FILED
United States Court of Appeals
Tenth Circuit
March 11, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RONALD GRAHAM,
Petitioner - Appellant,
No. 07-3235
v. (D.C. No. 06-CV-3177-JTM)
(D. Kan.)
DAVID MCKUNE, Warden, Lansing
Correctional Facility; ATTORNEY
GENERAL OF THE STATE OF
KANSAS,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, ANDERSON, and MURPHY, Circuit Judges.
Ronald Graham, an inmate appearing pro se, appeals from the denial of his
habeas corpus petition under 28 U.S.C. § 2254. The district court did not act on
Mr. Graham’s request for a certificate of appealability (“COA”) and therefore it is
deemed denied by that court. 10th Cir. R. 22.1(C). Because we conclude that Mr.
Graham has not made “a substantial showing of the denial of a constitutional
right,” we deny his request for a COA and dismiss his appeal. 28 U.S.C. §
2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The parties are familiar with the facts and we need not restate them here.
Specifically, we previously ruled that Mr. Graham could assert a claim
challenging his 1998 resentencing on 1987 drug convictions later upheld by the
Kansas Supreme Court. See State v. Graham, 30 P.3d 310, 316 (Kan. 2001). *
The district court then denied habeas relief on this claim, noting that Mr. Graham
had not presented any federal constitutional claim to the Kansas Supreme Court or
to the Kansas Court of Appeals in state post-conviction proceedings that followed
the appeal to the Kansas Supreme Court. See Graham v. Kansas, 130 P.3d 148,
2006 WL 619208 (Kan. Ct. App. Mar. 10, 2006). A federal habeas court, of
course, does not correct errors of state law, but regardless, after finding no state-
law error, it was unnecessary for the district court to consider whether Mr.
Graham might have a due process claim based on an arbitrary failure to follow
state law that shocks the judicial conscience. Cummings v. Sirmons, 506 F.3d
1211, 1237 (10th Cir. 2007); see Aycox v. Lytle, 196 F.3d 1174, 1179-80 (10th
Cir. 1999).
On appeal, Mr. Graham argues that various courts have spoken
inconsistently about a prior uncounseled Arkansas conviction and that this court
should issue a definitive ruling on it. He also contends that in resentencing him
*
Mr. Graham was subsequently convicted of other state-law drug offenses
and was sentenced to 150 months’ imprisonment; the convictions and sentence
were affirmed on direct appeal. State v. Graham, 46 P.3d 1177, 1179 (Kan.
2002). After unsuccessfully seeking state post-conviction relief, Mr. Graham
sought federal habeas relief which was denied by the federal district court and
this court denied a certificate of appealability on those claims. Graham v.
Attorney General of Kan., 231 F. App’x 790, 793 (10th Cir. 2007) (unpublished).
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on the 1987 conviction, the state district court improperly considered the
Arkansas conviction by incorporating it by reference from prior proceedings. He
also contends that he should have been granted a sentencing modification hearing
after the state challenged the state district court’s suspension of his sentence.
A COA only issues when the petitioner “demonstrate[s] that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack, 529 U.S. at 484. Mr. Graham must show that the
state court’s 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.” 28 U.S.C.
§ 2254(d)(1)–(2). Mr. Graham has not made such a demonstration. As the
district court noted, echoing the conclusion of the Kansas Court of Appeals,
Graham, 2006 WL 619208, at *3, Mr. Graham’s resentencing that resulted in the
imposition of the fifteen-year to life sentence was unquestionably the product of
Mr. Graham’s recidivism after the state district court had earlier suspended the
imposition of sentence and placed him on probation. There was no clear violation
of any constitutional right as established by the Supreme Court. See 28 U.S.C. §
2254(d)(1).
With regard to Mr. Graham’s contention that he was denied a sentencing
modification hearing, we simply note that he has not presented any Supreme
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Court law establishing that he has a right to one. He has not presented any
debatable point on whether the state district court made a decision that was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); see Slack, 529 U.S. at 484.
We therefore DENY the application for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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