F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 7 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROLLAND G. BERRETH,
Petitioner-Appellant,
v. No. 99-3118
(D.C. No. 97-CV-3211)
DAVID R. MCKUNE; ATTORNEY (D. Kan.)
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, and requested a certificate of appealability from the district court. The
district court denied petitioner’s request for a certificate appealability and
dismissed his habeas petition as procedurally barred. Petitioner appeals the
dismissal of his habeas petition and asks that we issue a certificate of
appealability. Because petitioner has not made “a substantial showing of the
denial of a constitutional right,” we deny his application for a certificate of
appealability and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
Petitioner was convicted in Kansas state court of aggravated kidnaping and
aggravated sodomy. He appealed his conviction to the Kansas Court of Appeals,
and that court affirmed his conviction on January 10, 1997. Five days before the
time for seeking review from the Kansas Supreme Court expired, petitioner filed a
motion for an extension of time in which to file his petition for review. After the
time for seeking review had expired, petitioner filed his petition for review. On
March 24, 1997, the Kansas Supreme Court denied the motion for extension of
time and denied the petition for review.
A federal habeas petitioner is required to exhaust all available state
remedies before seeking federal habeas review. See Coleman v. Thompson , 501
U.S. 722, 731 (1991). Under Kansas law, petitioner had the right to raise his
federal claims before the Kansas Supreme Court and, therefore, he was required
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to present his claims to that court before seeking federal habeas relief. See
O’Sullivan v. Boerckel , 526 U.S. 838, 845 (1999). Petitioner’s failure to perfect a
timely appeal to the Kansas Supreme Court constituted a procedural default of his
claims. Although he has met the technical requirements of exhaustion in that
there are no state remedies any longer available to him, see Coleman , 501 U.S. at
732, “the procedural default bars federal habeas review of the claims,” Andrews v.
Deland , 943 F.2d 1162, 1188 (10th Cir. 1991) (quotation omitted). It is clear that
the Kansas Supreme Court refused to hear petitioner’s claims because he did not
file a timely petition for review, an independent and adequate state ground. See
Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993). Consequently, petitioner
can obtain federal habeas review only if he can establish cause for the procedural
default and prejudice resulting therefrom, or that failure to consider his claims
“will result in a fundamental miscarriage of justice.” Coleman , 501 U.S. at 750.
The district court ordered petitioner to show cause why his habeas petition
should not be dismissed as procedurally barred on account of his state procedural
default. In his response to the district court’s order, petitioner did not assert any
cause for failing to comply with the state procedural rule. In his amended habeas
petition, however, petitioner stated that his attorney did not seek a timely review
from the Kansas Court of Appeals’ decision. Petitioner further stated that
[p]etitioner was not notified of this adverse ruling by the Kansas
Court of Appeals, and not until after 25 days had elapsed, leaving
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petitioner with only 5 additional days to seek different counsel to
perfect a timely review. Petitioner’s family members [paid] appellant
counsel $20,000.00 to perfect his appeal, but counsel refused to seek
review by the Kansas Supreme Court without additional payment of
an additional $1,500.00. Appellant counsel never moved the court to
have different counsel assigned and petitioner never waived his
rights to have the Kansas Supreme Court review the unfavorable
decision made by the Kansas Court of Appeals. Petitioner is entitled
to counsel as a matter of right on direct appeal.
Dist. Ct. R., Second Amended Complaint at 6. Construing petitioner’s pleadings
liberally because he appears pro se , the district court considered these statements
as an allegation of ineffective assistance of counsel amounting to cause to avoid
the procedural bar.
Initially, we reject the notion that petitioner’s counsel was ineffective for
failing to file a timely appeal with the Kansas Supreme Court. Petitioner had no
constitutional right to counsel on his discretionary appeal to the Kansas Supreme
Court. See Wainwright v. Torna , 455 U.S. 586, 587-88 (1982) (relying on Ross v.
Moffitt , 417 U.S. 600 (1974)); Foy v. State , 844 P.2d 744, 744-45 (Kan. Ct. App.
1993). Consequently, petitioner can not claim that his appellate counsel’s failure
to file a timely discretionary appeal denied him of his right to effective assistance
of counsel and was, therefore, cause for his procedural default.
In addition, petitioner stated that his appellate counsel did not notify him of
the Kansas Court of Appeals’ decision until five days before the time expired for
filing a petition for review with the Kansas Supreme Court. If we construe this as
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an allegation of ineffective assistance of counsel amounting to cause for his
procedural default, we look to the standard set forth in Strickland v. Washington ,
466 U.S. 668 (1984) to determine whether petitioner received effective assistance
of counsel. See Murray v. Carrier , 477 U.S. 478, 488 (1986).
It does not appear from the record before us, however, that petitioner ever
exhausted his independent claim of ineffective assistance of counsel as cause for
his procedural default by presenting it to the state courts. See id. at 489. Even
though it appears this independent claim has not been exhausted, we address it on
the merits because it is clear that petitioner suffered no prejudice and, therefore,
did not receive ineffective assistance of counsel. See Van Woudenberg ex rel.
Foor v. Gibson , 211 F.3d 560, 569 (10th Cir. 2000) (citing 28 U.S.C. §
2254(b)(2) for proposition that “unexhausted claim may be denied on its merits”).
To show ineffective assistance of counsel, petitioner must establish that his
attorney’s performance fell below an objective standard of reasonableness and
that the deficiency prejudiced his defense. See Strickland , 466 U.S. at 687-88.
Even if it could be said that counsel’s failure to notify petitioner of the decision
affirming his conviction immediately was objectively unreasonable, which we do
not decide, petitioner has not shown prejudice. Petitioner admits he knew of the
decision before the time for filing a petition for review with the Kansas Supreme
Court expired, and, in fact, petitioner chose to file a motion for extension of time
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instead of filing the petition for review. Because petitioner did not receive
ineffective assistance of counsel, he has not shown cause for his procedural
default, and federal review of his habeas claims is barred. 1
The application for a certificate of appealability is DENIED, and the appeal
is DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge
1
We note that petitioner does not make any allegation or showing of actual
innocence to meet the “fundamental miscarriage of justice” exception to
procedural bar. See Andrews , 943 F.2d at 1186.
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