CA10 — memorandum dispositions

Bowen v. Kansas, No. 08-3022 — The court vacated a COA as improvidently granted and dismissed an appeal in a § 2254 case.  The petitioner was arrested when police arrived to serve an outstanding warrant; they discovered significant evidence of a methamphetamine manufacturing operation, including a book entitled Secrets of Methamphetamine Manufacture.  After the Kansas Court of Appeals ordered a hearing on an IAC claim, it reversed and remanded for a new trial.

At the new trial, new counsel and the prosecution agreed to have a bench trial on stipulated facts — the transcript of the first trial minus the petitioner’s testimony, so that he could retain his right not to testify on his own behalf.  The petitioner invoked this right, and he was again convicted and sentenced, although his second sentence was 12 months less than his first.  (Both sentences were in excess of 25 years.)  The state courts affirmed the second conviction on direct review.

In state post-conviction proceedings, the petitioner argued that he had never voluntarily waived his right to jury trial and that his trial counsel never explained the terms of the stipulation to him.  Trial counsel continued to represent him on direct appeal, and refused to raise these claims.  The Kansas Court of Appeals deemed these claims to be procedurally barred because he could have raised them on direct review, and the Kansas Supreme Court denied review.

The petitioner pressed his two state post-conviction claims in federal court, and ultimately the Tenth Circuit certified for appeal the claim regarding the waiver of the jury trial.  The court ruled it was procedurally defaulted.  The failure to raise a “trial error” such as the voluntariness of waiving a jury trial was an independent and adequate basis for denying relief; for this proposition, the Tenth Circuit cited two prior unpublished dispositions of the court.  Nor was the fact that direct appeal counsel was the same lawyer as trial counsel “cause” to excuse the procedural default.  To the extent that that fact goes to ineffectiveness, Edwards v. Carpenter, 529 U.S. 446 (2000), did not allow the court to lift the default because the ineffectiveness claim was unexhausted.

Pierce v. Romero, No. 08-2005 — The court denied a COA and dismissed an appeal because the notice of appeal was not timely filed.  The district court denied judgment on November 20, 2007, and the petitioner averred that he mailed his notice of appeal to the U.S. Court of Appeals for the Federal Circuit on December 14, 2007.  The Federal Circuit did not transfer the notice of appeal to the U.S. District Court for the District of New Mexico, the court in which it could properly have been filed.  Instead, it returned the notice to the petitioner, who refiled it in the district court on December 28, 2007.  The rule allowing for transfer of notices of appeal filed in the wrong court, 28 U.S.C. § 1631, did not apply because the Federal Circuit did not deem the notice of appeal “filed.”  Accordingly, the appeal was not timely.