Gleason v. McKune, 10th Cir. (2013)
Gleason v. McKune, 10th Cir. (2013)
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)
Respondents - Appellees.
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 Aug. 10, 2007) (unpublished table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24, 2010) (unpublished table decision); on each occasion the Kansas Supreme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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DISCUSSION
A COA will issue only if the applicant has made a substantial showing of
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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 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.
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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.
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.
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district court concluded that the Kansas Supreme Courts decision was
reasonable. Reasonable jurists would not debate the courts resolution.
F.
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
CONCLUSION
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Harris L Hartz
Circuit Judge
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