r. A mos has established “cause” for his procedural default.
Because M r. Amos cannot demonstrate cause and prejudice for his
procedural default and makes no claims of a fundamental miscarriage of justice,
-6- jurists of reason could not find it debatable whether the district court was correct
in its procedural ruling.
The district court also found that M r. Amos’s claim of ineffective
assistance of trial counsel was procedurally defaulted. M r. Amos has never
asserted this claim before any state court, either on direct appeal or in a request
for postconviction relief. Any motion for postconviction relief is now time-
barred in state court. See K.S.A. § 60-1507(f)(1) (imposing a one-year limitation
period, which runs from the termination of direct appellate review). Accordingly,
this claim is procedurally defaulted, and the district court correctly refused to
consider it.
B. Charging Document Challenge
M r. Amos also objects to the district court’s finding that his challenge to
the charging document was based on state law, and therefore provided no ground
for federal habeas relief. Under 28 U.S.C. § 2254(a), federal courts may entertain
an application for a writ of habeas corpus on behalf of a person in state custody
“only on the ground that he is in custody in violation of the Constitution or law s
or treaties of the United States.” Although a charging document may violate the
Sixth Amendment if it fails to provide a defendant with adequate notice of the
nature and cause of the accusation filed, the adequacy of a state criminal
complaint presents a question of state law rather than federal law. Johnson v.
-7- Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999). The district court correctly found
that M r. Amos presented a question of state law, not a cognizable claim for
federal habeas relief, by claiming that the charging document was defective. To
the extent that he has raised a Sixth Amendment challenge, M r. Amos has
provided no information to suggest that the charging document failed to provide
him with adequate notice of the accusations against him. Accordingly, he has
failed to make a substantial showing of the denial of a constitutional right.
C. Issues N ot R aised B elow
M r. Amos raised several additional issues for the first time in his request
for a COA: (1) that his appellate counsel was constitutionally ineffective; (2) that
the trial court somehow committed constitutional error in denying a motion for a
new trial based on new testimony; (3) that the trial court violated his
constitutional rights by denying him a new trial or an evidentiary hearing based
on the confession of a co-defendant; and (4) that the state district court violated
his constitutional rights by denying his motion for postconviction relief without
holding an evidentiary hearing.
Issues that are not raised before lower courts will rarely be considered by
federal appellate courts. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720
(10th Cir. 1993). Here, M r. Amos has suggested no special circumstances that
require this Court to address his claims for the first time on appeal. United States
-8- v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005). Therefore, we deny a COA as
to the remaining claims.
III. Conclusion
W e D EN Y Vernon J. Amos’s request for a COA and DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell Circuit Judge
-9-