Moore v. McKune

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS August 13, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

GREGORY MOORE,

Petitioner-Appellant,

v. No. 12-3326
(D.C. No. 5:11-CV-03230-SAC)
DAVID R. McKUNE; ATTORNEY (D. of Kan.)
GENERAL OF KANSAS,

Respondents-Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE, Chief Judge, ANDERSON, and TYMKOVICH, Circuit
Judges.

Gregory Moore, a Kansas state prisoner, seeks a certificate of appealability

(COA) to enable him to appeal the district court’s denial of his 28 U.S.C. § 2254

petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), and we construe Moore’s filings liberally because he is

proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991). We conclude the district court correctly disposed of Moore’s petition and

therefore deny the application for a COA and dismiss this appeal.

*
This order is not binding precedent except under the doctrines of law of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

In the early morning hours of April 9, 2005, police in Newton, Kansas,

arrived at Moore’s home. They had received a domestic disturbance call which

they believed had escalated into a hostage situation, with Moore as the

hostage-taker and his girlfriend as the hostage. The police, who knew Moore

from previous encounters, believed (correctly) that he had several guns in the

home.

At one point, Moore agreed to open his front door so the police could see

him and his girlfriend. With the door still open, Moore’s girlfriend told Moore

that she was leaving, at which point Moore slammed the door closed. Police then

heard what sounded like one person striking another, followed by screams from

Moore’s girlfriend.

The police decided to force their way into the home and rescue Moore’s

girlfriend. An officer broke some glass next to the doorknob, reached inside, and

unlocked the door. Three heavily armed police officers then began to cross the

threshold into Moore’s home. As they were doing so, Moore’s girlfriend rushed

out. The police officers nonetheless continued to enter—apparently to arrest

Moore—and he opened fire. One officer was struck in the head and died

instantly. Another officer was struck multiple times but survived. At this point,

Moore either voluntarily ceased fire or ran out of ammunition. Other police

officers retrieved their fallen comrades and withdrew from the house.

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 Moore then made contact by phone with a police officer outside. Moore

said he was “reloaded and ready for more blood.” When the officer informed

Moore that one of the other officers was dead, Moore insisted that he had been

defending himself and that he would shoot any other police officer who tried to

enter.

Around this time, Moore also spoke by telephone with one of his longtime

friends, Thomas Taylor. Moore told Taylor what had happened and stated that he

intended to go out in a “blaze of glory.” Taylor nonetheless encouraged Moore to

surrender. About four hours after the gunfight, Moore finally surrendered.

Moore was charged with capital murder, attempted capital murder, and

various drug and firearms charges. A jury convicted him on all charges but

deadlocked on whether to impose a death sentence for the capital murder charge.

The trial court therefore imposed a life-without-parole sentence plus 1,094

months for the non-capital offenses.

Moore timely appealed his conviction and brought collateral review

proceedings in Kansas state court. Having obtained no relief through those

procedures, he filed his § 2254 petition in federal court.

We provide additional background below as relevant to specific claims.

II. Analysis

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 Moore’s § 2254 petition presented three grounds for relief. Grounds One

and Three are effectively the same, arguing that he was denied his due process

right to present a defense. We will analyze these two grounds together. Ground

Two is an ineffective assistance of counsel claim. It overlaps slightly with

Grounds One and Three, but is mostly distinct, and we will therefore analyze it

separately.

A. Due Process Right to Present a Defense (Grounds One and Three)

Understanding Moore’s claims in this regard requires some detailed

discussion of how his defense theories played out at trial, on appeal, and in his

§ 2254 petition.

1. The Trial

At trial, Moore had two defense theories. His first theory was “imperfect

self-defense,” based on the idea that he had an honest but unreasonable belief in

the need to defend himself from the police officers entering his home. If

successful on that theory, he would be guilty of voluntary manslaughter rather

than capital murder. His second theory was voluntary intoxication (involving

either alcohol or methamphetamine, or both), which could negate the mens rea

element of capital murder.

Various witnesses offered testimony relevant to these defenses. Moore’s

girlfriend’s daughter—who lived in the same house and had been with her mother

and Moore until not long before the gunfight—testified that alcohol made Moore

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“mean, violent, and paranoid.” State v. Moore, 194 P.3d 18, 21 (Kan. 2008). But

“she did not think Moore had been drinking the day or evening before the crimes,

[although] she did not know.” Id.

Moore’s girlfriend herself similarly testified that Moore “had a drinking

problem, that he used prescription painkillers for a back injury, and that he had

begun using illegal drugs, including methamphetamine.” Id. at 22. When Moore

consumed any of these substances, “he became mean, violent, and angry.” Id.

But she had not seen Moore consume any alcohol or methamphetamine during the

day leading up to the gunfight. Id. Moore’s girlfriend further stated that when

Moore learned the police were coming, “[h]e told her that he was not going to go

to jail, that the police were going to try to shoot him, that there would be a

‘shootout’ and ‘bloodbath,’ and that she would die with him.” Id. at 21.

Taylor, the friend with whom Moore spoke between the gunfight and the

surrender, testified that Moore expressed his intent at that time to “go[] out in a

‘blaze of glory,’ [a concept] that Moore had often mentioned.” Id. at 22. “Taylor

[further] said Moore could be mean and paranoid when drinking. Taylor did not

specifically testify about his impression of Moore’s sobriety during their phone

conversation, but he said that it seemed Moore was ‘in a zone.’” Id. at 22–23.

A state investigator “testified that he discovered [after the gunfight] large

quantities of full, partially full, and empty beer and liquor bottles at Moore’s

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residence.” Id. at 23. Another investigator discovered “drug paraphernalia

consistent with narcotic use.” Id. at 22.

Moore’s most important witness was to have been a toxicology expert

named Martinez. As part of Moore’s request for imperfect self-defense and

voluntary intoxication jury instructions, Moore proffered Martinez’s testimony by

putting him on the stand outside the presence of the jury. There, Martinez

testified that he evaluated a urine sample taken from Moore shortly after he had

surrendered. According to Martinez,

Moore’s urine contained more than 7,500 nanograms per
milliliter of methamphetamine and 2,709 nanograms per
milliliter of amphetamine; and it had a pH of 6.
Martinez said amphetamine is the major metabolite of
methamphetamine, and it is generally accepted in the
scientific community that the expected ratio of
methamphetamine to amphetamine is 10 to 1 over a wide
range of pH values. In his view, given the amphetamine
level in Moore’s urine, one might extrapolate that [the]
methamphetamine level [in Moore’s blood at the time
the urine sample was taken] was 27,000 nanograms per
milliliter, a borderline lethal level . . . .

Id. at 23. Martinez further “opined that methamphetamine in the level shown by

Moore’s urine would cause delusions, hallucinations, and bizarre, violent

behavior.” Id.

The state objected to Martinez’s testimony as unreliable under the Frye

standard. 1 On cross-examination, therefore, the state pointed out that some of

1
Kansas follows the Frye standard for evaluating an expert’s methodology,
(continued...)

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Martinez’s reference authorities impugned the notion that a urine sample could

say anything definitive about the actual amount of methamphetamine in a

person’s blood system.

Moore’s counsel nonetheless argued that Martinez’s testimony would be

relevant to Moore’s “ability to form intent, for his ability to premeditate” (i.e., the

voluntary intoxication question), and also “to [Moore’s] perception in regards to

our request for the imperfect self-defense or the voluntary manslaughter

instruction in which he honestly believed that he was acting in self defense.” See

R. Vol. 2., Kan. 06-97683-S, State v. Moore, Aplt. Br. at 29 (“Aplt. Direct Appeal

Br.” filed Sept. 17, 2007, available at 2007 WL 3249754) (quoting trial

transcript).

The trial court cut short Moore’s strategy. Although it held that Martinez’s

testimony satisfied the Frye standard, it also concluded that “there was no

evidence that Moore had been using drugs on the night of the crimes.” Moore,

194 P.3d at 23. The court therefore refused to give a voluntary intoxication

instruction, thus rendering Martinez’s testimony in that regard inadmissible as

irrelevant.

As for the imperfect self-defense instruction, the trial court likewise ruled

as a matter of law that the evidence before it could not establish an honest belief

1
(...continued)
not the Daubert standard. State v. Isley, 936 P.2d 275, 285 (Kan. 1997).

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in the need to defend one’s self. The court therefore refused to give an imperfect

self-defense instruction, once again rendering Martinez’s testimony in that regard

inadmissible as irrelevant.

Deprived of Martinez’s testimony, Moore rested his defense. The jury then

deliberated and returned a guilty verdict on all charges. At the sentencing phase,

the jury deadlocked on the death penalty, prompting the trial court to sentence

Moore to life without parole for the capital offense and 1,094 months for the

non-capital offenses.

2. Moore’s Direct Appeal

As noted, at trial, Moore’s counsel argued that Martinez’s testimony was

relevant both to imperfect self-defense and to voluntary intoxication. On direct

appeal, Moore’s brief broke all of this into three claims of error: (1) the trial court

should have given an imperfect self-defense instruction in light of evidence other

than Martinez’s proffered testimony, Aplt. Direct Appeal Br. at 11–21; (2) the

trial court should have given a voluntary intoxication instruction in light of

Martinez’s proffered testimony and all of the other testimony, id. at 21–26; and

(3) the trial court should have admitted Martinez’s testimony because failing to

do so deprived him of his due process right to present a defense, both as to

voluntary intoxication and as to imperfect self-defense, id. at 27–31. “[V]iewing

the overall picture of this case,” Moore concluded, “the [trial] court’s failure to

instruct the jury on voluntary intoxication, failure to provide an instruction on

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voluntary manslaughter, and failure to allow the defense to call [Martinez], are all

interrelated and constitute reversible error.” Id. at 31.

a. Imperfect Self-Defense

As to imperfect self-defense, the question before the Kansas Supreme Court

was whether Moore could have formed an honest (although unreasonable) belief

in the need to defend himself. The court concluded that Martinez’s testimony was

not relevant to that question, but only to the question of voluntary intoxication.

See Moore, 194 P.3d at 23 (“Moore requested an instruction on voluntary

manslaughter based on imperfect self-defense and on voluntary intoxication, the

second conditional on the district judge’s evaluation of Martinez’[s] testimony.”

(emphasis added)). It therefore did not address any prejudicial effect the

exclusion of Martinez’s testimony might have had on Moore’s imperfect self-

defense theory. Instead, the court surveyed Kansas law regarding honest belief

that a police officer might be about to use unlawful force, and found that Moore’s

situation did not fit any previous case:

There is no question that Moore appreciated that the
persons at his door were law enforcement officers, that
he appreciated the reasons they had gathered outside his
home and desired to enter it, and that [Moore’s
girlfriend] was a hostage until virtually the same
moment that the police came through the door. Moore
fired at the officers in spite of his undeniable knowledge
of their identity and purpose. Under these
circumstances, Moore simply could not have harbored
an honest but unreasonable belief that the deadly force
was necessary . . . .

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Id. at 25. The court therefore affirmed the trial court’s refusal to give an

imperfect self-defense instruction.

b. Voluntary Intoxication

The court then addressed Moore’s second argument, i.e., that the trial court

should have given a voluntary intoxication instruction in light of Martinez’s

proffered testimony and all of the other testimony.

The court concluded an instruction should have been given. Although the

court understood that this argument intertwined with Martinez’s exclusion as a

witness, it chose to resolve it on narrower grounds. It noted that there was

circumstantial evidence of intoxication on the night in question (e.g., the

numerous half-empty beer cans in the home and Moore’s attested violent

disposition when intoxicated) and also testimony that no one had seen Moore

drinking or using drugs in the hours prior to the gunfight. Thus,

[e]ven without [Martinez’s] testimony . . . or admission
of the urine screening report on which it relied, which
we discuss below, we hold that Moore was entitled to a
voluntary intoxication instruction. It is clear from the
record before us that the [trial] judge weighed the
evidence supporting and undercutting the instruction
rather than simply determining whether the minimum
evidence necessary to require the instruction was
present. The circumstantial evidence of Moore’s
voluntary intoxication at the time of the crimes may not
have been strong, but it was adequate to support an
instruction.

Id. at 26 (citation omitted).

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 But, the court said, “Moore made repeated and cogent, though tragically

misguided, statements about his expectations for the evening, about a ‘bloodbath,’

and about his demise in a ‘blaze of glory.’ Those expectations were, at least in

part, realized.” Id. Thus, “given the enormous weight of the evidence against

Moore,” the court held that the trial court’s error was harmless. Id. “This is

true,” it continued, “regardless of whether we view the error as one of

constitutional magnitude, infringing on Moore’s right to present his theory of

defense, or as nonconstitutional trial error.” Id.

c. Exclusion of Martinez’s Testimony

Finally, the court addressed the effect of Martinez’s inability to testify.

The court acknowledged that this was a “problematic” issue “because the [trial

court] never explicitly ruled that the testimony could not be admitted.” Id. at 27

(emphasis added). Instead, the trial court ruled that Martinez’s testimony could

be admitted—at least under the Frye standard—but also that no voluntary

intoxication instruction would be given. Thus, “[a]ny further decision the judge

may have made on” other matters of admissibility, such as “whether an

appropriate foundation had been laid for the opinion and whether the opinion

itself was relevant and helpful to the jury were short-circuited by ruling that no

voluntary intoxication instruction would be given and abandonment of the defense

attempt to use Martinez to support Moore’s theory of the case.” Id. The Kansas

Supreme Court characterized this as an “unusual order of events” and recognized

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that “without a voluntary intoxication instruction, there was nothing that Martinez

could say that would be helpful to the jury or exculpatory for Moore.” Id.

“In circumstances other than those before us,” the court went on, “we might

find this order of events and the interrelationship between Moore’s appellate

arguments on the voluntary intoxication instruction and on Martinez’[s] testimony

troubling.” Id. But in this circumstance, the court’s “examination of Martinez’[s]

proffer convince[d] [it] that there was nothing [Martinez] could have contributed

to the jury’s understanding of the case, even if the jury had been given a

voluntary intoxication instruction.” Id. This was so, the court said, for three

reasons.

First, the court appeared to predict that the trial judge would have excluded

Martinez’s expert testimony anyway. Unlike the Federal Rules of Evidence,

“Kansas law requires an expert’s opinion to be supported by admitted evidence.”

Id. But in Moore’s case, “the report of the urine screening performed shortly

after [he] was arrested [and on which Martinez relied] was not admitted into

evidence. No foundation for it was laid, and no hearsay exception was

established.” Id.

Second, the court held that Martinez lacked sufficient information to make

his testimony helpful to the jury. “Martinez admitted that he needed more

information to opine on Moore’s actual impairment at the time of the crimes.” Id.

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In particular, Martinez “was unable to testify about the timing of Moore’s

ingestion of drugs or the effect the drugs actually had on him in particular.” Id.

Third, “Moore did not object to the order of the proceedings before, or the

order of the decisions made by, the [trial] judge. And his arguments on appeal

rest on the presumption that all necessary evidence had been considered by the

[trial] judge when he made his rulings on this and other issues.” Id. at 28.

Thus, “[u]nder what we are certain will be the unusual circumstances of

this case,” the court concluded, “we are confident there was no error in the

district judge’s treatment of Martinez’[s] testimony.” Id.

3. Moore’s Habeas Arguments

In Moore’s § 2254 petition in federal district court, his first ground for

relief reads as follows:

Petitioner Was Denied His Right To Present A
Defense In Violation Of His Sixth And Fourth
Amendments [sic]. Petitioner had two defense theories
for his defense, at trial he was denied his right to present
expert testimony in support of his defense of Voluntary
Intoxication. The Court improperly and with prejudice
excluded the expert’s testimony in violation of the Sixth
and Fourteenth amendments. There was scientific
evidence relied upon in petitioner’s penalty-phase,
which should had [sic] been admitted and allowed
during petitioner’s guilt-phase of his trial.

R. Vol. 1 at 8. Moore’s third ground for relief states:

It Is Plain Error For Trial Court To Deny Giving
Jury Requested Instruction Vital To Defense In
Violation Of Sixth Amendment. Petitioner presented

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 evidence sufficient and supportive in weight to warrant
the jury to be instructed of Voluntary Intoxication. This
legal statutory defense was entitled [sic] petitioner under
the theories of his defenses. The trial court relied on
irrelevant facts to exclude petitioner’s expert witness
testimony for the purpose of denying him the right to
have the jury instructed on his defense.

R. Vol. 1 at 11. As Moore’s district court filings acknowledge, Ground Three “is

redundant to Ground One.” Id. at 73.

Perhaps most notable about these arguments is what they do not claim. As

noted, at trial and on direct appeal, Moore argued that Martinez’s testimony was

relevant both to his voluntary intoxication and imperfect self-defense theories, but

the Kansas Supreme Court treated Martinez’s testimony as relevant only to the

voluntary intoxication question. If Moore’s § 2254 petition had continued to

frame Martinez’s testimony as relevant to the imperfect self-defense theory, he

might have received de novo review on that claim because he presented it to the

Kansas Supreme Court but that court misunderstood it and therefore failed to rule

on it. See, e.g., Cone v. Bell, 556 U.S. 449, 472 (2009) (de novo review for

claims on which the state court “did not reach the merits”).

As it stands, however, Moore’s § 2254 petition raised Martinez’s testimony

only in the context of his voluntary intoxication defense. Moore’s other pleadings

below do likewise, raising the imperfect self-defense theory only as part of his

ineffective-assistance-of-counsel claim (and in a manner unrelated to Martinez),

not as part of his denial-of-defense claims. See R. at 57–74.

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 The district court determined that the Kansas Supreme Court’s decision

with regard to Martinez’s testimony satisfied AEDPA’s deferential standard for

two reasons: (1) the testimony was inadmissible under constitutionally valid

evidentiary rules, and (2) “[e]ven if the urine screening had been admitted, it

remains equally likely that [Moore] took methamphetamine after the crimes

occurred (around 4:00 a.m.) but before his arrest (around 8:00 a.m.).” R. Vol. 1

at 88.

As to the Kansas Supreme Court’s conclusion that it was harmless error for

the trial court to deny a voluntary intoxication instruction even without

Martinez’s testimony, the district court ruled that the Kansas Supreme Court

reasonably concluded under U.S. Supreme Court precedent that the error was

harmless.

4. Analysis

“[T]he Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683,

690 (1986) (internal quotation marks omitted). But this right is not absolute.

“The accused does not have an unfettered right to offer testimony that is

incompetent, privileged, or otherwise inadmissible under standard rules of

evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988).

The Kansas Supreme Court recognized that the trial court’s refusal to give

a voluntary intoxication instruction potentially violated Moore’s right to present a

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defense. It disposed of that in two ways: (1) in light of all the evidence other

than Martinez’s proffered testimony, the court explicitly found a potential

constitutional error in the trial court’s denial of the voluntary intoxication

instruction—but also that the error was harmless beyond a reasonable doubt; and

(2) Martinez’s testimony, whatever effect it might have had on Moore’s voluntary

intoxication theory, was inadmissible under state rules of evidence.

The district court analyzed each of these holdings in turn. In so doing, it

correctly recognized that its task was not to determine whether the Kansas

Supreme Court correctly applied U.S. Supreme Court precedent in some absolute

sense, but only whether the Kansas Supreme Court’s decision “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).

The state court’s conclusions do not fail this deferential standard. First,

concerning the denial of the voluntary intoxication instruction, the Kansas

Supreme Court was correct that such errors—even if they deny a defendant his

right to present a defense—can be harmless. See, e.g., Delaware v. Van Arsdall,

475 U.S. 673, 682 (1986); Crane, 476 U.S. at 691. The district court’s task on

habeas review was to determine if the Kansas Supreme Court applied the U.S.

Supreme Court’s harmless error rule in an objectively unreasonable way. See

Saiz v. Burnett, 296 F.3d 1008, 1012 (10th Cir. 2002) (where state appellate court

finds constitutional error in trial court’s exclusion of a proffered testimony but

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deems the error harmless, federal habeas court’s review is limited to whether the

state court’s “application of the [harmless error] standard was objectively

unreasonable”). Applying this standard, the district court stated, “The Kansas

Supreme Court reasonably found that the weight of the evidence against [Moore]

was ‘enormous.’” R. Vol. 1 at 91. Having reviewed the record ourselves, we

believe fair-minded jurists would not disagree with this conclusion. Accordingly,

this issue does not merit a COA.

Second, concerning the inadmissibility of Martinez’s testimony, the Kansas

Supreme Court was correct that state evidentiary rules limit a defendant’s right to

present a defense. Taylor, 484 U.S. at 410. But state evidentiary rules may not

be “arbitrary or disproportionate to the purposes they are designed to serve.”

Holmes v. South Carolina, 547 U.S. 319, 324 (2006). The question for the

district court was whether the Kansas Supreme Court unreasonably applied U.S.

Supreme Court law in this regard. The district court resolved this question not by

holding that the Kansas Supreme Court could reasonably conclude its evidentiary

rules were permissible, but that those evidentiary rules in fact “serve the interests

of fairness and reliability, and are not arbitrary or disproportionate to the

purposes they are designed to serve.” R. Vol. 1 at 88. While this conclusion goes

further than habeas review needs to go, within it is an obvious conclusion that the

Kansas Supreme Court reached an objectively reasonable conclusion.

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 Fair-minded jurists would not disagree with the district court in this regard,

although the question requires us to resolve several complications not fully

developed below.

To begin, the Kansas Supreme Court noted that the urine screening report,

on which Martinez’s testimony relied, had not been admitted into evidence—in

violation of Kansas’s requirement that experts base their testimony on admitted

evidence. Although this rule differs from the Federal Rules of Evidence, Moore

has not cited—nor could we find—any authority for the notion that the Federal

Rules approach embodies a constitutional standard. Thus, there is no clearly

established U.S. Supreme Court precedent that would undermine the Kansas

Supreme Court’s application of its admitted-evidence requirement.

Next, the Kansas Supreme Court treated its expert evidence rules as

self-executing, rather than as rules to be applied when a party objects. This is so

because the record or briefing does not disclose that the prosecution objected to

the admission of the report. At face value, the court’s conclusion seems

inconsistent with prior Kansas precedent. For example, the Kansas Supreme

Court has elsewhere stated that “evidentiary errors shall not be reviewed on

appeal unless a party has lodged a timely and specific objection to the alleged

error at trial.” State v. King, 204 P.3d 585, 596 (Kan. 2009). But to the extent

that Moore could claim that the Kansas court supposedly departed from its

precedent specifically to avoid reversal in his case, see, e.g., Cummings v.

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Sirmons, 506 F.3d 1211, 1237–38 (10th Cir. 2007), such a claim—if it exists at

all—would need to be raised and exhausted separately. Moore has not done so.

And in any event, the Kansas Supreme Court’s pronouncement in King was rooted

in a Kansas statute requiring a timely evidentiary objection in the trial court

before an appellate court may “set aside” any verdict or finding or “reverse” any

judgment on an evidentiary error. Kan. Stat. Ann. § 60-404 (emphasis added).

The rule that evidentiary errors should not be reviewed unless timely objected to

in the trial court apparently has nothing to do with an appellate court’s

prerogative to uphold a judgment on alternate grounds. See State v. Hoge, 150

P.3d 905, 910 (Kan. 2007). We have located no clearly established Supreme

Court precedent holding that where certain evidence has been excluded on

erroneous grounds, a state may not affirm the exclusion on alternate grounds,

including on other rules of evidence that are normally not self-executing.

Finally, to the extent Moore was planning to proffer the report to the jury,

the Kansas Supreme Court stated,

[W]e observe that Moore did not object to the order of
the proceedings before, or the order of the decisions
made by, the [trial] judge. And his arguments on appeal
rest on the presumption that all necessary evidence had
been considered by the judge when he made his rulings
on this and other issues.

Moore, 194 P.3d at 28. This can be understood as a conclusion Moore’s counsel

waived any argument along the lines of not having yet had an opportunity to lay a

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proper foundation. We are aware of no clearly established Supreme Court

precedent stating that typical waiver rules like this are somehow “arbitrary or

disproportionate to the purposes they are designed to serve.” Holmes, 547 U.S. at

324.

The district court also reasoned, “Even if the urine screening had been

admitted, it remains equally likely that [Moore] took methamphetamine after the

crimes occurred (around 4:00 a.m.) but before his arrest (around 8:00 a.m.).”

R. Vol. 1 at 88. This responds to the implicit conclusion in the Kansas Supreme

Court’s opinion. Not only did the court determine that Martinez’s testimony was

inadmissible under evidentiary rules, but the court also appears to have

determined that its exclusion was harmless: “there was nothing [Martinez] could

have contributed to the jury’s understanding of the case, even if the jury had been

given a voluntary intoxication instruction.” Moore, 194 P.3d at 27. In particular,

Martinez admitted he did not have sufficient information “to testify about the

timing of Moore’s ingestion of drugs.” Id. Timing, of course, was the crucial

point. Accordingly, the Kansas Supreme Court did not unreasonably apply U.S.

Supreme Court precedent in concluding that exclusion of Martinez’s testimony

was harmless. 2

2
Moore notes in his habeas petition that Martinez’s testimony was
admitted at the penalty phase. R. Vol. 1 at 8. He further argues in his application
for a COA that Dr. Martinez’s testimony “influenced the outcome of the
penalty-phase trial,” Aplt. Br. at 12, apparently alluding to the fact that the jury
(continued...)

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 For all these reasons, we conclude that no fair-minded jurist could disagree

with the district court’s disposition of Moore’s claims related to Martinez’s

proffered testimony. There is no basis on which to grant a COA on these claims.

B. Ineffective Assistance of Counsel (Ground Two)

1. State Collateral Review

In a state collateral review petition, Moore raised six ineffective assistance

of counsel claims, although only the first two are relevant now (Moore has

abandoned the rest). The Kansas Court of Appeals rejected these claims in an

unpublished disposition. R. Vol. 2, Moore v. State, No. 10-104267-A, 2011 WL

2555655 (Kan. Ct. App. June 24, 2011) (per curiam).

In Moore’s first claim, he argued that his attorney failed to investigate

certain blood samples. Soon after the crime, the state drew nine vials of blood

from Moore. Moore’s attorney did not have these vials tested for

methamphetamine. Moore claimed that his voluntary intoxication defense would

2
(...continued)
deadlocked on whether to give him the death penalty. “[I]f the defense’s expert
witness’[s] testimony influenced the penalty-phase of his trial,” Moore says, “then
it goes to show that his testimony could and would have changed the result of the
guilt-phase of his trial.” Id. (emphasis removed). Moore’s argument appears to
be grounded in U.S. Supreme Court decisions holding, under the circumstances of
the particular case, that a valid evidentiary rule nonetheless needed to give way to
accommodate the particular defendant’s right to put on a defense. See Green v.
Georgia, 442 U.S. 95, 97 (1979) (per curiam); Davis v. Alaska, 415 U.S. 308,
317-21 (1974). But the premise of Moore’s argument—that the jury deadlocked
because of Martinez’s penalty-phase testimony—is speculation and is inadequate
to preserve a challenge to the Kansas Supreme Court’s resolution of the issue.

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have been much stronger with the blood samples (as opposed to just the urine

sample). But the Court of Appeals held that Moore could not establish the

prejudice prong of an ineffective-assistance claim “given the overwhelming

evidence against him as highlighted by the [Kansas] Supreme Court in [its

disposition of Moore’s direct appeal].” Id. at *3.

Moore’s second claim argued that “his attorney was ineffective when he

failed to investigate why Deputy Kurt A. Ford (who was killed) was carrying a

rifle magazine that was missing several rounds.” Id. “If it could be determined

that Ford fired the first shot,” Moore believed that he would have been better able

to present his imperfect self-defense theory. Id. The Court of Appeals rejected

this claim on both of the ineffective-assistance prongs. As to the attorney’s

diligence, “there was absolutely no evidence in the record to suggest that Ford

fired his rifle at all; therefore, there was no objective reason for Moore’s attorney

to investigate.” Id. As to prejudice, the facts of the case as interpreted by the

Kansas Supreme Court showed that Moore could not establish an imperfect

self-defense theory is a matter of law: “Moore knew that he was holding a

hostage; he knew that the people outside the door were police officers and wanted

to enter to protect the hostage; and . . . Moore fired at the officers despite this

fact.” Id. at *4.

The Court of Appeals therefore denied Moore’s collateral review petition.

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 2. Moore’s Habeas Arguments

In his § 2254 petition, Moore framed his ineffective-assistance claim as

follows:

Petitioner’s Trial Counsel Was Prejudicially
Inadequate And Ineffective In Violation Of His Sixth
And Fourteenth Amendments [sic]. Petitioner’s trial
counsel made cumulative errors regarding petitioner’s
right to present an adequate defense. Trial counsel
failed to continue the trial to have blood samples tested.
Trial counsel presented intentionally false testimony
regarding the existence of blood samples. Trial counsel
failed to properly prepare its expert witness vital for the
defense of Voluntary Intoxication and Imperfect Self
Defense. In violation of petitioner’s Sixth and
Fourteenth amendments [sic].

R. Vol. 1 at 9.

In response, the state argued that Moore had procedurally defaulted on

certain of these theories for failure to raise them in the Kansas courts.

Specifically, the state claimed that Moore had not previously raised the theories

of cumulative error, failure to move for a continuance to test the blood samples,

and false testimony regarding the blood samples. The district court agreed,

deemed these theories procedurally defaulted, and therefore analyzed only two

theories on their merits: failure to support the voluntary intoxication defense (by

failing to have the blood samples tested) and failing to support the imperfect

self-defense theory (by failing to investigate whether the slain officer had fired

first).

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 As to both theories, the district court held that the Kansas Court of Appeals

had not applied the U.S. Supreme Court’s ineffective-assistance precedents in an

objectively unreasonable manner. Accordingly, the district court denied Moore’s

petition.

3. Analysis

a. Default

Moore first challenges the district court’s conclusion that he had

procedurally defaulted on certain ineffective-assistance theories for failure to

raise them in state court.

As to his cumulative error theory, Moore does not deny that he never raised

it in state court. Instead he asserts that “all claims of IAC must be considered

cumulatively. This is simply the standard for reviewing an IAC issue.” Appl. at

24 (citations omitted). We need not reach this question because we agree with the

district court that cumulative error only applies where more than one actual error

has been established. See Hoxsie v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997)

(“Cumulative-error analysis applies where there are two or more actual errors. It

does not apply, however, to the cumulative effect of non-errors.” (citation

omitted)). And as explained further below, we likewise agree that Moore has

established no colorable claim to error. This question of procedural default as to

cumulative error is therefore moot, and we need not reach it.

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 Concerning Moore’s theories that his counsel should have moved for a

continuance to test the blood samples and that his counsel falsely denied the

existence of the blood samples, we likewise need not reach the question of

procedural default. These contentions are arguably just aspects of Moore’s

overall argument that counsel might have bolstered the voluntary intoxication

theory by having the blood samples tested. That overall argument is not actually

stated in Moore’s habeas petition, but his other papers below bring it out clearly,

see R. Vol. 1 at 65–70, and the district court was correct to consider it given

Moore’s pro se status. Accordingly, we do not decide whether these contentions

were procedurally defaulted.

b. Merits

To establish ineffective assistance of counsel, Moore must show both that

his trial counsel fell below objective standards of reasonableness and that he

suffered prejudice as a result of counsel’s failures. Strickland v. Washington, 466

U.S. 668, 687–88, 691–95 (1984). A defendant shows prejudice when “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

i. The Voluntary Intoxication Defense

Moore believes his counsel was constitutionally ineffective because counsel

did not have the blood vials tested for methamphetamine. The Kansas Court of

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Appeals rejected this claim on the prejudice prong “given the overwhelming

evidence against him as highlighted by the [Kansas] Supreme Court in [its

disposition of Moore’s direct appeal].” R. Vol. 2, Moore, 2011 WL 2555655, at

*3. The district court deemed this a reasonable application of Strickland.

We cannot conclude the Kansas Court of Appeals unreasonably applied

Strickland. The fundamental problem with Moore’s claim is that he presents no

evidence of what the blood tests would have revealed. His argument is based

entirely on speculation that such tests would support his voluntary intoxication

defense. But the Strickland prejudice prong may not be satisfied through

speculation. See, e.g., Eisemann v. Herbert, 401 F.3d 102, 108–09 (2d Cir.

2005); United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989); United States v.

Peterson, 896 F. Supp. 2d 305, 316 (S.D.N.Y. 2012); cf. Miller v. Terhune, 510 F.

Supp. 2d 486, 498 (E.D. Cal. 2007) (finding prejudice in part because “both of

petitioner’s trial attorneys testified that they were aware of the fact that

petitioner’s blood alcohol level was .30 three hours after the shooting occurred”

yet neither of the petitioner’s attorneys adequately investigated the viability of a

voluntary intoxication defense). No court can say that “the result of the

proceeding would have been different,” Strickland, 466 U.S. at 694, without

knowing what the tests would reveal.

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 Moore, of course, cannot test the blood samples himself. 3 But if he indeed

ingested methamphetamine prior to the gunfight, he should know what the tests

would reveal. After a thorough review of the record, we cannot find any

statement from Moore affirming that he ingested the drugs, or a statement of how

much he ingested and when. The closest he comes is an assertion made in a

pleading in which he claims that the urine sample “clearly establishes that

petitioner had used a very large amount of meth at least 24 hours prior to the

shooting incident.” R. Vol. 1 at 69–70. 4

Such circumlocution does not suffice. While we construe pro se filings

liberally, we cannot credit an argument without evidence. As one court said in a

Rule 12(b)(6) context, “when a complaint omits facts that, if they existed, would

clearly dominate the case, it seems fair to assume that those facts do not exist.”

O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976). The same holds true

for habeas petitions.

We see no basis for granting a COA on this claim.

3
Moore requested (and was denied) an evidentiary hearing from the
Kansas collateral review court—but not as a means to test the blood samples.
Rather, he requested a hearing regarding whether his trial counsel’s actions had
been strategic rather than inadvertent. See R. Vol. 2, Moore v. State, No. 10-
104267, Aplt. Br. at 3–4, 10–11 (Kan. Ct. App., filed Oct. 26, 2010), available at
2010 WL 4923669.
4
We express no opinion whether Moore could still have the blood samples
tested, but note that Kansas law may allow additional post-conviction proceedings
in certain circumstances. See K.S.A. § 60-1507; Kan. Sup. Ct. R. 183(c)(4) &
(d).

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 ii. Failure to Prepare Martinez Adequately

There is a second aspect of Moore’s ineffective-assistance claim that the

district court did not address. Moore argues that his counsel failed to adequately

prepare Martinez to testify. Moore has elaborated on this argument in various

ways.

In state collateral review proceedings, where Moore was represented by

counsel, he argued that his trial counsel’s failure to get the urine screening report

into evidence prejudiced him, given that the Kansas Supreme Court in part relied

on that failure to declare Martinez’s testimony inadmissible. See R. Vol. 2,

Moore v. State, No. 10-104267, Aplt. Br. at 5 (Kan. Ct. App., filed Oct. 26,

2010), available at 2010 WL 4923669. In other words, the Kansas Supreme

Court could not have excluded Martinez’s testimony as easily if trial counsel had

put the urine screening report into evidence before Martinez’s proffer.

In § 2254 proceedings, where Moore represented himself, he argued this

point somewhat differently. Specifically, his argument centered on the state’s

cross-examination, in which Martinez admitted that his own treatises seem to say

that urine concentration is a poor proxy for actual amounts ingested, timing of

ingestion, and so forth. This was also something on which the Kansas Supreme

Court relied in declaring Martinez’s testimony unhelpful. Moore therefore argued

that his counsel “failed to read enough of the relevant text to know what the state

would try to rebut Dr. Martinez’s testimony with.” R. Vol. 1 at 66.

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 In his application for a COA, still representing himself, Moore has returned

to his state collateral review argument: “[D]efense counsel failed to even offer the

urine screening report into evidence, laying a proper foundation for Dr.

Martinez’s expert testimony. Due to trial counsel’s IAC, Martinez was not able

to present the reliability of his expert assessment of the level of

methamphetamine in Appellant’s urine screening.” Aplt. Br. at 25 (citation

omitted).

We deem Moore to have forfeited any argument based on failure to admit

the urine screening into evidence. Although he raised it in state collateral review

proceedings, he abandoned it in the district court. We therefore do not reach it.

As for the argument based on trial counsel’s failure to read Martinez’s

treatise, we see no prejudice. The treatise said what it said, regardless of whether

trial counsel adequately reviewed it. There was no way trial counsel could put on

Martinez without facing the impeachment problem he actually faced.

Accordingly, we see no basis to grant a COA.

iii. The Imperfect Self-Defense Theory

Moore’s final ineffective-assistance theory has changed since state

collateral review proceedings. There, he relied on counsel’s failure to investigate

the supposed notion that the slain officer had fired his rifle first. Here, however,

Moore blends this argument with his previous arguments about being high on

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methamphetamine. In other words, he argues that being high can factor into an

honest yet unreasonable belief about the need to defend one’s self.

The district court addressed this argument only with respect to whether the

slain officer had fired his rifle first. As to this aspect of the argument, the district

court concluded—and we agree—that the Kansas Court of Appeals reasonably

applied Strickland when it found that counsel had not behaved deficiently.

The district court did not address the intoxication aspect of the argument,

which was likely procedurally defaulted. But AEDPA exhaustion is not

jurisdictional, and so the state’s failure to object gives us discretion to address the

argument. See, e.g., Young v. Conway, 698 F.3d 69, 86 & n.11 (2d Cir. 2012).

We choose to exercise our discretion and reach the argument because the Kansas

Supreme Court’s decision has already resolved it. Specifically, we read the

Kansas Supreme Court’s decision as establishing that someone “who appreciate[s]

that the persons at his door [are] law enforcement officers” and “appreciate[s] the

reasons they had gathered outside his home and desire[] to enter it” (namely, to

rescue a hostage) cannot, as a matter of law, form an honest belief in the need to

defend himself. Moore, 194 P.3d at 25. The evidence shows that Moore

embodied these requirements, and he therefore had no viable imperfect

self-defense theory regardless of whether he was intoxicated at the time.

There is no basis to grant a COA on this issue.

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 III. Conclusion

For the reasons stated above, we DENY Moore’s application for a COA and

DISMISS this appeal.

ENTERED FOR THE COURT

Timothy M. Tymkovich
Circuit Judge

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