Scott P. Roeder v. Dan Schnurr

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
SCOTT P. ROEDER,
Petitioner - Appellant,
v.
DAN SCHNURR,
Respondent - Appellee.
No. 22-3152
(D.C. No. 5:20-CV-03275-JAR)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Scott P. Roeder, a Kansas state prisoner appearing pro se, seeks a certificate of
appealability (COA) to appeal from the district court’s denial of his 28 U.S.C. § 2254
habeas petition. See Roeder v. Schnurr, No. 20-3275-JAR, 2022 WL 3139025 (D. Kan.
Aug. 5, 2022). A COA is a jurisdictional prerequisite to our appellate review. Miller-El
v. Cockrell, 537 U.S. 322, 336–37 (2003). We deny a COA and dismiss the appeal.
Background
A jury convicted Mr. Roeder of premeditated first-degree murder and two counts
* This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
December 14, 2022
Christopher M. Wolpert
Clerk of Court
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of aggravated assault in Kansas state court for point-blank executing Dr. George Tiller
during church services and subsequently threatening to shoot two ushers who pursued
him after the murder. The Kansas Supreme Court affirmed the convictions but remanded
for resentencing where he was subsequently sentenced to life imprisonment with no
possibility of parole for 25 years. See State v. Roeder, 336 P.3d 831, 857–59 (Kan.
2014). Mr. Roeder then filed a motion for post-conviction relief under Kan. Stat. Ann.
§ 60-1507. The Kansas Court of Appeals (KCOA) affirmed the state district court’s
denial of Roeder’s motion and his separate emergency motion to protect the unborn. See
Roeder v. State, 444 P.3d 379 (Table), 2019 WL 3242198, at *1 (Kan. Ct. App. July 19,
2019).
Next, Mr. Roeder filed a § 2254 petition raising five claims: (1) his rights to be
present and represented by counsel were violated when he appeared alone by video at his
initial appearance; (2) his trial counsel was ineffective for failing to call a coroner as an
expert witness to testify that abortion is murder; (3) his appellate counsel was ineffective
in pursuing a necessity defense and a voluntary manslaughter jury instruction on the basis
of imminence; (4) his trial counsel was ineffective for agreeing to nonpublic jury
selection; and (5) he should be permitted to seek a stay of execution on behalf of unborn
and partially unborn individuals.
Mr. Roeder sought to amend his petition to add another claim, that he is the victim
of a pattern of legal indifference to his rights. 1 Supp. R. 3–4. The district court denied
this request, holding that the claim was procedurally barred, and that Mr. Roeder could
not demonstrate cause and prejudice, or a fundamental miscarriage of justice that might
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excuse the bar. 1 Supp. R. 10–13, 19–20; I R. 59, 65–67. The federal district court
ultimately denied Mr. Roeder’s petition holding that his fourth and fifth claims were
procedurally barred. As for the other claims, which were included in Mr. Roeder’s
§ 60-1507 petition, the district court held the KCOA’s denial of these claims was a
reasonable application of federal law as they were “plainly meritless.” See Roeder, 2022
WL 3139025, at *8–16.
In his combined opening brief and application for a COA, Mr. Roeder raises eight
issues in rambling fashion, rather than in a succinct and clear manner. He challenges the
district court’s resolution of Claims (1) – (5) and adds a claim of ineffective assistance of
appellate counsel on collateral review (Sixth Issue), a claim of legal indifference to his
rights (Seventh Issue), and a claim of a violation of the Suspension Clause and a
challenge to federal post-conviction procedure (Eighth Issue).
Discussion
Mr. Roeder must obtain a COA to appeal from the denial of his § 2254 petition.
See 28 U.S.C. § 2253(c)(1)(A). To do so, he must make “a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). He “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a claim has been
dismissed on procedural grounds, he must also demonstrate that the district court’s
procedural ruling was debatable. Id. A petitioner is entitled to relief if the state court
decision “was contrary to, or involved an unreasonable application of, clearly established
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Federal law” or “was based on an unreasonable determination of the facts in light of the
evidence presented . . . .” 28 U.S.C. § 2254(d)(1)–(2).
A state court decision is “contrary to” the Supreme Court’s clearly established
precedent if it “applies a rule that contradicts the governing law set forth in [Supreme
Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a
decision of th[e] Court and nevertheless arrives at a result different from [that]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state-court decision is
an “unreasonable application” of Supreme Court law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular prisoner’s
case.” Id. at 407–08. The test is not whether a federal court in its independent judgment
views the state-court resolution as an incorrect application of clearly established law, but
rather whether the state-court’s resolution is objectively unreasonable, not merely wrong.
White v. Woodall, 572 U.S. 415, 419–20 (2014).
A. Procedurally barred claims
As for Mr. Roeder’s claim of ineffective assistance of trial counsel for agreeing to
nonpublic jury selection (Claim 4), the district court’s conclusion is not reasonably
debatable. Mr. Roeder did not raise this claim at trial and thus the KCOA considered it
waived. Under Kansas law arguments presented for the first time on appeal, including
constitutional grounds for reversal, are waived. Trotter v. State, 200 P.3d 1236, 1245–46
(Kan. 2009). Thus, where a state appellate court determines that a claim is waived, this
constitutes a procedural bar to federal habeas review. Cone v. Bell, 556 U.S. 449, 465
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(2009); Blaurock v. Kansas, 686 F. App’x 597, 608 (10th Cir. 2017) (unpublished).1 And
for substantially the same reasons given by the district court, the district court’s
conclusion that Mr. Roeder has not shown cause and prejudice or a miscarriage of justice
to excuse his procedural fault is not reasonably debatable.
As for Mr. Roeder’s emergency motion to protect the unborn (Claim 5), the
KCOA dismissed this claim as outside the scope of § 60-1507, as it only permits a state
prisoner to petition for his own release. Mr. Roeder failed to adduce a single Kansas case
allowing a prisoner to move for relief on behalf of others under § 60-1507. From this, the
district court concluded that the KCOA’s dismissal was based on an independent and
adequate state law ground. Thus, the district court’s conclusion of procedural bar is not
reasonably debatable. Nor is its conclusion that even if the claim were not procedurally
barred, it would be outside the scope of a § 2254 petition.
B. Claims decided on the merits
With respect to his remaining claims, the district court determined that the
KCOA’s decision was not contrary to or an unreasonable application of federal law, a
conclusion that is not reasonably debatable as discussed below.
1. Right to physical presence with counsel at first appearance (Claim 1)
Mr. Roeder argues his rights were violated when he appeared by videoconference
for his initial appearance without counsel. At the appearance, he was apprised of the
charges against him, his right to an attorney, and he was denied an appearance bond.
1 We cite this and other unpublished dispositions only for their persuasive value.
10th Cir. R. 32.1.
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Roeder, 2022 WL 3139025 at *8.
As for his right to be physically present, the district court agreed with the KCOA
that there was no constitutional violation. “[A] defendant is guaranteed the right to be
present at any stage of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure,” but this privilege is not
guaranteed when the benefit of presence would be useless or but a shadow. Kentucky v.
Stincer, 482 U.S. 730, 745 (1987). The KCOA determined that Mr. Roeder failed to
demonstrate that his lack of physical presence affected his initial appearance or any
subsequent bond hearings. He was informed of his rights and was able to meaningfully
participate in the bond determination at the initial appearance through video. The benefit
of his physical presence would have been but a shadow and thus the district court’s
decision that the KCOA’s holding was a reasonable application of federal law is not
reasonably debatable.
As for a right to counsel at this initial appearance, the district court had no quarrel
with the KCOA’s holding that Mr. Roeder’s first appearance was not a critical stage that
required counsel and there was no prejudice from lack of counsel. An accused is entitled
to counsel at any critical stage of proceedings once attachment occurs — i.e., “when the
government has used the judicial machinery to signal a commitment to prosecute.”
Rothgery v. Gillespie County, Tex., 554 U.S. 191, 211–12 (2008). The Supreme Court
has deemed that a pretrial arraignment can be critical where certain rights can be waived
or lost. See Hamilton v. Alabama, 368 U.S. 52, 53–54 (1961). Here, no rights were
waived or lost as Mr. Roeder merely was informed of the charges against him and his
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right to counsel. He was not required to enter a plea or assert defenses. Thus, the district
court’s decision upholding the KCOA’s reasonable application of federal law is not
reasonably debatable.
2. Ineffective assistance of counsel claims (Claims 2 and 3)
Mr. Roeder argues that his trial counsel was ineffective for not calling a coroner to
testify as an expert witness that abortion is murder (Claim 2). Further, that his appellate
counsel was ineffective for conceding that an abortion scheduled six months in the future
is not imminent and for not citing a Department of Justice (DOJ) memo, which had a
more favorable construction of imminence (Claim 3). He argues these failures prejudiced
him as he was unable to establish facts necessary to invoke (1) the necessity defense and
be acquitted or (2) the imperfect defense of others and be convicted of voluntary
manslaughter only.
To establish ineffective assistance of counsel, Mr. Roeder must show deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). On
habeas review, a federal court’s review is doubly deferential to the state court’s
resolution. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The federal district court’s conclusion that the KCOA applied the correct law and
came to reasonable conclusions on these claims is not reasonably debatable. As for the
ineffective trial counsel claim, the KCOA found no deficient performance. Instead,
counsel strategically did not call the coroner as necessity related defenses had been
precluded in a pretrial ruling. Moreover, the Supreme Court of Kansas on direct appeal
affirmed the trial court’s ruling that Mr. Roeder could not pursue a necessity or imperfect
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defense of others defense. See Roeder, 336 P.3d at 843–850.
As for the ineffective appellate counsel claim, there is no indication the DOJ
memo was applicable to Mr. Roeder’s case. Further, the concession was not deficient
given that the Kansas Supreme Court decided against Mr. Roeder’s imminence
arguments and held the facts showed Mr. Roeder did not hold an honest belief that any
harm he sought to prevent was imminent.
C. Additional issues raised on appeal
Mr. Roeder claims that his appointed appellate counsel on collateral review was
ineffective given her history of failing to brief cases, and that Kansas wanted to attribute
this ineffectiveness to him (Sixth Issue). Mr. Roeder in his final scattershot claim also
alleges a violation of the Suspension Clause and seemingly challenges federal habeas
procedure writ large (Eighth Issue). Mr. Roeder seemingly martials every one of his
adverse decisions in support without new arguments as to why any of the district court’s
decisions are reasonably debatable. Because Mr. Roeder did not raise either claim in the
district court “we adhere to our general rule against considering issues for the first time
on appeal” and decline to address Mr. Roeder’s newly raised arguments. United States v.
Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).
Mr. Roeder also claims he is the victim of a pattern of legal indifference (Seventh
Issue). The district court held this claim was procedurally defaulted as the KCOA
deemed the issue waived for failing to brief it. I R. 59, 66. Failure to brief is an
independent and adequate state ground. See State v. Arnett, 413 P.3d 787, 790 (Kan.
2018) (deeming issues not briefed waived or abandoned). Mr. Roeder argues he did brief
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the issue before the KCOA in his pro se supplemental brief and merely wished to add
arguments to his claim in a reply brief. However, Mr. Roeder’s supplemental brief
offered no legal analysis other than to say that the denial of his right to be physically
present with counsel at his initial appearance was one example of the deliberate legal
indifference he suffered. Thus, any substantive briefing in support of the claim was only
contained in the reply brief. And, as the district court pointed out, Kansas courts need not
consider arguments not raised until a reply brief even if a broader issue has been raised. I
R. 66; see also Thoroughbred Assocs., LLC v. Kansas City Royalty Co., 469 P.3d 666,
681 (Kan. Ct. App. 2020). Thus, the district court’s decision that this claim is
procedurally defaulted is not reasonably debatable. Nor is the district court’s conclusion
that Mr. Roeder has not shown cause and prejudice or a miscarriage of justice to excuse
his procedural fault. 1 Supp. R. 19–20; I R. 60–61, 66.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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