FILED

United States Court of Appeals

Tenth Circuit

July 18, 2011

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

JEROME CARTER,
Petitioner - Appellant,
v.

No. 11-3036
(D.C. No. 5:07-CV-03317-SAC)
(D. Kansas)

ROGER WERHOLTZ; PAUL

MORRISON, Attorney General of the
State of Kansas,
Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Defendant Jerome G. Carter, a Kansas state prisoner proceeding pro se,

seeks a certificate of appealability (COA) to appeal the denial of his 28 U.S.C.
2254 application for habeas relief. See 28 U.S.C. 2253(c)(1)(A) (requiring
COA to appeal denial of application). We deny his request for a COA and
dismiss the appeal.
I.

BACKGROUND
In 1998 two men attempted to rob Troy J. Hawkins, Carvelle Horn, and

Carlos Johnson in Hawkins and Horns home. See State v. Carter, 14 P.3d 1138,
1140 (Kan. 2000) (Carter I); State v. Carter, 91 P.3d 1162, 1164 (Kan. 2004)
(Carter II). During the robbery Hawkins was fatally shot. A complaint/

information (the Information) charged Defendant with (1) first-degree

premeditated murder, (2) first-degree felony murder, (3) aggravated robbery, and
(4) criminal possession of a firearm.
The Kansas Supreme Court reversed Defendants convictions from his first
trial, holding that his counsel had provided ineffective assistance by admitting
involvement in the robbery despite Defendants objections. See Carter I, 14 P.3d
at 1148. After a second trial a jury convicted Defendant of first-degree felony
murder, aggravated robbery, and criminal possession of a firearm. See Carter II,
91 P.3d at 1164. Although Horn, a witness at both trials, had previously
identified Defendant as the armed intruder at a preliminary hearing and at the first
trial, he testified at the second trial that he could not identify Defendant and that
he did not remember doing so at the previous proceedings. See id. at 1165. Over
Defendants objection the court permitted the prosecutor to introduce Horns prior
identification testimony. See id. In June 2004 the Kansas Supreme Court
affirmed Defendants convictions and sentence. See id. at 116668.
In June 2005 Defendant filed a motion for postconviction relief in state
court. See Kan. Stat. Ann. 60-1507 (2003). The trial court summarily denied
the motion, and the Kansas Court of Appeals affirmed. See Carter v. State,
No. 96,304, 2007 WL 2080431 (Kan. Ct. App. July 20, 2007) (Carter III).
Defendant then filed his 2254 application in the United States District
Court for the District of Kansas. As we read the application, he raised five
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claims: (1) that the trial court improperly admitted Horns prior testimony, (2)
that the prosecutor misstated the law on reasonable doubt during closing
argument, (3) that the Information failed to charge the crime of aggravated
robbery because it did not allege the required mens rea, (4) that the trial court
constructively amended the Information by instructing the jury on the requisite
mens rea for aggravated robbery, and (5) that both his trial and appellate counsel
had provided ineffective assistance. The district court denied on the merits both
the challenge to Horns testimony and the prosecutorial-misconduct claim, and
held that Defendant had procedurally defaulted on the claims relating to the mens
rea for robbery. The court also held that his claim of ineffective assistance of
appellate counsel failed because of his procedural default and the lack of merit of
his underlying claims. (It apparently, and understandably, did not discern a claim
of ineffective trial counsel in the application.) It denied a COA on any claim.
Defendant now seeks a COA from this court on all claims. 1
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

On May 11, 2011, Defendant filed a motion to withdraw his brief in this
court to correct typographical errors. We granted his motion, allowing him until
June 1 to file a corrected brief. But he did not file a corrected brief until July 11.
Because that brief is untimely, we consider only his original brief.
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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, the applicant must
show that the district courts resolution of the constitutional claim was either
debatable or wrong. Id. If the application was denied on procedural grounds,
the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show
that jurists of reason would find it debatable . . . whether the district court was
correct in its procedural ruling. Id. Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further. 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
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:
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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 concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. See id. Rather,
that application must have been unreasonable. For those parts of Defendants
claims that were adjudicated on the merits, AEDPAs deferential treatment of
state court decisions must be incorporated into our consideration of [his] request
for [a] COA. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
A.

Prior Identification Testimony

Defendant challenges the admission of Horns prior identification

testimony. Like the district court, we understand him to be arguing that the
admission of the prior testimony violated the Sixth Amendments Confrontation
Clause. The Supreme Court has held that the Clause prohibits the admission of
testimonial hearsay unless the declarant is unavailable and there was prior

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opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 68

(2004). But when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior
testimonial statements. Id. at 60 n.9 (emphasis added). Defendant has cited no
Supreme Court authority suggesting that this general rule does not apply, as he
asserts, when the prior testimonial statements were made at a trial later held to
have violated the defendants rights. The Kansas Supreme Court ruled that
Crawford was [not] implicated because Horn was available for crossexamination at the second trial. Carter II, 91 P.3d at 1167. No reasonable jurist
could conclude that this was an unreasonable application of federal law.
B.

Alleged Prosecutorial Misconduct

Defendant contends that his due process right to a fair trial was violated
when the prosecutor intentionally misstated the reasonable-doubt standard in his
closing argument. The prosecutors precise words were:
You know, I think its instructive to look at what the jury instruction
on doubt actually says and compare it, first of all, to what the
defense attorney said. If you have no reasonable doubt as to the truth
of any of the claims required to be proved, you should find the
defendant guilty. It doesnt say we have to prove it beyond a
reasonable doubt. Thats nowhere in the law. Just have to show that
you have no reasonable doubt.
R., Vol. 2, Transcript of Jury Proceedings (State v. Carter, No. 98-CR-522,
(Sedgwick Cnty. Kan. Dist. Ct. Oct. 24, 2001), Vol. Seventeen at 56 (emphasis

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added). This statement is certainly confusing. But the trial judge had instructed
the jury correctly, saying:
The test you must use in determining whether the defendant is guilty
or not guilty is this: If you have a reasonable doubt as to the truth of
any of the claims required to be proved by the State, you must find
the defendant not guilty. If you have no reasonable doubt as to the
truth of any of the claims required to be proved by the State, you
should find the defendant guilty.
Id. at 12.
The issue is whether the prosecutors statement requires setting aside
Defendants conviction. In determining whether a petitioner is entitled to
federal habeas relief for prosecutorial misconduct, it must be determined whether
there was a violation of the criminal defendants federal constitutional rights
which so infected the trial with unfairness as to make the resulting conviction a
denial of due process. Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir. 1994).
Under AEDPA we do not write on a clean slate. The same issue was
presented to the Kansas Court of Appeals. Although it acknowledged that the
prosecutors comments could have misled or confused the jury, it held that in
view of the weight of the evidence and the rulings adverse to Carter in previous
appeals regarding sufficiency of the evidence, it is unlikely the prosecutors
statements had any effect on the jury. Carter III, 2007 WL 2080431, at *4.
Defendant has not shown that this ruling was an unreasonable application of
federal law.

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C.

Claims Related to Mens Rea Requirement

We next address Defendants two claims relating to the mens rea element
of the aggravated-robbery offense for which he was convicted. He contends that
the Information failed to allege aggravated robberys mens rea element, in
violation of clearly established Supreme Court precedent and Kansas law. But see
Sallahdin v. Gibson, 275 F.3d 1211, 1227 (10th Cir. 2002) (A challenge to the
adequacy of the Information under [state] law . . . is a question of state law,
which this court has no power to address [under 2254].). And he contends that
the trial court constructively amended the Information by instructing the jury on
the requisite intent for the crime. The district court held that review of these
claims was barred by procedural default because Defendant (1) failed to present
these claims on direct appeal in the state court and (2) had not shown that
appellate counsel had been ineffective for failing to present these claims. In our
view, no reasonable jurist could disagree that these claims have been procedurally
defaulted.
A claim is procedurally defaulted if (1) the applicant failed to exhaust state
remedies on the claim and (2) an attempt to raise the claim in state court at this
time would be procedurally barred. See Thomas v. Gibson, 218 F.3d 1213, 1221
(10th Cir. 2000). To exhaust a claim the applicant must properly present[] [it] to
the highest state court, either by direct review of the conviction or in a

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postconviction attack. Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999)
(internal quotation marks omitted).
Defendants sole argument that he exhausted these claims in state court is
that he attempted to raise them in a pro se motion to file a supplemental brief in
the Kansas Court of Appeals. But the motion was not a proper method of
presenting these claims on appeal. Defendants purported authority for the
motion was Kansas Supreme Court Rule 6.09(b). That rule, however, permits
only the submission of supplemental authority in support of an argument already
presented, not an argument on a new issue. See State v. Greever, 183 P.3d 788,
794 (Kan. 2008) (A new issue raised in a letter submitted pursuant to Supreme
Court Rule 6.09 is generally not preserved for review before an appellate court.).
Accordingly, the Kansas Court of Appeals rejected Defendants motion, and the
issues raised in it were not exhausted.
These unexhausted claims are procedurally defaulted because Defendant
could not now raise them in state court. Defendant has already pursued relief
under Kan. Stat. Ann. 60-1507. And under Kan. Stat. Ann. 60-1507(c), The
sentencing court shall not be required to entertain a second or successive motion
for similar relief on behalf of the same prisoner. See State v. Kelly, 248 P.3d
1282, 1285 (Kan. 2011) (Absent a showing of exceptional circumstances, the
court can dismiss a second or successive motion as an abuse of remedy.); State v.
Mitchell, 162 P.3d 18, 2122 (Kan. 2007) (refusing to consider claims not raised
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in previous 60-1507 motion absent showing of exceptional circumstances).

Kansas courts have defined exceptional circumstances as unusual events or
intervening changes in the law which prevent a movant from reasonably being
able to raise all of the trial errors in the first post-conviction proceeding. Kelly,
248 P.3d at 128586 (internal quotation marks omitted).
Defendants brief in this court suggests only one ground for avoiding this
procedural barineffective assistance of counsel. A showing of ineffective
assistance could assist Defendant in two ways. First, under Kansas law a
defendant may be able to bring a second or successive 60-1507 motion under
the exceptional-circumstances doctrine by showing that the reason for not raising
the issue sooner was ineffective assistance of counsel. See Bledsoe v. State, 150
P.3d 868, 877 (Kan. 2007). In that event, Defendants claims would not be
procedurally barred and hence not procedurally defaulted for purposes of 2254.
Second, even if Defendants claim has been procedurally defaulted, he may
pursue the claim under 2254 if he can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, see Coleman
v. Thompson, 501 U.S. 722, 750 (1991); and ineffective assistance can be such a
cause, see id. at 75354; Hammon v. Ward, 466 F.3d 919, 926 (10th Cir. 2006).
But we will not consider ineffective assistance of counsel as a ground for
avoiding a procedural default unless the defendant has raised that ground in state
court. See Edwards v. Carpenter, 529 U.S. 446, 45152 (2000) ([I]neffective
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assistance adequate to establish cause for the procedural default of some other
constitutional claim is itself an independent constitutional claim . . . [and] . . .
generally must be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default. (internal quotation
marks omitted)). Here, Defendant never raised in state court a claim that his
counsel was ineffective for failing to challenge the adequacy of the Information
or the alleged constructive amendment of the Information. The closest he came
was in his 60-1507 motion, which asserted (1) that [t]here was a Fatal
Variance between the Information/Complaint and the evidence presented at the
trial which caused the state it[s] failure to prove the crime of robbery, R., Vol. 2,
Civil Vol. I at 8, and (2) that his failure to raise the claim earlier was the result of
ineffective assistance of counsel, see id. at 10. We cannot, however, read this
claim (which was never explained further in the state-court pleadings) to
encompass his present ineffectiveness claims. Indeed, the Kansas Court of
Appeals interpreted the claim as alleging only that the State did not prove that a
taking or an attempted taking occurred. Carter III, 2007 WL 2080431, at *5. In
sum, Defendant procedurally defaulted his claims of (1) failure to allege mens rea
in the Information and (2) constructive amendment of the Information; and
Defendant has not preserved a claim that there was cause for his procedural
default.
D.

Ineffective Assistance of Counsel

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Defendant contends that he was denied effective assistance of counsel

because his trial counsel and his counsel on direct appeal from his conviction
failed to challenge (1) the failure of the Information to allege aggravated
robberys mens rea element and (2) the trial courts constructive amendment of
the Information by instructing the jury on the requisite intent for the crime. He
also contends that his appellate counsel was ineffective in failing to raise his
claim of prosecutorial misconduct. We have just established, however, that
Defendant failed to exhaust his first two ineffectiveness claims in state court and
that he would be procedurally barred from now pursuing those claims in state
court. Those ineffectiveness claims are procedurally defaulted. Moreover,
Defendant has not suggested any cause that could excuse that default. And we
note that ineffective assistance of postconviction counsel (who might have raised
these ineffectiveness claims in Defendants 60-1507 proceedings) would not be
a cause that could excuse the default. There is no constitutional right to
postconviction counsel; so even if his attorney in his proceedings under 60-1507
should have raised these ineffectiveness claims, that failure is not a ground for
relief under 2254. See Smallwood v. Gibson, 191 F.3d 1257, 1267 n.4 (10th
Cir. 1999). Accordingly, we need not address the merits of the first two
ineffectiveness claims.
Finally, we can summarily dispose of Defendants remaining
ineffectiveness claimthat his appellate counsel did not challenge the
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prosecutors misstatement of the burden of persuasion in his closing argument.

To establish a claim of ineffective assistance, Defendant must show (1) that
counsels representation fell below an objective standard of reasonableness and
(2) that he was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 68788 (1984). Defendant cannot establish the
prejudice prong. Although counsel may have erred in failing to present
prosecutorial misconduct as an issue on direct appeal, no harm to Defendant
resulted. The issue was presented to the Kansas Court of Appeals in Defendants
appeal of his denial of relief under 60-1507, and the court considered it on the
merits. Defendant has presented no reason, and we perceive none, why an earlier
presentation of the claim would have led to a better result for him. No reasonable
jurist could debate the district courts ruling that this claim be dismissed.
III. CONCLUSION
We DENY Defendants application for a COA and dismiss the appeal.
ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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