Amos v. Roberts, 10th Cir. (2006)
Amos v. Roberts, 10th Cir. (2006)
VERNON J. AM OS,
Petitioner-A ppellant,
No. 06-3093
v.
District of Kansas
Respondents-Appellees.
OR DER *
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
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prosecution secured his conviction through the use of coerced and perjured
testimony; and (2) that the prosecution withheld exculpatory evidence.
M r. Amos raised these claims for the first time in a motion for
postconviction relief in state court under K.S.A. 60-1507. The state district
court denied M r. Amoss requests for an evidentiary hearing, appointment of
counsel, and postconviction relief on the ground that he had not shown good
cause for using a postconviction proceeding as a second appeal. Under Kansas
law, those issues that could have been presented, but were not presented, are
deemed waived. W here a defendants claim has not been raised at trial or on
direct appeal, such a default prevents the defendant from raising the claim in a
second appeal or a collateral proceeding. State v. Neer, 795 P.2d 362, 365-66
(Kan. 1990). The state district court found that the claims raised in the motion
for postconviction relief should have been raised in M r. Amoss direct appeal, and
therefore summarily denied the motion.
M r. Amos appealed that decision in state court, but he admits in his petition
that the appeal concerned only the denial of an evidentiary hearing and
appointment of counsel. The state appellate court therefore did not address
whether his prosecutorial misconduct claims were barred on procedural grounds.
Accordingly, those claims are procedurally defaulted: the state court deemed the
arguments waived, and M r. A mos never challenged that ruling in state court. See
Smith v. M ullin, 379 F.3d 919, 925-26 (10th Cir. 2004) (finding procedural
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default based on failure to raise claims on direct appeal under state procedural
rules).
A federal district court may review procedurally defaulted claims under
2254 only if the petitioner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thom pson, 501 U.S. 722, 750 (1991). M r. Amos contends that he had
cause for failing to raise his claims on direct appeal for two reasons: (1) that his
counsel was constitutionally ineffective, and (2) that he had limited access to
legal resources.
Although attorney error can constitute cause for a defendants procedural
default, it must rise to the level of a constitutional violation and, accordingly,
must be presented as an independent claim to state courts. Edwards v. Carpenter,
529 U.S. 446, 451-52 (2000). Because M r. Amos has never presented an
independent claim of ineffective assistance of counsel to the state courts, any
attorney error cannot serve as cause for the procedural default.
M r. Amos also argues that his limited access to legal resources is sufficient
cause for his failure to comply with state procedural rules. To overcome
procedural default based on a claim of limited access to legal materials, a
petitioner must provide specificity regarding the alleged lack of access and the
steps he took to diligently pursue his federal claim. M iller v. M arr, 141 F.3d
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976, 978 (10th Cir. 1998). Here, M r. Amos alleges simply that he has been
unable or hindered at various times from filing or preparing legal pleadings.
App. for COA 3i. Such allegations lack specificity concerning the pleadings or
filings he was unable to complete as a result of his allegedly limited access to
legal materials.
M oreover, the record suggests that M r. Amos had ample opportunity to
raise these claims on direct appeal. In a motion for a new trial, M r. Amos in fact
raised both of his prosecutorial misconduct claims, but his appellate counsel
elected not to pursue them further. M r. Amos subsequently sought and obtained
permission to file a supplemental brief pro se on direct appeal, expressly for the
purpose of addressing additional issues not raised by counsel. Despite receiving
two extensions, M r. Amos never filed a supplemental brief. After four months,
the Kansas Supreme Court deemed the brief abandoned and proceeded to hear
arguments on the issues raised by his appellate counsel. Given the lack of
specificity concerning M r. Amoss access to legal materials, and the Kansas
courts commendable efforts to accommodate his desire to raise additional issues,
we cannot say that M r. A mos has established cause for his procedural default.
Because M r. Amos cannot demonstrate cause and prejudice for his
procedural default and makes no claims of a fundamental miscarriage of justice,
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jurists of reason could not find it debatable whether the district court was correct
in its procedural ruling.
The district court also found that M r. Amoss claim of ineffective
assistance of trial counsel was procedurally defaulted. M r. Amos has never
asserted this claim before any state court, either on direct appeal or in a request
for postconviction relief. Any motion for postconviction relief is now timebarred in state court. See K.S.A. 60-1507(f)(1) (imposing a one-year limitation
period, which runs from the termination of direct appellate review). Accordingly,
this claim is procedurally defaulted, and the district court correctly refused to
consider it.
B. Charging Document Challenge
M r. Amos also objects to the district courts finding that his challenge to
the charging document was based on state law, and therefore provided no ground
for federal habeas relief. Under 28 U.S.C. 2254(a), federal courts may entertain
an application for a writ of habeas corpus on behalf of a person in state custody
only on the ground that he is in custody in violation of the Constitution or law s
or treaties of the United States. Although a charging document may violate the
Sixth Amendment if it fails to provide a defendant with adequate notice of the
nature and cause of the accusation filed, the adequacy of a state criminal
complaint presents a question of state law rather than federal law. Johnson v.
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Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999). The district court correctly found
that M r. Amos presented a question of state law, not a cognizable claim for
federal habeas relief, by claiming that the charging document was defective. To
the extent that he has raised a Sixth Amendment challenge, M r. Amos has
provided no information to suggest that the charging document failed to provide
him with adequate notice of the accusations against him. Accordingly, he has
failed to make a substantial showing of the denial of a constitutional right.
C. Issues N ot R aised B elow
M r. Amos raised several additional issues for the first time in his request
for a COA: (1) that his appellate counsel was constitutionally ineffective; (2) that
the trial court somehow committed constitutional error in denying a motion for a
new trial based on new testimony; (3) that the trial court violated his
constitutional rights by denying him a new trial or an evidentiary hearing based
on the confession of a co-defendant; and (4) that the state district court violated
his constitutional rights by denying his motion for postconviction relief without
holding an evidentiary hearing.
Issues that are not raised before lower courts will rarely be considered by
federal appellate courts. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720
(10th Cir. 1993). Here, M r. Amos has suggested no special circumstances that
require this Court to address his claims for the first time on appeal. United States
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v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005). Therefore, we deny a COA as
to the remaining claims.
III. Conclusion
W e D EN Y Vernon J. Amoss request for a COA and DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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