FILED
United States Court of Appeals
Tenth Circuit
October 15, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
JOE L. HUN TER,
Petitioner - A ppellant,
v.
No. 07-3058
ROGER W ERHOLTZ, Secretary of (D.C. No. 06-CV-3241-KHV)
Corrections; LOU IS E. BRU CE, (D . Kan.)
W arden, Hutchinson Correctional
Facility; STA TE O F KANSAS;
PHILL KLINE,
Respondents - Appellees.
OR DER
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.
Joe Larry Hunter, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) authorizing him to appeal the denial of his 28 U.S.C. §
2254 petition for a writ of habeas corpus. Hunter specifically alleges that the
Kansas trial court violated his constitutional rights by using his prior convictions
to calculate his criminal history score, even though a jury had not determined the
fact of those convictions beyond a reasonable doubt. Because the United States
Supreme Court has rejected Hunter’s theory, we DENY his application.
I. Background
Hunter pled no contest to charges of (1) aggravated battery on a law
enforcement officer and (2) obstructing official duty. The K ansas trial court
sentenced Hunter to 38 months in prison for the former charge and 12 months in
county jail for the latter, with the terms to run consecutively. In sentencing
Hunter, the trial court factored Hunter’s prior criminal convictions into its
determination of his criminal history score. See Kansas Sentencing Guidelines
Act, Kan. Stat. Ann. § 21-4701 et seq. Hunter alleges that this course of action
was unconstitutional because it denied him the opportunity to have a jury
determine whether he had in fact been convicted of the earlier crimes. Hunter
appealed his conviction to the Kansas Supreme Court, which affirmed in part and
dismissed in part. Hunter then sought habeas relief pursuant to 28 U.S.C. § 2254.
The federal district court overruled Hunter’s habeas petition, and Hunter now
seeks a COA to appeal that decision.
II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-
32, 110 Stat. 1214, circumscribes our review of Hunter’s appeal. Unless Hunter
has made “a substantial showing of the denial of a constitutional right,” we may
not grant his request for a COA. 28 U.S.C. § 2253(c)(2). To overcome this
hurdle, Hunter must show “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues
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presented were adequate to deserve encouragement to proceed further.” Fleming
v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007) (quoting Slack v. M cDaniel, 529
U.S. 473, 484 (2000)).
The Supreme Court, in a line of cases stemming from Almendarez-Torres v.
United States, 523 U.S. 224 (1998), has squarely rejected Hunter’s constitutional
theory. See United States v. Booker, 543 U.S. 220, 244 (2005) (holding that
“[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by a plea of guilty . . . must be
admitted by the defendant or proved to a jury beyond a reasonable doubt”)
(emphasis added). In Almendarez-Torres, the Court noted that “recidivism . . . is
a traditional, if not the most traditional basis for a sentencing court’s increasing
an offender’s sentence.” 523 U.S. at 243. As such, the government need not
charge the fact of an earlier conviction in the indictment. Id. at 226-27.
For his part, Hunter relies heavily on Apprendi v. New Jersey, 530 U.S.
466 (2000), asserting that Apprendi requires that the state charge in an indictment
and prove to a jury – beyond a reasonable doubt – the facts related to a prior
conviction. Far from proving his point, however, Apprendi forecloses Hunter’s
argument. 530 U.S. at 476 (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proven beyond a reasonable doubt.”) (emphasis
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added). 1 As noted above, Booker recently reaffirmed this recidivism exception to
the Court’s recent Sixth Amendment jurisprudence. See 543 U.S. at 244. And,
of course, this court continues to apply the exception. United States v. M oore, 401
F.3d 1220, 1223-24 (10th Cir. 2005); see also United States v. Delacruz-Soto, 414
F.3d 1158, 1164 n.2 (10th Cir. 2005) (noting that Almendarez-Torres forecloses
argument that a jury, not the sentencing court, must find that defendant had prior
convictions).
III. Conclusion
Because Hunter cannot make a “substantial showing of the denial of a
constitutional right,” we DENY his request for a COA and DISM ISS his petition.
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
1
Apprendi mentioned the possibility that “Almendarez-Torres was
incorrectly decided,” 530 U.S. at 489, and other members of the Court have since
seconded this concern, see Shepard v. United States, 544 U.S. 13, 27 (2005)
(Thomas, J., concurring in the judgment) (noting that “Almendarez-Torres . . . has
been eroded . . . and a majority of the Court now recognizes that [it] was w rongly
decided”). Despite the Court’s cadre of doubting Thomases, it has continually
reaffirmed the recidivism exception announced in Apprendi. See Booker, 543
U.S. at 244. The Supreme Court may overrule Almendarez-Torres some day, but
we may not “presume to do so for the Court.” United States v. M oore, 401 F.3d
1220, 1224 (10th Cir. 2005).
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