FILED
United States Court of Appeals
Tenth Circuit
December 6, 2007
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
LEVI LOVE,
Petitioner-Appellant, No. 07-3210
v. (D. Kansas)
RAY ROBERTS, Warden, (D.C. No. 05-CV-3481-CM)
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER
Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.
Levi Love, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s order denying his 28 U.S.C. §
2254 petition. In his § 2254 petition, Mr. Love raised at least nineteen claims
stemming from his trial and conviction of first-degree murder and attempted first
degree murder. Before this court, he raises at least thirty-seven contentions. The
district court determined that all of Mr. Love’s claims “except the claims of
newly discovered evidence and a few specific ineffective assistance [of] counsel
claims” were procedurally barred. Rec. vol. I, doc. 38, at 4 (Memorandum and
Order, filed July 19, 2007). The district court dismissed the remaining claims,
which encompassed newly discovered evidence, ineffective assistance of trial and
appellate counsel, and the trial court’s failure to conduct an evidentiary hearing.
Mr. Love also seeks to be released on his own recognizance. Agreeing with the
reasoning of the district court’s Memorandum and Order, which is attached to this
Order, because Mr. Love has failed to make a “substantial showing of the denial
of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we deny his application for
a COA, dismiss all outstanding motions, and dismiss this appeal.
I. BACKGROUND
On November 5, 1997, a jury convicted Mr. Love of first-degree murder
and attempted murder, and the state court sentenced him to concurrent terms of
life imprisonment and 816 months’ imprisonment. Mr. Love appealed, arguing
(1) the trial court should have suppressed certain evidence, (2) insufficiency of
evidence to support the convictions, and (3) violation of his Confrontation Clause
right through the admission of hearsay evidence. The Kansas Court of Appeals
and the Kansas Supreme Court affirmed his convictions.
On December 16, 1999, Mr. Love sought post-conviction relief where he
raised two contentions: (1) newly discovered evidence warranted a new trial; and
(2) his trial and appellate counsel were ineffective. Mr. Love filed a “new
revised” post-conviction motion that added sixteen additional issues to his
petition. The state district court denied any relief, which the Kansas Court of
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Appeals affirmed. The Kansas Supreme Court denied Mr. Love’s request for
review.
After the state district court denied relief, Mr. Love also filed a motion to
correct his sentence, which the state district court denied. The Kansas Supreme
Court affirmed the denial of relief.
II. DISCUSSION
A COA can issue only “if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating 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). When a district court
has dismissed a habeas petition on procedural grounds, a certificate will only
issue when “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). The court did not address whether to grant Mr. Love a certificate of
appealability, see 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal denial of
habeas application), which we deem a denial. See United States v. Kennedy, 225
F.3d 1187, 1193 n.3 (10th Cir. 2000). Finally, we construe Mr. Love’s pro se
petition and appellate filings liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).
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Here, the district court denied the bulk of Mr. Love’s claims on procedural
grounds because of failure to exhaust state remedies. The district court concluded
that Mr. Love did not raise these claims in his direct appeal, and the Kansas state
courts concluded in post-conviction review that he had procedurally defaulted
these claims. We agree with the district court that the Kansas Supreme Court
Rule 183(c)(3) (procedural bar rule) provided an independent and adequate basis
not to reach the merits of these claims.
On habeas review, we will not review claims defaulted in state court on an
independent and adequate state procedural ground absent a showing that: (1) a
cause outside the control of the petitioner caused the default, and the petitioner
has suffered prejudice; or (2) a fundamental miscarriage of justice would occur
absent review. Bousley v. United States, 523 U.S. 614, 622 (1998). We also agree
with the district court that Mr. Love cannot establish cause for his procedural
default on these claims. Mr. Love has not argued that fundamental miscarriage of
justice would result. Therefore, these claims are barred from federal habeas
review.
As to the newly discovered evidence claim, we presume the state district
court’s factual finding that this evidence was not credible and cumulative to be
correct. 28 U.S.C. § 2254(e)(1). As to Mr. Love’s claim regarding ineffective
assistance of trial and appellate counsel, the Kansas Court of Appeals reasonably
rejected these claims, properly applying Strickland v. Washington, 466 U.S. 668
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(1984). Finally, we agree with the district court that the state court’s failure to
conduct a full evidentiary hearing does not amount to constitutional error. As to
all of the ineffective assistance of counsel claims, Mr. Love has failed to make a
substantial showing of the denial of a constitutional right.
III. CONCLUSION
Because jurists of reason would not find the district court's conclusions
debatable, we DENY Mr. Love’s request for a COA, DENY any outstanding
motions, and DISMISS the matter.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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