Conley v. McKune, 10th Cir. (2005)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
September 29, 2005

Clerk of Court
ANTHONY DEAN CONLEY,

Petitioner-Appellant,
v.
DAVID MCKUNE; PHILL KLINE,
Attorney General of Kansas,
No. 05-3068
(D.C. No. 04-CV-3144-KHV)
(Kansas)
Respondents-Appellees.
ORDER *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Anthony D. Conley applies pro se 1 for a certificate of appealability (COA)
of the district courts denial of his petition for writ of habeas corpus under 28
U.S.C. 2254. Exercising jurisdiction under 28 U.S.C. 2253(c)(1), we deny a
COA and dismiss the appeal.
On August 7, 1998, a jury found Mr. Conley guilty of first degree murder in
After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
*
We liberally construe Mr. Conleys pro se application. See Hall v. Scott,

292 F.3d 1264, 1266 (10th Cir. 2002).
1
violation of K.S.A. 21-3401(a). He was sentenced to life in prison with no

possibility of parole for forty years. The Kansas Supreme Court affirmed and the
United States Supreme Court denied his petition for a writ of certiorari. Mr.
Conley then filed a motion for state post-conviction relief, which was
subsequently denied by the trial court and the Kansas Court of Appeals. He did
not seek review of that decision in the Kansas Supreme Court. Instead, Mr.
Conley petitioned the federal district court for a writ of habeas corpus, which it
denied initially and after Mr. Conleys motion to reconsider. 2 In support of his
application for a COA, Mr. Conley asserts the criminal complaint against him was
jurisdictionally defective because it lacked a penalty provision. As a result, he
argues, the maximum authorized sentence was zero and the sentence he received
violated Apprendi v. New Jersey, 530 U.S. 466 (2000). 3
Issuance of a COA is jurisdictional, Miller-El v. Cockrell, 537 U.S. 322
(2003), and can issue only if the applicant has made a substantial showing of the
denial of a constitutional right, 28 U.S.C. 2253(c)(2). A petitioner satisfies
The district court did not act on the issue of a certificate of appealability,
and it is therefore deemed denied. See United States v. Kennedy, 225 F.3d 1187,
1193 n.3 (10th Cir. 2000).
2
In his petition to the district court, Mr. Conley also claimed the affidavit
which supported the arrest warrant contained false elements, counsel was
ineffective, and the trial court denied his right to confront witnesses. He has not
raised these issues in his COA application, and we consider them abandoned. See
Tran. v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004).
3
-2-
this standard by demonstrating that jurists of reason could disagree with the
district courts resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further. Miller-El, 537 U.S. at 327. When a district court has dismissed a
habeas petition on procedural grounds, a prisoner must also show that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The COA
determination under 2253(c) requires an overview of the claims in the habeas
petition and a general assessment of their merits. Miller-El, 537 U.S. at 336.
This threshold inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims. In fact, the statute forbids it. Id. While
Mr. Conley is not required to prove the merits of his case, he must demonstrate
something more than the absence of frivolity or the existence of mere good
faith on his part. Id. at 338 (internal quotations and citation omitted).
The district court dismissed Mr. Conleys claim regarding an alleged
defective complaint because it determined the claim was procedurally defaulted.
A state prisoner may not petition for federal habeas corpus relief unless it
appears that . . . the applicant has exhausted the remedies available in the courts
of the State. 28 U.S.C. 2254(b)(1)(A). Exhaustion of the federal issue is
satisfied if it has been properly presented to the highest state court, either by
-3-
direct review of the conviction or in a post-conviction attack. Dever v. Kan. State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Mr. Conley contends the issue was properly exhausted because on direct
appeal he argued the Kansas sentencing scheme violated Apprendi, and that
argument was presented to the Kansas Supreme Court. But in his direct appeal,
he contended Apprendi was violated because he was denied a jury determination
of the facts necessary to sentence him to forty years without parole. In his federal
habeas petition, however, Mr. Conley claims that the criminal complaint against
him contained jurisdictional defects resulting in a violation of Apprendi. He thus
essentially made two distinct Apprendi arguments. He raised the jurisdictional
defect issue in his post-conviction proceedings, but then failed to properly present
that claim to the highest court of Kansas. Because the time for appeal has passed,
the district court concluded the claim was procedurally defaulted. We agree that
Mr. Conley failed to properly exhaust the issue of the defective complaint and it
is now procedurally barred.
The procedural default doctrine precludes federal habeas review of Mr.
Conleys unexhausted claim unless he shows (1) both cause and prejudice or (2) a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749
(1991). Mr. Conley contends his state appointed post-conviction counsel failed to
advise him of the statute of limitations for his post-conviction appeal to the
-4-
Kansas Supreme Court, which resulted in his missing the deadline and not
presenting all his issues to the highest court in the state. Accordingly, he
contends his attorneys incompetence is the cause of the procedural default
resulting in prejudice. But there is no constitutional right to counsel in collateral
proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and therefore a
failure of post-conviction counsel resulting in procedural default cannot
constitute cause to excuse default in federal habeas. Coleman, 501 U.S. at 757.
Mr. Conley does not assert a fundamental miscarriage of justice and would not
succeed had he done so. See McClesky v. Zant, 499 U.S. 467, 494 (1991) (cases
involving a fundamental miscarriage of justice are extraordinary instances when
a constitutional violation probably has caused the conviction of one innocent of
the crime). Consequently, we agree with the district court that he has
procedurally defaulted his defective complaint claim for purposes of federal
habeas review.
We have carefully reviewed the record of these proceedings and the order
of the district court. We adopt the district courts reasoning and conclude that
reasonable jurists would not debate its procedural ruling. We DENY the request
for a certificate of appealability, and DISMISS the appeal.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
-5-

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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

September 29, 2005

ANTHONY DEAN CONLEY,

We liberally construe Mr. Conleys pro se application. See Hall v. Scott,

violation of K.S.A. 21-3401(a). He was sentenced to life in prison with no

direct review of the conviction or in a post-conviction attack. Dever v. Kan. State

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