                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   September 29, 2008
                                   TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 MICHAEL KENNETH BOWEN,

          Petitioner-Appellant,
 v.                                                      No. 08-3022
 STATE OF KANSAS; ROGER                         (D.C. No. 06-CV-3341-WEB)
 WERHOLTZ, Secretary of                                 (D. Kansas)
 Corrections; JAY SHELTON, Warden,
 Norton Correctional Facility;
 ATTORNEY GENERAL OF
 KANSAS,

          Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, SEYMOUR, and PORFILIO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.



      *
        This order and judgment is not binding precedent, except under the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.
      Michael Kenneth Bowen was convicted of four methamphetamine-related

offenses under Kansas law. Bowen has now filed a petition for writ of habeas

corpus under 28 U.S.C. § 2254, arguing (1) that he did not voluntarily,

knowingly, or intelligently waive his right to a jury trial, and (2) ineffective

assistance of counsel. The district court addressed both of Bowen’s claims on the

merits and denied relief. We granted a certificate of appealability (“COA”) on

the jury trial waiver issue. We have jurisdiction under 28 U.S.C. § 1291 and 28

U.S.C. § 2253, and we now vacate the COA as improvidently granted and dismiss

the appeal as to all claims.

                                           I.

      On March 5, 1996, officers from the Ness County Sheriff’s Office entered a

residence in Ness City, Kansas, to serve outstanding arrest warrants on Bowen

and his girlfriend, Christine Ridpath. The outstanding arrest warrants were drug-

related, but they did not involve methamphetamine.

      Upon entering the residence, one of the officers detected an odor of iodine,

a chemical commonly used to manufacture methamphetamine. The officers

applied for, and received, a search warrant to search the residence for drugs and

items used in the process of manufacturing methamphetamine. The search of the

residence revealed bulk quantities or empty containers of ephedrine, iodine, lye,

paint thinner, acetone, and muriatic acid. All of these chemicals are precursors

for the manufacture of methamphetamine. The officers did not discover any red

                                          -2-
phosphorus—another precursor—but they did find a large number of matchbooks

with the striker plates removed, a common source of red phosphorus for

manufacturing methamphetamine. The officers also found a reaction vessel,

coffee filters, and a pipe and set of scales with traces of methamphetamine on

them. A book called “Secrets of Methamphetamine Manufacture,” and a diary

describing the preparation of a batch of methamphetamine, were likewise

discovered at the residence. The residence was located within 1000 feet of a

public school in Ness City.

      In a seven-count criminal complaint, Bowen was charged in Kansas state

court with various methamphetamine-related offenses. After a joint trial of

Bowen and Ridpath as to four of the counts, a jury convicted Bowen of

manufacturing methamphetamine within 1000 feet of a school, in violation of

Kan. Stat. Ann. § 65-4159 (Count 1); possession of methamphetamine within

1000 feet of a school, in violation of Kan. Stat. Ann. § 65-4160 (Count 2);

conspiracy to manufacture, or to assist in manufacturing, methamphetamine

within 1000 feet of a school, in violation of Kan. Stat. Ann. §§ 21-3302, 65-4159

(Count 3); and possession of drug paraphernalia, in violation of Kan. Stat. Ann. §

65-4152 (Count 4). Bowen was sentenced to a total of 330 months’

imprisonment.

      Bowen appealed his conviction to the Kansas Court of Appeals, arguing

that his trial counsel was constitutionally ineffective. The Kansas Court of

                                        -3-
Appeals remanded the case to the trial court for an evidentiary hearing to

determine whether Bowen had received ineffective assistance of counsel. The

trial court denied relief, concluding that Bowen had failed to establish that his

trial counsel’s performance was constitutionally ineffective. Bowen again

appealed, and the Kansas Court of Appeals determined that Bowen’s trial counsel

had been constitutionally ineffective because counsel’s joint representation of

Bowen and Ridpath created a conflict of interest. See State v. Bowen, 999 P.2d

286, 292-94 (Kan. Ct. App. 2000). The Kansas Court of Appeals reversed

Bowen’s conviction and remanded for a new trial. Id. at 294.

      Bowen was appointed new counsel, and the case was set for a second trial.

Prior to trial, Bowen’s counsel reached a procedural agreement with the Ness

County Attorney. The agreement provided that Bowen would give up his right to

a jury trial, and the trial court would conduct a bench trial on stipulated

facts—specifically, the trial transcript and evidence presented at the first trial,

minus Bowen’s testimony. Bowen would still retain the right to testify in his own

defense, if he so desired. In return, the Ness County Attorney agreed to leave

Bowen on bond until the completion of the state appellate process. At a hearing

on January 12, 2001, after Bowen’s counsel recited the terms of the agreement on

the record, the following exchange occurred:

      [BOWEN’S COUNSEL]: I believe Mr. Bowen understands that he
                         has a right to a jury trial, a right to have
                         this determined by jurors, which he would

                                          -4-
             in fact [be] giving up, and you would have
             to try both the facts and the law in this
             matter.

                   Obviously, I told Mr. Bowen and I
                   believe the law to be that were he to
                   do that, [he would] not [be] giving up
                   his rights to appeal, and to follow the
                   -- you know, to go through the
                   appellate process as far as it goes.

                   I suppose the Court had other
                   questions of Mr. Bowen and if the
                   Court needs to ask those.

                    ***

THE COURT:         Mr. Bowen, I’m sure you heard the
                   conversation your attorney has had
                   with the Court and with the
                   prosecutor -- the County Attorney?

MR. BOWEN:         Uh-huh.

THE COURT:         And you understand what [your
                   attorney] is saying?

MR. BOWEN:         Yes.

THE COURT:         He’s saying that we’re going to take
                   the trial transcript of the first trial
                   and that would be the stipulated facts
                   that would be presented to the Court.
                   The only thing that would be redacted
                   or taken [away] from that would be
                   your testimony.

                   You understand that? So that
                   everything else that went in at that
                   trial, the way I understand, would be
                   everything but your testimony at that

                     -5-
                                         trial.

01/12/01 Hearing, ROA at F38-F39.

      On February 1, 2001, the trial court reiterated the terms of the parties’

procedural agreement. The parties then stipulated to the testimony and other

evidence presented at the first trial—with the exception of Bowen’s testimony.

Bowen was given the opportunity, but chose not to testify. Both parties presented

closing arguments, and the trial court found Bowen guilty of the same four

counts. The trial court sentenced Bowen to 318 months’ imprisonment.

      Bowen again appealed his conviction to the Kansas Court of Appeals. The

same counsel who had represented him at the second trial also represented him on

appeal. Bowen argued that (1) the trial court erred in failing to suppress evidence

obtained pursuant to a search warrant; (2) the trial court erred in refusing to

conduct a new preliminary examination; (3) the evidence was insufficient to

support his conviction; and (4) Bowen and Ridpath were not afforded equal plea

agreement opportunities. The Kansas Court of Appeals rejected Bowen’s

arguments and affirmed his conviction, see State v. Bowen, No. 86-963, slip op.

1-7 (Kan. Ct. App. Feb. 28, 2003), and the Kansas Supreme Court denied review.

      Bowen then filed a state habeas motion in Kansas state court, pursuant to

Kan. Stat. Ann. § 60-1507. Bowen was represented by new counsel, and he raised

four issues: (1) ineffective assistance of counsel; (2) denial of his right to a jury

trial; (3) denial of his right to confront witnesses; and (4) the illegality of his

                                           -6-
sentence under State v. McAdam, 83 P.3d 161 (Kan. 2004). At an evidentiary

hearing, Bowen testified that he had never discussed or agreed to the waiver of

his right to a jury trial. He testified that he never intended to waive his right to a

jury trial, never signed any document waiving his right to a jury trial, and never

told the trial court that he waived his right to a jury trial. Bowen admitted that he

had been present at the hearing on January 12, 2001, but he stated that he had not

understood what was happening at the time. He also testified that he did not

remember his attorney stating the terms of the procedural agreement. Finally,

Bowen stated that he had wanted to appeal the jury trial issue on direct appeal,

but his trial counsel continued to represent him on direct appeal and refused to

raise the issue.

      The court denied Bowen’s state habeas motion, and the Kansas Court of

Appeals affirmed. The Kansas Court of Appeals held that Bowen’s second

argument—denial of his right to a jury trial—alleged a “trial error.” Bowen had

not raised this trial error in his direct appeal, and the court refused to consider it

on habeas. See Bowen v. State, No. 93-894, 2006 WL 2043021 (Kan. Ct. App.

July 1, 2006). The Kansas Supreme Court denied review.

      On December 11, 2006, Bowen filed a petition for writ of habeas corpus in

federal court under 28 U.S.C. § 2254. He raised two issues: (1) he did not

voluntarily, knowingly, or intelligently waive his right to a jury trial, and (2)

ineffective assistance of counsel. The government responded, arguing that (1)

                                           -7-
Bowen had procedurally defaulted on the jury trial waiver issue, and (2) Bowen

had failed to show ineffective assistance of counsel. The district court first

concluded that Bowen had exhausted both issues in state court. Then, the district

court denied Bowen’s claims on the merits, holding that (1) Bowen’s waiver of

his right to a jury trial was knowing, voluntary, and intelligent, and (2) Bowen

had failed to show ineffective assistance of counsel. The district court denied

Bowen a COA under 28 U.S.C. § 2253.

         Bowen appealed, and on April 11, 2008, we issued a COA on the following

issue:

         Whether Mr. Bowen’s waiver of his right to a jury trial was knowing,
         voluntary, and intelligent.

04/11/08 Order at 1. The government filed a response brief, again arguing that

Bowen procedurally defaulted on the jury trial waiver issue. Alternatively, the

government contends that Bowen’s decision to waive his right to a jury trial was

knowing, voluntary, and intelligent. Bowen has not filed a reply brief.

                                          II.

         Bowen has procedurally defaulted on the issue of whether the waiver of his

right to a jury trial was knowing, voluntary, and intelligent, and he has not shown

“cause and prejudice” sufficient to excuse the default. “Before a federal court

may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies

in state court. In other words, the state prisoner must give the state courts an


                                          -8-
opportunity to act on his claims before he presents those claims to a federal court

in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28

U.S.C. § 2254(b)(1)(A). “In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred unless the prisoner

can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501

U.S. 722, 750 (1991). “The procedural default doctrine and its attendant ‘cause

and prejudice’ standard are grounded in concerns of comity and federalism, and

apply alike whether the default in question occurred at trial, on appeal, or on state

collateral attack.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citations and

some internal quotation marks omitted).

      Bowen failed to raise the jury trial waiver issue on direct appeal from his

second trial. When he later attempted to raise the issue in his state habeas

motion, the Kansas Court of Appeals refused to consider it, citing Kan. Sup. Ct.

R. 183(c)(3). 1 Bowen’s failure to comply with Rule 183(c)(3) was an independent


      1
          Rule 183(c)(3) provides:

      [A] proceeding under [Kan. Stat. Ann. § 60-1507] cannot ordinarily
      be used as a substitute for direct appeal involving mere trial errors or
      as a substitute for a second appeal. Mere trial errors are to be
                                                                       (continued...)

                                          -9-
and adequate basis on which the Kansas Court of Appeals could reject Bowen’s

claim. See Love v. Roberts, 259 F. App’x 58, 60 (10th Cir. 2007) (unpublished)

(finding a procedural default where the defendant failed to comply with Rule

183(c)(3)); Nash v. McKune, 44 F. App’x 378, 382-84 (10th Cir. 2002)

(unpublished) (same).

      Further, Bowen cannot show “cause and prejudice” for his failure to raise

the jury trial waiver issue on direct appeal in Kansas state court. 2 Bowen argues

that he has established “cause” for the procedural default because “his appellate

and trial counsel were the same,” creating “a conflict of interest” that precluded

appellate counsel from “appeal[ing] or challeng[ing] his acts as trial counsel.”

Opening Br. at 7. As the government notes, Bowen’s argument here appears to be

“that appellate counsel was ineffective.” Gov’t Br. at 12-13.

      In Edwards, 529 U.S. at 451, the Supreme Court acknowledged that,

      1
       (...continued)
      corrected by direct appeal, but trial errors affecting constitutional
      rights may be raised even though the error could have been raised on
      appeal, provided there were exceptional circumstances excusing the
      failure to appeal.

Kan. Sup. Ct. R. 183(c)(3).
      2
         Bowen has not argued that we should excuse his procedural default
because “failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750. Nor could he. To satisfy the “fundamental
miscarriage of justice” exception, “a criminal defendant must make a colorable
showing of factual innocence.” Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir.
2000). A cursory review of the record indicates that Bowen is not factually
innocent of the crimes for which he was convicted.

                                        -10-
“[a]lthough we have not identified with precision exactly what constitutes ‘cause’

to excuse a procedural default, we have acknowledged that in certain

circumstances counsel’s ineffectiveness in failing properly to preserve the claim

for review in state court will suffice.” For ineffective assistance of counsel to

constitute “cause,” however, “the assistance must have been so ineffective as to

violate the Federal Constitution”—i.e., “ineffective assistance adequate to

establish cause for the procedural default of some other constitutional claim is

itself an independent constitutional claim.” Id. (emphasis omitted). As a result,

an ineffective assistance of counsel claim must itself “‘be presented to the state

courts as an independent claim before it may be used to establish cause for a

procedural default.’” Id. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 489

(1986)). If the ineffective assistance of counsel claim is procedurally defaulted, it

cannot be used to establish “cause” excusing procedural default of the other

constitutional claim, unless the defendant has also established “cause” excusing

default of the ineffective assistance of counsel claim. Id. at 453; see also Spears

v. Mullin, 343 F.3d 1215, 1256 (10th Cir. 2003); Johnson v. Gibson, 254 F.3d

1155, 1159-60 (10th Cir. 2001).

      Bowen raised an ineffective assistance of counsel claim in his state habeas

motion, but the claim did not encompass his counsel’s failure to challenge the

jury trial waiver on direct appeal. Nor has Bowen attempted to show “cause” for

his failure to raise this ineffective assistance of counsel claim in Kansas state

                                         -11-
court. Bowen, therefore, cannot establish “cause” excusing his procedural default

on the issue of whether the waiver of his right to a jury trial was knowing,

voluntary, and intelligent. See Edwards, 529 U.S. at 451-53.

                                         III.

      Finding that Bowen has procedurally defaulted on the issue of whether the

waiver of his right to a jury trial was knowing, voluntary, and intelligent, we

withdraw the prior grant of COA as improvidently granted. We likewise

conclude, for the same reasons as the district court, that Bowen has not made the

necessary showing for the issuance of a COA as to his ineffective assistance of

counsel claim. Accordingly, we VACATE this court’s grant of COA as to the

jury trial waiver claim, DENY the application for a COA as to the ineffective

assistance of counsel claim, and DISMISS the appeal as to all claims raised by

Bowen.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




                                         -12-
