David Lawrence Smith v. DAN SCHNURR, Hutchinson Correctional Facility Warden

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DAVID LAWRENCE SMITH,
Petitioner - Appellant,
v.
DAN SCHNURR, Hutchinson Correctional
Facility Warden,
Respondent - Appellee.
No. 21-3074
(D.C. No. 5:18-CV-03298-DDC)
(D. Kan.)
_________________________________
ORDER
_________________________________
Before HARTZ, KELLY, and McHUGH, Circuit Judges.
_________________________________
This matter is before us on Appellant’s Petition for Rehearing, which was mailed
to the court on October 27, 2021 and received by the Clerk’s Office on November 3,
2021. Pursuant to Fed. R. App. P. 35(c) and 40(a)(1), Appellant’s petition for rehearing
was due 14 days after entry of judgment, or by October 15. 2021. Accordingly,
Appellant’s petition is DENIED AS UNTIMELY.
However, we sua sponte amend our original Order Denying Certificate of
Appealability dated October 1, 2021 as reflected in the attached revised order. The
court’s October 1, 2021 Order Denying Certificate of Appealability is withdrawn and
replaced by the attached revised order. The Clerk of Court is directed to issue the
FILED
United States Court of Appeals
Tenth Circuit
November 9, 2021
Christopher M. Wolpert
Clerk of Court
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attached revised Order Denying Certificate of Appealability effective nunc pro tunc to
the date that the original order was filed.
Entered for the Court,
CHRISTOPHER M. WOLPERT, Clerk
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DAVID LAWRENCE SMITH,
Petitioner - Appellant,
v.
DAN SCHNURR, Hutchinson Correctional
Facility Warden,
Respondent - Appellee.
No. 21-3074
(D.C. No. 5:18-CV-03298-DDC)
(D. Kansas)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, KELLY, and McHUGH, Circuit Judges.
_________________________________
Applicant David Lawrence Smith was convicted by a Kansas jury of three counts
of aggravated indecent liberties with a child. Mr. Smith was sentenced to life plus 154
months’ imprisonment. After he unsuccessfully sought state postconviction relief, he
filed an application 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 requests a
certificate of appealability (COA) from this court. See 28 U.S.C. § 2253(c)(1)(A)
(requiring COA to appeal denial of relief under § 2254). We deny his request and dismiss
this matter.
* This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 1, 2021
Christopher M. Wolpert
Clerk of Court
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We may issue a COA “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). To put it simply, Mr. Smith must show that
the district court’s resolution of the constitutional claim was either “debatable or wrong.”
Id.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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). This is a high bar.
A federal court may not grant relief simply because it concludes in its
“independent judgment that the relevant state-court decision applied clearly established
law erroneously or incorrectly,” but may grant relief only where “the ruling [is]
objectively unreasonable, not merely wrong; even clear error will not suffice.” Gipson v.
Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004); Virginia v. LeBlanc, 137 S. Ct. 1726, 1728
(2017) (per curiam). Mr. Smith must show “that the state court’s ruling was so lacking in
justification that there was an error well understood and comprehended in existing law
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beyond any possibility for fairminded disagreement.” Virginia, 137 S. Ct. at 1728
(ellipsis and internal quotation marks omitted).
In addition to this deferential legal standard, the AEDPA establishes a deferential
standard of review for the state court’s factual findings. Specifically, the “AEDPA . . .
mandates that state court factual findings are presumptively correct and may be rebutted
only by ‘clear and convincing evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir.
2004) (quoting 28 U.S.C. § 2254(e)(1)). We must incorporate the AEDPA’s deferential
treatment of state court decisions into our consideration of Mr. Smith’s request for a
COA. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). In addition, our review
is limited to “the record that was before the state court that adjudicated the claim on its
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Mr. Smith seeks a COA on six grounds: 1) trial transcripts and other legal
documents were altered; 2) he was denied the right to a public trial; 3) there was
insufficient evidence to support his conviction; 4) ineffective assistance of counsel; 5) his
trial attorney compelled him to testify against himself; 6) inconsistent jury verdicts.
The district court held that Mr. Smith procedurally defaulted on grounds one, two,
three, five, and six, and it therefore did not consider the merits of Mr. Smith’s arguments
on these grounds. Where a district court denies relief on procedural grounds, the
petitioner must show “that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 478.
Because Mr. Smith does not address the district court’s procedural ruling at all in
his application for a COA, he has waived consideration of these grounds. See Davis v.
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McCollum, 798 F.3d 1317, 1320 (10th Cir. 2015) (“[T]he district court rejected Davis’s
last two grounds of error as time-barred. Davis waived any potential challenge to that
conclusion by failing to address it in his opening brief on appeal.”). Even if Mr. Smith
had addressed the district court’s procedural ruling in his COA application, we would
deny a COA on these issues because it is apparent from the record that grounds one, two,
three, five, and six are procedurally barred by Mr. Smith’s failure to raise these issues
properly as part of his direct appeal as required by Kansas procedural rules. See Smith v.
Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) (“Claims that are defaulted in state court
on adequate and independent state procedural grounds will not be considered by a habeas
court, unless the petitioner can demonstrate cause and prejudice or a fundamental
miscarriage of justice.”). We therefore deny a COA on these issues.
This leaves only ground four, Mr. Smith’s ineffective assistance of counsel claim.
Mr. Smith raises eleven issues he alleges resulted in ineffective assistance of counsel
during his trial: 1) being charged $20,000 for representation; 2) counsel not presenting
evidence of a letter from the victim to the jury; 3) not having the victim undergo a
psychological evaluation; 4) not attempting to change venue; 5) failing to subpoena
phone records between Mr. Smith and the victim’s mother; 6) not contacting an employee
from social services who had visited the victim’s family; 7) not calling as a witness the
private investigator; 8) allowing a closed trial; 9) disclosing the victim was involved in
human trafficking charges; 10) not questioning the victim’s inconsistent statements; and
11) not allowing Mr. Smith to undergo a psychological evaluation or take a lie detector
test. Mr. Smith previously raised some of these issues on direct appeal in state court,
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while he raised others for the first time as part of his state post-conviction proceedings,
and still other issues appear to have been raised for the first time in Mr. Smith’s opening
brief and application for a COA.
To establish an ineffective assistance of counsel claim, Mr. Smith must show
(1) constitutionally deficient performance that (2) resulted in prejudice by demonstrating
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
case would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694
(1984). If Mr. Smith cannot show either “deficient performance” or “sufficient
prejudice,” the ineffective assistance of counsel claim “necessarily fails.” Hooks v.
Workman, 606 F.3d 715, 724 (10th Cir. 2010). The standard of review for a habeas claim
of ineffective assistance of counsel is “doubly deferential.” Cullen, 563 U.S. at 190
(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). There is a “strong
presumption that counsel provided effective assistance.” United States v. Holloway,
939 F.3d 1088, 1103 (10th Cir. 2019) (quotations omitted). And we are limited to the
record that was before the state court in evaluating Mr. Smith’s claims. Cullen, 563 U.S.
at 190.
Mr. Smith first raised issue one—the $20,000 attorney fee—in his state post-
conviction motion. In his direct appeal, Mr. Smith raised issue 2 (failure to present victim
letter); issue 3 (failure to request psychological evaluation of victim); issue 4 (failure to
move for a change of venue); issue 5 (failure to subpoena phone records); and issue 10
(failure to question victim’s inconsistent statements). Concluding that each of these issues
had been properly exhausted, the district court addressed each of them on the merits.
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After review of Mr. Smith’s application for COA, the record on appeal, and the relevant
legal authority, we conclude for the same reasons as did the district court, that Mr. Smith
failed to establish either deficient performance or sufficient prejudice under Strickland as
to any of these grounds for ineffective assistance of counsel. See ROA Vol. 1 at 281–292.
We further conclude that reasonable jurists could not debate the correctness of the district
court’s decision on Mr. Smith’s ineffective assistance of counsel claim on these grounds.
Mr. Smith also advances before this court as grounds for his claim of ineffective
assistance of counsel, issue 6 (failure to contact a social services witness); 7 (failure to
call the private investigator as a witness); issue 8 (allowing a closed trial); issue 9 (stating
the victim was involved in human trafficking charges); and issue 11 (not allowing
Mr. Smith to undergo a psychological evaluation or take a lie detector test). But
Mr. Smith raised none of these issues in the district court in support of his ineffective
assistance of counsel claim. Because these issues were raised for the first time on appeal,
we decline to consider them. See United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.
2002).
Because we have denied COA on all the grounds raised by Mr. Smith, we reject
Mr. Smith’s application for a COA and dismiss this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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