FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 29, 2013
Elisabeth A. Shumaker
Clerk of Court
LARRY SHOPTEESE,
Petitioner - Appellant,
v. No. 13-3057
(D.C. No. 5:12-CV-03084-SAC)
DOUG WADDINGTON; DEREK (D. Kan.)
SCHMIDT,
Respondents – Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Larry Shopteese, a Kansas prisoner, seeks a certificate of appealability (“COA”) to
appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.
Exercising jurisdiction under 28 U.S.C. § 1291, we deny his request for a COA and
dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
A. Trial and Direct Appeal
Mr. Shopteese was charged with felony murder, aggravated robbery, aggravated
battery, aggravated burglary, burglary, and theft in Kansas state court. After pleading not
guilty, Mr. Shopteese was evaluated and treated for a psychotic disorder at Larned State
Hospital for about nine months, until he was found competent to assist in his defense.
See Shopteese v. Waddington, 12-3084-SAC, 2013 WL 328982, at *1 (D. Kan. Jan. 29,
2013). Dr. Leonardo Mabugat from Larned recommended that he continue taking sleep
and antipsychotic medications “to remain competent and maintain affective stability.” Id.
at *3 (quotations omitted).
Mr. Shopteese’s daily dosage of Geodon, the antipsychotic medication prescribed
at Larned, was cut in half when he returned to Brown County jail. Around this time, Mr.
Shopteese’s trial counsel, Charles Tuley, asked Dr. Robert Barnett to examine Mr.
Shopteese. Dr. Barnett concluded that Mr. Shopteese’s medications were not “effective
in controlling his hallucinations and delusions” and that he did “not see [Mr. Shopteese]
as competent to stand trial.” Shopteese v. State, 256 P.3d 897, at *2 (Kan. Ct. App. 2011)
(unpublished table decision), review denied (Jan. 6, 2012). The state district court denied
Mr. Shopteese’s new motion to determine competency.
In exchange for a guilty plea to the felony murder and aggravated burglary
charges, the State agreed to drop the remaining charges. On July 30, 2004, the state
district court held a change of plea hearing. The court learned at the hearing that Mr.
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Shopteese had run out of his medications and had not received them for four days. The
court questioned Mr. Shopteese about how he was feeling. Mr. Shopteese stated that he
was not feeling physically sick but that he was having trouble seeing things: when he
looked at the wall he saw “different [red] designs, like people,” and when he “turn[ed] to
look at something different it stay[ed] the same picture and just float[ed].” Shopteese,
2013 WL 328982, at *5. Mr. Shopteese attributed this to long-standing vision problems.
He said he was cross-eyed and saw a 3-D version of everything. He said he had “learned
to try to block . . . out” the vision problems and repeatedly assured the court that he had
no problems listening, understanding, and making a decision. Id.
The court accepted Mr. Shopteese’s change of plea, and, on March 10, 2004, it
sentenced him on the felony murder conviction to life without eligibility for parole for 20
years and on the aggravated burglary conviction to 34 months in prison, to be served
consecutively. Over the next three weeks, Mr. Shopteese wrote the court three times to
say that the plea agreement did not reflect the terms he and the State had agreed to, that
he would like to withdraw his guilty plea, and that he would like to appeal his case or go
to trial (collectively “motion to withdraw”).
B. Motion to Withdraw Guilty Plea
The state district court held a hearing on Mr. Shopteese’s motion to withdraw.
Mr. Tuley died five days before the hearing, and William McQuillan was appointed as
Mr. Shopteese’s new counsel. Between his appointment and the hearing on January 28,
2005, Mr. McQuillan met with Mr. Shopteese three times. Mr. McQuillan later testified
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that “he initially had concerns regarding [Mr.] Shopteese’s competence . . . but did not
think it was an issue after reading the plea hearing transcript and meeting with [Mr.]
Shopteese.” Shopteese, 256 P.3d 897, at *8. He further testified that during their
meetings Mr. Shopteese “‘seemed very functional’ and ‘cognizant’ when answering
questions . . . , which eliminated any concerns . . . about [Mr.] Shopteese’s ability to
function in a court hearing.” Shopteese, 2013 WL 328982, at *7. He therefore decided
not to contact any doctors about the effect the lack of medication might have had on Mr.
Shopteese’s competency. Rather, he decided to challenge the plea based on Mr.
Shopteese’s (1) pre-sentencing understanding of the plea agreement that he would be
eligible for parole after 15 years and would receive concurrent sentences and (2) claim
that the signature on the plea agreement was not his.
The state district court then made specific findings as to Mr. Shopteese’s
arguments and denied the motion. The court also stated that Mr. Shopteese
had a sufficient present ability to consult with his attorney
which he showed with a reasonable degree of rational
understanding. He appeared to understand the questions [the
court] was asking. He was able to make a proper response.
. . . He understood what he was there for. He understood
what the charges were . . . [H]e met the standards for mental
competence.
Id. at *6-7 (quotations omitted).
Mr. Shopteese appealed the district court’s denial of his motion to withdraw,
arguing that his low I.Q. and unmedicated mental illness rendered his plea involuntary.
The Kansas Supreme Court affirmed.
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C. State Petition for Post-Conviction Relief
On March 12, 2008, Mr. Shopteese filed a petition for post-conviction relief under
Kan. Stat. Ann. § 60-1507, arguing Mr. McQuillan provided ineffective assistance of
counsel. He alleged that Mr. McQuillan had “failed to argue on any substantial grounds
that Mr. Shopteese was not competent to enter the plea of no contest.” Shopteese, 256
P.3d 897, at *7 (quotations omitted). He argued that Mr. McQuillan failed to investigate
and present expert testimony to establish that he was not taking his medication and thus
was incompetent.1
Mr. Shopteese called Dr. Barnett and Dr. Mabugat to testify at the evidentiary
hearing on the petition. The State called Mr. McQuillan and Dr. Sean Yutzy. The State
had asked Dr. Yutzy to review the documents in the case. After the hearing, the State
district court denied the post-conviction relief petition, concluding “that there was
nothing deficient in [Mr.] McQuillan’s decision to forego presenting evidence or
argument about [Mr.] Shopteese’s competency at the plea hearing.” Id. at *9.
The Kansas Court of Appeals concluded that Mr. McQuillan made a strategic
decision to abandon the competency issue because, after reviewing the plea hearing
transcript and meeting with Mr. Shopteese, he believed the argument to be without merit.
The court stated that Mr. “McQuillan’s determination about competency was based on an
1
Mr. Shopteese also alleged that Mr. McQuillan failed to remind the court that
Mr. Tuley had misinformed him about his parole eligibility under the life sentence. As
Mr. Shopteese does not raise this issue in his federal habeas petition, we do not review
the state court findings and conclusions as to this issue.
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informed, reasonable, and professional assessment of the facts as they existed at the
time.” Shopteese, 2013 WL 328982, at 12. The court concluded that Mr. McQuillan’s
performance was not deficient and denied the ineffective assistance of counsel claim.
D. Federal Habeas Petition
On April 4, 2012, Mr. Shopteese filed a federal habeas petition. He argued that
Mr. McQuillan violated his right to effective assistance of counsel by failing to
investigate and offer evidence on the competency issue.2
The federal district court noted that its habeas review of state court decisions is
governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA provides that if a state court adjudicated the merits of a claim, a federal court
cannot grant habeas relief unless 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,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding,” id. § 2254(d)(2).
The district court also noted that “[t]he test for granting a writ under this standard
is whether the state court’s application of clearly established federal law was objectively
2
Mr. Shopteese also argued that his right to effective assistance of counsel was
violated when Mr. Tuley failed to stop the plea hearing despite Mr. Shopteese’s obvious
incompetence. The federal district court concluded that Mr. Shopteese abandoned this
argument by failing to adequately brief it in his memorandum in support of the habeas
petition.
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unreasonable.” Maynard v. Boone, 468 F.3d 665, 670 (10th Cir. 2006) (quotations
omitted). “It is not enough that the [state court’s] decision is clearly wrong.” Id. at 671.
Rather, “a decision is ‘objectively unreasonable’ when most reasonable jurists exercising
their independent judgment would conclude the state court misapplied Supreme Court
law.” Id.
Next, the district court reviewed the requirements that a defendant must show
deficient performance and sufficient prejudice to demonstrate ineffective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland,
“[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” 466 U.S. at 691. Even when
counsel’s decision not to investigate is inadequately informed, a defendant must show
that counsel’s “strategic decision . . . not to investigate fully the law and facts possibly
relevant to the defense was [not] a ‘reasonable professional judgment.’” Anderson v.
Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005) (quoting Strickland, 466 U.S.
at 690).
The district court further noted that, when combining the “highly deferential”
standards of both Strickland and § 2254, “the question is not whether counsel’s actions
were reasonable” but “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
The court next reviewed the standard for a defendant’s competency under the Due
Process Clause: whether a defendant “has the capacity to understand the proceedings and
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to assist counsel.” Godinez v. Moran, 509 U.S. 389, 402 (1993); see also id. at 396-97;
United States v. Mackovich, 209 F.3d 1227, 1231-32 (10th Cir. 2000). It then discussed
the factors to determine competency: counsel’s representations about the defendant’s
competency; the district court’s observations at the time; evidence of irrational behavior,
including demeanor at trial; and prior medical opinions on competence to stand trial. See
United States v. Cornejo-Sandoval, 564 F.3d 1225, 1234-35 (10th Cir. 2009).
Applying those factors to this case, the district court reviewed the decision by the
Kansas Court of Appeals, the medical opinions on Mr. Shopteese’s competence, Mr.
McQuillan’s testimony, the district court’s observations, and Mr. Shopteese’s allegations
about his behavior during the hearing.3 The district court concluded “that a reasonable
attorney, situated in the same position as [Mr.] McQuillan, would find insufficient cause
to believe Defendant’s competence was compromised.” Shopteese, 2013 WL 328982, at
*14. It further concluded that the decision by the Kansas Court of Appeals “that [Mr.]
McQuillan’s performance was not deficient under Strickland was ‘well within the bounds
of a reasonable judicial determination.’” Id. (quoting Harrington, 131 S. Ct. at 789).
Concluding that Mr. Shopteese failed to make “a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(2), the district court also denied Mr.
3
Mr. Shopteese alleges that his attending the change of plea hearing with his face
painted is additional evidence of his irrational behavior. The district court stated that
“[t]he record neither shows that Petitioner’s face was painted during the plea hearing, nor
shows judicial notice of any face painting.” Shopteese, 2013 WL 328982, at *14.
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Shopteese a COA.
II. DISCUSSION
Mr. Shopteese argues in his application for a COA that his right to effective
assistance of counsel was violated because Mr. McQuillan failed to offer available
evidence of Mr. Shopteese’s incompetence and because this deficient performance
resulted in prejudice to him.4
Mr. Shopteese may not appeal the district court’s decision without a certificate of
appealability. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v. Oklahoma,
468 F.3d 711, 713 (10th Cir. 2006). 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 meet this standard, Mr. Shopteese must show “that reasonable jurists
could debate whether . . . the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Moreover, “for those
of [Mr. Shopteese’s] claims that were adjudicated on the merits in state court, AEDPA’s
deferential treatment of state court decisions must be incorporated into our consideration
4
Mr. Shopteese also argues that Mr. McQuillan violated his right to effective
assistance of counsel by failing to offer evidence of Mr. Tuley’s errors at the plea
hearing. To the extent that Mr. Shopteese thus raises a separate ineffective assistance of
counsel issue, he has forfeited appellate consideration of it by inadequately arguing it in
his COA application. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
Moreover, because we deny COA based on Strickland’s deficiency requirement, we do
not address Mr. Shopteese’s arguments as to prejudice.
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of his request for COA.” Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir.2007)
(quotations omitted).
After examining the record on appeal, we affirm the denial of a COA for
substantially the same reasons set forth by the district court.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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