FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT September 19, 2011
Elisabeth A. Shumaker
Clerk of Court
RICHARD G. KIRBY,
Plaintiff-Appellant,
No. 11-2082
v. (D.C. No. 1:08-CV-00887-JB-DJS)
(D.N.M.)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; JAMES
JANECKA, Warden,
Defendants-Appellees.
ORDER
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
This matter is before the court on consideration of Appellant’s petition for
panel rehearing. Pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C), we
GRANT Appellant’s petition for panel rehearing. The previous Order Denying
Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 11-
2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached
amended Order Denying Certificate of Appealability is substituted in its place.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 19, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
RICHARD G. KIRBY,
Plaintiff-Appellant,
No. 11-2082
v. (D.C. No. 1:08-CV-00887-JB-DJS)
(D.N.M.)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; JAMES
JANECKA, Warden,
Defendants-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Petitioner Richard Kirby, a former New Mexico state prisoner proceeding
pro se, 1 seeks a Certificate of Appealability (“COA”) to appeal the district court’s
*
This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Because Mr. Kirby is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
denial of: (1) his 28 U.S.C. § 2254 habeas petition; (2) his “Petition for Coram
Nobis,” which the district court construed as a supplemental § 2254 habeas
pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion, which
the district court construed as a second or successive § 2254 habeas petition. Mr.
Kirby also seeks to challenge the district court’s refusal to expand the record or
grant an evidentiary hearing below. Exercising jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a), we deny Mr. Kirby’s request for a COA on all claims and
dismiss his appeal.
BACKGROUND
Mr. Kirby was convicted by jury in state court of fraud over $250. 2 His
conviction was “based on evidence that [he] hired Loren Collett to design a
website for him, and then failed to pay Mr. Collett.” R., Vol. I, at 25 (State Ct.
Mem. Op., filed May 10, 2005). More specifically, as described by the federal
magistrate judge in this case:
2
The New Mexico fraud statute in effect when Mr. Kirby was indicted
and convicted read, in part: “Whoever commits fraud when the value of the
property misappropriated or taken is over two hundred fifty dollars ($250) but not
more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree
felony.” N.M. Stat. Ann. § 30-16-6 (1987); see also R., Vol. I, at 35 (State v.
Kirby, 161 P.3d 883, 884 (N.M. 2007)) (“Defendant was charged with one count
of fraud over $250 but less than $2,500, a fourth degree felony.” (citing N.M.
Stat. Ann. § 30-16-6 (1987))).
The statute was amended in 2006. Under the amended fraud provision,
fraud over $250 but less than $500 is a misdemeanor, while fraud over $500 but
less than $2,500 is a fourth degree felony. See N.M. Stat. Ann. § 30-16-6 (2006).
3
Kirby owned a small business. He hired the victim, Loren
Collett, to design and develop a website and the two entered into
a website design contract under which Kirby was to pay Collett
$1,890 for his design services. Collett provided the designs and
incorporated them into Kirby’s website, but Kirby did not pay
him. When Collett allegedly changed the password to prevent
Kirby from utilizing the designs, Kirby, who claims he was the
“designated administrator” of the website, had the web space
provider reset the password thereby blocking Collett’s attempts
to secure the designs pending payment for services.
Id. at 873–74 (Magistrate Judge’s Proposed Findings & Recommended
Disposition, filed Nov. 4, 2010).
The New Mexico district court sentenced Mr. Kirby to eighteen months’
incarceration, followed by one year of supervised release. The conviction and
sentence were ultimately affirmed by the New Mexico Supreme Court in 2007.
The district attorney then filed a Supplemental Criminal Information asserting
that Mr. Kirby qualified as a habitual offender under N.M. Stat. Ann. § 31-18-
17B, and therefore his sentence should be increased by four years as required by
that provision. See N.M. Stat. Ann. § 31-18-17B (“A person convicted of a
noncapital felony in this state . . . who has incurred two prior felony convictions
that were parts of separate transactions or occurrences or conditional discharge
. . . is a habitual offender and his basic sentence shall be increased by four
years.”). The trial court agreed and issued an amended judgment, which added
four years to Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence.
Mr. Kirby then appealed the sentence enhancement.
4
In September 2008, while the sentence appeal was pending in state court,
Mr. Kirby filed a habeas application pursuant to 28 U.S.C. § 2254 in the United
States District Court for the District of New Mexico. In December 2009, Mr.
Kirby filed a “Petition for Coram Nobis” with the federal district court, which
both informed the court that the state courts had rejected his sentence appeal and
asserted several challenges to the sentence enhancement. 3 “[A]s of August 19,
2010, Kirby had completed both the original and enhanced sentences, as well as
the period of parole associated with the fraud conviction.” R., Vol. I, at 869.
In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “the
fraud conviction violates his due process rights because it involved an
unforeseeable interpretation of the law,” id. at 873; (2) his due-process rights
were violated because “the New Mexico fraud statute is vague as applied to him,”
id. at 879; (3) the New Mexico state court lacked subject-matter jurisdiction, id.
at 881; (4) there was insufficient evidence adduced at trial to demonstrate “that
someone other than [Mr. Kirby] owned the website,” a required element under the
state fraud statute, id. at 882–83; (5) the restitution award issued against him was
impermissible, id. at 883–84; (6) his “due process rights were violated by the
3
The State initially sought dismissal of the habeas application on the
ground that Mr. Kirby’s appeal of the sentence enhancement was still pending,
and thus his available state-court remedies had not been exhausted. However, Mr.
Kirby’s petition for coram nobis established that his sentence enhancement had
become final with the New Mexico Supreme Court, which satisfied the exhaustion
requirement.
5
prosecution’s failure to disclose that a fact witness, Rob Narvaez, would also be
called upon as an expert to give testimony as to the value of the web page work,”
id. at 884; (7) his trial counsel was ineffective, id. at 885–86; (8) the trial court
impermissibly limited the testimony of two defense witnesses, id. at 886; (9) there
was insufficient evidence adduced at trial “to show that the website had a market
value of over $250,” id. at 887–88; and (10) “his conviction violates due process
principles because a fraud conviction cannot be based on unfulfilled promises or
statements as to future events,” id. at 888. Mr. Kirby also raised several
challenges to the habitual-offender sentence enhancement, and requested that the
district court expand the record.
Adopting the recommendations of the magistrate judge, the district court
first held that Mr. Kirby’s challenges to the sentence enhancement—raised in his
petition for coram nobis, “which the [district court] construe[d] as a
supplement[al] [habeas] pleading,” id. at 867—were moot because he had
completed his sentence and probation and had not demonstrated any collateral
consequences flowing from the enhancement. The district court also rejected all
of Mr. Kirby’s challenges to his conviction and original sentence, refused to
permit an expansion of the record, and dismissed the initial habeas petition with
prejudice and his supplemental habeas petition (i.e., the coram-nobis petition
regarding the sentence enhancement) without prejudice. The district court
declined to grant Mr. Kirby a COA.
6
Mr. Kirby then filed a Rule 59(e) motion, which essentially reargued
several of the issues that had been previously raised and rejected in the federal
habeas proceedings. The district court concluded that “Kirby’s motion constitutes
a second or successive petition,” and dismissed it for lack of jurisdiction because
the petition had not been authorized by this court under 28 U.S.C. § 2244(b). Id.
at 946 (Mem. Op. & Order, filed Mar. 25, 2011).
Mr. Kirby now seeks a COA to appeal the district court’s denial of his
§ 2254 habeas petition, his supplemental § 2254 habeas pleading (i.e., his coram-
nobis petition), and his Rule 59(e) motion. Mr. Kirby also seeks to challenge the
district court’s refusal to expand the record or grant an evidentiary hearing. In
total, he raises nine challenges on appeal: (1) the district court erred in denying
Mr. Kirby’s Rule 59(e) motion; (2) the evidence failed to conform to the
unopposed jury instructions; (3) his conviction violates his due-process rights
because it involved an unforeseeable interpretation of the state fraud statute; (4)
his due-process rights were violated because the state fraud statute is vague as
applied to him; (5) there was insufficient evidence produced at trial to
demonstrate that someone other than Mr. Kirby owned the website; (6) there was
insufficient evidence produced at trial to demonstrate that the website had a value
in excess of $250; (7) his conviction should be vacated because a fraud conviction
cannot be predicated on unfulfilled promises; (8) the district court erred in
holding that the challenges to his sentence enhancement were moot; and (9) the
7
district court erred in refusing to expand the record or hold an evidentiary
hearing. Each issue is addressed in turn.
DISCUSSION
I. Standard of Review
A COA is a jurisdictional prerequisite to this court’s review of a habeas
application. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d
711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336
(2003)). We will issue a COA only if the applicant “makes a ‘substantial showing
of the denial of a constitutional right.’” Clark, 468 F.3d at 713 (quoting 28
U.S.C. § 2253(c)(2)). Under this standard, “the applicant must show ‘that
reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d
1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Put differently, “the applicant must show that the district court’s
resolution of the constitutional claim was either ‘debatable or wrong.’” Id.
(quoting Slack, 529 U.S. at 484). Furthermore, when the district court denies
relief to an applicant “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.’”
8
Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529
U.S. at 484).
To the extent that the state court decided Mr. Kirby’s claims on the merits,
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies,
and we must incorporate AEDPA’s “deferential treatment of state court decisions
. . . into our consideration of [Mr. Kirby’s] request for [a] COA.” Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, Mr. Kirby is entitled
to federal habeas relief only if he can show that the state court’s adjudication of
the claim:
(1) resulted in 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; or
(2) resulted in a decision that 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); accord Phillips v. Workman, 604 F.3d 1202, 1209 (10th Cir.
2010).
When making our determination, “[w]e presume the factual findings of the
state court are correct unless the petitioner rebuts that presumption by ‘clear and
convincing evidence.’” Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011)
(quoting 28 U.S.C. § 2254(e)(1)).
II. Dismissal of Rule 59(e) Motion for Lack of Jurisdiction
Mr. Kirby’s first issue asks “[w]hether the district court’s characterization
9
of [his] timely Rule 59(e) Motion . . . as a successive petition” and the court’s
consequent dismissal of his motion for lack of jurisdiction constitute error. Aplt.
Combined Opening Br. & Appl. for COA at 4 [hereinafter Aplt. Combined Br.].
To the extent that Mr. Kirby is challenging the district court’s characterization of
his Rule 59(e) motion as a second or successive petition, his position is untenable.
Mr. Kirby’s motion plainly reargues the issues presented to and rejected by the
district court in the habeas proceeding. Cf. United States v. Pedraza, 466 F.3d
932, 933 (10th Cir. 2006) (stating that “a purported Rule 60(b) motion that ‘in
substance or effect asserts or reasserts a federal basis for relief from the
petitioner’s underlying conviction’ is actually a second or successive habeas
petition” (quoting Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006))).
Furthermore, it is well-settled that “[a] district court does not have
jurisdiction to address the merits of a second or successive . . . § 2254 claim until
this court has granted the required authorization [under§ 2244(b)],” In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008), and it is undisputed that Mr. Kirby did not
seek (or obtain) such authorization. Consequently, the district court did not err in
dismissing the successive petition for lack of jurisdiction. Reasonable jurists
could not disagree with this outcome.
III. Jury Instructions and Law of the Case
Mr. Kirby frames his second issue in the following manner:
Whether the unopposed jury instruction “This website belonged
10
to someone other than the defendant” became an element of the
case and formed the law of the case[,] and because the only
evidence presented at trial on the status of the ownership of the
website was from the alleged victim stating “Mr. Kirby was the
owner and administrator”, the conviction must be vacated?
Aplt. Combined Br. at 5.
To the extent that Mr. Kirby is raising a sufficiency-of-the-evidence
challenge regarding whether someone other that Mr. Kirby owned the website—a
required element of the fraud charge—we address that contention in Part VI infra.
However, insofar as Mr. Kirby is bringing a challenge related to the jury
instructions or the law-of-the-case doctrine, he did not raise these issues before
the district court. Generally, we “will not consider an issue raised for the first
time on appeal.” Tele-Commc’ns, Inc. v. Comm’r of Internal Revenue, 12 F.3d
1005, 1007 (10th Cir. 1993). Mr. Kirby’s failure to argue for application of the
plain-error standard in this instance “surely marks the end of the road for [this]
argument for reversal not first presented to the district court.” Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). 4
IV. Due Process—Fair Warning
Under Mr. Kirby’s next claim, he argues that his due-process rights were
violated because he was not given fair warning of the statute’s scope. As the
4
In fact, Mr. Kirby raises several arguments for the first time on
appeal, and nowhere in his briefing before this court does he assert that the plain-
error standard should apply to these claims. Accordingly, as discussed throughout
this Order, all of Mr. Kirby’s late-blooming challenges are clearly waived.
11
district court framed it, “Kirby attacks his state-court fraud conviction on the
grounds that he was convicted of a new and novel principle of law in violation of
due process that neither the statute nor any prior judicial decision has fairly
disclosed to be within the statute’s scope.” R., Vol. I, at 916 (Mem. Op. & Order
Adopting Magistrate Judge’s Proposed Findings & Recommended Disposition,
filed Dec. 30, 2010) (internal quotation marks omitted). “This ‘novel principle,’
according to Kirby, is the principle that the designer of web pages may be found
to be the owner of the website on which they are displayed.” Id.; see Aplt.
Combined Br. at 11 (arguing that he was not given “fair warning . . . in language
a person of ordinary intelligence would [understand] that a webpage designer
would own the website they designed the pages for”).
Mr. Kirby presented this challenge in his state post-conviction proceedings.
The New Mexico Supreme Court—“having considering [Mr. Kirby’s] petition,
and being sufficiently advised [on the matter]”—denied his due-process
challenge. R., Vol. I, at 94 (Order, dated Aug. 8, 2008). Applying AEDPA
deference, the district court (adopting the magistrate judge’s recommendation)
held that the New Mexico Supreme Court’s adjudication of this claim was neither
contrary to nor an unreasonable application of Supreme Court precedent. 5 Id. at
5
The magistrate judge concluded, and the district court agreed, that
“[t]he New Mexico Supreme Court’s disposition of Kirby’s state habeas petition,
though summary, qualifies as a disposition on the merits and is therefore entitled
to deferential review.” R., Vol. I, at 876 (citing Aycox v. Lytle, 196 F.3d 1174,
(continued...)
12
879, 919.
Before this court, Mr. Kirby has utterly failed to demonstrate that he is
entitled to relief—that is, he has not shown “that reasonable jurists would find the
district court’s assessment of the [due process] claim[] debatable or wrong.”
Slack, 529 U.S. at 484. In his combined brief, Mr. Kirby spends three pages
laying out what he deems to be the applicable legal framework for his due-process
challenge, citing the holdings of both the Supreme Court and the Tenth Circuit.
However, he does not even attempt to explain why he is entitled to relief under
that framework, and he makes no effort to specifically discuss the district court’s
resolution of this claim, much less explain how reasonable jurists could debate the
correctness of that resolution. This is insufficient to carry his burden.
Specifically, Mr. Kirby’s conclusory assertion that his due-process rights were
violated—without any factual foundation or legal analysis to support his
claim—does not entitle him to relief. See, e.g., Walker v. Gibson, 228 F.3d 1217,
5
(...continued)
1177–78 (10th Cir. 1999)). In Aycox, we noted that “a summary decision . . . can
constitute an ‘adjudication on the merits’ for purposes of § 2254(d), provided that
the decision was reached on substantive rather than procedural grounds.” 196
F.3d at 1177. This is particularly true where “[t]here is no evidence . . . that the
state court did not consider and reach the merits of [the petitioner’s] claim.” Id.
In this case, the New Mexico Supreme Court’s explicitly stated that it had
“considered” and “be[en] sufficiently advised [on]” the issue before denying it,
R., Vol. I, at 94, and there is no indication that the denial was based on
procedural grounds. Furthermore, Mr. Kirby does not object to the district court’s
characterization of the New Mexico Supreme Court’s decision. Accordingly, the
district court properly applied AEDPA’s deferential standard of review to this
claim.
13
1240 (10th Cir. 2000) (stating that “unsupported and undeveloped [habeas]
issues” do not entitle a petitioner to relief (quoting Moore v. Gibson, 195 F.3d
1152, 1180 n.17 (10th Cir. 1999)) (internal quotation marks omitted)), abrogated
on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001).
Accordingly, he is not entitled to a COA on this issue.
V. Due Process—Vagueness
Mr. Kirby brings a second, related due-process challenge, arguing that the
fraud statute is vague as applied to him. More specifically, he argues that the
statute is void for vagueness because neither the statute nor any prior judicial
decision put him on notice that his actions—i.e., preventing Mr. Collett from
accessing the web pages he created and copyrighted—were subject to criminal
liability.
The district court, accepting the magistrate judge’s recommendation, held
that Mr. Kirby was not entitled to habeas relief on this claim. “Objections to
vagueness under the Due Process Clause rest on the lack of notice, and hence may
be overcome in any specific case where reasonable persons would know that their
conduct is at risk.” R., Vol. I, at 880 (quoting Maynard v. Cartwright, 486 U.S.
356, 361 (1988)) (internal quotation marks omitted). The district court concluded
that the fraud statute—providing that “[f]raud consists of the intentional
misappropriation or taking of anything of value which belongs to another by
means of fraudulent conduct, practices or representations,” N.M. Stat. Ann. § 30-
14
16-6—was not unconstitutionally vague as applied to Mr. Kirby because “[a]
person of ordinary intelligence would understand that the designer of the web
pages has an ownership interest in the website on which the pages are displayed,”
R., Vol. I, at 880. Thus, “[e]ven if Kirby owned the domain name and the
webspace, Collett owned the designs and the copyright to the pages displayed on
the website,” and “[b]y blocking Collett from accessing the website before paying
him for the designs, Kirby should have known that his conduct was at risk for
criminal liability.” Id. at 880–81. Reasonable jurists could not disagree with this
outcome.
Mr. Kirby first argues that the decision of the New Mexico Supreme Court,
and the recommendation of the federal magistrate judge, were based on a factual
error—viz., “the fallacious premise that [he] had barred access to Collett.” Aplt.
Combined Br. at 15. The district court considered and rejected this argument.
Reasonable jurists could not debate the correctness of this resolution. 6 Assuming,
arguendo, that the factual determination that Mr. Kirby excluded or barred Mr.
6
The district court apparently viewed Mr. Kirby’s factual-error
challenge as part and parcel of his request to expand the record. However, we are
constrained to disagree. Before the district court, Mr. Kirby raised his factual-
error argument in the context of his objections to the magistrate judge’s
recommendation. See R., Vol. I, at 890. The argument was not necessarily a
component of his request for leave to expand the record. Moreover, in seeking a
COA from this court, Mr. Kirby is quite clear that the factual-error argument is
part of his vagueness challenge. Although we do not view the factual-error issue
as falling under the umbrella of Mr. Kirby’s request to expand the record, as
noted above, we conclude that the district court’s ultimate resolution of the
challenge could not be debated by reasonable jurists.
15
Collett was incorrect, Mr. Kirby would still not be entitled to relief because that
determination was not “an unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d)(2). Section 2254(d)(2) does not
instruct federal courts to determine whether the state court made a correct
determination, but rather whether the state court made an unreasonable
determination. In this case, Mr. Collett stated that “the password [was] changed
from what [he] had changed it to,” and he “did [not] know what the password had
been changed to.” Dist. Ct. Doc. 37-2 at 57 (Aug. 13, 2010). He further stated
that the change “kept [him] from removing all the files [he] had created,” and that
he could “no longer access it” because Mr. Kirby “had taken control of the
website.” Id. Thus, based on this testimony, it cannot be said that the factual
determination that Mr. Kirby excluded or barred Mr. Collett was unreasonable.
The district court correctly rejected Mr. Kirby’s factual-error argument.
As to the legal merits of the vagueness challenge, we conclude that Mr.
Kirby is not entitled to a COA on this issue. Our holding is based on
substantially the same grounds as articulated by the magistrate judge and adopted
by the district court. In order to succeed under this challenge, Mr. Kirby was
required to demonstrate that the New Mexico fraud statute failed to give him “fair
warning, at the time of [his] conduct . . . , that the act for which [he] now stand[s]
convicted was rendered criminal by the statute.” Bouie v. City of Columbia, 378
U.S. 347, 355 (1964). His challenge can “be overcome . . . [if] reasonable
16
persons would know that their conduct is at risk” under the statute. Maynard, 486
U.S. at 361. As the magistrate judge correctly concluded, and the district court
recognized, “[a] person of ordinary intelligence would understand that the
designer of the web pages has an ownership interest in the website on which the
pages are displayed,” R., Vol. I, at 880—especially when the designer has not
been paid for that design work. Therefore, “[b]y blocking Collett from accessing
the website before paying him for the designs, Kirby should have known that his
conduct was at risk for criminal liability.” Id. at 880–81. Reasonable jurists
could not disagree with this outcome.
Mr. Kirby argues, as he did before the district court, that “there is a need
for [the] court to locate a published decision[] with fundamentally similar facts[,]
prior to Kirby’s actions[,] to be able to [overcome] the vagueness challenge [and
thereby] allow affirmation of Kirby’s conviction.” Aplt. Combined Br. at 17
(emphasis added). Contrary to Mr. Kirby’s assertion, however, this statement
does not reflect the Supreme Court’s (or Tenth Circuit’s) vagueness
jurisprudence. It appears, as the district court noted, that Mr. Kirby may be
confusing the vagueness doctrine with the doctrine of qualified immunity. To
defeat a claim of qualified immunity, a plaintiff must demonstrate that the
constitutional right allegedly violated “was clearly established at the time of the
alleged unlawful activity,” Swanson v. Town of Mountain View, Colo., 577 F.3d
1196, 1199 (10th Cir. 2009); “[o]rdinarily, in order for the law to be clearly
17
established, there must be a Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts must have found the
law to be as the plaintiff maintains,” Medina v. City & Cnty. of Denver, 960 F.2d
1493, 1498 (10th Cir. 1992) (emphasis added), overruled in part by Williams v.
City & Cnty. of Denver, 99 F.3d 1009 (10th Cir. 1996). The law of qualified
immunity, however, has no bearing on whether Mr. Kirby has successfully
asserted a vagueness challenge. Accordingly, this argument is unavailing. 7 Mr.
Kirby is not entitled to a COA on this claim.
VI. Sufficiency of the Evidence—Ownership of the Website
Mr. Kirby next argues that there was insufficient evidence to support his
conviction. More specifically, he argues there was not “any evidence, much less
substantial evidence, produced at trial [to demonstrate] that someone other than
[Mr. Kirby] owned the website.” Aplt. Combined Br. at 18. 8 In assessing a
7
Mr. Kirby also briefly argues that we should apply the rule of lenity
in this case and construe the fraud statute in his favor. First, it appears that Mr.
Kirby is raising the rule-of-lenity argument for the first time on appeal. Thus, it
is waived. See supra note 4 and accompanying text. In any event, “the rule of
lenity only applies if, after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute, such that the Court
must simply guess as to what [the legislature] intended.” Barber v. Thomas, 130
S. Ct. 2499, 2508–09 (2010) (citations omitted) (internal quotation marks
omitted). It cannot be said in this case that there is “grievous ambiguity or
uncertainty in the statute.” Id. at 2508. Thus, this argument is unpersuasive.
8
As the magistrate judge explained:
The jury was instructed that to find Kirby guilty of fraud, the
(continued...)
18
sufficiency-of-the-evidence challenge, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The New Mexico Supreme Court reviewed this claim under the Jackson
standard and held that “a rational jury could have concluded that Collett owned
the website and its contents, and that Kirby had therefore committed fraud by
taking property that belonged to someone other than himself.” R., Vol. I, at 883.
This holding was based on evidence presented at trial, which included “the
contract between Collett and Kirby, testimony that Collett owned the computer
programming that made the web pages viewable, and testimony that Kirby
changed the password and locked Collett out of access to his copyrighted pages.”
Id. The district court, accepting the magistrate judge’s recommendation,
concluded that the state court’s “determination was a proper application of
Jackson based on the facts of this case,” and thus it was “neither contrary to nor
an unreasonable application of federal law.” Id. Reasonable jurists could not
8
(...continued)
State had to prove the following three elements beyond a
reasonable doubt: (1) Kirby intended to “deceive or cheat”
Collett; (2) Kirby had “obtained a website”; and (3) the website
belonged to someone other than Kirby.
R., Vol. I, at 874 (emphasis added). Mr. Kirby does not contest the sufficiency of
the evidence as to the first two enumerated elements.
19
disagree with this conclusion.
Before this court, Mr. Kirby’s only argument is that Mr. Collett testified
that “Mr. Kirby was the owner and administrator” of the website, and that the
state court “did not have the authority to usurp Collett’s testimony that Kirby
owned the website.” Aplt. Combined Br. at 19. As the district court correctly
pointed out, however, a rational jury could have found that the web pages
belonged to Mr. Collett based on the other evidence presented at trial, despite Mr.
Collett’s allegedly conflicting statement. See, e.g., McDaniel v. Brown, 130 S.
Ct. 665, 673 (2010) (“Jackson requires a reviewing court to review the evidence
in the light most favorable to the prosecution. Expressed more fully, this means a
reviewing court faced with a record of historical facts that supports conflicting
inferences must presume . . . that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” (citations omitted)
(internal quotation marks omitted)). Accordingly, this argument is without merit,
and Mr. Kirby is not entitled to a COA on this claim.
VII. Sufficiency of the Evidence—Value of the Website
Mr. Kirby next contends that there was insufficient evidence to demonstrate
that the website had a market value of over $250. 9 He first takes issue with the
9
As noted above, the state fraud statute in effect at the time Mr. Kirby
was indicted stated that “[w]hoever commits fraud when the value of the property
misappropriated or taken is over two hundred fifty dollars ($250) but not more
than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.”
(continued...)
20
standard of review applied by the district court, which he suggests was an
“unreasonable application” of Supreme Court case law. Aplt. Combined Br. at
19. More specifically, he argues that the district court incorrectly analyzed this
claim under the Jackson framework when it “should have been resolved by asking
whether the . . . error had a substantial and injurious effect or influence in
determining the jury’s verdict.” Id. at 19–20 (quoting Brecht v. Abrahamson, 507
U.S. 619, 623 (1993)) (internal quotation marks omitted).
It is well-established that “[t]he controlling standard for insufficient
evidence claims asserted by state habeas petitioners was established by the
Supreme Court in Jackson v. Virginia.” Johnson v. Mullin, 505 F.3d 1128, 1134
(10th Cir. 2007); accord Schlup v. Delo, 513 U.S. 298, 330 (1995) (stating that,
on habeas review, “the standard of Jackson v. Virginia . . . governs review of
claims of insufficient evidence”). On the other hand, the standard urged by Mr.
Kirby—articulated in Brecht v. Abrahamson—is a harmless-error standard, which
is only applied once a reviewing court has determined that a constitutional error
has been committed. See, e.g., Welch v. Workman, 639 F.3d 980, 992 (10th Cir.
2011) (en banc) (“If constitutional error is committed, we look to whether ‘the
prejudicial impact of constitutional error in [the] state-court criminal trial’ rises to
9
(...continued)
N.M. Stat. Ann. § 30-16-6 (1987) (emphasis added). Thus, the government was
required to prove beyond a reasonable doubt that “the value of the property
misappropriated” was more than $250.
21
the ‘substantial and injurious effect standard set forth in Brecht v. Abrahamson.”
(alteration in original) (emphasis added) (quoting Fry v. Pliler, 551 U.S. 112,
120, 121 n.3 (2007))). Accordingly, Mr. Kirby’s argument regarding the standard
of review is without merit.
Next, Mr. Kirby argues that there was insufficient evidence to demonstrate
that the website had a value of more than $250 because “[t]he record does not
support any reference to the value of the website [itself],” but “only deals with
suggested value to the work [done] on the web pages.” Aplt. Combined Br. at 20.
The state court rejected this argument, “not[ing] that Kirby had agreed to pay
Collett $1,890 for designing the web pages and that [a witness] testified [that] the
work Collett provided was worth $600 to $700.” R., Vol. I, at 888. The federal
district court concluded that Mr. Kirby was not entitled to habeas relief on this
claim because, “even if there were no evidence as to the value of the website
itself, a rational jury could reasonably infer that the value of the website was at
least equal to the value of the design service.” Id. Thus, the state court’s
adjudication of the matter was not contrary to nor an unreasonable application of
federal law. Reasonable jurists could not disagree with this outcome.
Mr. Kirby does not even attempt to undermine the evidence presented
regarding the agreement to pay Mr. Collett $1890 or the witness’s $600-to-$700
valuation of the work provided by Mr. Collett. Viewing that evidence in the light
most favorable to the government, a rational jury could have concluded that the
22
value of the website was more than $250. Accordingly, Mr. Kirby is not entitled
to a COA on this claim.
VIII. Fraud Predicated on Promises as to Future Events
Mr. Kirby next argues that his conviction should be vacated because a fraud
conviction cannot be predicated on unfulfilled promises as to future events—e.g.,
future payment for website services rendered. The state appellate court found this
argument unavailing, noting that although under New Mexico law “an action for
fraud will ordinarily not lie as to a pattern of conduct based on promises that
future events will take place, . . . there are exceptions to this rule,” and that Mr.
Kirby’s actions fell within one of those exceptions recognized under state law. R,
Vol. I, at 27. In this federal habeas proceeding, the district court rejected this
claim, endorsing the magistrate judge’s conclusion that “the issue was a matter of
state law, and not reviewable on habeas.” Id. at 924. Reasonable jurists could
not disagree with this outcome.
The Supreme Court has made clear that “it is only noncompliance with
federal law that renders a State’s criminal judgment susceptible to collateral
attack in the federal courts.” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010). “[I]t
is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions,” id. (alteration in original) (quoting Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991)) (internal quotation marks omitted); yet,
that is precisely what Mr. Kirby asked the district court to do here. He points to
23
no Supreme Court case law supporting his position. Accordingly, he is not
entitled to a COA on this issue.
IX. Mootness of Sentence-Enhancement Challenges
Mr. Kirby next asserts that the district court erred in dismissing his
sentence-enhancement challenges—presented in his supplemental habeas pleading
(i.e., coram-nobis petition) 10—as moot. The district court determined that the
sentence-enhancement challenges were moot because Mr. Kirby had completed
his sentence and had not demonstrated any collateral consequences flowing from
the enhancement. Reasonable jurists could not disagree with the district court’s
mootness determination.
10
Under our case law, a district court generally “must follow certain
procedures before recharacterizing pro se pleadings as claims under §§ 2254 or
2255.” Davis v. Roberts, 425 F.3d 830, 835 (10th Cir. 2005). However, in this
case, we see no reason to disturb the district court’s reclassification. First, Mr.
Kirby does not argue that the district court was required to follow any such
procedures before recharacterizing his petition as a supplemental habeas pleading.
Additionally, the rule that courts should not sua sponte convert a pro se pleading
into a habeas petition is based “‘largely [on the] concern that a subsequent § 2255
[or § 2254] motion would be considered successive’ and barred under AEDPA
except ‘in very limited circumstances.’” United States v. Torres, 282 F.3d 1241,
1245 (10th Cir. 2002) (quoting United States v. Kelly, 235 F.3d 1238, 1241 (10th
Cir. 2000)). Thus, we have generally applied this rule “in cases where the
recharacterized petition would have been the petitioner’s first § 2255 [or § 2254]
petition,” thereby “prevent[ing] a prisoner from raising a legitimate claim in a
subsequent [habeas] petition.” Id. at 1246. In this case, however, the district
court did not transform Mr. Kirby’s coram-nobis petition into his first habeas
petition. Mr. Kirby had already filed his first § 2254 petition, and the district
court was simply supplementing the claims raised in the initial petition with those
raised in the supplemental pleading. Therefore, we will not revisit the district
court’s conclusion that this petition constituted a supplemental habeas pleading.
24
Habeas claims will become moot upon a petitioner’s release from custody
unless the petitioner establishes that “sufficient collateral consequences flow from
the underlying judgment and the completed sentence to save the appeal from
mootness.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). On
appeal, Mr. Kirby does not even attempt to defeat the mootness determination by
identifying any collateral consequences of the sentence enhancement. 11 Instead,
he argues that his sentence-enhancement challenge is actually a “challenge to the
jurisdiction of the state court to enhance [his] sentence,” which “is in fact a
challenge to the conviction, not the sentence[] therefore defeating the mootness
determination by the district court.” Aplt. Combined Br. at 25. However, by
acknowledging that he is indeed challenging “the jurisdiction of the state court to
enhance [his] sentence,” id. (emphasis added), Mr. Kirby’s argument defeats
itself; it is clear that the focus of his challenge is the sentence enhancement, not
the underlying conviction. Accordingly, because Mr. Kirby has failed to
demonstrate any collateral consequences flowing from the now-completed term of
the sentence enhancement, the district court did not err in dismissing the
challenges as moot. See Kirby v. Janecka, 379 F. App’x 781, 784 (10th Cir.
11
Although collateral consequences are generally presumed in the
context of a challenge to a petitioner’s conviction, that presumption has not—as
the district court noted—been applied in the context of a challenge to a sentence
enhancement, nor does Mr. Kirby argue that it should be applied in that context.
See, e.g., United States v. Hernandez-Baide, 146 F. App’x 302, 304 (10th Cir.
2005).
25
2010) (holding that the petitioner’s “claim is moot because it challenges only the
state court’s enhancement of his already-completed sentence, and [he] has failed
to show any continuing collateral consequences stemming from that
enhancement”); Lucero v. McKune, 340 F. App’x 442, 444 (10th Cir. 2009)
(holding that the petitioner’s release from prison mooted his claim that his
sentences were impermissibly increased because he failed to demonstrate
collateral consequences associated with his previous incarceration). 12
X. Evidentiary Hearing or Expansion of the Record
In his final claim, Mr. Kirby argues that the district court erred in
“prohibiting expansion of the record to include evidence discovered and/or
provided after trial and denying an evidentiary hearing on the matter.” Aplt.
Combined Br. at 22. The sole piece of newly discovered evidence that Mr. Kirby
identifies before us in seeking a COA, 13 which he previously sought to present to
12
Mr. Kirby also argues that his sentence enhancement violated the
Double Jeopardy Clause of the Fifth Amendment. However, this too is a
challenge to the state court’s authority to impose the sentence enhancement; it is
not an attack on the underlying conviction. Accordingly, Mr. Kirby’s sentence
challenge based upon the Double Jeopardy Clause is likewise moot.
13
Although Mr. Kirby may have sought to present additional evidence
to the district court in connection with his request to expand the record or obtain
an evidentiary hearing, he only cites to us the GTFS in arguing that the district
court erred in refusing to grant relief. Thus, he has abandoned any challenge
based on those other pieces of evidence. See, e.g., Tran v. Tr. of State Colleges in
Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening
brief are deemed abandoned or waived.” (quoting Coleman v. B-G Maint. Mgmt.
of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.1997))); cf. United States v.
(continued...)
26
the district court, was a “Good-Time-Figuring-Sheet (GTFS) that was generated
by the [New Mexico Department of Corrections] and obtained by [Mr. Kirby]
after the sentence had been enhanced,” which he argues would have supported his
“challeng[e] [to] the jurisdiction of the state court to enhance [his] sentence.” Id.
at 24. That is, this newly discovered evidence was offered to support one of the
sentence-enhancement challenges presented in his supplemental habeas pleading
(i.e., coram nobis petition). As discussed above, however, those claims are moot.
Consequently, Mr. Kirby’s challenge to the district court’s refusal to admit this
newly discovered evidence is likewise moot.
Even if this issue were not moot, Mr. Kirby would still not be entitled to
relief. Under the Supreme Court’s recent decision in Cullen v. Pinholster, habeas
“review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” 131 S. Ct. 1388, 1398 (2011). Mr.
Kirby’s request to expand the record or to hold an evidentiary hearing seeks to
place additional evidence before the federal district court that was not part of the
record before the state court. This is no longer permitted under Cullen. Thus,
Mr. Kirby is not entitled to an expansion of the record or an evidentiary hearing.
See Atkins v. Clarke, 642 F.3d 47, 47 (1st Cir. 2011) (“The Supreme Court’s new
13
(...continued)
Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (concluding that the applicant
waived his claim on appeal “because he failed to address that claim in either his
application for a COA or his brief on appeal”).
27
decision in Cullen v. Pinholster requires that we reject this appeal from a denial
of a request for an evidentiary hearing in relation to a petition for habeas corpus.”
(citation omitted)); see also Champ v. Zavaras, No. 10-1308, 2011 WL 2411002,
at *9–10 (10th Cir. June 16, 2011) (“Mr. Champ’s requests to expand the record
and to hold an evidentiary hearing to further develop the record aim to place new
evidence before the federal court that was not a part of the state-court record.
Under Cullen, this is no longer permitted.”); cf. Pape v. Thaler, 645 F.3d 281,
288 (5th Cir. 2011) (“Under [Cullen], . . . the district court erred by conducting
the evidentiary hearing and by relying on evidence from that hearing . . . . Pape’s
federal habeas petition . . . must be adjudicated under § 2254(d)(1) and Pape
‘must overcome the limitation of § 2254(d)(1) on the record that was before the
state court.’” (quoting Cullen, 131 S. Ct. at 1400)). Accordingly, we can discern
no error in the district court’s refusal to authorize the expansion of the record or
an evidentiary hearing.
CONCLUSION
For the reasons set forth above, we DENY Mr. Kirby’s request for a COA
on all claims and DISMISS his appeal.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
28