Bradford v. McKune

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2005
TENTH CIRCUIT
Clerk of Court

VIRGIL BRADFORD,

Petitioner - Appellant, No. 05-3286
v. D. Kansas
DAVID MCKUNE, Warden, Lansing (D.C. No. 03-CV-3459-SAC)
Correctional Facility; ATTORNEY
GENERAL OF KANSAS,

Respondents - Appellees.

ORDER

Before HARTZ, Circuit Judge, SEYMOUR, Senior Circuit Judge, and
McCONNELL, Circuit Judge.

Virgil Bradford was convicted by a jury in Kansas state court of capital

murder and other offenses, and the conviction was affirmed on appeal. See State

v. Bradford, 34 P.3d 434, 437 (Kan. 2001). On December 2, 2003, he filed a pro

se habeas application under 28 U.S.C. § 2254 in the United States District Court

for the District of Kansas. He alleged that the Double Jeopardy Clause was

violated by imposition of consecutive sentences for the multiple offenses, and that

the Ex Post Facto Clause was violated by his being sentenced under a statute

enacted after his offense. The district court dismissed the application on the

ground of procedural default, and denied a certificate of appealability (COA), see
28 U.S.C. § 2253(c)(1) (requiring COA). Mr. Bradford now seeks a COA from

this court on his double-jeopardy claim and on a claim that the judge’s fact

finding at his sentencing violated his rights under Apprendi v. New Jersey, 530

U.S. 466 (2000). We deny a COA.

I. BACKGROUND

Mr. Bradford was convicted of capital murder, aggravated robbery,

aggravated burglary, and two counts of theft. He was sentenced to life

imprisonment without parole (“hard 40") on the capital-murder conviction, 380

months’ imprisonment on the aggravated-robbery conviction, 68 months’

imprisonment on the aggravated-burglary conviction, and 14 months’

imprisonment on each felony theft conviction. The sentences were to run

consecutively.

Mr. Bradford appealed his convictions to the Kansas Supreme Court, which

affirmed the conviction and sentence on the capital-murder charge, but vacated

his other sentences as unconstitutional under State v. Gould, 23 P.3d 801 (2001),

and Apprendi. See Bradford, 34 P.3d at 447-48. The court remanded for

resentencing. On remand the terms of imprisonment on the noncapital sentences

were cut in half. Mr. Bradford then brought a second appeal in state court. In the

appeal he unsuccessfully renewed an Apprendi-based challenge to the hard-40

sentence that the Kansas Supreme Court had rejected in his first appeal. Also, in

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a pro se motion to make corrections in his brief, he raised two new arguments, a

double-jeopardy claim and an ex post facto claim. The Kansas Supreme Court

held that these arguments were barred because Mr. Bradford had not raised them

before the trial court or on his first appeal; it also held that his arguments were

“without merit.”

Mr. Bradford then filed his application under 28 U.S.C. § 2254 in the

district court, raising these same two claims. The district court dismissed the

application on the ground that the procedural bar applied by the state court to Mr.

Bradford’s claims constituted an independent and adequate state ground for the

disposition of his constitutional claims and that there was no basis to excuse Mr.

Bradford’s procedural default. The district court denied a COA, which Mr.

Bradford now seeks from us.

II. DISCUSSION

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotation marks omitted). In other words, the applicant must

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show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable whether . . . the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of a 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. Therefore, in order

for us to grant Mr. Bradford a COA we must conclude both that the district

court’s application of the procedural-default doctrine and the merit of Mr.

Bradford’s substantive constitutional claims are debatable among jurists.

We need not dwell long on Mr. Bradford’s Apprendi claim. Although he

raised his Apprendi challenge to the hard-40 sentence before the state court, he

did not raise it in the district court habeas proceeding. Therefore, we will not

consider this claim. Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).

As for the double-jeopardy claim, Mr. Bradford is procedurally barred.

“[A]n adequate and independent finding of procedural default will bar federal

habeas review of [a] federal claim, unless the habeas petitioner can show cause

for the default and prejudice attributable thereto, or demonstrate that failure to

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consider the federal claim will result in a fundamental miscarriage of justice.”

Harris v. Reed, 489 U.S. 255, 262 (internal quotation marks and citation omitted).

This rule applies if the “last state court rendering a judgment in the case rests its

judgment on the procedural default.” Id. The adequate-and-independent-state-

ground doctrine bars habeas review of Mr. Bradford’s double-jeopardy claim here

because the Kansas Supreme Court, in his second and final appeal in the state

courts, clearly rested its decision on this claim on his failure to have raised the

issue in the trial court or on his previous appeal. Mr. Bradford argues that the

procedural-bar doctrine was improperly applied to him for three reasons: (1) he

had previously raised the double-jeopardy claim in state court; (2) Kansas law

provides for “automatic review” of all cases in which a hard-40 sentence is

applied, regardless of whether the defendant follows procedural rules governing

the appeal; and (3) the state supreme court actually ruled on the merits of his

claims. We disagree.

First, Mr. Bradford has failed to show that he raised his double-jeopardy

claim before presenting it to the Kansas Supreme Court on his second appeal.

That court said that he had not previously raised the issue. This is a fact finding

that is presumed correct unless there is clear and convincing evidence to the

contrary. See 28 U.S.C. § 2254(e)(1). The district court found no support for Mr.

Bradford’s contention. Nor does Mr. Bradford offer us supporting evidence. He

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does claim that he raised double jeopardy on his first appeal. But that claim

related to whether he could be subject to the death penalty at retrial if his appeal

was successful; he did not challenge the imposition of consecutive sentences on

multiple convictions, his current double-jeopardy claim.

Second, Mr. Bradford is incorrect in arguing that Kansas law required the

state court to review his claims even though they would normally be procedurally

defaulted. He relies on State v. Alford, 896 P.2d 1059, 1065 (Kan. 1995), which

interpreted Kan. Stat. Ann. § 21-4627 (1992 Supp.), a Kansas statute providing

for “automatic review” of hard-40 sentences. Alford held that “the only possible

interpretation of the phrase ‘automatic review’ is that review must be given even

though the criminal defendant fails to properly follow the normal procedural rules

for perfecting the appeal.” 896 P.2d at 1065. The flaw in Mr. Bradford’s

argument is that Kan. Stat. Ann. § 21-4627 (2004), which formerly provided for

automatic review of sentences resulting in a “mandatory term of imprisonment”

(such as hard-40 sentences), Kan. Stat. Ann. § 21-4647 (1992 Supp.), was

amended in 1994 to apply only to convictions “resulting in a sentence of death.”

Kan. Stat. Ann. § 21-4627 (2004). Furthermore, the Kansas legislature expressly

provided that Kan. Stat. Ann. § 21-4627, as it existed prior to July 1, 1994, “shall

be applicable only to persons convicted of crimes committed on or after July 1,

1990, and before July 1, 1994.” Kan. Stat. Ann. §21-4631(b) (2004). Mr.

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Bradford committed his crimes on February 17, 1997. Thus, Kansas’s normal

procedural rules applied to Mr. Bradford’s appeal.

Finally, Mr. Bradford is incorrect in arguing that the state court’s

alternative merits holding defeats the procedural bar. As the Supreme Court

stated in Harris, 489 U.S. at 264 n.10: “[A] state court need not fear reaching the

merits of a federal claim in an alternative holding. By its very definition, the

adequate and independent state ground doctrine requires the federal court to

honor a state holding that is a sufficient basis for the state court’s judgment, even

when the state court also relies on federal law.” Nor has Mr. Bradford attempted

to show cause and prejudice or that a fundamental miscarriage of justice will

result from applying procedural bar here.

Because no reasonable jurist could determine that the district court’s

application of the procedural-default doctrine was debatable, we DENY a COA

and DISMISS the appeal.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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