Bloom v. McKune

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 13 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

STEVEN KENT BLOOM,

Petitioner - Appellant, No. 04-3496
v. (D.C. No. 03-CV-3410-SAC)
DAVID R. McKUNE; PHILL KLINE, (D. Kansas)
Attorney General of Kansas, ROBERT
D. HECHT, District Attorney, Third
Judicial District,

Respondents - Appellees.

ORDER

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

Applicant Steven Kent Bloom was convicted by a jury of second-degree

intentional murder in Kansas state court and sentenced to life imprisonment.

State v. Bloom, 44 P.3d 305, 309 (Kan. 2002). The Kansas Supreme Court

affirmed his conviction on direct appeal, see Bloom, 44 P.3d at 321, and denied

post-conviction relief. He then filed an application under 28 U.S.C. § 2254 in the

United States District Court for the District of Kansas. Applicant asserted several

claims: (1) false testimony was used to obtain his conviction; (2) exculpatory

evidence was concealed from the jury; (3) both his trial and appellate counsel

were ineffective; (4) he was incarcerated incommunicado and thus denied the
right to plead not guilty; (5) he was denied equal protection of the laws; (6) he is

actually innocent of the charge; (7) his sentence exceeded the statutory

authorization; and (8) the prosecutor engaged in egregious misconduct.

The federal district court found both that Applicant did not properly

exhaust his claims in state court and that his failure to adhere to Kansas appellate

rules resulted in procedural default of his claims in state court. It dismissed

Applicant’s petition because he failed to show either (1) cause for his default and

prejudice resulting from the alleged violation of federal law or (2) that a

fundamental miscarriage of justice would result if his claims were not heard. The

district court subsequently denied Applicant’s Fed. R. Civ. P. 59(e) motion to

alter or amend the judgment and his request for a certificate of appealability

(COA). See 28 U.S.C. 2253(c)(1) (requiring a COA).

Liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

curiam), Applicant’s pro se request for a COA raises eight issues: he claims that

(1) false testimony and tampered evidence were presented during his trial; (2) he

was denied pro se input during his direct appeal; (3) he was incarcerated

incommunicado and thus denied the right to plead not guilty; (4) the prosecutor

engaged in misconduct at his trial; (5) he was denied exculpatory evidence; (6)

both his trial and appellate counsel were ineffective; (7) he was denied equal

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protection; (8) and his sentence exceeds the statutory maximum and violates the

Eighth Amendment. We deny the application and dismiss the appeal.

“A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim, a COA

should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). “Where a plain procedural bar is present and the district court is correct

to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further.” Id. We recognize that in determining whether to

issue a COA, a “full consideration of the factual or legal bases adduced in support

of the claims” is not required. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Instead, the decision must be based on “an overview of the claims in the habeas

petition and a general assessment of the merits.” Id.

In addition, the Antiterrorism and Effective Death Penalty Act (AEDPA)

establishes deferential standards of review for state-court factual findings and

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legal conclusions. “AEDPA . . . mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing

evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28

U.S.C. § 2254(e)(1)). If the federal claim was adjudicated on the merits in the

state court, “we may only grant federal habeas relief if the habeas petitioner can

establish that the state court decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,’ or ‘was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Id. (quoting 28 U.S.C. 2254(d)(1) and (2)). Furthermore, our

concern is only whether the state court’s result, not its rationale, is clearly

contrary to or unreasonable under federal law. Id. at 1176.

We can readily dispose of one claim on the merits, his allegation of

prosecutorial misconduct. In the state proceeding Applicant alleged that the

prosecution violated an order in limine when it attempted to introduce into

evidence the contents of a letter that the judge had previously ruled inadmissible.

Bloom, 44 P.3d at 313. The attempt was unsuccessful; the contents of the letter

were never revealed to the jury. Id. The Kansas Supreme Court held that the

order in limine was not violated and the prosecutor’s conduct had little likelihood

of changing the outcome of the trial. Id at 314-15. No reasonable jurist would

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argue that the Kansas Supreme Court’s resolution of the claim was clearly

contrary to or unreasonable under federal law.

Applicant’s sentencing claims may also be easily dismissed. To the extent

that Applicant claims that his sentence violates Kansas law, we lack jurisdiction

under § 2254 to consider the claim because our review is limited to “violation[s]

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

Although his COA application to us alleges his sentence “violates Eighth

Amend.,” Aplt. Br. at 48, his application to the district court alleged only a

“sentence greater than allowed by law.” R. Doc. 1 at 11A. We decline to

consider a claim not raised in district court. Parker v. Champion, 148 F.3d 1219,

1222 (10th Cir. 1998). “Although we construe pro se pleadings liberally, we will

not rewrite a petition to include claims that were never presented.” Id. (citation

omitted). No sensible construction can create an Eighth Amendment claim from

his application to the district court and we therefore refuse to consider it on

appeal.

As for Applicant’s other claims, the district court was clearly correct. An

applicant must exhaust state-court remedies prior to seeking federal habeas relief.

28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, an applicant “must give

the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process.”

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O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This includes discretionary

review by the state supreme court. Id. Moreover, the presentation must conform

to state rules regulating how such claims are to be presented. “Section 2254(c)

requires only that state prisoners give state courts a fair opportunity to act on

their claims. See Castille v. Peoples [489 U.S. 346,] at 351 [1989].” Id. at 844.

In Castille the Court found that the claim was not exhausted when it was

presented only in a procedural context in which it would not ordinarily be

considered. Castille, 489 U.S. at 351. “Raising the claim in such a fashion does

not, for the relevant purpose, constitute ‘fair presentation.’ See Ex parte Hawk,

321 U.S. 114 (1944) (application to Nebraska Supreme Court for original writ of

habeas corpus does not exhaust state remedies).” Id. The applicant bears the

burden of establishing proper exhaustion. Olson v. McKune, 9 F.3d 95 (10th Cir.

1993).

Applicant presented some of his claims to the trial court in the form of

post-trial (but not post-sentencing) motions that were denied at the sentencing

hearing. But he did not pursue the claims in his direct appeal, thus failing to

properly exhaust them in the direct-appeal process.

He also raised some of the same claims in two habeas petitions filed

directly with the Kansas Supreme Court after he was sentenced and imprisoned.

But directly petitioning the Supreme Court did not comply with the procedural

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requirements of Kansas law. Kansas Statute Annotated § 60-1507 (2003)

provides the exclusive remedy for post-conviction relief (except for certain

sentencing issues, see Kan. Stat. Ann. § 22-3504) when a prisoner is in custody

under a sentence, see Smith v. State, 427 P.2d 625, 627 (Kan. 1967), and a

petition under that section must be filed in the sentencing court. § 60-1507(a).

Applicant makes no claim, much less a showing, that he complied with this

requirement by filing for relief in the sentencing court—which is likely why the

Kansas Supreme Court summarily dismissed both his habeas petitions. Thus,

Applicant’s presentation of claims in his habeas petitions to the Kansas Supreme

Court did not give Kansas courts a fair opportunity to act, and his claims were not

properly exhausted. See Castille, 489 U.S. at 351.

Nevertheless, because, as the district court noted, state-court review of

Applicant’s claims is no longer available, see Kan. Stat. Ann. § 60-1507(f)

(imposing a one-year limitations period), the “technical requirements for

exhaustion” are satisfied. Coleman v. Thompson, 501 U.S. 722, 732 (1991)

(claim is exhausted when “no state remedies [are] any longer ‘available’ to

[applicant]”). But by the same token (untimeliness), his claims are procedurally

barred in state court and therefore will not be considered in federal court unless

he can “demonstrate cause for the [state-court] default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate that failure to

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consider the claims will result in a fundamental miscarriage of justice.” Id. at

750. See O’Sullivan, 526 U.S. at 848-49.

Applicant makes two oblique arguments that might be construed as attempts

to show cause, but they are unpersuasive. Citing a state trial-court letter, he

argues both in his original § 2254 application to the district court and in his

application for COA to us that he need not exhaust in state court because the state

trial court informed him in a letter that it would not consider any further motions.

According to Applicant, the letter rendered state process ineffective to protect his

rights. See 28 U.S.C. § 2254(b)(1)(B)(ii) (permitting grant of § 2254 application

when state process would be ineffective to protect applicant’s rights). He

overstates the importance of the letter. The state trial court sent the letter

August 25, 2003. Applicant’s direct appeal was decided by the Kansas Supreme

Court on April 19, 2002. Section 60-1507(f)’s one-year statute of limitations runs

from either the “final order of the last appellate court in this state to exercise

jurisdiction on a direct appeal” or the denial of a petition for writ of certiorari (or

final order after granting the writ) by the United States Supreme Court. Applicant

neither claims to have filed nor could we find a petition to the United States

Supreme Court. The statute of limitations for any § 60-1507 claims thus expired

on April 19, 2003, four months prior to the trial court’s letter. Applicant must

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show cause why he did not file for relief prior to April 19, 2003. The trial court’s

August letter does not assist him.

Employing the most liberal of constructions, Applicant’s application also

attempts to show cause based on ineffective assistance of appellate counsel. But

“ineffective assistance adequate to establish cause for the procedural default of

some other constitutional claim is itself an independent constitutional claim . . .

[and] . . . generally must be presented to the state courts as an independent claim

before it may be used to establish cause for a procedural default.” Edwards v.

Carpenter, 529 U.S. 446, 451-52 (2000) (internal quotation marks omitted).

Applicant’s attempt to show cause via ineffective assistance of appellate counsel

is futile because he failed to present this ineffectiveness claim in state court.

No jurist of reason could find debatable that Applicant’s claims either fail

to state a denial of a constitutional right or are properly denied as procedurally

defaulted. We therefore DENY the application for a COA and DISMISS the

appeal.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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