F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 27 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
PERCY BARNETTE MORSE, JR.,
Petitioner-Appellant,
v. No. 98-3231 (D.C. No. 96-CV-3344-DES) ROBERT D. HANNIGAN and (D. Kan.) THE ATTORNEY GENERAL OF THE STATE OF KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Petitioner Percy Barnette Morse, Jr., appearing pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief. The
district court determined that because petitioner failed to exhaust his available
state court remedies, his habeas issues were procedurally barred. The district
court subsequently denied petitioner’s application for a certificate of
appealability. Because petitioner has failed to make “a substantial showing of
the denial of a constitutional right,” we also deny petitioner a certificate of
appealability and dismiss his appeal. 28 U.S.C. § 2253(c)(2).
We construe petitioner’s pro se pleadings liberally. See Haines v. Kerner ,
404 U.S. 519, 520 (1972). Applying this liberal construction to petitioner’s
request for certificate of appealability, we discern the following issues:
(1) petitioner was improperly charged with multiplicitous offenses; (2) the trial
court failed to give a lesser included offense instruction; (3) there was
insufficient evidence to support petitioner’s conviction; and (4) the jury’s verdicts
were inconsistent. These are the same issues raised by petitioner in his state court
actions.
On November 6, 1990, petitioner was convicted of aggravated robbery and
sentenced to six and one-half to twenty years’ imprisonment. On direct appeal,
the Kansas Court of Appeals affirmed his conviction. His attempt to petition the
Kansas Supreme Court for certiorari was dismissed as untimely. Petitioner’s
-2- appeal of the dismissal of his application for post-conviction relief under
Kan. Stat. Ann. § 60-1507 was dismissed by the Kansas Court of Appeals as
untimely. He did not seek review of this decision by the Kansas Supreme Court,
but instead filed this action for federal habeas corpus relief.
A state prisoner cannot petition for federal habeas corpus relief “unless it
appears that . . . the applicant has exhausted the remedies available in the courts
of the State.” 28 U.S.C. § 2254(b)(1)(A). “The exhaustion requirement is
satisfied if the federal issue has been properly presented to the highest state court,
either by direct review of the conviction or in a postconviction attack.” Dever v.
Kansas State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion
requirement is satisfied if the highest court exercises discretion not to review the
case.” Id. Here, the district court dismissed petitioner’s federal habeas corpus
petition, concluding that the issues raised were procedurally defaulted and that
petitioner failed to show the requisite cause and prejudice, or fundamental
miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991).
We agree, although for slightly different reasons than those relied on by the
district court. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir.
1994) (“We are free to affirm a district court decision on any grounds for which
there is a record sufficient to permit conclusions of law, even grounds not relied
upon by the district court.”) (quotation omitted).
-3- Kansas law provides an entitlement to certiorari review by the Kansas
Supreme Court. See Kan. Stat. Ann. § 20-3018(b). Here, petitioner failed to seek
this discretionary review within thirty days of the date of the Kansas Court of
Appeals’ decision on his direct appeal. See id. Instead, he filed a document titled
“Motion to Request Last Prayer of Petition for Review,” which the Kansas
Supreme Court summarily denied. Petitioner then filed a petition for state habeas
corpus relief under Kan. Stat. Ann. § 60-1507 which was dismissed by the trial
court. Petitioner’s appeal to the Kansas Court of Appeals was dismissed as
untimely. See Kan. Stat. Ann. § 60-2103. Petitioner did not seek review of this
decision by the Kansas Supreme Court. Therefore, it appears clear that
petitioner’s claims have never been properly presented to the highest state court.
See Dever , 36 F.3d at 1534.
Generally, when a petitioner fails to exhaust his state court remedies, his
federal habeas petition should be dismissed so that the petitioner can return to
state court to pursue those remedies. See Demarest v. Price , 130 F.3d 922, 939
(10th Cir. 1997). In Coleman , however, the Supreme Court, held that if “the
petitioner failed to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, petitioner’s claims
are procedurally defaulted for purposes of federal habeas regardless of the
-4- decision of the last state court to which petitioner actually presented his claims.”
501 U.S. at 735 n.1; see also Dulin v. Cook , 957 F.2d 758, 759 (10th Cir. 1992)
(holding that a petitioner’s failure to properly present his claims in state court for
exhaustion purposes constitutes “procedural default for the purposes of federal
habeas review”). Here, petitioner’s failure to seek timely review by the Kansas
Supreme Court of his direct appeal and the denial of his state habeas petition
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 27 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
PERCY BARNETTE MORSE, JR.,
Petitioner-Appellant,
v. No. 98-3231 (D.C. No. 96-CV-3344-DES) ROBERT D. HANNIGAN and (D. Kan.) THE ATTORNEY GENERAL OF THE STATE OF KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Petitioner Percy Barnette Morse, Jr., appearing pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief. The
district court determined that because petitioner failed to exhaust his available
state court remedies, his habeas issues were procedurally barred. The district
court subsequently denied petitioner’s application for a certificate of
appealability. Because petitioner has failed to make “a substantial showing of
the denial of a constitutional right,” we also deny petitioner a certificate of
appealability and dismiss his appeal. 28 U.S.C. § 2253(c)(2).
We construe petitioner’s pro se pleadings liberally. See Haines v. Kerner ,
404 U.S. 519, 520 (1972). Applying this liberal construction to petitioner’s
request for certificate of appealability, we discern the following issues:
(1) petitioner was improperly charged with multiplicitous offenses; (2) the trial
court failed to give a lesser included offense instruction; (3) there was
insufficient evidence to support petitioner’s conviction; and (4) the jury’s verdicts
were inconsistent. These are the same issues raised by petitioner in his state court
actions.
On November 6, 1990, petitioner was convicted of aggravated robbery and
sentenced to six and one-half to twenty years’ imprisonment. On direct appeal,
the Kansas Court of Appeals affirmed his conviction. His attempt to petition the
Kansas Supreme Court for certiorari was dismissed as untimely. Petitioner’s
-2- appeal of the dismissal of his application for post-conviction relief under
Kan. Stat. Ann. § 60-1507 was dismissed by the Kansas Court of Appeals as
untimely. He did not seek review of this decision by the Kansas Supreme Court,
but instead filed this action for federal habeas corpus relief.
A state prisoner cannot petition for federal habeas corpus relief “unless it
appears that . . . the applicant has exhausted the remedies available in the courts
of the State.” 28 U.S.C. § 2254(b)(1)(A). “The exhaustion requirement is
satisfied if the federal issue has been properly presented to the highest state court,
either by direct review of the conviction or in a postconviction attack.” Dever v.
Kansas State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion
requirement is satisfied if the highest court exercises discretion not to review the
case.” Id. Here, the district court dismissed petitioner’s federal habeas corpus
petition, concluding that the issues raised were procedurally defaulted and that
petitioner failed to show the requisite cause and prejudice, or fundamental
miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991).
We agree, although for slightly different reasons than those relied on by the
district court. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir.
1994) (“We are free to affirm a district court decision on any grounds for which
there is a record sufficient to permit conclusions of law, even grounds not relied
upon by the district court.”) (quotation omitted).
-3- Kansas law provides an entitlement to certiorari review by the Kansas
Supreme Court. See Kan. Stat. Ann. § 20-3018(b). Here, petitioner failed to seek
this discretionary review within thirty days of the date of the Kansas Court of
Appeals’ decision on his direct appeal. See id. Instead, he filed a document titled
“Motion to Request Last Prayer of Petition for Review,” which the Kansas
Supreme Court summarily denied. Petitioner then filed a petition for state habeas
corpus relief under Kan. Stat. Ann. § 60-1507 which was dismissed by the trial
court. Petitioner’s appeal to the Kansas Court of Appeals was dismissed as
untimely. See Kan. Stat. Ann. § 60-2103. Petitioner did not seek review of this
decision by the Kansas Supreme Court. Therefore, it appears clear that
petitioner’s claims have never been properly presented to the highest state court.
See Dever , 36 F.3d at 1534.
Generally, when a petitioner fails to exhaust his state court remedies, his
federal habeas petition should be dismissed so that the petitioner can return to
state court to pursue those remedies. See Demarest v. Price , 130 F.3d 922, 939
(10th Cir. 1997). In Coleman , however, the Supreme Court, held that if “the
petitioner failed to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, petitioner’s claims
are procedurally defaulted for purposes of federal habeas regardless of the
-4- decision of the last state court to which petitioner actually presented his claims.”
501 U.S. at 735 n.1; see also Dulin v. Cook , 957 F.2d 758, 759 (10th Cir. 1992)
(holding that a petitioner’s failure to properly present his claims in state court for
exhaustion purposes constitutes “procedural default for the purposes of federal
habeas review”). Here, petitioner’s failure to seek timely review by the Kansas
Supreme Court of his direct appeal and the denial of his state habeas petition
constituted failure to exhaust his available state remedies. Therefore, because a
return to state court at this point would be futile, his claims are procedurally
defaulted for purposes of federal habeas corpus review. See Watson v. New
Mexico , 45 F.3d 385, 387 (10th Cir. 1995).
Generally, federal habeas corpus review of procedurally barred issues is
precluded “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, 501 U.S. at 750. Here, petitioner failed in the district court and fails on
appeal to demonstrate cause for his default or prejudice as a result of any alleged
violation of federal law. 1 He does not allege any fundamental miscarriage of
1 We note that although petitioner alleges that his counsel had a “duty” to file a petition for certiorari with the Kansas Supreme Court, he does not allege ineffective assistance of counsel. Moreover, petitioner was not entitled to counsel in his state post-conviction proceedings. See Coleman , 501 U.S. at 752. (continued...)
-5- justice. Therefore, the district court properly held that federal review of the
issues in his habeas petition was procedurally barred.
This court has reviewed petitioner’s application for a certificate of
appealability, his appellate brief, 2 the district court’s order, and the record on
appeal. We conclude that petitioner has not made a substantial showing of the
denial of a constitutional right, and is, therefore, not entitled to a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Lennox v. Evans , 87 F.3d 431, 434
(10th Cir. 1996), overruled in part on other grounds by United States v. Kunzman ,
125 F.3d 1363 (10th Cir. 1997).
Accordingly, we DENY petitioner’s application for a certificate of
appealability and DISMISS this appeal. The mandate shall issue forthwith.
Entered for the Court
Wade Brorby Circuit Judge
1 (...continued) Therefore, insofar as petitioner is claiming attorney error in his failure to file an appeal of his state habeas dismissal, there can be no ineffective assistance. See id. 2 Appellees did not file an answer brief in this appeal.
-6-