SAMUEL L. REED, Petitioner-Appellant,
SAM CLINE; ATTORNEY GENERAL OF KANSAS, Respondents-Appellees.
No. 5:16-CV-03208-DDC) (D. Kan.)
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz Circuit Judge.
Samuel L. Reed seeks a certificate of appealability (COA) to
appeal the denial of his application for relief under 28
U.S.C. § 2254 by the United States District Court for
the District of Kansas. See 28 U.S.C. §
2253(c)(1)(A) (requiring COA to appeal denial of relief under
§ 2254). We deny the request for a COA and dismiss this
a Kansas state-court jury convicted Applicant of attempted
first-degree murder. His conviction was upheld on review by
the state appellate courts, and the United States Supreme
Court denied his petition for a writ of certiorari. He filed
his timely but unsuccessful § 2254 application in
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right."
Id. § 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) (internal
quotation marks omitted). In other words, the applicant must
show that the district court's resolution of the
constitutional claim was either "debatable or
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
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 Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id.
(brackets and internal quotation marks omitted). Thus, a
federal court may not grant relief 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. See id.
Therefore, if an applicant's claims have been adjudicated
on the merits in state court, "AEDPA's 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.
of Applicant's claims assert ineffective assistance of
trial counsel. To establish ineffective assistance, Applicant
first has the burden of overcoming "a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance, " Strickland v.
Washington, 466 U.S. 668, 689 (1984), by demonstrating
that his counsel's performance fell below "an
objective standard of reasonableness, " id. at
688. Second, Applicant must demonstrate "that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. We can
consider the performance and prejudice prongs in either
order; if Applicant fails to meet his burden on one prong, we
need not consider the other. See id. at 697.
of Applicant's claims concern Amos Becknell,
Applicant's purported victim. After Becknell told the
prosecution at trial that he would not testify, the court
requested "some direct feedback on the record as to his
willingness to testify." State v. Reed, 352
P.3d 530, 534 (Kan. 2015) (brackets omitted). When the
prosecution reported that Becknell was unwilling to enter the
courtroom even for that purpose, Applicant's trial
counsel suggested emptying the courtroom. The trial court
then questioned Becknell in the courtroom, with only
Applicant, counsel, and court personnel present. After
Becknell explained that he would not testify, the trial court
found Becknell unavailable as a witness and let the
prosecution read into evidence Becknell's prior testimony
from a preliminary hearing.
first complains that the closure of the courtroom violated
his right to a public trial under the Sixth Amendment (as
applied to the States under the Fourteenth Amendment). The
Kansas Supreme Court rejected this argument, saying that
"the district judge's inquiry into Becknell's
willingness to testify was not a part of the prosecution in
which [Applicant's] Sixth Amendment right to a public
trial was implicated." Reed, 352 P.3d at 542.
To prevail on this claim, Applicant must show that this
decision was contrary to, or unreasonably applied, United
States Supreme Court precedent. He fails to do so. The
one-page discussion of this argument in his appellate brief
refers to five Supreme Court opinions, none of which
establish that a court violates a defendant's
public-trial rights by using closed-courtroom questioning
merely to determine a witness's availability. See
Press-Enter. Co. v. Superior Court of California, Riverside
Cty., 478 U.S. 1, 10 (1986) (First Amendment right of
public access to criminal trials applies to preliminary
hearings); Waller v. Georgia, 467 U.S. 39, 46-48
(1984) (closing entire suppression hearing to public can
violate defendant's public-trial right); Press-Enter.
Co. v. Superior Court of California, Riverside Cty., 464
U.S. 501, 510-11 (1984) (First Amendment right of access to
criminal trials applies to voir dire of jury); Estes v.
Texas, 381 U.S. 532, 534-35 (1965) (televising
defendant's trial violated his Fourteenth Amendment
due-process rights); In re Oliver, 333 U.S. 257,
272-73, 276-78 (1948) (violation of due process where
one-person grand jury, proceeding in secret, charged a
grand-jury witness with contempt, convicted him, and
sentenced him to prison). No reasonable jurist could debate
that Applicant met his § 2254(d) burden on this
components of Applicant's second claim are that the trial
court erred in its unavailability finding because it failed
to issue an order requiring Becknell to testify and that his
trial counsel "was ineffective for failing to object to
the trial judge's determination that Becknell was
unavailable." R., Vol. I at 25 (capitalization omitted).
The Kansas Supreme Court rejected both claims, ruling that
the trial judge "did not abuse his discretion when he
determined Becknell was unavailable" and that
"[Applicant's] claim that his trial counsel was
ineffective for failing to object to that decision is without
merit." Reed, 352 P.3d at 544. With respect to
the unavailability ruling, Applicant cites only decisions of
this court and the Kansas Supreme Court. In our view they are
distinguishable, or even contrary to his position; but, in
any event, they are irrelevant to the inquiry under AEDPA.
Applicant must show that the decision of the Kansas Supreme
Court was contrary to, or an unreasonable application of,
holdings of the United States Supreme Court. He gives us
nothing to work on in that regard. No reasonable jurist could
debate that he has satisfied the AEDPA standard on that
Applicant prevail on the second component of this claim. The
Kansas Supreme Court, after upholding the trial court's
decision that Becknell was unavailable, drew the natural
conclusion that Applicant's trial counsel was not
ineffective for failing to object to that decision (after
all, a defendant is not prejudiced by counsel's failure
to raise an objection that would not succeed). Again,
Applicant provides no contrary ...