Robertson v. Roberts

FILED
United States Court of Appeals
Tenth Circuit

July 14, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JOSHUA JAMES ROBERTSON,

Petitioner-Appellant,

v. No. 09-3345
(D. Kan)
RAYMOND ROBERTS, Warden, El (D.C. No. 5:09-CV-03077-KHV)
Dorado Correctional Facility;
ATTORNEY GENERAL OF
KANSAS,

Respondents-Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Joshua James Robertson, a Kansas state prisoner proceeding pro se, 1 seeks

a Certificate of Appealability (“COA”) so that he may challenge the district

*
This Order is not binding precedent, except under the doctrines of law of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
10th Circuit Rule 32.1.

After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case therefore is ordered submitted without oral argument.
1
Because Mr. Robertson is proceeding pro se, we construe his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Van Deelen v.
Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we conclude that

Mr. Robertson has failed to make a substantial showing of the denial of a

constitutional right. Accordingly, we DENY his request for a COA and

DISMISS this matter. We also DENY all of Mr. Robertson’s pending motions.

BACKGROUND

Mr. Robertson was convicted in Kansas state court of first-degree murder,

arson, and aggravated burglary in the killing of Patricia Self, his girlfriend’s

mother, and the burning of Mrs. Self’s home. He was sentenced to 50 years’

imprisonment, without the possibility of parole. His convictions were affirmed by

the Supreme Court of Kansas on direct appeal. Mr. Robertson subsequently

sought state post-conviction relief, which also was rejected by the Kansas courts.

Mr. Robertson thereafter filed a pro se § 2254 petition with the United

States District Court for the District of Kansas. He asserted five claims: (1) his

Fifth Amendment rights were violated by the admission at trial of his statements

to law enforcement officials made without counsel present; (2) his trial counsel

provided ineffective assistance by failing to investigate and seek suppression of

his statements to law enforcement; (3) appellate counsel provided ineffective

assistance by failing to pursue Fourth Amendment claims and by failing to assert

an ineffective-assistance-of-trial-counsel claim on appeal; (4) he was denied a fair

trial by the admission of a state witness’s perjurious testimony; and (5) his Fourth

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Amendment rights were violated by an unlawful seizure. Reviewing Mr.

Robertson’s petition under the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”), the district court concluded that Mr. Robertson’s claims

regarding the admission of his statements to law enforcement officials and his

ineffective-assistance-of-trial-counsel claim were reasonably resolved by the state

courts. The district court also determined that Mr. Robertson’s remaining claims

were procedurally defaulted and that he had not shown cause and prejudice for the

defaults or a fundamental miscarriage of justice arising from the defaults.

Consequently, the district court did not consider those claims. Thus, the district

court rejected all five of Mr. Robertson’s claims and denied his § 2254 petition.

Seeking to appeal the district court’s ruling, Mr. Robertson sought a COA

from the district court, but the court denied his application. The court denied his

request based on its conclusion that he had not made a substantial showing of the

violation of a constitutional right. It held “that the state courts made reasonable

factual determinations on the evidence presented and applied the correct legal

standards. Petitioner has not presented any persuasive evidence to the contrary.”

R., Vol. I, at 294–95 (Order, filed Dec. 17, 2009). The district court did,

however, grant Mr. Robertson permission to proceed on appeal in forma pauperis.

Mr. Robertson has filed a notice of appeal from the denial of his § 2254

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petition, a brief in support, 2 and an application for a COA. Mr. Robertson seeks a

COA from this court for the following issues: (1) the voluntariness of his

statements to officers and the alleged violation of his Fifth Amendment rights; (2)

the alleged ineffectiveness of trial counsel; and (3) the alleged ineffectiveness of

appellate counsel. Mr. Robertson also has seven pending motions before this

court that arise from his desire to obtain copies of evidence or his attempts to

supplement the record on appeal with certain evidence. 3

2
Mr. Robertson actually filed two appellant briefs; he filed an
Appellant/Petitioner’s Opening Brief on February 16, 2010, and a second
Appellant/Petitioner’s Opening Brief on February 26, 2010. Mr. Robertson
appears to have filed two briefs due to a delay in his receipt of our order granting
him more time in which to file his brief. On February 11, 2010, Mr. Robertson
filed a motion requesting that we extend the time to file his brief. We granted the
motion and extended the due date for Mr. Robertson’s brief to March 19, 2010.
Mr. Robertson thereafter filed a brief on February 16, followed by a second brief
on February 26. In the February 26 brief, Mr. Robertson stated that he filed the
February 16 brief “under duress” and that he did so before he had received the
order granting his motion for extension of time. He stated that he was filing the
February 26 brief “pursuant to” that order. Because under Federal Rule of
Appellate Procedure 28(a) and (c) we should not consider both briefs, we will
consider the February 26 brief as Mr. Robertson’s appellant brief because it is
clear that he intended the second brief to replace the first. Accordingly, we will
construe Mr. Robertson’s statements to that effect as a motion to substitute briefs
and grant the motion. See Robinson v. United States, Fed. Bureau of
Investigation, 185 F. App’x 347, 347 (5th Cir. 2006) (per curiam) (construing a
letter as a motion to substitute briefs where a pro se inmate filed two appellate
briefs and submitted the letter asking the court to consider the second brief on
appeal).
3
Pursuant to 10th Cir. R. 22.1(B), the State Respondents-Appellees
did not file an answer brief. However, at our direction, they did respond to one of
Mr. Robertson’s motions, as discussed in detail infra.

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 DISCUSSION

I. Certificate of Appealability

Unless an applicant obtains a COA, we lack jurisdiction to consider the

merits of a habeas appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). To make such a showing, Mr. Robertson

must “demonstrat[e] that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003); accord Slack v. McDaniel, 529 U.S. 473,

483–84 (2000); Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009). In

determining whether to grant a COA, we do not engage in a “full consideration of

the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S.

at 336. Rather, we undertake “a preliminary, though not definitive, consideration

of the [legal] framework” applicable to each claim. Id. at 338. Although an

applicant is not required to demonstrate that his appeal will succeed, he “must

prove something more than the absence of frivolity or the existence of mere good

faith.” Id. (internal quotation marks omitted).

Moreover, because the Kansas state courts addressed the merits of Mr.

Robertson’s claims, “AEDPA’s deferential treatment of state court decisions must

be incorporated into our consideration of [his] . . . request for [a] COA.” Dockins

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v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may grant an

application for a writ of habeas corpus on behalf of a person in state custody on a

claim that was adjudicated on the merits in state court only if the state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States” or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

As we have explained:

Under the “contrary to” clause, we grant relief only if the state
court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court
decides a case differently than [the Court] has on a set of
materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (alterations in original)

(second internal quotation marks omitted). We grant relief under the

“unreasonable application” clause “only if the state court identifies the correct

governing legal principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. (alteration in

original) (internal quotation marks omitted). Thus, a federal court “may not issue

a habeas writ simply because [that court] conclude[s] in [its] independent

judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also [have] be[en]

unreasonable. Id. (internal quotation marks omitted). “Moreover, under §

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2254(e)(1) a state-court[’s] fact finding is binding on the federal courts unless

rebutted by clear and convincing evidence.” Richie v. Workman, 599 F.3d 1131,

1135 (10th Cir. 2010).

Having thoroughly reviewed the record on appeal, we conclude that Mr.

Robertson is not entitled to a COA. All but one of the claims for which Mr.

Robertson seeks a COA are subject to a procedural bar or were waived. As to the

surviving claim, reasonable jurists would not disagree with the district court’s

disposition of that claim on its merits.

A. Fifth Amendment Claims

Under a liberal construction of Mr. Robertson’s pro se filings, it appears

that he raises two Fifth Amendment claims. He argues that officers violated

Edwards v. Arizona, 451 U.S. 477 (1981), and his Fifth Amendment right against

self-incrimination by: (1) continuing to talk to him after he had stated that he

wanted a lawyer; and (2) pressuring him to waive his Miranda rights.

Mr. Robertson’s arguments may be best understood within the context of

the relevant facts. As the Supreme Court of Kansas recounted:

On the morning of the murder and fire, immediately
upon being detained, Robertson asked Officer Reed if he was
under arrest and if he could have a court-appointed lawyer.
Reed had not given Miranda warnings to Robertson because he
had not intended to question him; he was merely responsible
for transporting him to the sheriff’s department. Reed advised
Robertson that he was not under arrest, that he was only being
detained for questioning, and that he should talk to
interviewing officers about getting a court-appointed attorney.

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 Robertson was placed in an interrogation room with an
activated video recording device. Reed waited in the room
with Robertson but did not question him. During a part of the
time the two men waited for other investigators to arrive,
emergency medical technicians treated Robertson’s hand.
Robertson made repeated remarks to Reed about his love for
[his girlfriend] Jennifer and her motive for committing the
crime. He asked Reed about the case and asked again if he
would be appointed an attorney. Robertson also asked what
the charges were and what the bond would be. Reed again
responded that defendant would have to wait for the
interviewing officers to find out more information and that he
did not know if there were any charges. Defendant then asked
Reed what the bond was for premeditated murder. Reed
responded that he did not know.

When investigating officer Kelly Herzet arrived, Reed
left. Reed did not tell Herzet that Robertson had requested a
court-appointed attorney. Herzet also did not know that the
remains had been or would be identified as Patricia.

Before Herzet could ask Robertson his name, Robertson
said: “What’s the motive? I tried to stop her. She cut my
hand through my gloves. What was her motive?” Robertson
asked again about a court-appointed attorney and said
immediately that Jennifer had cut the phone line. Herzet
interrupted defendant and asked his name, but defendant kept
talking. Herzet then pulled out a form so that he could go over
the Miranda rights with Robertson. Robertson told Herzet that
he was not going to sign a waiver and that he wanted a lawyer
present. Before Herzet could say anything, Robertson said that
his girlfriend had “pulled some stunt” today, that he had gotten
cut, and that he was “just an acquaintance, or an accomplice, I
don’t know.” Herzet then said, “We need to talk about that,”
and Robertson said, “I can’t speak until I have an attorney.”
Herzet responded: “OK.”

Robertson then began talking again, remarking that he
loved someone “so much.” Herzet asked him who he was
talking about, and Robertson said “Jennifer.” Herzet then said
he needed to read the rights form, which would protect

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Robertson. He also told Robertson that he could mark the
form to document that he did not want to talk to law
enforcement without an attorney. Herzet specifically said that
marking the form would not mean that Robertson had to talk to
him. Robertson continued talking despite his expressed
intention to wait for an attorney. He told Herzet that he had
marked the form to say he would talk but “whether or not I
decide to answer certain questions is my decision.” Herzet
responded, “That is so correct.” The form had been signed
within 5 minutes of Herzet arriving to talk to defendant.

Herzet then interviewed Robertson for approximately 4
hours. The officer brought Robertson lunch, gave him a soda
break, and gave him restroom breaks whenever Robertson
needed to do so. Herzet also asked Robertson several times if
he needed to go to the hospital for further treatment of his
hand, but defendant said he did not need to go. Herzet
testified later that Robertson never refused to talk. Sometimes,
he would state, “I’ll take it up with the Judge,” but Herzet
understood that Robertson wanted to continue the interview.
Robertson ultimately described the crimes, claiming they were
primarily Jennifer’s fault. He was then arrested.

....

[Before trial,] Robertson moved to suppress his oral
statements to Herzet . . . . The defense argued that Herzet
should have walked away as soon as Robertson requested a
lawyer without ever giving him the Miranda form. . . .

The district judge denied the motion to suppress. The
judge determined that Robertson was in custody at the time he
was driven to the police station and that he had made repeated
clear and unequivocal requests for an attorney. However, in
between those requests, Robertson repeatedly began to talk
about the case again: “In one breath, he would say I want a
lawyer, in the next breath he would say I tried to stop her. I
cut my gloves. She started the fire.” The judge also noted that
the only person asking questions was Robertson. Any
confusion Herzet had about Robertson’s intentions was
therefore understandable, and he effectively gave the Miranda

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 warnings, including a clear statement that he would walk away
if Robertson checked the appropriate box to say he did not
want to talk. On these facts, the district judge found
Robertson voluntarily and freely signed a waiver of his
Miranda rights, and the interrogation by Herzet did not
actually begin until then.

State v. Robertson, 109 P.3d 1174, 1180–82 (Kan. 2005).

1. Continued Conversation after Invocation of Right to
Counsel

Mr. Robertson argues that the officers should have terminated their

discussions with him immediately after he invoked his right to counsel. In

particular, Mr. Robertson contends that the officers should not have discussed bail

or the Miranda rights form but should have terminated the conversation with him

that ultimately proved to be self-incriminating. On direct appeal, the Supreme

Court of Kansas rejected this issue on its merits. 4 See id. at 1183–84. The court

determined that if a suspect invokes his right to counsel, all questioning must

cease. Id. However, the court noted that questioning could be resumed if the

suspect “(1) initiated further discussions with police and (2) knowingly and

intelligently waived the previously asserted right.” Id. at 1184 (internal quotation

marks omitted). Based on this legal framework, the court concluded that

[u]nder the facts of this case, Robertson made repeated
requests for a lawyer, and Herzet demonstrated by his

4
Because the Supreme Court of Kansas had addressed Mr. Robertson’s
argument concerning his statements to law enforcement on direct appeal, it did
not reconsider the merits of this issue during his post-conviction proceedings.
See Robertson v. State, 201 P.3d 691, 697 (Kan. 2009).

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 responses that he understood Robertson desired a lawyer’s
assistance. Although it was not completely clear that
Robertson wanted a lawyer to be present for interrogation
rather than later proceedings, we hold there was a valid waiver
regardless.

As the district court recognized, before Herzet asked
Robertson a single question about the crime, Robertson was
blaming Jennifer and questioning her motive. Indeed, every
time Robertson mentioned an attorney, he spontaneously
reinitiated conversation with the officers about the crimes.
Specifically, after Herzet was finally able to deliver the
Miranda warnings, Robertson disclosed how he and Jennifer
set the fire. This disclosure was not prompted by questioning
from Herzet. Herzet then asked Robertson if he wanted to
continue talking about the case. Robertson responded that he
had signed the Miranda form and would speak with Herzet but
might not answer all of his questions. He also advised Herzet
that he had been arrested before and therefore understood his
Miranda rights and his ability to waive them.

We conclude under the totality of the circumstances that
the facts found by the trial court were supported by substantial
competent evidence, and we arrive at the independent legal
conclusion that Robertson’s motion to suppress his statement
to Herzet was properly denied.

Id.

The district court concluded that the Supreme Court of Kansas had

reasonably applied clearly established federal law in resolving this claim. The

district court reviewed the state court record, including the videotaped interview

of Mr. Robertson. Based on that review, the district court agreed with the

Supreme Court of Kansas that there were substantial facts to support the

determination that Mr. Robertson voluntarily waived his right to remain silent

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after being given repeated Miranda warnings. The district court also determined

that the Supreme Court of Kansas reasonably applied established federal law to

this claim.

We conclude that reasonable jurists could not debate whether the district

court should have resolved this claim in a different manner because the Supreme

Court of Kansas’s determination was not contrary to, and did not involve an

unreasonable application of, clearly established federal law. Edwards requires

that, once a suspect has invoked his right to counsel, all interrogation of him must

cease. 451 U.S. at 484–85. Edwards also provides, however, that interrogation

may resume if “the accused himself initiates further communication, exchanges,

or conversations with the police.” Id. at 485.

As an initial matter, this situation does not appear to fall under Edwards

because no officer asked Mr. Robertson any questions until after he was read his

Miranda rights and had signed a Miranda wavier indicating that he wished to

speak to police without the presence of counsel. Therefore, no impermissible

interrogation took place. Rather, the officers passively received the torrent of

information emanating from Mr. Robertson. Neither Edwards nor any other

Supreme Court case supports Mr. Robertson’s contention that the officers were

required to remove themselves from his presence immediately upon hearing his

invocation of the right to counsel before they had even informed him of his

Miranda rights.

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 Furthermore, even assuming that the officers’ passive presence could

qualify as “interrogation” and that Edwards applies, Mr. Robertson waived his

right to counsel by repeatedly and spontaneously initiating discussions about bail

and about his crimes after each invocation of the right to counsel. See id. at 485.

The videotape demonstrates that, even as Mr. Robertson stated his desire for an

attorney, with his next breath, he would reveal information about the crime and

continue talking without any prompting from officers. The Supreme Court of

Kansas said it best when it described Mr. Robertson’s behavior as “virtually

defin[ing] the old phrase, ‘a compulsion to confess.’” Robertson, 109 P.3d at

1184. Reasonable jurists would not debate the district court’s conclusion that Mr.

Robertson’s Fifth Amendment rights were not violated and, consequently, Mr.

Robertson is not entitled to a COA on this claim.

2. Pressure to Waive Miranda Rights

Mr. Robertson next alleges that he asked for counsel and that an officer

told him that having an attorney present was not possible because they did not

have a lawyer “today” or “right now.” Mr. Robertson maintains that those

statements pressured him into signing a Miranda waiver and argues that the

officer’s use of the word “now” indicated to him that Mr. Robertson was required

to talk at that particular time without an attorney present. This claim is

procedurally barred.

Mr. Robertson failed to raise this particular argument on direct appeal.

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Although Mr. Robertson consistently has argued that the statements he made to

police were obtained in violation of his Fifth Amendment right to counsel, he did

not make this specific argument on direct appeal. Rather, as discussed above, Mr.

Robertson challenged only the interviewing officer’s failure to discontinue all

conversation with him after he had indicated his desire for an attorney. See Aplt.

Br. at 10–17, State v. Robertson, 03-90319-S (Kan. Feb. 10, 2004); see also

Robertson, 109 P.3d at 1182, 1184. Because Mr. Robertson did not raise this

argument during his direct appeal, the claim is unexhausted and therefore is

subject to an anticipatory state procedural bar. See State v. Johnson, 7 P.3d 294,

299 (Kan. 2000) (“[W]here an appeal is taken from the sentence imposed and/or a

conviction, the judgment of the reviewing court is res judicata as to all issues

actually raised, and those issues that could have been presented, but were not

presented, are deemed waived. Where a defendant’s claim has not been raised at

trial or on direct appeal, such a default prevents the defendant from raising the

claim in a second appeal or a collateral proceeding.”); see also Cummings v.

Sirmons, 506 F.3d 1211, 1222–23 (10th Cir. 2007) (explaining anticipatory

procedural bar).

It is not enough that Mr. Robertson raised another type of Fifth Amendment

argument on direct appeal—“we have consistently turned down the argument that

the raising of a related theory was sufficient.” Lyons v. Jefferson Bank & Trust,

994 F.2d 716, 722 (10th Cir. 1993); see id. (noting that “there are many ways in

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which a case may present . . . issues not passed upon below,” including “a

situation where a litigant changes to a new theory on appeal that falls under the

same general category as an argument presented at trial” (internal quotation marks

omitted)). We see no reason why this bar would not constitute an independent

and adequate state-law ground for denying habeas relief. Moreover, although a

procedural bar may be avoided by a habeas petitioner if “the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice,” Smith

v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008), cert. denied, 130 S. Ct. 238

(2009), Mr. Robertson has made no attempt to do so. Therefore, this claim is

procedurally barred, and Mr. Robertson is not entitled to a COA on this issue.

B. Ineffective-Assistance-of-Trial-Counsel Claim

Mr. Robertson also seeks a COA for his claim that trial counsel was

ineffective. Although our reasoning differs from the district court, we conclude,

like that court, that Mr. Robertson cannot prevail on this claim. More

specifically, we determine that Mr. Robertson’s claim is procedurally barred.

In his state post-conviction proceedings, Mr. Robertson identified several

reasons that his trial counsel was ineffective. See Robertson, 201 P.3d at 697.

Among other reasons, Mr. Robertson claimed that his trial counsel failed to seek a

competency evaluation of him and failed to raise a Fourth Amendment argument.

Id. The district court determined that Mr. Robertson raised both of these

challenges in his federal habeas petition. Although the district court rejected both

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challenges because “trial counsel [had] provided effective assistance,” R., Vol. I,

at 249 (Mem. & Order, filed Nov. 23, 2009), it only expressly discussed the

competency issue in its AEDPA analysis. Specifically, the district court noted

that the Supreme Court of Kansas had rejected this claim on its merits because

counsel had filed a motion for a competency determination early in the

proceedings and Mr. Robertson had been found to be competent. Likewise, trial

counsel pursued the issue of competency in a pretrial motion to suppress. The

district court held that “[t]hese findings are supported by the record, and the

Kansas Supreme Court applied the correct legal standards.” Id. Thus, the district

court held that “Petitioner’s claim of ineffective assistance lacks merit.” Id.

We disagree, however, with the district court’s precise handling of the

ineffective-assistance-of-trial-counsel claim. Although the district court placed

the analytic focus on a purported competency challenge, even under our liberal

construction of Mr. Robertson’s federal habeas filings, we can discern only an

ineffectiveness argument concerning trial counsel’s failure to raise a Fourth

Amendment challenge. In other words, Mr. Robertson did not raise before the

district court an ineffective-assistance-of-trial-counsel challenge based upon

competency. Consequently, Mr. Robertson has waived any federal judicial

consideration of his competency challenge. See Fairchild v. Workman, 579 F.3d

1134, 1141 n.2 (10th Cir. 2009) (“Generally, the failure to raise an argument in

one's initial filing will cause it to be waived.”). However, we conclude that

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reasonable jurists could not debate the correctness of the district court’s ultimate

disposition of Mr. Robertson’s ineffective-assistance-of-trial-counsel claim—viz.,

it is beyond dispute that Mr. Robertson cannot prevail on this claim.

Restricted to the Fourth Amendment challenge, this ineffective-assistance-

of-trial-counsel claim is procedurally barred because the Supreme Court of

Kansas found that Mr. Robertson did not brief the issue. See Robertson, 201 P.3d

at 697 (“Robertson’s other initial criticisms of trial counsel—that counsel . . . was

ineffective for failing to raise a Fourth Amendment argument—were abandoned

when the Court of Appeals brief was submitted in this case.”). Kansas courts

hold that “[a]n issue not briefed by the appellant is deemed waived or

abandoned,” Milano’s, Inc. v. Kan. Dep’t of Labor, 231 P.3d 1072, 1077 (Kan.

2010), and we see no reason not to consider this default an independent and

adequate state law ground for denying habeas relief.

Claims that are defaulted in state court on adequate and
independent state procedural grounds will not be considered by
a habeas court, unless the petitioner can demonstrate cause and
prejudice or a fundamental miscarriage of justice. A state
procedural default is ‘independent’ if it relies on state law,
rather than federal law. A state procedural default is
‘adequate’ if it is firmly established and regularly followed.

Smith, 550 F.3d at 1274 (citations omitted). Mr. Robertson has not demonstrated

cause and prejudice or that a fundamental miscarriage of justice will occur if this

claim is not reviewed. See Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001).

We therefore will not grant a COA on this claim.

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 C. Ineffectiveness-of-Appellate-Counsel Claim

Finally, Mr. Robertson seeks a COA for his claim that appellate counsel

was ineffective for failing to raise a Fourth Amendment argument. Mr. Robertson

waived this claim, having failed to adequately brief the issue in seeking a COA

from this court. He does not discuss appellate counsel’s performance anywhere in

his Appellant/Petitioner’s Opening Brief. Although Mr. Robertson mentions

appellate counsel once, on page two of his Application for a COA, he never

actually discusses that claim; rather, he only discusses the effectiveness of trial

counsel. Despite his pro se status, Mr. Robertson made no attempt to adequately

brief this claim and we decline to address it. See Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 679 (10th Cir.1998) (“Arguments inadequately briefed in the

opening brief are waived[.]”). 5

II. Pending Motions

Although we have determined that Mr. Robertson is not entitled to a COA

5
Even if we were to reach this claim, Mr. Robertson has not
demonstrated “that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 478. The district
court correctly held that the Supreme Court of Kansas’s determination that Mr.
Robertson had not preserved his argument that appellate counsel was ineffective
was an independent and adequate state-law ground barring federal review. See
Robertson, 201 P.3d at 697 (holding that Mr. Robertson’s claim regarding the
alleged ineffectiveness of appellate counsel was abandoned when his Court of
Appeals brief was filed and declining to address that claim on its merits). And,
once again, Mr. Robertson has not demonstrated cause and prejudice or that a
fundamental miscarriage of justice will occur if this claim is not reviewed. Mr.
Robertson therefore is not entitled to a COA on this issue.

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on any of his claims, Mr. Robertson also has filed seven pending motions in this

matter that have been referred to the merits panel and require our resolution. The

motions are denied for the following reasons.

First, on December 28, 2009, Mr. Robertson filed a “Freedom of

Information Act Request (Pursuant to 5 U.S.C. 522 et seq)” in which he requested

that we make available for inspection and copying the videotape of his police

interview that was viewed by the district court. We directed the Respondents-

Appellees to respond to this motion and have considered their response. We deny

this motion because “the Freedom of Information Act makes information

available to the public. It does not apply to the courts of the United States.”

Cook v. Willingham, 400 F.2d 885, 885 (10th Cir. 1968) (per curiam) (internal

quotation marks omitted).

Second, on January 11, 2010, Mr. Robertson filed a “Motion for

Examination of the Record” in which he expressed his concern that the district

court had reviewed an edited version of the videotape. Mr. Robertson claims that

the videotape, originally marked as Exhibit 3 at trial, was later redacted to omit

information about his juvenile conviction. He also claims that the videotape may

have been edited to the extent that it omits important information about the

voluntariness of his statements to police and waiver of his right to counsel. He

alleges that we have the edited version of the videotape, which was introduced at

trial as State’s Exhibit 89. This belief has led to Mr. Robertson’s concern for

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preservation of the record and his repeated requests for a transcript to be made of

the videotape. Consequently, he requests that we order the Butler County

Sheriff’s Office to make a copy of the original videotape. We decline to do so.

Based on Mr. Robertson’s allegations, we appear to have the same copy of

the videotape that was before the Supreme Court of Kansas and the district court.

Under Federal Rule of Appellate Procedure 10(a)(1), the record on appeal consists

of the original papers and exhibits filed in the district court. We generally do not

consider evidence that was not presented to the district court. See United States

v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000); see also Hammon v. Ward, 466

F.3d 919, 931 n.12 (10th Cir. 2006). Although we recognized in Kennedy that we

have the inherent equitable authority to enlarge the record on appeal if “the

interests of justice would best be served,” 225 F.3d at 1192–93, Mr. Robertson

cannot meet that standard in this case because: (1) our review of the district

court’s evaluation of the Supreme Court of Kansas’s handling of this claim should

involve the same copy of the videotape reviewed by those courts; (2) Mr.

Robertson fails to support his assertion that the copy of the videotape that is part

of the record on appeal has been edited in a way so as to omit relevant,

substantive information; (3) defense counsel did not object to the admission of

Exhibit 89 (the edited videotape) at trial, see Tr. of Jury Trial, Vol. V, at 103–04,

State v. Robertson, No. 02-cr-104 (Kan. Dist. Ct. Sept. 13, 2002); and (4) Mr.

Robertson did not raise this issue before the district court.

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 Third, Mr. Robertson filed several motions that involve his attempt to

supplement the record on appeal with a DVD copy of Exhibit 3 and a transcript he

has had made of that copy. In Mr. Robertson’s “Motion to Submit,” filed on

February 18, 2010, he reveals that his mother has obtained a copy of Exhibit 3—

the allegedly unedited copy of the videotaped interview—from the Butler County

District Court Clerk’s Office. Mr. Robertson asks that we allow him to

supplement the record with a DVD copy of the videotape and a transcript.

Attached to the motion is a letter from Judge Ward of the Butler County District

Court to Mr. Robertson, giving Mrs. Robertson permission to obtain and copy the

tape. Also attached is an affidavit from Mrs. Robertson detailing the “chain of

custody” as to the copy of the tape and its transcription. Similarly, in a “Motion

to Accept Hand Delivery of a DVD Copy of Exhibit 3 and Transcript of Exhibit

3,” filed on February 19, 2010, Mr. Robertson requests that we accept the copies

that his mother will hand-deliver. He again asks that he be permitted to

supplement the record in his “Motion to Supplement the Record,” filed on

February 22, 2010, and states that, because the Appellees did not object to his

obtaining a copy of Exhibit 3 in their response to his FOIA motion, they therefore

must not object to his supplementing the record.

We deny these motions for the same reasons we deny Mr. Robertson’s

“Motion for Examination of the Record,” discussed above. In addition, we will

not permit Mr. Robertson to supplement the record with uncertified copies of

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evidence. Cf. Fed. R. App. P. 10(e)(2) (stating that an omission or misstatement

of anything material from the record “may be corrected and a supplemental record

may be certified and forwarded”); Habteselassie v. Novak, 209 F.3d 1208, 1209

n.1 (10th Cir. 2000) (granting motion to supplement the record “[i]n view of the

fact that [the Appellant] does not object to the motion and that the Clerk for the

Araphaoe County District Court certified the copies of these documents”).

Mr. Robertson’s final two motions involve the Miranda waiver form that he

signed during his police interview. It is not part of the record on appeal, and his

mother has been working on his behalf to obtain the form. In a “Motion to

Supplement the Record on Stipulation of the Parties (Pursuant to Fed Rules of

App Proc R 10(e)(2)(A)),” filed on March 22, 2010, Mr. Robertson argues that we

should consider the questions on the Miranda form. He attaches an affidavit from

his mother regarding her efforts to locate the form and a letter from trial counsel

stating that he does not have a copy of the form. Mr. Robertson requests that we

supplement the record by stipulation of the parties, but he does not attach a copy

of the form to his motion. Moreover, it is unclear whether the Respondents-

Appellees actually have stipulated to the motion. In a second “Motion to

Supplement the Record (Pursuant to Federal Rules of Appellate Procedure R

10(e)(2)),” filed on April 2, 2010, Mr. Robertson asks to supplement the record

and this time includes a copy of the Miranda rights form that he signed. We deny

both motions because: (1) the actual Miranda form is immaterial to our review of

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Mr. Robertson’s claims; (2) it is not clear that this form was before either the

Supreme Court of Kansas or the district court; and (3) Mr. Robertson has failed to

provide us with a certified copy of the form, cf. Fed. R. App. P. 10(e)(2);

Habteselassie, 209 F.3d at 1209 n.1.

CONCLUSION

For the reasons discussed above, we deny the application for a COA and

dismiss this matter because Mr. Robertson failed to make a substantial showing of

the denial of a constitutional right. We also deny his pending motions.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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