                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                        September 28, 2017
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
BENJAMIN APPLEBY,

      Petitioner - Appellant,

v.                                                         No. 17-3002
                                                  (D.C. No. 5:15-CV-03038-JTM)
SAM CLINE, Warden; ATTORNEY                                  (D. Kan.)
GENERAL OF KANSAS,

      Respondents - Appellees.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

      Benjamin Appleby, a Kansas prisoner, seeks a certificate of appealability

(COA) to challenge the district court’s denial of his habeas petition filed under

28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be

taken from a final order denying a § 2254 petition unless the petitioner obtains a

COA). We deny a COA and dismiss the appeal.


      *
         After examining the brief 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
ordered submitted without oral argument. This order is not binding precedent, except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.
                                            I

      A Kansas jury convicted Mr. Appleby for the 2002 capital murder and

attempted rape of a 19-year-old college student. After the murder, Mr. Appleby fled

Kansas and eventually was apprehended in Connecticut in 2004. He was arrested by

Connecticut police on an outstanding warrant from 1998 on unrelated charges—risk

of injury to a minor, disorderly conduct, and public indecency. See State v. Appleby,

221 P.3d 525, 532, 538-39 (Kan. 2009). Kansas detectives were present for the arrest

and questioned Mr. Appleby, who confessed to committing both the murder and the

attempted rape. The state trial court sentenced him to a life sentence without the

possibility of parole for 50 years (“hard 50”) on the capital murder conviction and a

consecutive 19-year term on the attempted rape conviction. On direct appeal, the

Kansas Supreme Court vacated as multiplicitous the attempted rape conviction and

sentence but otherwise affirmed. Mr. Appleby unsuccessfully sought post-conviction

relief in the state courts and then filed a federal habeas petition under 28 U.S.C.

§ 2254.

      Relevant here, Mr. Appleby claimed that (1) submitting his confession to the

jury violated his Fifth and Fourteenth Amendment rights against compelled

self-incrimination; (2) Kansas’s hard 50 sentencing scheme violates Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151

(2013), because it permits sentencing courts to find aggravating factors by a

preponderance of the evidence; (3) trial and appellate counsel were ineffective in

failing to raise suppression issues based on arguments that (a) the Connecticut

                                            2
warrant was stale and (b) the Kansas detectives acted outside of their geographic

jurisdiction; and (4) trial and appellate counsel were ineffective in failing to present

evidence from a mental health expert and raising the issue on appeal. The district

court determined these claims, all of which the state courts rejected on the merits, did

not warrant relief. Mr. Appleby now seeks a COA from this court.

                                            II

      A COA is a jurisdictional prerequisite to our review. See 28 U.S.C.

§ 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a

COA, a petitioner must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This requires a petitioner to demonstrate “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.” Miller-El, 537 U.S. at 336

(internal quotation marks omitted).

      Because the state courts denied Mr. Appleby’s claims on the merits, the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “requires federal

courts to give significant deference to [the] state court decisions.” Lockett v.

Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). Under AEDPA, a petitioner is not

entitled to federal habeas relief unless the state-court decisions were “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or were “based on an

unreasonable determination of the facts in light of the evidence presented in the State

                                            3
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “A state-court decision is contrary to

clearly established federal law under 28 U.S.C. § 2254(d)(1) if it applies a rule that

contradicts the governing law set forth in Supreme Court cases or confronts a set of

facts that are materially indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from that precedent.” Smith v. Duckworth,

824 F.3d 1233, 1241 (10th Cir. 2016) (internal quotation marks omitted),

cert. denied, 137 S. Ct. 1333 (2017). “A state-court decision is an unreasonable

application of Supreme Court precedent if the decision correctly identifies the

governing legal rule but applies it unreasonably to the facts of a particular prisoner’s

case.” Id. (internal quotation marks omitted). A state court’s factual determinations

are presumed correct and are rebuttable only by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). We consider only “the record that was before the state court

that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181

(2011).

      A. Confession

      Mr. Appleby first claims that submitting his confession to the jury violated his

Fifth and Fourteenth Amendment rights against compelled self-incrimination because

he confessed after repeatedly asking about an attorney. During the book-in process

on the Connecticut charges, and before ever speaking with the Kansas detectives or

even knowing they were present, Mr. Appleby asked a Connecticut detective if he

could speak to an attorney about refusing to submit to a DNA swab; three other times

during the book-in process on the Connecticut charges, he asked more generally if he

                                            4
would have an opportunity to speak with an attorney. But once he was transferred to

the Kansas detectives, Mr. Appleby agreed to answer their questions about the

murder, waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966),

and gave the Kansas detectives a two-and-a-half hour interview without requesting to

speak with or have the assistance of an attorney.

      The Kansas Supreme Court rejected this claim on direct appeal, and the federal

district court denied habeas relief, concluding that the Kansas Supreme Court applied

legal standards consistent with federal law in a reasonable manner.1 Under the

controlling COA standards, no reasonable jurist could debate the district court’s

resolution of the claim.

      Initially, the district court noted that the Kansas Supreme Court reasonably

applied Davis v. United States, 512 U.S. 452 (1994), in declining to broadly construe

any mention of an attorney as a request for counsel for purposes of interrogation. In

Davis, the Supreme Court held that a “suspect must unambiguously request counsel.”

Id. at 459. As the Court explained, “if a suspect makes a reference to an attorney that

is ambiguous or equivocal in that a reasonable officer in light of the circumstances

would have understood only that the suspect might be invoking the right to counsel,

our precedents do not require the cessation of questioning.” Id. In light of Davis, the


      1
        Mr. Appleby asserts the Kansas Supreme Court’s decision was contrary to, or
involved an unreasonable application of, Davis v. United States, 512 U.S. 452 (1994);
McNeil v. Wisconsin, 501 U.S. 171 (1991); Minnick v. Mississippi, 498 U.S. 146
(1990); Arizona v. Roberson, 486 U.S. 675 (1988); Smith v. Illinois, 469 U.S. 91
(1984); Edwards v. Arizona, 451 U.S. 477 (1981); and Miranda.

                                           5
Kansas Supreme Court evaluated the circumstances of Mr. Appleby’s inquiries to

determine whether he invoked his Fifth Amendment right to counsel and, applying

McNeil v. Wisconsin, 501 U.S. 171 (1991), and Montejo v. Louisiana, 556 U.S. 778

(2009), concluded he did not.

      In McNeil, the Supreme Court distinguished the Sixth Amendment right to

counsel in criminal prosecutions from the Fifth Amendment right to counsel to assist

with custodial interrogations. “The Sixth Amendment right,” the Court explained, is

“offense specific” and “cannot be invoked once for all future prosecutions.”

501 U.S. at 175. But the right to counsel emanating from the Fifth Amendment’s

guarantee against compelled self-incrimination is intended “to counteract the

inherently compelling pressures of custodial interrogation.” Id. at 176 (internal

quotation marks omitted). Although it is not offense specific, given its purpose, it is

invoked “only when the suspect has expressed his wish for the particular sort of

lawyerly assistance that is the subject of Miranda.” Id. at 178 (brackets and internal

quotation marks omitted). The suspect must express “a desire for the assistance of an

attorney in dealing with custodial interrogation by the police.” Id.

      Building on McNeil, the Montejo Court dismissed concerns that a suspect

could anticipatorily invoke his Fifth Amendment right to counsel at a preliminary

hearing, in advance of interrogation:

      “We have in fact never held that a person can invoke his Miranda rights
      anticipatorily, in a context other than ‘custodial interrogation’ . . . .”
      McNeil, 501 U.S. at 182 n.3. What matters for Miranda and Edwards
      [v. Arizona, 451 U.S. 477 (1981),] is what happens when the defendant
      is approached for interrogation, and (if he consents) what happens

                                           6
      during the interrogation—not what happened at any preliminary
      hearing.

556 U.S. at 797.

      Applying these authorities, the Kansas Supreme Court analyzed the timing,

content, and context of Mr. Appleby’s inquiries and concluded that he failed to

unambiguously invoke his Fifth Amendment right to counsel for purposes of

interrogation on the Kansas charges. See Appleby, 221 P.3d at 542, 548. As the

district court observed, the Kansas Supreme Court determined that Mr. Appleby’s

request for counsel in response to the DNA swab sought only limited assistance for

purposes of refusing the DNA swab, not to assist with his custodial interrogation.

See id. at 542. His other references to an attorney, the Kansas Supreme Court ruled,

generally inquired during the book-in process on the Connecticut charges whether he

would have an opportunity to talk to a lawyer. See id. at 548. At that time, he did

not know about the Kansas case, nor had he been questioned on any charges from

either Connecticut or Kansas. Id. Moreover, the Connecticut detective to whom he

inquired told him that someone else would be questioning him. Id. Under these

circumstances, the district court concluded that the Kansas Supreme Court’s decision

was consistent with, and a reasonable application of, federal law. No reasonable

jurist could debate the district court’s conclusion. Consequently, Mr. Appleby fails

to show he is entitled to a COA on this claim.2


      2
        Mr. Appleby refers in passing to what he asserts is the Kansas Supreme
Court’s unreasonable determination of the facts. Citing testimony he gave later at his
                                                                          (continued)
                                          7
      B. Hard 50 Sentencing Scheme Under Apprendi

      Mr. Appleby was sentenced to life in prison without the possibility of parole

for 50 years under Kansas’s hard 50 sentencing scheme, which at the time permitted

sentencing courts to find aggravating circumstances based on a preponderance of the

evidence. On direct appeal, he claimed the hard 50 sentence violated Apprendi,

530 U.S. at 490, which held that other than a prior conviction, any fact that increases

the maximum sentence is an element of the offense that must be submitted to the jury

and proven beyond a reasonable doubt. The Kansas Supreme Court rejected

Mr. Appleby’s claim in its 2009 decision, holding that Kansas’s hard 50 sentencing

scheme was constitutional because it enhanced the minimum sentence a defendant

must serve, without exposing a defendant to a greater maximum sentence.

See Appleby, 221 P.3d at 558 (citing State v. Johnson, 159 P.3d 161, 166

(Kan. 2007)). Nearly four years later, the Supreme Court extended Apprendi to

require that any fact that increases the mandatory minimum sentence is an element

that must be submitted to a jury and proven beyond a reasonable doubt. Alleyne,

133 S. Ct. at 2155. Mr. Appleby now seeks a COA, claiming the Kansas Supreme

Court’s decision is contrary to, or an unreasonable application of, Apprendi and

Alleyne.


state post-conviction evidentiary hearing, he says he asked to call his lawyer as soon
as he was brought into the interrogation room and realized he was being questioned
about the Kansas case. We decline to consider this issue because Mr. Appleby did
not raise it in the district court. See Ochoa v. Workman, 669 F.3d 1130, 1146 n.15
(10th Cir. 2012).

                                           8
         We deny a COA on this claim because no reasonable jurist could debate the

district court’s conclusion that federal courts measure the state-court decisions

against Supreme Court precedent “as of the time the state court renders its decision.”

Cullen, 563 U.S. at 182 (internal quotation marks omitted); see Smith, 824 F.3d at

1241 (“In analyzing a state-court decision’s compliance with clearly established

federal law, we measure the decision against the governing legal principle or

principles set forth by the Supreme Court at the time the state court renders its

decision.”). When the Kansas Supreme Court adjudicated this claim in 2009, its

decision complied with Apprendi; Alleyne was not decided until nearly four years

later.

         C. Ineffective Assistance

         We turn now to Mr. Appleby’s ineffective-assistance claims, which were

rejected by the state courts on post-conviction review. Under Strickland v.

Washington, 466 U.S. 668 (1984), Mr. Appleby “must show both that his counsel’s

performance fell below an objective standard of reasonableness and that the deficient

performance prejudiced the defense.” Hooks v. Workman, 689 F.3d 1148, 1186

(10th Cir. 2012) (internal quotation marks omitted). “These two prongs may be

addressed in any order, and failure to satisfy either is dispositive.” Id. “Surmounting

this high bar is not an easy task,” and “[a] state prisoner in the § 2254 context faces

an even greater challenge.” Id. at 1187 (internal quotation marks omitted). In the

§ 2254 context, a federal court must “defer to the state court’s determination that

counsel’s performance was not deficient and, further, defer to the attorney’s decision

                                            9
in how to best represent a client.” Id. (brackets and internal quotation marks

omitted). Thus, habeas review of counsel’s performance is “doubly deferential.”

Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). To show prejudice, a

prisoner “must demonstrate a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Premo v. Moore, 562 U.S. 115, 122 (2011) (internal quotation marks omitted).

       1. Suppression Arguments

       Mr. Appleby contends his trial and appellate attorneys were ineffective in

failing to raise suppression arguments based on the outstanding Connecticut warrant

from 1998 and the extra-jurisdictional work of the Kansas detectives. Reasonable

jurists could not debate the district court’s denial of relief on these claims because in

each instance, the Kansas Court of Appeals reasonably applied Strickland in

concluding that Mr. Appleby failed to show either that counsel’s performance was

deficient or that he was prejudiced.

              a. Outstanding Warrant

       The state courts rejected Mr. Appleby’s claims that his attorneys were

ineffective in failing to seek the suppression of evidence based on the delay in

executing the Connecticut warrant from 1998. The Kansas Court of Appeals ruled

that even if his trial attorneys acted deficiently in failing to pursue this theory,

Mr. Appleby showed no prejudice because his arrest was legal, given that he caused

the delay by eluding Connecticut authorities to prevent them from executing the

warrant. See Appleby v. State, No. 108,777, 2014 WL 801921, at *13-15 (Kan. Ct.

                                            10
App. 2014) (per curiam) (unpublished). The court explained that delay in executing

an arrest warrant may be reasonable under Connecticut law if a suspect “consciously

eluded the authorities[] or for other reasons was difficult to apprehend.” Id. at *13

(internal quotation marks omitted). The court then detailed Mr. Appleby’s efforts to

evade the Connecticut police, which included giving them his alias—Teddy

Hoover—and fleeing the state less than two months after he confessed to committing

the crime (risk of injury to a minor). Id. at *14. The court also described

information indicating that Mr. Appleby had been in Connecticut, Missouri, and

Kansas, and possibly Nevada and Texas as well, using both his real name and his

alias. Id. Thus, the court concluded that the delay in executing his warrant was not

unreasonable and his stale-warrant argument failed. Id. at *14-15.

      The district court, citing the Kansas Court of Appeals’ conclusion that any

motion to suppress based on staleness would have failed, determined that the Kansas

Court of Appeals reasonably applied Strickland. This conclusion is not subject to

reasonable debate because the outstanding-warrant determination, which precluded

Mr. Appleby from showing the result of the proceedings would have been different,

reasonably applied Strickland’s prejudice prong.

      Also, absent evidence that Mr. Appleby’s appellate counsel unreasonably

declined to raise this issue on appeal or that Mr. Appleby was prejudiced by her

failure to do so, the Kansas Court of Appeals determined that appellate counsel was

not ineffective in failing to challenge the warrant on direct appeal. Id. at *20. The



                                          11
district court concluded this was a reasonable application of Strickland. Again,

jurists of reason could not debate the district court’s conclusion.

                b. Geographic Jurisdiction of Kansas Detectives

      Mr. Appleby also contends his attorneys were ineffective in failing to pursue

suppression issues based on the Kansas detectives’ extra-jurisdictional work in

Connecticut. The Kansas Court of Appeals examined the relevant Kansas statute,

which authorized officers to exercise their police powers anywhere their assistance is

requested or when they are in fresh pursuit. Id. at *15. The court observed that trial

counsels’ performance was not objectively unreasonable in failing to object on this

basis because they sought to suppress evidence from his interview on numerous other

grounds. Id. at *15-16. Further, the court concluded that Mr. Appleby was not

prejudiced because the statute did not prohibit the Kansas detectives from

questioning him in Connecticut, and although the Kansas detectives collaborated with

Connecticut officers, it was Connecticut officers who executed the warrant, which

was issued by that state, in that state, for charges filed in that state, and Mr. Appleby

agreed to talk with the Kansas detectives. Id. at *18. Additionally, the court noted

the lack of any evidence either that appellate counsel was deficient in failing to raise

this issue on appeal or that Mr. Appleby was prejudiced by her failure to do so.

Under these circumstances, the district court determined that this, too, was a

reasonable application of Strickland, both as it relates to trial counsel and appellate

counsel. Again, no reasonable jurist would debate the district court’s resolution of

these claims.

                                           12
      2. Mental Health Expert

      Finally, Mr. Appleby contends his trial counsel rendered ineffective assistance

by failing to proffer the testimony of Dr. George Hough, a clinical psychologist and

mental health expert. Before trial, Dr. Hough diagnosed Mr. Appleby with

intermittent explosive disorder and antisocial personality disorder. According to

Mr. Appleby, Dr. Hough’s testimony would have supported his theory of defense that

he lacked the requisite intent of premeditation to commit capital murder due to a

mental disease or defect. The Kansas Court of Appeals rejected this claim and

concluded that defense counsel’s decision not to call Dr. Hough failed to satisfy

either prong of the Strickland test. Id. at *10-11. Here again, no reasonable jurist

could debate the district court’s conclusion that the Kansas Court of Appeals

reasonably applied Strickland.

      In evaluating counsel’s performance, courts “apply a strong presumption that

counsel’s representation was within a wide range of reasonable professional

assistance.” Premo, 562 U.S. at 121. Consistent with this standard, the Kansas Court

of Appeals concluded there were several reasons why trial counsel acted reasonably

in declining to call Dr. Hough. First, Mr. Appleby’s trial attorney did not believe his

diagnosis of antisocial personality disorder would benefit their case, and indeed,

Dr. Hough acknowledged that his testimony would not be helpful. See Appleby,

2014 WL 801921, at *10. Second, Dr. Hough refused to offer an opinion whether

Mr. Appleby could form the requisite criminal intent of premeditation and counsel

believed there was other evidence that Mr. Appleby did form the requisite intent. Id.

                                          13
Third, co-counsel agreed that Dr. Hough could be a detrimental witness and that the

better strategy was to attack the prosecution’s timeline of events. Id. Last,

Mr. Appleby’s trial attorneys consulted with a nationally recognized capital defense

attorney, who concurred that Dr. Hough’s testimony would not benefit the defense.

Id. Under these circumstances, the Kansas Court of Appeals determined that

counsels’ strategy not to call Dr. Hough was not so unreasonable as to fall outside of

prevailing professional norms. Id. Further, the court determined there was no

evidence that appellate counsel was ineffective in failing to raise this issue on appeal.

Id. at *20.

       The district court concluded that the Kansas Court of Appeals’ decision

reasonably applied Strickland’s deficient-performance prong as it related to trial

counsel and also reasonably applied the relevant Strickland standards to deny the

claims of ineffective assistance of appellate counsel. Because the district court’s

conclusions are not subject to reasonable debate, Mr. Appleby is not entitled to a

COA.

                                           III

       Accordingly, we deny a COA and dismiss this appeal.


                                            Entered for the Court

                                            Jerome A. Holmes
                                            Circuit Judge




                                           14
