Appellate Case: 23-3165 Document: 010111026811 Date Filed: 04/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JOHN ROSS STENBERG,
Petitioner - Appellant,
v. No. 23-3165 (D.C. No. 5:22-CV-03308-JWL) DONALD LANGFORD, (D. Kan.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. _________________________________
Petitioner John Ross Stenberg, a Kansas state prisoner proceeding pro se,1 seeks a
certificate of appealability (“COA”) to appeal the District of Kansas’s denial of his
petition for relief under 28 U.S.C. § 2254. Mr. Stenberg was convicted by jury of rape,
aggravated criminal sodomy, and aggravated indecent liberties with two children. State v.
Stenberg, 2017 WL 4455307, *1–*2 (Kan. Ct. App. Oct. 6, 2017) (unpublished)
(Stenberg I), rev. denied, (Kan. April 27, 2018). On direct appeal, the Kansas Court of
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Mr. Stenberg is pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 23-3165 Document: 010111026811 Date Filed: 04/04/2024 Page: 2
Appeals affirmed his convictions. Id. at *1. The Kansas Supreme Court denied
Mr. Stenberg’s petition for review.
Mr. Stenberg then sought postconviction relief, which the state district court
denied after an evidentiary hearing. Stenberg v. State, 2022 WL 570830, at *1 (Kan. Ct.
App. Feb. 25, 2022) (unpublished) (Stenberg II), rev. denied, (Kan. Sept. 30, 2022). The
Kansas Court of Appeals affirmed the denial, id., and the Kansas Supreme Court denied
On December 21, 2022, Mr. Stenberg filed a habeas petition pursuant to § 2254 in
the United States District Court for the District of Kansas asserting two grounds for
relief: (1) ineffective assistance of trial counsel and (2) involuntary confession. The
federal district court denied Mr. Stenberg’s claims on the merits and declined to issue a
COA. Mr. Stenberg now seeks a COA from this court. The state declined to file a
response.
We deny Mr. Stenberg’s application for a COA and dismiss this matter.
I. BACKGROUND
Mr. Stenberg was charged with one count of rape, two counts of aggravated
criminal sodomy, and one count of aggravated indecent liberties with a child, stemming
from repeated acts of sexual abuse with his two stepdaughters, who were both under the
age of six. Stenberg I, 2017 WL 4455307, at *1–*2. The stepdaughters were removed
from the home of their mother and Mr. Stenberg in January 2014 by the Kansas
Department for Children and Families and placed with a licensed foster parent. Id. at *1.
About four or five months later, the two stepdaughters disclosed Mr. Stenberg’s abuse to
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the foster parent, who then took the girls to a police station for forensic interviews. Id.
Senior Special Agent Bethanie Popejoy of the Kansas Bureau of Investigation
interviewed the girls separately on May 16, 2014, and the interviews were recorded. Id.
Three days later, Undersheriff Jeff Sharp interviewed Mr. Stenberg about his
stepdaughters’ statements. Id. at *2. Mr. Stenberg was already in custody serving a
sentence on an unrelated matter, and he waived his Miranda2 rights. Stenberg II,
2022 WL 570830, at *1. Upon conclusion of the approximately two-hour interview,
Mr. Stenberg verbally admitted to the criminal offenses and then signed a written
confession “in which he admitted that he twice ‘placed [his] soft penis against [A.P.’s]
lips,’ that he ‘rubbed [his] soft penis against [K.P.] when [he] awoke from sleeping with
no clothes on,’ and that he ‘rubbed it against her vagina.’” Stenberg I, 2017 WL 4455307,
at *2 (alterations in original). A jury found Mr. Stenberg guilty of all counts. Id. The trial
court sentenced Mr. Stenberg to life in prison with no possibility of parole during the first
twenty-five years on each of the four counts. Id.
In his direct appeal before the Kansas Court of Appeals, Mr. Stenberg argued that
the trial court erred by (1) denying his motion to suppress the oral and written
confessions on account of Undersheriff Sharp’s allegedly coercive tactics, (2) not
providing the jury with an instruction for the lesser-included offense of attempted rape,
and (3) sentencing him to lifetime post-release supervision. Id. The Kansas Court of
Appeals vacated the lifetime post-release supervision imposed by the trial court, but
2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 Appellate Case: 23-3165 Document: 010111026811 Date Filed: 04/04/2024 Page: 4
otherwise affirmed the judgment and sentence, concluding the state district court did not
err in admitting Mr. Stenberg’s confession or clearly err in declining to instruct the jury
on the lesser-included offense of attempted rape. Id. at *3–*13. The Kansas Supreme
Court denied Mr. Stenberg’s petition for review.
In his motion for state postconviction relief before the trial court, Mr. Stenberg
argued counsel was ineffective for the alleged failure to (1) investigate witnesses,
(2) secure and call an expert witness, (3) perform certain functions pre- and post-trial, and
(4) prepare Mr. Stenberg to testify in his own defense. Mr. Stenberg and his trial counsel,
Peter Antosh, testified in an evidentiary hearing before the trial court on this
postconviction motion. The trial court found Mr. Antosh to be a credible witness but did
not find Mr. Stenberg credible. The trial court denied Mr. Stenberg’s postconviction
motion, concluding that Mr. Stenberg did not establish that Mr. Antosh performed
deficiently or that Mr. Stenberg suffered any prejudice even assuming Mr. Antosh had
performed deficiently.
The Kansas Court of Appeals affirmed the trial court’s denial of Mr. Stenberg’s
motion for postconviction relief. Stenberg II, 2022 WL 570830, at *1. The Kansas Court
of Appeals held that Mr. Stenberg showed no deficiency in Mr. Antosh’s preparing
Mr. Stenberg to testify at trial. Id. at *5. The Kansas Court of Appeals identified some
potential deficiencies in Mr. Antosh’s failure to contact witnesses who may have served
as character witnesses or who may have testified that Mr. Stenberg was never left alone
with his stepdaughters, but it held there was no prejudice because of the overwhelming
testimony that Mr. Stenberg was alone with his stepdaughters when he abused them. Id.
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at *5–*7. The court also noted some potential deficiencies in Mr. Antosh’s failure to
consult an expert concerning the stepdaughters’ victim statements but explained there
was no prejudice due to Mr. Stenberg’s confession. Id. at *7–*8. Finally, the court
expressed some concerns about Mr. Antosh’s failure to move for a downward departure
at sentencing but held there was no prejudice because Mr. Stenberg identified no
mitigating evidence that might have persuaded the trial court to reduce his sentence. Id.
at *8–*9. The Kansas Supreme Court denied Mr. Stenberg’s petition for review.
Mr. Stenberg next filed a habeas petition in federal court, alleging (1) his trial
counsel was ineffective for failing to properly prepare him to testify at trial, contact his
proposed witnesses, secure an expert witness concerning the stepdaughters’ testimony,
and file a motion for a downward departure at sentencing; and (2) his due process rights
were violated when Undersheriff Sharp used improper threats and promises concerning
potential plea negotiations and made incorrect statements of law and fact during an
interrogation to coerce him into confessing to the charged conduct. The District of
Kansas denied Mr. Stenberg’s habeas petition. It concluded that the Kansas Court of
Appeals properly applied Strickland v. Washington, 466 U.S. 668 (1984), to his
ineffective assistance of counsel claims and made no unreasonable determination of facts.
The court further held that the Kansas Court of Appeals made no unreasonable factual
determinations concerning Mr. Stenberg’s involuntary confession claim, properly
considered Undersheriff Sharp’s challenged statements, made a reasonable determination
that Undersheriff Sharp’s statements to Mr. Stenberg regarding plea negotiations were
improper threats rather than improper promises of leniency, and made no holding
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contrary to or unreasonably applying clearly established federal law. The federal district
court denied Mr. Stenberg’s motion for an evidentiary hearing and denied a COA.
Mr. Stenberg now seeks a COA from this court, alleging primarily the same
grounds for error brought in the federal district court.
II. DISCUSSION
A. Legal Standards
An appeal from “the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a [s]tate court” shall be taken to
the court of appeals only if “a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). For a circuit judge to issue a COA, the applicant must have
“made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
District courts may deny habeas petitions based on the merits of the petitioner’s claims or
based solely on a procedural bar. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a
“district court has rejected the constitutional claims on the merits, the showing required
[to obtain a COA] is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Id.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
when a state court has adjudicated a federal claim on the merits, a federal court can grant
habeas relief only if the petitioner establishes 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,” or was “based on an unreasonable
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determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Pursuant to § 2254(d)(1), a state-court decision
is “contrary to” the Supreme Court’s clearly established precedent if it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set
of facts that are materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor,
529 U.S. 362, 405–06 (2000). A state-court decision is an “unreasonable application” of
Supreme Court law if it “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08. A federal court
may not grant relief simply because it concludes in its “independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (quoting Williams,
529 U.S. at 411). The federal court may grant relief only where “the ruling [is]
‘objectively unreasonable, not merely wrong; even clear error will not suffice.’” Virginia
v. LeBlanc, 582 U.S. 91, 94 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S.
312, 316 (2015)).
Under § 2254(d)(2), “[a] state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the
first instance.” Sharp v. Rohling, 793 F.3d 1216, 1228 (10th Cir. 2015) (quoting Wood v.
Allen, 558 U.S. 290, 301 (2010)). “If ‘reasonable minds reviewing the record might
disagree about the finding in question,’ [a federal habeas court] defer[s] to the state
court’s determination.” Id. (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)). “But if
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a habeas petitioner satisfies § 2254(d)(2), [a federal habeas court] proceed[s] to review
the state court’s determination de novo.” Id.
B. Ground One: Ineffective Assistance of Counsel
In his first claim for relief, Mr. Stenberg alleges on appeal that his trial counsel
was ineffective in violation of the Sixth and Fourteenth Amendments by failing to
(1) adequately prepare him to take the stand and testify, (2) contact witnesses
Mr. Stenberg proposed, (3) hire an expert witness to evaluate the stepdaughters’ victim
statements, and (4) file a motion for a downward departure at sentencing.3 The federal
district court held that the Kansas Court of Appeals did not reach any conclusions
contrary to or through unreasonable application of the Strickland framework, and
accordingly denied habeas relief on these grounds. We hold that the federal district
court’s resolution of this claim is not reasonably subject to debate and accordingly deny a
COA as to this claim.
“An ineffectiveness claim . . . is an attack on the fundamental fairness of the
proceeding whose result is challenged.” Strickland, 466 U.S. at 697. “[E]rrors that
undermine confidence in the fundamental fairness of the state adjudication certainly
justify the issuance of the federal writ.” Williams, 529 U.S. at 375; see also Strickland,
3 Mr. Stenberg also asserts on appeal that his trial counsel “failed to have a reasonable and viable defense strategy” and “failed to put the prosecution to adversarial testing.” Pet. at 2. Because these arguments vary from the arguments Mr. Stenberg raised before the District of Kansas, they are waived. See Milton v. Miller, 812 F.3d 1252, 1264 (10th Cir. 2016) (petitioners “cannot allege an ineffective-assistance claim and then usher in anything fitting under that broad category as the same claim” on appeal, as “[c]ounsel can perform ineffectively in myriad ways”).
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466 U.S. at 697 (describing “fundamental fairness” as the “central concern of the writ of
habeas corpus”).
The familiar two-prong standard from Strickland typically governs ineffective
assistance of counsel claims. Under that standard, a defendant “must show that counsel’s
performance fell below an objective standard of reasonableness and that he was
prejudiced thereby.” United States v. Holder, 410 F.3d 651, 654 (10th Cir. 2005).
Regarding the second prong of Strickland, “to show that the outcome of his trial was
prejudiced by counsel’s error, the defendant must show that those ‘errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Hanson v.
Sherrod, 797 F.3d 810, 826 (10th Cir. 2015) (quoting Strickland, 466 U.S. at 687). Put
another way, the prejudice prong of Strickland requires a defendant to demonstrate there
was a “reasonable probability” of a more favorable outcome absent counsel’s deficient
performance. Holder, 410 F.3d at 654. This is a highly deferential standard designed to
allow federal courts to interfere with state-court decisions only in cases of “extreme
malfunctions in the state criminal justice systems” on issues of federal law. Harrington v.
Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5
(1979) (Stevens, J., concurring in judgment)).
After reviewing the record of the state-court proceedings, the federal district court
concluded that the Kansas Court of Appeals’ application of Strickland to Mr. Stenberg’s
claims was not contrary to or an unreasonable application of federal law. This conclusion
is not reasonably subject to debate.
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First, as to counsel’s alleged failure to properly prepare Mr. Stenberg to testify in
his own defense, the Kansas Court of Appeals explained that the state district court found
(1) Mr. Antosh credibly explained to Mr. Stenberg during the course of their 11.3 hours
of meetings prior to trial why he believed Mr. Stenberg should not testify in his own
defense, (2) Mr. Stenberg expressed no issue with this advice, (3) Mr. Stenberg did not
insist on testifying at trial, and (4) the trial court gave Mr. Antosh and Mr. Stenberg time
to confer before Mr. Antosh presented Mr. Stenberg’s case-in-chief, after which
Mr. Stenberg confirmed on the record that he would not testify. Stenberg II, 2022 WL
570830, at *5. Accordingly, the court of appeals held that Mr. Stenberg showed no
deficiency. Id. No reasonable jurist would find it debatable or wrong that the federal
district court correctly recognized the state-court decision as not contrary to clearly
established federal law. Cf. Harrington, 562 U.S. at 110 (“[A]n attorney may not be
faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for
what appear to be remote possibilities.”).
Next, Mr. Stenberg claims his trial counsel acted ineffectively in not contacting
potential defense witnesses. The Kansas Court of Appeals acknowledged that Mr. Antosh
believed Mr. Stenberg’s proposed witnesses would be character witnesses, and their
testimony would accordingly open the door to the state presenting rebuttal evidence
concerning Mr. Stenberg’s criminal history, which may have harmed his case.
Stenberg II, 2022 WL 570830, at *5–*6. But the Kansas Court of Appeals noted that at
least three of Mr. Stenberg’s proposed witnesses could have offered testimony that
Mr. Stenberg was never alone with the stepdaughters, which would have undermined the
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state’s case. Id. at *6. The court then explained that “[w]hile it is unrealistic to expect
attorneys to investigate every potential witness throughout the case, the failure to contact
these witnesses at all to discuss their potential testimony deprived [Mr.] Antosh of the
ability to make a meaningful decision as to whether to call them at trial.” Id. The Kansas
Court of Appeals held, however, that Mr. Antosh’s inaction did not necessarily affect the
fairness of the trial, the ultimate question posed by Strickland, because “[a]s [Mr.] Antosh
explained at the evidentiary hearing, none of these witnesses could meaningfully refute
the abuse in light of [Mr.] Stenberg’s confession.” Id. The court also noted that the
stepdaughters told of Mr. Stenberg being alone with them, which was corroborated by
Mr. Stenberg’s confession. Id. at *7. The court accordingly rejected Mr. Stenberg’s claim
based on lack of prejudice. Id.
The federal district court concluded the Kansas Court of Appeals’ decision was
not contrary to clearly established federal law. Based on the evidence at trial of the
stepdaughters’ statements to their foster mother and Special Agent Popejoy indicating
that Mr. Stenberg was alone with them when committing the abuse, no reasonable jurist
would find the federal district court’s decision debatable or wrong. See Harrington,
562 U.S. at 111–12 (under Strickland’s prejudice prong, “[t]he likelihood of a different
result must be substantial, not just conceivable”).
As to Mr. Stenberg’s claim that his trial counsel was ineffective for not hiring an
expert to review the stepdaughters’ victim statements, the Kansas Court of Appeals
discussed state precedent concerning when it would be unreasonable not to hire an expert
to review a young sexual abuse victim statement to determine its reliability. Stenberg II,
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2022 WL 570830, at *7. Ultimately, the Kansas Court of Appeals concluded that
Mr. Antosh’s decision may have been unreasonable and that the better choice would have
been to hire an expert. Id. Given Mr. Stenberg’s confession, however, the court held he
was not prejudiced. Id. at *8. The court further explained, “after hearing of several
consistent disclosures of sexual abuse, the jury learned that Stenberg himself admitted to
the charged conduct.” Id. Mr. Stenberg has not met his burden to show prejudice under
Strickland, which requires that “[t]he likelihood of a different result must be substantial,
not just conceivable.” Harrington, 562 U.S. at 112.
Finally, the Kansas Court of Appeals found some merit in Mr. Stenberg’s claim
that his trial counsel was ineffective for failing to file a motion for downward departure at
sentencing, but it held there was no prejudice because “[Mr. Stenberg] offers no
mitigating circumstance or evidence that would have supported a departure.” Stenberg II,
2022 WL 570830, at *9. Accordingly, the Kansas Court of Appeals held “[Mr.] Stenberg
cannot show any probability that the [state] district court would have departed or run his
sentences concurrently—even if [Mr.] Antosh should have filed a departure motion.” Id.
Mr. Stenberg has not attempted to show that the state court made any unreasonable
factual determinations in reaching this conclusion. Thus, Mr. Stenberg cannot meet the
strict prejudice requirement under Strickland. See Harrington, 562 U.S. at 112.
None of the federal district court’s conclusions concerning Mr. Stenberg’s
ineffective assistance of counsel claims are debatable or wrong. We therefore decline to
issue a COA as to Mr. Stenberg’s ineffective assistance claims.
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C. Ground Two: Involuntary Confession
In his second claim for relief, Mr. Stenberg asserts he was coerced into giving an
involuntary confession during his pre-arrest interrogation in violation of his Fifth and
Fourteenth Amendment rights. The Kansas Court of Appeals denied relief as to this
claim. Stenberg I, 2017 WL 4455307, at *2–*10. The District of Kansas held that the
Kansas Court of Appeals made no unreasonable factual determinations in reviewing this
claim, and did not reach any holdings contrary to or involving an unreasonable
application of clearly established federal law. The federal district court’s resolution of
this claim is not reasonably subject to debate, and we deny a COA as to this claim.
To succeed in challenging a state court’s factual determinations, a petitioner must
show “that the [state court] based its decision on the factual error.” Frederick v. Quick,
79 F.4th 1090, 1104 (10th Cir. 2023) (alteration in original) (quotation marks omitted),
petition for cert. filed, (U.S. Mar. 4, 2024) (No. 23-6888). If (1) the state court “made the
[challenged] finding in addressing only subsidiary issues” or (2) “other reasons supported
the court’s decision,” “[t]he state court’s decision is not based on a [challenged] finding.”
Id. (internal quotation marks omitted).
“‘[T]he ultimate issue of “voluntariness” is a legal question,’ but its determination
is based on ‘subsidiary factual questions.’” Sharp, 793 F.3d at 1226 (quoting Miller v.
Fenton, 474 U.S. 104, 110, 112 (1985)). As a general matter, “[t]o determine whether a
confession was voluntary, courts assess whether the suspect’s ‘will has been overborne
and his capacity for self-determination critically impaired.’” Id. at 1233 (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). “Courts must consider the
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‘totality of all the surrounding circumstances—both the characteristics of the accused and
the details of the interrogation.’” Id. (quoting Schneckloth, 412 U.S. at 226). “The totality
of the circumstances test does not favor any [factor over another]—it is a case-specific
inquiry where the importance of any given factor can vary in each situation.” Id.
The District of Kansas’s denial of Mr. Stenberg’s habeas petition on his
involuntary confession claim is not subject to debate among reasonable jurists.
Mr. Stenberg challenges the Kansas Court of Appeals’ determinations concerning some
subsidiary issues, but he does not challenge other rationales that independently support
the Kansas Court of Appeals’ conclusion that his confession was voluntary under the
totality of the circumstances. See Frederick, 79 F.4th at 1104. In particular, Mr. Stenberg
does not challenge before the federal courts how the Kansas Court of Appeals weighed
the “timing of the ‘inappropriate threats or misrepresentations of the law’ in relation to
the confession” and “the fact that [Mr. Stenberg’s] inculpatory oral and written
statements went beyond details provided by [Undersheriff] Sharp during the
interrogation” in concluding that the confession was voluntary. ROA Vol. 1 at 211
(quoting Stenberg I, 2017 WL 4455307, at *9–*10). Furthermore, Mr. Stenberg did not
challenge before the federal district court the Kansas Court of Appeals’ conclusion that
other circumstances favored a finding that the confession was voluntary, including his
“ability to communicate with the outside world, his age, his intellect, his prior experience
with the criminal justice system, [and] his ability to understand the English language.” Id.
at 211. Thus, Mr. Stenberg cannot show that the Kansas Court of Appeals’ determination
was “based on” the errors he challenges. See Frederick, 79 F.4th at 1104; Sharp, 793
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F.3d at 1233. Accordingly, no reasonable jurist could find that the federal district court
erred in deferring to the Kansas Court of Appeals’ factual determinations as to the
voluntariness of the confession. This is particularly so given that a federal habeas court
must defer to the state court when “reasonable minds reviewing the record might disagree
about the finding in question.” Sharp, 793 F.3d at 1228 (quoting Brumfield, 576 U.S.
at 314).
Mr. Stenberg claims that Undersheriff Sharp made an improper statement of law
by convincing him that he would face a reduced sentence for confessing to “mild[er]” sex
offenses, see Pet. at 23. The federal district court explained that the Kansas Court of
Appeals found this to be a “close call” in terms of whether it was an improper coercive
tactic because it was a legal misrepresentation, ROA Vol. I at 210. Nevertheless, the
Kansas Court of Appeals found that this tactic did not detract from its ultimate conclusion
that based on the totality of circumstances, Mr. Stenberg’s statements were voluntary.
Mr. Stenberg also claims that his confession was coerced because he was
threatened with harsher consequences if he did not confess. The federal district court
acknowledged that the Kansas Court of Appeals also expressed concern about some
threats made during Undersheriff Sharp’s interrogation, but determined its concern was
outweighed by other factors favoring a conclusion that the confession was voluntary. In
particular, the federal district court noted that the Kansas Court of Appeals considered
Undersheriff Sharp’s allegedly coercive tactics together with the totality of the
circumstances, id. at 211. The federal district court then explained that the Kansas Court
of Appeals found “that although ‘two of the interrogation tactics employed by
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Undersheriff Sharp were coercive, . . . [Mr. Stenberg’s] statements were voluntary and
the product of free and independent will when considered in conjunction with all of the
other circumstances surrounding the interrogation.’” Id. (quoting Stenberg I, 2017 WL
4455307, at *9).
Mr. Stenberg further claims that the Kansas Court of Appeals overlooked
Undersheriff Sharp’s false promise of leniency in determining that his confession was
voluntary. In rejecting this contention, the federal district court examined the context in
which Undersheriff Sharp allegedly promised leniency, quoting from the interrogation as
follows:
It’s not a matter of if you did or if you didn’t. It’s a matter of you need to tell me what happened on your behalf. [Be]cause I really can’t go to the prosecutor and tell him. If you have remorse about what happened, there’s a chance that things are gonna [sic] be less than what they are now, because if we have to go and put those girls on the stand and—and put them through that . . . [sigh] . . . he’s gonna [sic] request anything and everything he possibl[y] can plus the kitchen sink to throw at you. If you accept this—that you made a mistake—and you man up to things, [the county attorney will] take a plea agreement on it. At my recommendation. But if he sees I’m in here for two and three and four hours and you’re not wanting to play ball . . . [shrugs].
ROA Vol. I at 214–15 (emphasis added) (first, second, third, fourth, and seventh
alterations in original). The federal district court held that the Kansas Court of Appeals’
view that this statement constituted an improper threat rather than an improper promise of
leniency was a plausible reading of the exchange. The federal district court explained that
“[t]he [Kansas Court of Appeals] simply characterized the statement as an improper
threat rather than an improper promise of leniency” when it considered this statement
alongside several “impermissible” statements made by Undersheriff Sharp during the
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interrogation. Id. at 215. The federal district court also explained that “[w]hile [this]
might not be the way this [c]ourt would have characterized the statement, the question is
whether the [Kansas Court of Appeals’] characterization is plausible, and it is.” Id. And
when a state court gives a “plausible reading” of a recorded exchange, the federal courts
cannot disturb the state court’s corollary factual determination on § 2254(d)(2) review.
Frederick, 79 F.4th at 1128. Accordingly, the federal district court concluded “to the
extent that [Mr. Stenberg] assert[s] that the [Kansas Court of Appeals’] factual finding
that there were no promises for leniency was erroneous and requires federal habeas relief,
his argument is unsuccessful.” ROA Vol. I at 215.
We agree with the District of Kansas and the Kansas Court of Appeals that
Undersheriff Sharp made several concerning statements when interrogating Mr. Stenberg.
But in a § 2254(d)(2) challenge, that is simply not enough to justify relief. A federal
habeas court must “defer to the state court’s factual determinations so long as reasonable
minds reviewing the record might disagree about the finding in question.” Johnson v.
Martin, 3 F.4th 1210, 1218 (10th Cir. 2021) (quotation marks omitted). Because “other
[unchallenged] reasons supported the [state] court’s decision,” namely, other factors in
the totality of the circumstances analysis, the federal district court’s resolution of this
claim is not subject to debate, and we deny the COA. Frederick, 79 F.4th at 1104
(internal quotation marks omitted).
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III. CONCLUSION
Because Mr. Stenberg fails to demonstrate that the district court’s holdings are
debatable or wrong, we DENY his request for a COA and DISMISS this matter.
Entered for the Court
Carolyn B. McHugh Circuit Judge