Ueding v. Colorado Department of Corrections

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 28, 2023
• Docket: 22-1417
• Status: Unpublished

Opinion

Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 28, 2023 _______________________________________ Christopher M. Wolpert Clerk of Court KENNETH UEDING,

Petitioner - Appellant,

v. No. 22-1417 (D.C. No. 1:22-CV-02166-LTB-GPG) COLORADO DEPARTMENT OF (D. Colo.) CORRECTIONS; THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. _______________________________________

ORDER _______________________________________

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. _______________________________________

Mr. Kenneth Ueding obtained a conviction in state court and asked a

federal district court for habeas relief based on the delay in bringing him

to trial. The district court denied habeas relief, and Mr. Ueding seeks a

certificate of appealability so that he can appeal. 28 U.S.C.

§ 2253(c)(1)(A). We deny this request.

Mr. Ueding based his habeas claim on both state law and the federal

constitution. The district court concluded that (1) habeas relief is

unavailable for violations of state law and (2) the constitutional claim is

procedurally barred. Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 2

For the state-law claim, we consider whether Mr. Ueding has made “a

substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Under this standard, any reasonable

jurist would reject the state-law claim because it doesn’t involve a

constitutional right. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)

(stating that habeas relief does not lie for the violation of state law). So

the state-law claim doesn’t merit a certificate of appealability.

For the constitutional claim, the district court declined to reach the

merits based on a procedural default. So here we consider whether a

reasonable jurist could debate the applicability of a procedural default.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In our view, the applicability

of a procedural default is not reasonably debatable.

A procedural default occurs when “a state court dismisses [a] federal

habeas claim on the basis of noncompliance with adequate and independent

state procedural rules.” Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir.

2012). A state procedural rule is “adequate” if it is “strictly or regularly

followed and applied evenhandedly to all similar claims.” Id. (quoting

Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012)). A rule is

“independent” “if it relies on state law, rather than federal law, as the basis

for the decision.” Simpson v. Carpenter, 912 F.3d 542, 571 (10th Cir.

2018) (quoting Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012)).

2 Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 3

Here the federal district court concluded that the state court’s

application of the plain-error standard constituted an adequate and

independent defect. For this conclusion, the district court reasoned that the

application of the plain-error standard

 was adequate because it had been evenhandedly applied and

 independent because it had been based on state law.

In seeking a certificate of appealability, Mr. Ueding contests the

existence of a procedural default, arguing that application of the plain-

error standard was not independent because he had presented a

constitutional claim when objecting to joinder.

We disagree with Mr. Ueding’s interpretation of his objection in

state court. There he argued that joinder would lead to the admission of

unfairly prejudicial evidence. Here he’s asserting the denial of a speedy

trial. Mr. Ueding did not say anything in his objection to joinder that

would alert the state courts to a claim involving the denial of a speedy

trial. So any reasonable jurist would reject Mr. Ueding’s reliance on his

objection to joinder in state court. See Finlayson v. State, 6 F.4th 1235,

1241 (10th Cir. 2021) (concluding that when a state court recognizes or

assumes a constitutional error but denies relief because the error is not

plain, the plain-error standard “serves as an independent state rule” for

purposes of procedural default).

3 Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 4

Given the procedural bar, we could consider the merits of the claim

only if Mr. Ueding satisfies the requirements for one of two exceptions: (1)

cause and prejudice or (2) a fundamental miscarriage of justice based on

actual innocence. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Mr.

Ueding has not invoked either exception.

We thus deny Mr. Ueding’s request for a certificate of appealability

and dismiss the appeal. 1

Entered for the Court

Robert E. Bacharach Circuit Judge

1 Mr. Ueding also requests leave to proceed in forma pauperis and release on his own recognizance pending the appeal. We grant leave to proceed in forma pauperis, but our dismissal moots the request for release pending the appeal.