Love vs. Roberts, No. 07-3210 (10th Cir. 2007)
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT December 6, 2007 Elisabeth A. Shumaker Clerk of Court LEVI LOVE, Petitioner-Appellant, No. 07-3210 v. (D. Kansas) RAY ROBERTS, Warden, ATTORNEY GENERAL OF KANSAS, (D.C. No. 05-CV-3481-CM) 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 -2- 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). -3- 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 -4- (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 -5-
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