FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS July 21, 2020 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court
ROBERT L. WILSON,
Petitioner-Appellant, No. 19-3245 v. (D.C. No. 5:18-cv-03048-KHV) (D. Kan.) DAN SCHNURR, Warden,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HOLMES, MURPHY, and CARSON, Circuit Judges.
A Kansas jury convicted Robert L. Wilson of aggravated criminal sodomy
and rape. After unsuccessful state-court proceedings, Mr. Wilson petitioned the
District of Kansas for a writ of habeas corpus under 28 U.S.C. § 2254. The
district court denied that petition, and it also denied Mr. Wilson a certificate of
appealability (“COA”). Mr. Wilson, proceeding pro se, 1 now asks this court for a
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Wilson appeared pro se before the district court and does the same on appeal, we construe his filings liberally. Erickson v. Pardus, (continued...) COA. Exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr. Wilson’s
application for a COA and dismiss his appeal.
I
On July 7, 2008, nineteen-year-old N.H. called a chat line and connected
with Mr. Wilson. During their conversation, Mr. Wilson falsely told N.H. that his
name was “Jaylen,” that he was in town from Texas, and that it was his birthday
and he was looking to celebrate, among other fabrications. The two arranged for
an in-person meet-up later that same day, during which Mr. Wilson raped N.H.
He was subsequently charged with one count of rape and one count of aggravated
criminal sodomy, and his case proceeded to trial in Kansas state court.
At trial, Mr. Wilson admitted that he had sex with N.H., but asserted
consent as a defense. In support of its case, the State proffered, as relevant here,
evidence of Mr. Wilson’s alleged rape of a woman named N.L. (the “Missouri
Evidence”), an offense that he purportedly committed about a month prior to his
rape of N.H., and for which he had since been tried and ultimately acquitted in
Missouri state court. Over Mr. Wilson’s objection, the trial court ruled that the
Missouri Evidence was admissible under Kan. Stat. Ann. § 60-455(d).
1 (...continued) 551 U.S. 89, 94 (2007) (per curiam); accord Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). In doing so, however, it is not “our role . . . to act as his advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
2 The court reasoned that the factually similar circumstances under which
N.L.’s rape was allegedly committed—e.g., Mr. Wilson purportedly met N.L. on a
chat line, likewise gave her the fake name of Jaylen, and likewise falsely claimed
it was his birthday, in addition to other similarities—evinced a “plan” by Mr.
Wilson to induce the women into meeting him under false pretenses, thereby
bearing on the core issue at trial, which was consent. R., Vol. II, at 28 (Trial Tr.,
Vol. V, dated Nov. 1, 2011); see K AN . S TAT . A NN . § 60-455(d) (providing that
evidence of “another act or offense of sexual misconduct” committed by
defendant is admissible “for its bearing on any matter to which it is relevant and
probative”). In light of the trial court’s ruling, the State went on to introduce at
trial evidence of the alleged rape of N.L. After several days of receiving
evidence and hearing the parties’ arguments, the jury found Mr. Wilson guilty on
both the rape and aggravated-criminal-sodomy charges. The trial court
subsequently sentenced him to concurrent sentences of 586 months for aggravated
criminal sodomy and 155 months for rape.
After an unsuccessful direct appeal and state postconviction motion, Mr.
Wilson turned to federal court. There, on March 1, 2018, he filed a 28 U.S.C.
§ 2254 petition seeking habeas relief, in which he asserted, in relevant part, the
following claims: (1) the trial court’s admission of the Missouri Evidence violated
the collateral-estoppel component of the Double Jeopardy Clause, and (2) the trial
3 court erred in admitting the Missouri Evidence under Kan. Stat. Ann. § 60-455.
R., Vol. I, at 9–10, 15 (Habeas Corpus Pet., filed Mar. 1, 2018). The district
court denied him habeas relief on these and all other claims in his petition. Id. at
91–92 (Dist. Ct. Mem. & Order, filed Oct. 8, 2019). It also denied him a COA.
Mr. Wilson now appeals, seeking a COA to challenge the district court’s denial of
his habeas petition.
II
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a COA is a jurisdictional prerequisite to our merits review of a
§ 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); see also Gonzalez v. Thaler, 565
U.S. 134, 142 (2012) (discussing the “clear” jurisdictional language in
§ 2253(c)(1)). We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, the applicant must demonstrate “that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong,” “or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); accord Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Whether this showing has been made is “the
only question” at the COA phase of habeas litigation; “a merits analysis” is
4 improper. Buck v. Davis, --- U.S. ----, 137 S. Ct. 759, 773 (2017); see id. (“The
COA inquiry, we have emphasized, is not coextensive with a merits analysis.”).
Where the state court has addressed the merits of the applicant’s claims,
“AEDPA’s deferential treatment of state court decisions must be incorporated into
our consideration of [the applicant’s] request for a COA.” Dockins v. Hines, 374
F.3d 935, 936–38 (10th Cir. 2004)); accord Lockett v. Trammell, 711 F.3d 1218,
1230 (10th Cir. 2013). Under AEDPA,
a petitioner is entitled to federal habeas relief on a claim only if he can establish that the state court’s adjudication of the claim on the merits (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C.
§ 2254(d)(1), (2)). In applying that rubric, we limit our review “to the record . . .
before the state court that adjudicated the claim on the merits,” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n.7, and we afford state-court
factual findings a presumption of correctness rebuttable only by “clear and
convincing evidence,” Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012)
(quoting 28 U.S.C. § 2254(e)(1)). Needless to say, AEDPA imposes a “‘highly
deferential standard for evaluating state-court rulings,’ which demands that
5 state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).
However, we do not incorporate AEDPA’s deferential standard into our
consideration of a COA request where the state court did not adjudicate the merits
of the claim at issue. “That is, ‘[t]he [deferential] § 2254(d) standard [of
AEDPA] does not apply to issues not decided on the merits by the state court.’”
Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (first and second alterations in
original) (quoting Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011)).
Irrespective of whether the state court has reached the merits of the habeas
claims that the district court resolved, in the COA context, our ultimate task is the
same—stated briefly, to determine whether reasonable jurists could debate the
correctness of the district court’s resolution of those claims.
III
In his COA application, Mr. Wilson asserts three claims. All three of these
claims center on the trial court’s admission of the Missouri Evidence—i.e., the
evidence regarding Mr. Wilson’s alleged rape of N.L. Specifically, construing his
COA application liberally, Mr. Wilson asserts the following claims: (1) the trial
court’s admission of the Missouri Evidence violated the collateral-estoppel
component of the Double Jeopardy Clause, see Aplt.’s Combined Opening Br. &
6 Appl. for a COA at 4 [hereinafter Appl. for COA] 2; (2) the court erred in finding
a lack of privity, see id. at 5, 8; and (3) the court’s admission of the Missouri
Evidence under Kan. Stat. Ann. § 60-455 was so fundamentally unfair that it was
a violation of his due-process rights, see id. at 6–8. Affording solicitous
consideration to these claims, we conclude that reasonable jurists could not debate
whether the district court properly denied them. 3
A
Mr. Wilson’s first claim, liberally construed, is that the trial court’s
admission of the Missouri Evidence violated the collateral-estoppel doctrine as
embodied in the U.S. Constitution’s Double Jeopardy Clause.
The Double Jeopardy Clause prevents the government from placing a
defendant in jeopardy twice for the same offense. United States v. Dixon, 509
U.S. 688, 695–96 (1993) (citing U.S. C ONST . amend. V). Although most
2 In light of the disjointed nature of the pagination in Mr. Wilson’s COA application, for the sake of consistency and simplicity, all pincite citations to the COA application in this order correspond to the respective page numbers in the application’s file-stamped header, located in the top-right corner of each page of the application. 3 In the months since filing his COA application, Mr. Wilson has filed additional documents that are essentially supplemental briefs in support of his application. See Oral Args. & Opening Statements for Opening Br., No. 19-3245 (10th Cir., filed June 4, 2020); Add’l Args.[] for Suppl. Br., No. 19-3245 (10th Cir., filed June 29, 2020). In the interest of affording liberal consideration to his claims, we have considered these supplemental briefs in connection with our resolution of the instant matter. That said, we find that they merely rehash the arguments already asserted in his COA application and do not alter our analysis.
7 commonly thought of as a bar to successive prosecutions and multiple
punishments for the same offense, the Supreme Court has held that this clause
also “incorporates the doctrine of collateral estoppel in criminal proceedings.”
Schiro v. Farley, 510 U.S. 222, 232 (1994) (citing Ashe v. Swenson, 397 U.S. 436
(1970)). Collateral estoppel is the principle that “when an issue of ultimate fact
has once been determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at
443. This principle is triggered when the following elements are met:
(1) the issue previously decided is identical with the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Smith v. Dinwiddie, 510 F.3d 1180, 1188 (10th Cir. 2007). Tying all of this
together, what this means, as relevant here, is the following: if the above four
elements are met in the context of state criminal proceedings against a defendant,
collateral estoppel, as “embodied in” the Double Jeopardy Clause, precludes the
government from relitigating any issue that was necessarily decided by a jury’s
acquittal in a prior trial. See Ashe, 397 U.S. at 443, 445–46; accord Yeager v.
United States, 557 U.S. 110, 119 (2009).
8 Adopting this framework, Mr. Wilson argues that because he had been
acquitted of the rape of N.L. in Missouri state court, collateral estoppel precluded
the trial court in the underlying Kansas proceedings from admitting the Missouri
Evidence proffered by the State at trial. Specifically, he argues that in the
underlying proceedings, “[t]he State impermissibly sought to prove exactly what
the Missouri court 4 failed to prove in the previous trial,” thereby “put[ting] [him]
in jeopardy twice” in violation of the Constitution’s Double Jeopardy Clause.
Appl. for COA at 4.
The Kansas Court of Appeals rejected this argument on direct appeal,
reasoning, in salient part, as follows:
Collateral estoppel is embodied in the Fifth Amendment to the United States Constitution, which prohibits double jeopardy. Ashe, 397 U.S. at 442–46. . . .
For a number of reasons, the admission of the facts surrounding Wilson’s acquittal in Missouri does not violate double jeopardy or collateral estoppel. First, the State of Kansas was not a party to the Missouri case, and there is no privity between the parties, which is required for collateral estoppel. Second, the Missouri case involved a different incident, a different time, a different location, and a different victim. Third, Wilson was not exposed to the possibility of being convicted for the rape of N.L. in the present case. Fourth, the issue of N.H.’s consent or lack of consent on July 7, 2008, was not litigated in the Missouri case. Fifth, and perhaps most important, a finding
4 Construing his argument liberally, we presume that Mr. Wilson intended to refer to the Missouri prosecution rather than the “Missouri court.”
9 that N.L. consented in the first case is not inconsistent with a finding that N.H. did not consent in this case.
State v. Wilson, 314 P.3d 900, 2013 WL 6726263, at *4 (Kan. Ct. App. 2013) (per
curiam) (unpublished table decision) (citations omitted).
On review of Mr. Wilson’s habeas petition, the district court agreed with
the Kansas Court of Appeals on this matter. More specifically, it explained that
the state court had “correctly identified the governing federal rule in Ashe” and
had “reasonably applied federal law which is consistent with its holding that the
Double Jeopardy Clause and collateral estoppel principles do not prohibit
admission of [the Missouri Evidence].” R., Vol. I, at 80–81. The district court
further noted that Mr. Wilson “ha[d] not shown that the state court unreasonably
determined the facts.” Id. at 81. Accordingly, it denied him habeas relief on this
claim.
No jurist of reason could debate the district court’s assessment of Mr.
Wilson’s claim. Indeed, even now, on appeal before this court, Mr. Wilson fails
to address the federal authority undergirding the Kansas Court of Appeals’s
analysis on this issue—namely, Ashe—much less argue that the state court’s
application of Ashe to the facts at bar was unreasonable. See Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004) (noting that habeas relief is warranted, in
relevant part, “only ‘if the state court identifies the correct governing legal
principle from [federal law] . . . but unreasonably applies that principle to the
10 facts of the prisoner’s case’” (quoting Williams v. Taylor, 529 U.S. 362, 413
(2000))). Nor did Mr. Wilson give the district court adequate reason to question
the reasonableness of the Kansas Court of Appeals’s determination of the facts.
Richie v. Workman, 599 F.3d 1131, 1135 (10th Cir. 2010) (observing that “under
§ 2254(e)(1) a state-court fact finding is binding on the federal courts unless
rebutted by clear and convincing evidence”). Stated simply, Mr. Wilson fails to
offer any cogent reason for us to question the district court’s resolution of this
Moreover, the one ascertainable argument that Mr. Wilson does provide in
support of this claim—i.e., that “[t]he State impermissibly sought to prove exactly
what the Missouri court failed to prove in the previous trial [seeing as he was
acquitted in the Missouri proceedings],” Appl. for COA at 4—lends him no
succor. What we construe Mr. Wilson to be arguing here, in essence, is that the
same issue was litigated in both the Missouri proceedings and the instant
case—meaning that one of the elements of collateral estoppel could be met. See
Smith, 510 F.3d at 1188 (party invoking collateral estoppel must establish that
“the issue previously decided is identical with the one presented in the action in
question”).
But that is simply not right. What the State (i.e., the Missouri prosecutor)
“failed to prove” in the Missouri proceedings was N.L.’s nonconsent (seeing as
11 Mr. Wilson was ultimately acquitted). What the State (i.e., the Kansas
prosecutor) later sought to prove in the underlying state-court proceedings, by
contrast, was N.H.’s nonconsent. Stated differently, the two proceedings turned
on two different issues: the former concerned whether N.L. had consented,
whereas the latter concerned whether N.H. had consented. This is precisely what
the Kansas Court of Appeals concluded, and what the district court, deferring to
that court’s reasoning, held in turn.
Suffice it to say, no jurist of reason could disagree with the district court’s
rejection of Mr. Wilson’s claim that collateral estoppel barred admission of the
Missouri Evidence and that his double-jeopardy rights were therefore violated.
Accordingly, we deny Mr. Wilson a COA on this issue.
B
Mr. Wilson’s second claim concerns the Kansas Court of Appeals’s 5 alleged
5 In his COA application, Mr. Wilson attributes this claimed error to the district court. See Appl. for COA at 5 (contending that “U.S. Dist. Judge Kathryn H. Vratil denied [his] 2254 petition by invoking the ‘no privity’ standard” in holding that “there is no privity between the parties, which is required for collateral estoppel” (emphasis added)). In actuality, however, it was the Kansas Court of Appeals that ruled on the issue of privity, see Wilson, 2013 WL 6726263, at *4; the district court merely quoted the Kansas Court of Appeals’s holding as part of its broader recapitulation of that court’s decision, see R., Vol. I, at 80. It is of course true that in considering whether to grant a COA, our ultimate focus is on whether the district court’s resolution of the underlying constitutional claim is debatable. Yet, in the § 2254 setting, where the petitioners are state prisoners, such an underlying claim necessarily must relate to the ruling (continued...)
12 “misuse[] [of] the Privity Rule.” Appl. for COA at 3 (alteration omitted).
Specifically, he takes aim at the Kansas Court of Appeals’s holding that “the
State of Kansas was not a party to the Missouri case, and there is no privity
between the parties, which is required for collateral estoppel.” Wilson, 2013 WL
6726263, at *4. In that regard, he contends that privity existed in the underlying
state-court proceedings “between [himself] and the prior alleged victim [in the
Missouri proceedings, i.e.,] N.L.,” and that the Missouri Evidence was therefore
“inadmissible to prove any factual basis for any determination in the State of
Kansas.” Appl. for COA at 5–6. By “misus[ing]” the “Privity Rule,” id. at 3, he
says, the court flouted the Full Faith and Credit Clause of the U.S. Constitution,
id. at 5 (citing U.S. C ONST . art. IV, § 1).
We reject this claim for the simple reason that Mr. Wilson has waived it by
failing to present it in his habeas petition. On direct appeal, the Kansas Court of
Appeals ruled on the merits of the privity issue: in addressing Mr. Wilson’s claim
5 (...continued) of a state court, not a federal district court. Consequently, we liberally construe Mr. Wilson’s COA request as involving a challenge to the privity ruling of the Kansas Court of Appeals. As we explicate infra, however, the problem for Mr. Wilson is that, in his habeas petition, he did not present a challenge to the Kansas Court of Appeals’s privity ruling. That is, he did not present in his habeas petition a constitutional claim concerning this ruling that the district court could resolve. Therefore, he has waived any challenge to this ruling, and there is no proper foundation—viz., a district court’s resolution of a constitutional claim—for us to even consider granting COA relief.
13 contesting the trial court’s ruling that collateral estoppel did not preclude the
Missouri Evidence, see supra Part III.A, the Kansas Court of Appeals held, in no
uncertain terms, that privity did not exist between the parties, see id.; see also
Wilson, 2013 WL 6726263, at *4. There is thus no reason that, in his habeas
petition in the district court, Mr. Wilson could not have challenged the state
court’s ruling on that basis. He did not do so, however, much less did he make a
privity argument framed as a constitutional claim couched in the Full Faith and
Credit Clause. Only now, for the first time in his COA application, does he make
such an argument.
But as this court has made plain, this will not do: a claim or theory raised
for the first time in a COA application is generally treated as waived. See
Harmon v. Sharp, 936 F.3d 1044, 1085 (10th Cir. 2019) (Holmes, J., concurring)
(observing that “in the AEDPA context, our precedent usually has treated
arguments that petitioners have not advanced before the district court as
waived—viz., not subject to review at all”); Stouffer v. Trammell, 738 F.3d 1205,
1221 n.13 (10th Cir. 2013) (declaring same); see also Owens v. Trammell, 792
F.3d 1234, 1246 (10th Cir. 2015) (concluding that “[b]ecause the argument was
not raised in [petitioner’s] habeas petition, it is waived on appeal”); United States
v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (denying COA on issues not
presented to district court in § 2255 motion, in light of court’s “general rule
14 against considering issues for the first time on appeal”); cf. Jones v. Gibson, 206
F.3d 946, 958 (10th Cir. 2000) (noting that court was not required to consider
argument that “[p]etitioner did not make . . . in his revised habeas petition”).
Accordingly, we decline to consider Mr. Wilson’s newly raised argument and
deny him a COA on this issue.
C
Mr. Wilson’s third and final claim contests the trial court’s “[u]se of KSA
§60-455,” Appl. for COA at 8, which provides for the admission of evidence “of
another act or offense of sexual misconduct [committed by defendant]” “for its
bearing on any matter to which it is relevant and probative,” K AN . S TAT . A NN .
§ 60-455(d).
Recall that at trial, in admitting the Missouri Evidence, the court invoked
Kan. Stat. Ann. § 60-455(d). The court reasoned that the factually similar
circumstances under which N.L.’s rape was allegedly committed—e.g., as with
N.H., Mr. Wilson purportedly met N.L. on a chat line, gave her the fake name of
Jaylen, and falsely told her that he was in town from Texas and that it was his
birthday—evinced a “plan” by Mr. Wilson to induce the women into meeting him
under false pretenses, and that this was relevant to and probative of the issue of
consent, thereby rendering that evidence admissible under § 60-455(d). Now, in
contesting the trial court’s “[u]se of KSA §60-455” to admit the Missouri
15 Evidence, Mr. Wilson argues that the court “affected [his] fundamental [due-
process] rights to a fair trial.” Appl. for COA at 7–8.
The district court disagreed. In addressing this claim as raised by Mr.
Wilson in habeas proceedings, it held that Mr. Wilson had failed to show that the
trial court’s admission of the Missouri Evidence under § 60-455 created a
fundamentally unfair trial. It explained that “‘evidence of a plan to put women in
situations where nonconsent would be difficult to prove is probative’ of the issue
of consent.” R., Vol. I, at 82 (quoting Wilson, 2013 WL 6726263, at *7). That is
to say, the admission of the Missouri Evidence was consistent with § 60-455. The
district court further noted that upon the trial court’s admission of this evidence,
“[t]rial counsel cross examined N.L., the jury weighed her credibility, [and] the
trial court instructed the jury concerning the limited purpose of N.L.’s testimony.”
Id. In view of all of this, the district court concluded, Mr. Wilson could not show
that the Missouri Evidence was so unreliable that it created a fundamentally
unfair trial, and he was thus not entitled to relief on this claim. 6
6 Neither the state trial court nor the Kansas Court of Appeals addressed this federal due-process claim. Nevertheless, construing his habeas petition liberally, the district court allowed for the possibility that Mr. Wilson objected to the admission of the Missouri Evidence on federal due-process grounds (as well as on state-law grounds) and denied relief. R., Vol. I, at 81 (“To the extent petitioner’s claim could be construed to assert that the state district court violated his due process rights by admitting unreliable evidence, the Court denies relief.”). Even if the state courts did not address this due-process claim (continued...)
16 At the outset, we note, importantly, that “[f]ederal habeas review is not
available to correct state law evidentiary errors; rather it is limited to violations of
constitutional rights.” Thornburg v. Mullin, 422 F.3d 1113, 1128–29 (10th Cir.
2005) (quoting Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999)). To
that end, like the district court, we construe Mr. Wilson’s claim as alleging a
violation of his constitutional due-process rights, and as such, “[t]he essence of
[the] inquiry . . . is whether the admission of the [Missouri Evidence] rendered
the proceedings fundamentally unfair.” Smallwood, 191 F.3d at 1275; see also
Martin v. Kaiser, 907 F.2d 931, 934 (10th Cir. 1990) (“[A]ny errors in the
admissibility of evidence are not grounds for habeas corpus relief absent
fundamental unfairness so as to constitute a denial of due process of law.”). We
conclude that reasonable jurists could not debate the district court’s resolution of
6 (...continued) because Mr. Wilson did not fairly present it to them—meaning that the claim is unexhausted—under the circumstances here, the district court could still permissibly deny the claim on the merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) (“[I]ndividual, unexhausted claims may be denied, but only if the result allows the court to determine the entire petition on the merits.”); accord Farris v. Allbaugh, 698 F. App’x 950, 958 (10th Cir. 2017) (unpublished). However, because no state court ruled on the merits of this claim, we do not incorporate AEDPA deference into our consideration of whether to grant a COA with respect to the district court’s ruling. See, e.g., Grant, 886 F.3d at 889.
17 this inquiry—that is, its conclusion that the admission of the Missouri Evidence
did not render the proceedings fundamentally unfair.
The central issue at trial was whether N.H. had consented to having sex
with Mr. Wilson, and the Missouri Evidence was proffered and admitted for its
bearing on that very issue: “[a]s evidence of [Mr. Wilson’s] plan to create a
situation in which the victim would have difficultly [sic] showing lack of
consent.” R., Vol. I, at 82; see, e.g., Smallwood, 191 F.3d at 1275 (“Given the
probative nature of the photographs[, inter alia,] . . . the admission of the
photographs [did not render] the proceedings against petitioner fundamentally
unfair.”). Further undercutting Mr. Wilson’s claim is the fact that, as alluded to
by the district court, the admission of the Missouri Evidence “was fully and
competently aired in the state courts.” Moore v. Gibson, 195 F.3d 1152, 1167–68
(10th Cir. 1999) (quoting Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir. 1996)).
That is to say, the trial court allowed the parties to vigorously litigate the
Missouri Evidence’s admissibility, and, upon that evidence’s admission, Mr.
Wilson had ample opportunity to cross-examine N.L. and other key witnesses.
See, e.g., id. (rejecting due-process claim challenging admission of evidence
connecting habeas petitioner to murder where, inter alia, testifying witness and
underlying evidence were fulsomely challenged on cross-examination).
18 Given this state of affairs, Mr. Wilson offers only one discernible argument
as to why the admission of the Missouri Evidence violated his due-process rights.
Specifically, he argues that under Kan. Stat. Ann. § 60-447 and certain other state
evidentiary rules, “[e]vidence regarding [a] defendant’s character [is] limited to
evidence of [that defendant’s] conviction of [a] crime.” Appl. for COA at 6
(citing §§ 60-446, 60-447, 60-448). And here, because the Missouri Evidence
was not evidence of a conviction, his line of reasoning goes, it was admitted in
violation of his fundamental rights. Mr. Wilson is correct that under § 60-447,
“evidence of specific instances of conduct . . . which tends to prove [a person’s
character] trait to be bad” that is used “to prove conduct on a specified occasion”
is generally inadmissible, with the exception of evidence of a prior conviction.
K AN . S TAT . A NN . § 60-447.
But § 60-447 and the other statutory provisions that he invokes are plainly
inapposite, as they concern the admission of character evidence—which the
admission of the Missouri Evidence simply does not implicate. Rather, as the
trial court made clear, that evidence was admitted for the express purpose of
proving a plan carried out by Mr. Wilson, viz., not for proving his conformity
with a certain character trait. This argument is therefore without merit.
In sum, reasonable jurists could not debate the district court’s
determination that the Missouri Evidence’s admission under Kan. Stat. Ann.
19 § 60-455 did not render the proceedings fundamentally unfair and violate Mr.
Wilson’s due-process rights. Accordingly, we deny Mr. Wilson’s request for a
COA on this issue.
IV
For the foregoing reasons, we DENY Mr. Wilson’s application for a COA
and DISMISS this appeal.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge