F I L E D
United States Court of Appeals
Tenth Circuit
JUN 18 2003
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DAVID L. UPCHURCH,
Petitioner - Appellee,
v.
No. 02-3242
L.E. BRUCE, Warden, Hutchinson
Correctional Facility; CARLA
STOVALL, Kansas Attorney General,
Respondents - Appellants.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 01-CV-3196-DES)
John K. Bork, Assistant Attorney General (Jared S. Maag, Assistant Attorney
General on the briefs), Topeka, Kansas for the Respondents-Appellants.
Gary W. Owens, Roger L. Falk & Associates, P.A., Wichita, Kansas for the
Petitioner-Appellee.
Before LUCERO, McWILLIAMS, and ANDERSON, Circuit Judges.
LUCERO, Circuit Judge.
In this habeas case, the district court granted relief to petitioner David
Upchurch on the basis that his appellate counsel failed to mount an adequate
challenge to his kidnapping charge. On appeal, we consider whether the Kansas
Court of Appeals’ (“KCOA’s”) decision denying post-conviction relief
constituted an unreasonable application of Strickland v. Washington, 366 U.S.
688 (1984). We exercise jurisdiction pursuant to 28 U.S.C. § 2253, and reverse
the district court’s grant of habeas relief.
I
Around midnight on Labor Day in 1995, Jessica Green was preparing for
bed when she heard a knock at the front door. Kevin Loggins and an unknown
male asked to speak with Green’s husband Daron. Recognizing Loggins from a
previous encounter, Green invited the two men inside and returned to the
bathroom. Loggins then pointed a gun at Green’s husband, ordering him onto the
floor and demanding money and certain property. At some point, the unknown
male let Upchurch into the house. As Green entered the living room, Loggins
pointed the gun at her and directed Upchurch to accompany her to the bedroom.
Upchurch demanded that she give him all her money and, when Green explained
that she had none, threatened, “If you don’t give me your money, I’m going to kill
you.” (Appellant’s App. at 103.) Green informed Upchurch that her wallet was
outside in her car. Upchurch started to exit the room, ostensibly to find Green’s
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wallet, only to turn around, grab Green by her collar, and pull her outside. As
they approached the car, Green noticed that one of Upchurch’s cohorts was
already inside the car stealing the car stereo system. Ordered to find her wallet,
Green was able to do so and handed it to Upchurch. 1
Upchurch was charged with and convicted of one count of aggravated
burglary, two counts of aggravated robbery, and two counts of aggravated
kidnapping, and sentenced to 442 months’ imprisonment. On direct appeal of his
conviction, Upchurch raised numerous claimed errors, including an unsuccessful
challenge to the sufficiency of the evidence in support of his convictions for the
kidnapping of Jessica and Daron Green. He argued that inconsistencies in the
testimony made it impossible to establish guilt beyond a reasonable doubt.
Upchurch’s counsel did not argue that his client’s alleged actions failed to satisfy
the elements of aggravated kidnapping under Kansas law. Following the KCOA’s
rejection of his direct appeal, Upchurch filed a petition for state post-conviction
relief, claiming that his appellate counsel was constitutionally ineffective for
having failed to argue the elements of aggravated kidnapping under state law.
The petition was denied by the KCOA.
In a 28 U.S.C. § 2254 petition, Upchurch presented to the district court the
1
In the process of doing so, Green was sexually abused by a third person;
that event is only tangentially relevant and we do not develop those facts further.
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same ineffective-assistance-of-appellate-counsel argument with respect to the
kidnapping charges that he raised in his petition for state post-conviction relief.
In granting habeas relief, the district court concluded that Upchurch’s appellate
counsel’s failure to argue that Upchurch’s actions did not satisfy the elements of
aggravated kidnapping constituted “the omission of a dead-bang winner” that
would have resulted in reversal on appeal. Upchurch v. Bruce, No. 01-3196-DES,
slip op. at 2 (D. Kan. June 5, 2002). Kansas appeals, contending that the KCOA’s
denial of habeas relief on Upchurch’s ineffective-assistance-of-appellate-counsel
claim as it relates to the kidnapping of Jessica Green did not constitute an
unreasonable application of Strickland. 2
II
Upchurch filed his federal habeas petition on May 16, 2001, and therefore
the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our
review. See Paxton v. Ward, 199 F.3d 1197, 1204 (10th Cir. 1999) (stating that
AEDPA applies to habeas petitions filed after April 24, 1996, regardless of the
date of the criminal trial forming the basis of the conviction). Section 2254, as
amended by AEDPA, provides that a writ of habeas corpus may not be issued with
respect to any claim adjudicated on the merits in state court unless that
2
Kansas does not appeal the district court’s grant of habeas relief with
respect to the kidnapping of Daron Green.
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adjudication resulted in a decision:
(1) . . . 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) . . . that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.
§ 2254(d)(1)–(2). Under the “contrary to” clause, federal habeas courts may issue
the writ only “if the state court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state court decides a case
differently than [the Court] has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the “unreasonable
application” clause, a federal court may grant habeas relief only “if the state court
identifies the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. “[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at 411; see also Lockyer v. Andrade,
123 S. Ct. 1166, 1175 (2003) (holding that “objectively unreasonable” analysis
under § 2254(d)(1) is also different from “clear error” review).
Upchurch’s claim regarding appellate counsel ineffectiveness is governed
by the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668
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(1984), which was clearly established at the time his state-court conviction
became final. See Williams, 529 U.S. at 390–91 (concluding that Strickland
qualifies as clearly established federal law under AEDPA even though the test, by
necessity, requires a case-by-case examination of the evidence); see also Cargle v.
Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (“The proper standard for assessing
a claim of ineffectiveness of appellate counsel is that set forth in Strickland v.
Washington.”). Under Strickland, two prongs must be satisfied to show
ineffective assistance of counsel in violation of the Sixth Amendment:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687. To establish the first component—deficient performance—a
“defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. To establish the second
component—prejudice—a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
Claims of appellate-counsel ineffectiveness are often based on counsel’s
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failure to raise a particular issue on appeal. See Cargle, 317 F.3d at 1202.
“[A]ppellate counsel who files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize
the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000)
(citing Jones v. Barnes, 463 U.S. 745 (1983)). Although it is possible to bring a
Strickland claim based on counsel’s failure to raise a particular issue, “it is
difficult to demonstrate that counsel was incompetent.” Id. In order to evaluate
appellate counsel’s performance, “we look to the merits of the omitted issue.”
Cargle, 317 F.3d at 1202 (quotation omitted). “If the omitted issue is so plainly
meritorious that it would have been unreasonable to winnow it out even from an
otherwise strong appeal, its omission may directly establish deficient
performance. . . .” Id. On the other hand, if the omitted issue “has merit but is
not so compelling, . . . [we must assess] . . . the issue relative to the rest of the
appeal, and deferential consideration must be given to any professional judgment
involved in its omission; of course, if the issue is meritless, its omission will not
constitute deficient performance.” 3 Id. (citing Smith, 528 U.S. at 288).
In ruling on Upchurch’s claim, the KCOA determined that Upchurch’s
3
In Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001), cert. denied, 123 S.
Ct. 145 (2002), we rejected the proposition that omission of a “dead bang winner”
is necessary to prevail on a claim of ineffective assistance of appellate counsel.
Id. at 1057 n.5. At the same time, of course, omission of a “dead bang winner”
can be a sufficient basis for such a claim. Cargle, 317 F.3d at 1202 n.4.
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counsel was not objectively deficient under the first prong of Strickland. 4
Because the KCOA adjudicated the merits 5 of Upchurch’s claim under the correct
legal standard, this case turns on whether the KCOA’s ultimate disposition was an
unreasonable application of Strickland. See Aycox, 196 F.3d at 1178; see also
Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (“[W]hen a state court fails
to articulate the rationale underlying its rejection of a petitioner’s claim, and
4
Although the KCOA did not cite to Strickland, it utilized the Kansas
standard for ineffective-assistance-of-counsel claims, laid out in Baker v. State,
755 P.2d 493 (Kan. 1988). Baker mirrors the Strickland standard. See 755 P.2d
at 498. Neither party contends that the KCOA’s decision was “contrary to”
Strickland under § 2254(d)(1). See also Early v. Packer, 123 S. Ct. 362, 365
(2003) (explaining that failure to cite to Supreme Court law does not
automatically result in a decision that is “contrary to” established federal law
under AEDPA).
5
It is unclear from the KCOA’s decision denying Upchurch post-
conviction relief on his ineffectiveness claim whether the court determined (1)
that Upchurch’s counsel was not deficient for failing to challenge Upchurch’s
conviction under Kansas law, or (2) that Upchurch’s counsel on direct appeal was
not deficient because counsel did assert that Upchurch’s actions did not constitute
aggravated kidnapping under Kansas law insofar as counsel broadly challenged
the sufficiency of the evidence. Notwithstanding the cryptic nature of the
KCOA’s decision, however, it is well-settled in this circuit that it amounts to a
decision “on the merits” for AEDPA purposes. See Aycox v. Lytle, 196 F.3d
1174, 1177 (10th Cir. 1999) (holding that there is an adjudication “on the merits”
in the absence of evidence that the state court did not consider and reach the
merits of petitioner’s claims). “We owe deference to the state court’s result, even
if its reasoning is not expressly stated.” Id.; see also Neill, 278 F.3d at 1058 n.6
(noting that “this court still defers to the state appellate court’s decision denying
relief, even though that court did not expressly state its reasoning on each specific
claim”). Thus, it is the KCOA’s result—denying Upchurch’s claim on the basis
that he did not establish deficient performance by his appellate counsel—to which
we owe deference.
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when that rejection is on the merits, the federal court will focus its review on
whether the state court’s ultimate decision was an ‘unreasonable application’ of
clearly established Supreme Court precedent.” (quotation omitted)).
III
We proceed to inquire whether the KCOA’s application of Strickland was
objectively unreasonable under § 2254(d)(1). Upchurch’s contention is that,
although his appellate counsel challenged the sufficiency of the evidence to
support Upchurch’s conviction for aggravated kidnapping based on
inconsistencies in witness testimony, counsel was deficient for not arguing that
there was insufficient evidence for the jury to convict Upchurch because
Upchurch’s actions in transporting Green outside to retrieve her wallet did not
satisfy the elements of kidnapping under Kansas law. In order to evaluate
Upchurch’s counsel’s performance under Strickland, “we look to the merits of the
omitted issue.” Cargle, 317 F.3d at 1202.
In evaluating the sufficiency of the evidence in a criminal case, the Kansas
courts determine “whether, after review of all the evidence, viewed in the light
most favorable to the prosecution, the appellate court is convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt.”
State v. Jamison, 7 P.3d 1204, 1211 (Kan. 2000). Kansas defines kidnapping as
follows:
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Kidnapping is the taking or confining of any person, accomplished by
force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage;
(b) to facilitate flight or the commission of any crime;
(c) to inflict bodily injury or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political
function.
K.S.A. § 21-3420. Aggravated kidnapping requires proof that “bodily harm is
inflicted upon the person kidnapped.” § 21-3421. At trial, the state argued that
Upchurch committed the aggravated kidnapping of Green under § 21-3420(b),
because he moved her outside to facilitate the commission of the crime of
robbery.
In State v. Buggs, 547 P.2d 720, 730 (Kan. 1976), the Kansas Supreme
Court held that the Kansas kidnapping statute “requir[es] no particular distance of
removal, nor any particular time or place of confinement.” Describing subsection
(b), the court held that “a taking is a kidnapping if its purpose is to ‘facilitate’ the
commission of any crime, even if the crime facilitated be a less serious crime
such as robbery or rape.” Id. To facilitate the commission of a crime “means
something more than just to make more convenient” and “must have some
significant bearing on making the commission of the crime ‘easier’ as, for
example, by lessening the risk of detection.” Id. “Whether a taking substantially
‘facilitates’ another crime or whether it is ‘merely incidental’ are two different
things.” Id. at 731. Buggs set forth a three-part test to determine whether a
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taking or confinement is done to facilitate the commission of a crime:
[I]f a taking or confinement is alleged to have been done to facilitate
the commission of another crime, to be kidnapping the resulting
movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the
other crime;
(b) Must not be of the kind inherent in the nature of the other crime;
and
(c) Must have some significance independent of the other crime in
that it makes the other crime substantially easier of commission or
substantially lessens the risk of detection.
Id.
In Buggs, the defendant accosted two Dairy Queen employees in the
parking lot after they had closed the store, directed the victims to unlock the door,
and forced them inside, where he raped one of the victims and robbed the store.
The court concluded that the defendant’s actions constituted kidnapping because
the movement of the victims into the store substantially reduced the risk of
detection of both the robbery and the rape. Id.; see also State v. Alires, 792 P.2d
1019, 1022 (Kan. 1990) (concluding that the defendant committed kidnapping
when he forced the victim of a convenience-store robbery out of the store to
conceal the fact that a robbery was in progress); State v. Turbeville, 686 P.2d 138,
145 (Kan. 1984) (finding a kidnapping where the defendant moved victims from
the front display area of the store to an office in the rear of the store before
committing attempted murder).
By contrast, in State v. Fisher, 891 P.2d 1065, 1073 (Kan. 1995), the
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Kansas Supreme Court concluded that the defendant’s actions did not constitute
kidnapping. Fisher, while robbing a restaurant, moved two victims to the back
office to obtain a key to the safe. Reversing the defendant’s conviction for
kidnapping, the court concluded that the movement of the victims “neither made
the crime substantially easier . . . nor did it substantially lessen the risk of
detection.” Id. Because the defendant moved the victims out of mere
convenience—i.e., the victims knew where the key to the safe was located, and
the movement did not lessen the risk of detection—the court concluded that the
defendant’s actions were “no different from the forced direction of a store clerk
to cross the store to open a cash register,” which the Buggs court explicitly
described as not kidnapping. Id. (quotation omitted). Similarly, in State v.
Kemp, 46 P.3d 31, 34 (Kan. Ct. App. 2002), the Kansas Court of Appeals held
that a kidnapping did not occur where the defendant moved a robbery victim
down a hallway to a central location, where other victims were confined.
“Moving all victims to a central location before commencing the gathering of
their property appears to be a matter of convenience rather than an act which
makes the robbery substantially easier to effect or which lessens the risk of
detection.” Id.
The state argues that Upchurch’s actions constituted kidnapping because, as
in Buggs, moving Green outside was not inherent in the crime of robbery and
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made it substantially easier for Upchurch to commit the robbery. 6 In response,
Upchurch asserts that, like the defendants in Fisher and Kemp, his actions merely
made the robbery more convenient and, unlike the actions of the defendant in
Buggs, his actions increased, rather than decreased, the risk of detection of the
robbery. Upchurch argues that his actions resemble the forced direction of a store
clerk to open a cash register, and thus he did not commit aggravated kidnapping.
He asserts that there was no purpose in moving Green outside that is distinct from
committing the underlying robbery, and thus the taking or confinement of Green
did not “facilitate” the robbery under the Kansas statute and applicable case law.
Failure of his counsel on direct appeal to make this argument, contends Upchurch,
was objectively deficient.
In our analysis, whether Upchurch’s actions constituted kidnapping under
Kansas law is unclear, and claiming on direct appeal that there was insufficient
6
The state also emphasizes the fact that, when the district court reviewed
Upchurch’s co-defendant Loggins’s § 2254 motion, the court concluded in a
footnote that “a reasonable fact-finder could have found beyond a reasonable
doubt that [Loggins] was guilty of aggravated kidnapping. Green was taken by
force from her home to her vehicle to locate her wallet so that robbers could
deprive her of her property.” (Appellant’s Br. at 18 (quoting Loggins v.
Hannigan, No. 99-3102-DES, slip op. at 11–12 n.2 (D. Kan. Sept. 11, 2001))).
The statement indicates that the district court contradicted itself by granting
Upchurch habeas relief on this ground, argues the state. We conclude that this
statement by the district court was dicta, because Loggins did not make a claim of
ineffective assistance of appellate counsel in his petition for habeas relief.
Accordingly, we do not rely on this statement.
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evidence for a rational jury to convict Upchurch would not have been plainly
meritorious. As discussed above, Kansas case law exemplifies the difficulty in
differentiating between a taking or confining that “facilitates” the commission of
another crime versus conduct that is merely incidental to the commission of
another crime. While an argument that Upchurch’s actions did not constitute
kidnapping under Kansas law may have merit, we are not persuaded that it is
compelling to a degree that a rational jury could not have found Upchurch guilty
beyond a reasonable doubt. In this situation, we must view this omitted issue in
relation to the rest of the appeal and give deference to any professional judgment
involved in its omission. Cargle, 317 F.3d at 1202.
Consistent with Upchurch’s alibi defense at trial, counsel on direct appeal
included the argument that inconsistencies in witness testimony resulted in
insufficient evidence of Upchurch’s guilt. Rather than simply asking the KCOA
to reweigh the credibility of witness testimony, counsel could have argued both
that Upchurch was not present at the crime scene and that, even if the jury
believed the evidence presented by the state, a rational jury could not have found
that Upchurch’s actions constituted kidnapping under Kansas law. However, we
are not persuaded that the omitted argument is obviously stronger than the issue
counsel did raise so as to render counsel’s performance “objectively
unreasonable” under Strickland. Cognizant of the Supreme Court’s mandate that
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“[j]udicial scrutiny of counsel’s performance must be highly deferential” and
“every effort be made to eliminate the distorting effects of hindsight,” Strickland,
466 U.S. at 689, we are left with substantial reservations that preclude a
conclusion that Upchurch’s appellate counsel was constitutionally ineffective.
Even were we to conclude that Upchurch’s counsel provided objectively
deficient assistance, we cannot say that the KCOA’s decision to the contrary was
unreasonable. 7 As the Supreme Court has iterated time and again, “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Williams, 529 U.S. at 409. Constrained by AEDPA’s
7
Although the district court did not explicitly state that the KCOA’s
decision was unreasonable, the court did cite the correct AEDPA standard at the
beginning of its order and thus implicitly decided that the state court’s application
of Strickland was unreasonable. Indeed, in subsequently denying the state’s
motion to file a motion for reconsideration out of time, the court described its
earlier decision in the following way:
In granting petitioner habeas relief, the court found that the Kansas Court
of Appeals (“KCOA”) unreasonably applied the test found in Strickland v.
Washington . . . as it applies to ineffective assistance of appellate counsel.
Specifically, the court found that petitioner’s appellate counsel’s failure to
properly challenge petitioner’s convictions for aggravated kidnaping was an
omission of a ‘dead-bang winner,’ resulting in ineffective assistance of
appellate counsel. The KCOA’s failure to recognize this was found to be
an unreasonable application of Strickland.
Upchurch v. Bruce, No. 01-3196-DES, slip op. at 2 (D. Kan. Aug. 7, 2002).
Therefore, we conclude that the district court applied the correct AEDPA
analysis.
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deferential standard of review, we hold that it was not unreasonable for the
KCOA to conclude that Upchurch received effective assistance of appellate
counsel. Given the Kansas kidnapping statute and relevant case law, it is not
entirely clear whether Upchurch’s actions facilitated the robbery, or merely made
it more convenient; Upchurch’s argument that a rational jury could not have
concluded that he committed the offense of kidnapping is far from compelling.
Because the KCOA’s decision was not an unreasonable application of Strickland,
Upchurch is not entitled to habeas relief.
III
For the foregoing reasons, we REVERSE the judgment of the district court
granting Upchurch habeas relief.
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