Taylor v. Hannigan

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 1, 1999
• Docket: 98-3071
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 1 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JAMES EUGENE TAYLOR,

Petitioner-Appellant,

v. No. 98-3071 (D.C. No. 93-CV-3147-DES) ROBERT D. HANNIGAN and THE (D. Kan.) ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and LUCERO , 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 James Eugene Taylor, a Kansas state inmate proceeding pro se,

seeks to appeal the district court’s order dismissing his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. 1 We deny a certificate of probable

cause and dismiss the appeal.

Mr. Taylor was convicted by a state jury of the first-degree murder of his

wife, on or about May 28, 1982. See State v. Taylor , 673 P.2d 1140 (Kan. 1983)

(upholding the conviction on direct appeal). He filed a post-conviction motion

under Kan. Stat. Ann. § 60-1507, seeking a new trial. The state trial court held an

evidentiary hearing and entered an order denying relief. Mr. Taylor appealed the

denial of his motion to the Kansas Court of Appeals. At his request, that court

remanded the case to the trial court for consideration of newly discovered

evidence which he contended should afford him a new trial. The trial court

conducted another evidentiary hearing, then issued a supplemental memorandum

of decision again denying relief. The denial was affirmed by the Kansas Court of

Appeals, see Taylor v. State , No. 64,388, 818 P.2d 359 (Kan. Ct. App. Oct. 4,

1991) (Table), and the Kansas Supreme Court on petition for review, see Taylor

v. State , 834 P.2d 1325 (Kan. 1992).

1 This matter was fully briefed by an attorney of record. On August 14, 1998, this court granted the attorney’s motion to withdraw and allowed appellant to proceed pro se.

-2- Mr. Taylor then filed a petition for writ of habeas corpus in federal district

court. The parties agreed that the matter could be decided on the record, which

included the transcripts of pretrial proceedings, the trial, the section 60-1507

hearings, and other state court records, the written opinions of the reviewing state

courts, and the parties’ submissions in federal court. The district court denied

habeas relief.

During his direct appeal and post-conviction proceedings, Mr. Taylor has

proceeded pro se at times and has been represented by counsel at other times.

According to Mr. Taylor’s count, six attorneys have been involved in his case. In

his numerous counseled and pro se filings, filed over more than a decade, scores

of issues have been raised and resolved.

In this habeas proceeding, Mr. Taylor raises thirteen issues on appeal:

(1) his constitutional rights were violated by the state’s failure to disclose a tape

recording made during the autopsy of his wife’s body; (2) he was denied due

process, equal protection and effective assistance of counsel on the issue of newly

discovered pathology evidence; (3) he was denied due process, equal protection,

and effective assistance of counsel on the issue of entomology evidence; (4) he

was denied due process by the destruction of evidence in the victim’s car and by

the unlawful release of the car prior to defense testing; (5) his Fifth Amendment

rights were violated by the admission at trial of statements taken prior to Miranda

-3- warnings during custodial interrogations; (6) his Fourth Amendment rights were

violated by admission at trial of statements taken after he was seized and held

without probable cause; (7) his Fifth Amendment rights were violated by

admission at trial of statements taken after request for counsel; (8) his due

process and equal protection rights were violated by the admission of erroneous

ballistics evidence at trial and by the withholding of ballistics evidence by the

state; (9) his due process and equal protection rights were violated by the denial

of his right to self-representation during a section 60-1507 hearing; (10) his due

process and equal protection rights were violated by the withholding of evidence

of surveillance procedures employed against petitioner and the victim during the

investigation of the case; (11) his due process and equal protection rights were

violated by the use of a lay witness as an expert during the 1990 habeas hearing

and on appeal from that hearing; (12) he was denied effective assistance of

counsel at trial and on direct appeal; and (13) his constitutional rights were

violated by the cumulative effect of the above and other violations which

deprived him of a fair trial. See Petitioner-Appellant’s Opening Br. at 1-3. He

also asserts that, under Supreme Court precedent, his case qualifies as an actual

innocence case. See id. at 1.

-4- Before Mr. Taylor may proceed on appeal, he must secure a certificate of

probable cause from this court, pursuant to 28 U.S.C. § 2253. 2 A habeas

petitioner is entitled to a certificate of probable cause only if he makes “a

substantial showing of the denial of an important federal right by demonstrating

that the issues raised are debatable among jurists, that a court could resolve the

issues differently, or that the questions deserve further proceedings.” Gallagher

v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994) ( citing Barefoot v. Estelle , 463 U.S.

880 (1983).

Mr. Taylor, in his submissions to this court, fails to show a factual or legal

error in the fifty-nine page memorandum and order issued by the district court on

February 4, 1998. Rather, he reargues his contentions. The order of the district

court accurately sets forth the significant facts and correctly analyzes applicable

law on each of Mr. Taylor’s appeal issues. Were we to reach the merits, we

would affirm the judgment of the district court for substantially the reasons set

2 Since Mr. Taylor filed his § 2254 petition on April 1, 1993, the Antiterrorism and Effective Death Penalty Act of 1996 does not apply. See Lindh v. Murphy , 117 S. Ct. 2059, 2062-68 (1997); United States v. Kunzman , 125 F.3d 1363, 1364 n. 2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998) (footnote circulated en banc). Therefore, we construe his request for a certificate of appealability as a request for a certificate of probable cause. Regardless of the label we attach to the issue, the requirements are the same. See Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), overruled in part by Kunzman , 125 F.3d at 1364 n.2.

-5- forth in the district court’s order. A copy of that order is attached to this order

and judgment.

As Mr. Taylor has failed to show the denial of an important federal right by

demonstrating that the issues raised are debatable among jurists, or that a court

could resolve the issues differently, or that the questions deserve further

proceedings, we deny his request for a certificate of probable cause. Accordingly,

the appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

-6- Attachment not available electronically.