Gleason v. McKune, 10th Cir. (2013)

FILED
United States Court of Appeals

Tenth Circuit
April 5, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NOAH J. GLEASON,
Petitioner - Appellant,
v.
No. 12-3212
(D. Kansas)
DAVID R. MCKUNE; DEREK

SCHMIDT, Attorney General of the
State of Kansas,
(D.C. No. 5:11-CV-03110-SAC)
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, EBEL, and MURPHY, Circuit Judges.
Applicant Noah J. Gleason, a Kansas prisoner, applied pro se for relief

under 28 U.S.C. 2254 in the United States District Court for the District of
Kansas. The district court denied his application. He now seeks a certificate of
appealability (COA) from this court to allow him to appeal the district courts
decision. See 28 U.S.C. 2253(c)(1)(A) (requiring COA to appeal denial of
2254 relief). We deny the application for a COA and dismiss the appeal.
I.
BACKGROUND
In 2002 Applicant was convicted in Kansas state court on one count of
felony murder and was sentenced to life imprisonment. See State v. Gleason,
88 P.3d 218, 22526 (Kan. 2004). The Kansas Supreme Court affirmed his
conviction and sentence. See id. at 223. The Kansas Court of Appeals twice
affirmed the denial of his motions for postconviction relief, see Gleason v. State,
163 P.3d 1272, 2007 WL 2301919 (Kan. App. Aug. 10, 2007) (unpublished table
decision); Gleason v. State, 239 P.3d 114, 2010 WL 3853191 (Kan. App. Sept.
24, 2010) (unpublished table decision); on each occasion the Kansas Supreme
Court denied review.
Applicant then filed his 2254 application raising 11 claims of violations
of his rights to due process and a fair trial under the United States Constitution:
(1) trial counsel was ineffective in numerous respects; (2) the trial court gave an
aiding-and-abetting instruction that misstated Kansas law; (3) the prosecutor used
a theory of the crime in prosecuting him that was inconsistent with the theory
used in prosecuting his codefendants; (4) the prosecutor introduced false evidence
of Applicants confession and made a false statement in argument to the jury; (5)
the prosecutor introduced evidence of Applicants past crimes in violation of a
trial-court order; (6) the prosecutor did not disclose to the jury the terms of the
plea of a codefendant; (7) the prosecutor and law-enforcement officers withheld
evidence; (8) the district court failed to hold adequate pre- and post-trial
evidentiary hearings; (9) appellate counsel was ineffective; (10) law-enforcement
officers violated Miranda in obtaining his confession; and (11) the trial court
gave a presumption-of-intent instruction, which was inconsistent with its
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presumption-of-innocence instruction. The district court denied relief. Applicant

raises the first seven claims in his application for a COA.
II.
DISCUSSION
A COA will issue only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). This standard

requires a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, [w]here a district
court has rejected the constitutional claims on the merits, the applicant must
show that the district courts resolution of the constitutional claim was either
debatable or wrong. Id. When a district court resolves the petition on
procedural grounds, the applicants burden is even greater; he must also show
that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in a state court, a
federal court can grant habeas relief only if the applicant establishes that the
state-court decision was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
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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). As we have explained:
Under the contrary to clause, we grant relief 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.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal
quotation marks omitted). Relief is provided under the unreasonable
application clause only if the state court identifies the correct governing legal
principle from the Supreme Courts decisions but unreasonably applies that
principle to the facts of the prisoners case. Id. (brackets and internal quotation
marks omitted). Thus, a federal court may not issue a habeas writ simply
because [it] conclude[s] in [its] independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Id.
(internal quotation marks omitted). Rather, that application must have been
unreasonable. See id. AEDPAs deferential treatment of state court decisions
must be incorporated into our consideration of a habeas petitioners request for
COA. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (footnote omitted).
To obtain federal habeas relief, a state prisoner must exhaust[ ] the
remedies available in the courts of the State. 28 U.S.C. 2254(b)(1)(A). The
exhaustion requirement is satisfied if the issues have been properly presented to
-4-
the highest state court, either by direct review of the conviction or in a

postconviction attack. Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999)
(internal quotation marks omitted). The burden of proving exhaustion rests with
the prisoner. See Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993). If an
applicant has failed to exhaust state remedies and state courts would now find
the claims procedurally barred[,] the claims are considered exhausted and
procedurally defaulted for purposes of federal habeas relief. Thomas v. Gibson,
218 F.3d 1213, 1221 (10th Cir. 2000) (internal quotation marks omitted).
A.
Ineffective Assistance of Trial Counsel
Applicant raises two claims of ineffective assistance of counsel. First, he

contends that trial counsel was ineffective because he failed to investigate the
case adequately and did not raise various objections. The district court ruled that
the Kansas courts reasonably decided that counsels performance was not
deficient. Second, Applicant argues that trial counsel was ineffective because he
had two conflicts of interest: (1) he was a state prosecutor in another county and
(2) he represented Applicant at sentencing after Applicant had argued to the
district court that his counsel was ineffective. The Supreme Court of Kansas
rejected both arguments. It ruled that trial counsel did not have an actual conflict
of interest despite his role as an assistant county attorney in another county
during the first two months that he represented Applicant. See Gleason, 88 P.3d
at 238. And it concluded that the second alleged conflict did not adversely affect
-5-
trial counsels performance. See id. at 239. The district court determined that
these rulings were reasonable. No reasonable jurist would reject the courts
denial of these claims.
B.
Aiding-and-Abetting Instruction
Applicant argues that the trial courts aiding-and-abetting instruction

misstated Kansas law and that the jury should have been given a foreseeability
instruction with the aiding-and-abetting instruction. The Kansas Supreme Court
rejected these arguments. See id. at 22630. The district court correctly
determined that Applicant could not challenge on federal habeas a state courts
interpretation of state law, see Estelle v. McGuire, 502 U.S. 62, 6768 (1991),
and that the instruction did not deprive Applicant of a fair trial. No reasonable
jurist would debate the courts denial of this claim.
C.
Inconsistent Theories of Prosecution
Applicant asserts that the federal district court, as well as the state courts,
have not understood this claim. In his brief to this court he states it as follows:
Petitioner challenges whether it was a violation of his due
process right to be charged and convicted of burglary as the
underlying felony of felony murder when the death occurred during
the commission of an aggravated burglary committed by a
codefendant. The States theory at trial was that Collin Cady (codefendant) killed Clarence Rinke while in the commission of a
burglary in which defendant was a participant. The State amends the
felony murder charge against Cady to second degree murder
unintentional; aggravated burglary; and aggravated battery. Codefendant was charged in the aggravated burglary charge, to-wit:
Clarance [sic] Rinkes residence, in which there is a human being.
-6-
Aplt. Br. at 13. Apparently, Applicant is complaining that the predicate felony
for his felony-murder conviction was burglary yet his codefendant was permitted
to plead to aggravated burglary. Perhaps this claim was misunderstood because it
is so clearly without merit. There is nothing unfair about permitting cooperating
codefendants to plead to charges that are inconsistent with the theory upon which
the defendant was convicted by a jury; and here the inconsistency, if any, is
insubstantial. No reasonable jurist would debate the propriety of the district
courts dismissal of this claim.
D.
False Statement and Introduction of a False Confession
Applicant contends that the prosecutor engaged in misconduct by making a

false statement to the jury and introducing into evidence a false confession. The
state court of appeals dismissed this claim, which was asserted in Applicants first
state collateral attack on his conviction, because Applicant had not shown
exceptional circumstances excusing his failure to raise it on direct appeal. See
Gleason, 2007 WL 2301919, at *3; Kan. Sup. Ct. R. 183(c)(3) (permitting postconviction correction of trial errors affecting constitutional rights only upon
showing of exceptional circumstances). The federal district court concluded
that it could not review the claim because it was procedurally barred. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991) (In all cases in which a state
prisoner has defaulted his federal claims in state court pursuant to an independent
and adequate state procedural rule, federal habeas review of the claims is barred
-7-
unless the prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law . . . .). Applicant appears to
concede procedural default, but argues that he could overcome it because his
appellate counsel was ineffective in not raising the issue on direct appeal. See id.
at 75354 (Attorney error that constitutes ineffective assistance of counsel is
cause . . . .). But Applicant did not adequately raise below a claim of ineffective
appellate counsel. Even after the State argued in federal district court that the
claim of ineffective appellate counsel was too conclusory to justify relief,
Applicant did not address the issue in his traverse, and the district court quite
naturally, and properly, agreed with the State. We therefore reject Applicants
attempt to overcome his procedural default. Reasonable jurists would not debate
the correctness of the district courts procedural ruling.
E.
Introduction of Evidence of Past Crimes
Applicant argues that the prosecutor engaged in misconduct by introducing

evidence of his past crimes, in violation of one of the trial courts orders. The
Kansas Supreme Court determined that any prosecutorial misconduct in
introducing the evidence was not prejudicial because (1) the trial judge sustained
an objection to the evidence and admonished the jury to disregard it and (2) the
evidence of Applicants guilt was so overwhelming that there was no likelihood
that any error changed the trials result. See Gleason, 88 P.3d at 232. The
-8-
district court concluded that the Kansas Supreme Courts decision was
reasonable. Reasonable jurists would not debate the courts resolution.
F.
Terms of Plea Agreement
Applicant argues that his due-process rights under Brady v. Maryland, 373
U.S. 83 (1963), were violated because the State failed to disclose to defense
counsel the terms of his codefendants plea agreements. But, as the federal
district court noted, both codefendants who testified against him had admitted at
trial that they had entered into plea agreements with the prosecution. We fail to
see a Brady violation; and no reasonable jurist would disagree with the district
court that Applicant has failed to show prejudice from any nondisclosure.
G.
Withholding Evidence
Applicant argues that the State withheld evidence of telephone records

subpoenaed in 1999 that would have aided his defense. 1 The state court of
appeals ruled that there was no prejudice because Applicant received copies of the
identical records before trial, and the records were incriminatory, not exculpatory.
No reasonable jurist would dispute the district courts conclusion that the court of
appeals decision was not unreasonable.
III.
CONCLUSION
1
This argument appears in the portion of the Applicants brief asserting

ineffective assistance of counsel. He argues that the prosecutors actions in
withholding the evidence violated his right to effective assistance of counsel
under Strickland. Despite Applicants label, this is in substance a prosecutorialmisconduct claim, and we treat it as such.
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We DENY the application for COA and DISMISS the appeal.

ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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FILED

United States Court of Appeals

DAVID R. MCKUNE; DEREK

(D.C. No. 5:11-CV-03110-SAC)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, EBEL, and MURPHY, Circuit Judges.

Applicant Noah J. Gleason, a Kansas prisoner, applied pro se for relief

presumption-of-innocence instruction. The district court denied relief. Applicant

the denial of a constitutional right. 28 U.S.C. 2253(c)(2). This standard

United States, or was based on an unreasonable determination of the facts in

the highest state court, either by direct review of the conviction or in a

Ineffective Assistance of Trial Counsel

Applicant raises two claims of ineffective assistance of counsel. First, he

Applicant argues that the trial courts aiding-and-abetting instruction

Inconsistent Theories of Prosecution

False Statement and Introduction of a False Confession

Applicant contends that the prosecutor engaged in misconduct by making a

Introduction of Evidence of Past Crimes

Applicant argues that the prosecutor engaged in misconduct by introducing

Terms of Plea Agreement

Applicant argues that the State withheld evidence of telephone records

This argument appears in the portion of the Applicants brief asserting

We DENY the application for COA and DISMISS the appeal.

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