MARVIN B. DAVIS, Jr., Petitioner - Appellant,
RAY ROBERTS; STEVE KOBACH, Respondents - Appellees.
(D.C. No. 5:12-CV-03075-SAC) (D. Kansas)
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
STEPHEN H. ANDERSON CIRCUIT JUDGE
Marvin B. Davis, Jr., proceeding pro se, seeks a Certificate of Appealability ("COA") in order to appeal the denial of his 28 U.S.C. § 2254 proceeding. Concluding that Mr. Davis has failed to establish entitlement to the issuance of a COA, we deny him a COA and dismiss this matter.
Mr. Davis is no stranger to our court, having filed thirteen appeals in our court since 2000. And although Mr. Davis has accumulated three "strikes" under the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g), we have determined that the prepayment fee requirements of the PLRA do not apply to attempted habeas appeals such as this one. Jennings v. Natrona Cty Det. Ctr. Med. Facil., 175 F.3d 775, 780 (10th Cir. 1999).
Mr. Davis was convicted in Kansas state court in 1997 of aggravated burglary, aggravated kidnaping, domestic violence, and aggravated indecent liberties with a minor. He was sentenced to 230 months' imprisonment. As stated in one of the decisions resolving Mr. Davis's numerous post-conviction applications, the "conviction for aggravated indecent liberties with a child was founded upon consensual intercourse with a 15-year-old girl. The other convictions were founded upon a domestic altercation between Davis and C.S., his common-law wife." Davis v. State, 155 P.3d 744 (Kan. App. 2007) (unpublished). In 1999, the Kansas Court of Appeals affirmed. Starting in 2000, Mr. Davis filed many motions and appeals seeking post-conviction relief, none of which was successful.
Mr. Davis filed the instant § 2254 application in 2012, alleging some ten issues challenging, inter alia, the sufficiency of the evidence supporting his convictions, alleging ineffective assistance of counsel, and claiming he was denied a fair trial in various ways. The district court denied his petition in a thirty-two page memorandum carefully analyzing his claims under the standards provided by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
The district court began by noting that AEDPA "erects a formidable barrier to federal habeas relief." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). It "requires federal courts to give significant deference to state court decisions" on the merits. Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013); see also Hooks v. Workman, 689 F.3d 1148, 1162-63 (10th Cir. 2012) ("This highly deferential standard for evaluating state-court rulings demands state-court decisions be given the benefit of the doubt." (quotation marks omitted)). Moreover, "AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of a habeas petitioner's request for COA." Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
Under AEDPA, where a state court addresses the merits of a habeas claim brought by a state prisoner, a federal court may grant habeas relief only if it determines that the state court proceedings resulted in a decision that (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "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). See Harrington v. Richter, 131 S.Ct. 770, 783-84 (2011).
"Clearly established law is determined by the United States Supreme Court, and refers to the Court's holdings, as opposed to the dicta." Lockett, 711 F.3d at 1231 (further quotation omitted). A state court decision is "contrary to" the Supreme Court's clearly established precedent "if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002) (further quotation omitted).
A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct legal rule from Supreme Court case law, but unreasonably applies that rule to the facts. Williams v. Taylor, 529 U.S. 362, 407-08 (2000). Similarly, a state court unreasonably applies federal law when it either unreasonably extends, or refuses to extend, a legal principle from Supreme Court precedent where it should apply. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).
When a federal court, on habeas review, examines state criminal convictions, the federal court does not sit as a "super-appellate" court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable – a substantially higher threshold." Schiro v. Landrigan, 550 U.S. 465, 473 (2007). In making this assessment, we review the factual findings of the state court for clear error, reviewing only the record that was before the state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Finally, we note, as did the district court, that a writ of habeas corpus may issue only when the petitioner shows "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Richter, 131 S.Ct. at 786. "Thus, even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable." Id. "If this standard is difficult to meet – and it is – that is because it was meant to be." Titlow, 134 S.Ct. at 16; see Frost v. Pryor, 749 F.3d 1212, 1222-23 (10th Cir. 2014). Indeed, "AEDPA stops just 'short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.'" Frost, 749 F.3d at 1223 (quoting Richter, 131 S.Ct. at 786).
The district court applied that rigorous standard to the ten issues Mr. Davis brought in his habeas petition. Accordingly, the district court determined as follows, with respect to Mr. Davis's claims:
(1) Insufficient evidence:
Mr. Davis first claimed that insufficient evidence supported his convictions for aggravated indecent liberties with a child and aggravated kidnaping. The district court found this claim procedurally barred because it was not fairly presented to the Kansas Supreme Court and would now be untimely under Kansas's procedural rules. The court determined further that Mr. Davis failed to assert and show either cause for the default and prejudice stemming therefrom, or that a fundamental ...