                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                September 12, 2014
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court

 MARVIN B. DAVIS, Jr.,

              Petitioner – Appellant,
                                                        No. 14-3121
 v.                                            (D.C. No. 5:12-CV-03075-SAC)
                                                        (D. Kansas)
 RAY ROBERTS; STEVE KOBACH,

              Respondents – Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      Marvin B. Davis, Jr., proceeding pro se, seeks a Certificate of

Appealability (“COA”) in order to appeal the denial of his 28 U.S.C. § 2254

proceeding. Concluding that Mr. Davis has failed to establish entitlement to the

issuance of a COA, we deny him a COA and dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                 BACKGROUND

      Mr. Davis is no stranger to our court, having filed thirteen appeals in our

court since 2000. And although Mr. Davis has accumulated three “strikes” under

the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), we have

determined that the prepayment fee requirements of the PLRA do not apply to

attempted habeas appeals such as this one. Jennings v. Natrona Cty Det. Ctr.

Med. Facil., 175 F.3d 775, 780 (10th Cir. 1999).

      Mr. Davis was convicted in Kansas state court in 1997 of aggravated

burglary, aggravated kidnaping, domestic violence, and aggravated indecent

liberties with a minor. He was sentenced to 230 months’ imprisonment. As

stated in one of the decisions resolving Mr. Davis’s numerous post-conviction

applications, the “conviction for aggravated indecent liberties with a child was

founded upon consensual intercourse with a 15-year-old girl. The other

convictions were founded upon a domestic altercation between Davis and C.S.,

his common-law wife.” Davis v. State, 155 P.3d 744 (Kan. App. 2007)

(unpublished). In 1999, the Kansas Court of Appeals affirmed. Starting in 2000,

Mr. Davis filed many motions and appeals seeking post-conviction relief, none of

which was successful.

      Mr. Davis filed the instant § 2254 application in 2012, alleging some ten

issues challenging, inter alia, the sufficiency of the evidence supporting his

convictions, alleging ineffective assistance of counsel, and claiming he was

                                         -2-
denied a fair trial in various ways. The district court denied his petition in a

thirty-two page memorandum carefully analyzing his claims under the standards

provided by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”).

      The district court began by noting that AEDPA “erects a formidable barrier

to federal habeas relief.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). It “requires

federal courts to give significant deference to state court decisions” on the merits.

Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013); see also Hooks v.

Workman, 689 F.3d 1148, 1162-63 (10th Cir. 2012) (“This highly deferential

standard for evaluating state-court rulings demands state-court decisions be given

the benefit of the doubt.” (quotation marks omitted)). Moreover, “AEDPA’s

deferential treatment of state court decisions must be incorporated into our

consideration of a habeas petitioner’s request for COA.” Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004).

      Under AEDPA, where a state court addresses the merits of a habeas claim

brought by a state prisoner, a federal court may grant habeas relief only if it

determines that the state court proceedings resulted in a decision that (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” or (2)

“was based on an unreasonable determination of the facts in light of the evidence




                                          -3-
presented in the State court proceeding.” 28 U.S.C. § 2254(d). See Harrington v.

Richter, 131 S. Ct. 770, 783-84 (2011).

      “Clearly established law is determined by the United States Supreme Court,

and refers to the Court’s holdings, as opposed to the dicta.” Lockett, 711 F.3d at

1231 (further quotation omitted). A state court decision is “contrary to” the

Supreme Court’s clearly established precedent “if the state court applies a rule

different from the governing law set forth in [Supreme Court] cases, or if it

decides a case differently than [the Supreme Court has] done on a set of

materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002)

(further quotation omitted).

      A state court decision involves an unreasonable application of clearly

established federal law when it identifies the correct legal rule from Supreme

Court case law, but unreasonably applies that rule to the facts. Williams v.

Taylor, 529 U.S. 362, 407-08 (2000). Similarly, a state court unreasonably

applies federal law when it either unreasonably extends, or refuses to extend, a

legal principle from Supreme Court precedent where it should apply. House v.

Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).

      When a federal court, on habeas review, examines state criminal

convictions, the federal court does not sit as a “super-appellate” court. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “The question under AEDPA is

not whether a federal court believes the state court’s determination was incorrect

                                          -4-
but whether that determination was unreasonable – a substantially higher

threshold.” Schiro v. Landrigan, 550 U.S. 465, 473 (2007). In making this

assessment, we review the factual findings of the state court for clear error,

reviewing only the record that was before the state court. See Cullen v.

Pinholster, 131 S. Ct. 1388, 1398 (2011).

      Finally, we note, as did the district court, that a writ of habeas corpus may

issue only when the petitioner shows “there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with [the Supreme] Court’s

precedents.” Richter, 131 S. Ct. at 786. “Thus, even a strong case for relief does

not mean that the state court’s contrary conclusion was unreasonable.” Id. “If this

standard is difficult to meet – and it is – that is because it was meant to be.”

Titlow, 134 S. Ct. at 16; see Frost v. Pryor, 749 F.3d 1212, 1222-23 (10th Cir.

2014). Indeed, “AEDPA stops just ‘short of imposing a complete bar on federal

court relitigation of claims already rejected in state proceedings.’” Frost, 749 F.3d

at 1223 (quoting Richter, 131 S. Ct. at 786).

      The district court applied that rigorous standard to the ten issues Mr. Davis

brought in his habeas petition. Accordingly, the district court determined as

follows, with respect to Mr. Davis’s claims:

      (1) Insufficient evidence:

      Mr. Davis first claimed that insufficient evidence supported his convictions

for aggravated indecent liberties with a child and aggravated kidnaping. The

                                          -5-
district court found this claim procedurally barred because it was not fairly

presented to the Kansas Supreme Court and would now be untimely under

Kansas’s procedural rules. The court determined further that Mr. Davis failed to

assert and show either cause for the default and prejudice stemming therefrom, or

that a fundamental miscarriage of justice would occur if the issue was not

addressed, as he must if he hopes to overcome this procedural default.

      (2) Prosecutorial misconduct:

      Mr. Davis’s second claim is that he was denied a fair trial because of

prosecutorial misconduct in the form of improper closing argument and other

comments to the jury. The district court found most of these claims procedurally

defaulted. The court found no demonstration of cause and prejudice or a

fundamental miscarriage of justice resulting from application of the default rule.

The court did find one such claim of prosecutorial misconduct was properly

before the federal habeas court – Mr. Davis’s claim that the prosecution

improperly shifted the burden of proof by repeatedly asserting during closing

argument that Mr. Davis had the power to subpoena witnesses, and by saying that

Mr. Davis could have introduced the results of a rape kit performed on the

victims. Mr. Davis had raised this claim of prosecutorial misconduct on direct

appeal.

      The court accordingly applied AEDPA standards of review to the Kansas

courts’ resolution of this claim. The Kansas Court of Appeals (“KCOA”) found

                                         -6-
that the prosecutor’s repeated statements that Mr. Davis had subpoena power

“were likely improper.” But the KCOA found no prejudice because the jury was

repeatedly instructed by the prosecutor, by defense counsel, and by the court that

the State had to burden to prove Mr. Davis’s guilt. With respect to the reference

to the rape kit in closing, the KCOA found that, even if the comments were in

error, Mr. Davis suffered no prejudice and the comments did not rise to the level

of being so gross and flagrant as to deny Mr. Davis a fair trial.

      The district court, on habeas review, began by noting that habeas relief is

not warranted for prosecutorial misconduct unless it “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Donnelly

v. DeChristoforo, 416 U.S. 637, 643 (1974). The court then held:

             Here, the KCOA, in deciding whether the prosecutor’s
      statements denied the defendant a fair trial, applied the same test
      required by the United States Supreme Court in Donnelly for a due
      process determination. The KCOA also viewed the prosecutor’s
      statements in context, weighed them against the strength of the
      evidence against the defendant, and found no prejudice to the
      Petitioner. Petitioner has thus failed to demonstrate that the KCOA’s
      adjudication was contrary to, or an unreasonable application of,
      federal law as determined by the Supreme Court.

Memorandum & Order at 12 (citing 28 U.S.C. § 2254(d)).

      (3) Ineffective assistance of trial counsel:

      Mr. Davis’s third argument was that his trial counsel was ineffective in

multiple ways. After determining that many of his claims were procedurally

defaulted and no exception to default was shown, the court considered the ten

                                          -7-
claims of ineffectiveness which the court deemed were properly presented for

habeas review: that trial counsel was ineffective for (a) not conducting an

investigation; (b) improperly allowing a conference on a jury question; (c)

waiving Mr. Davis’s preliminary hearing; (d) requesting a lesser included offense

jury instruction; (e) failing to present Mr. Davis’s alleged statement denying

guilt; (f) failing to effectively cross-examine Detective Swanson; (g) failing to

challenge evidence; (g) failing to present any witnesses; (h) failing to object to

the alleged prosecutorial misconduct; and (i) failing to object to certain jury

instructions.

      The district court then applied AEDPA standards to the state court’s

holding. As the court noted, the KCOA summarily found that nearly all of these

allegations were either rejected in Mr. Davis’s direct appeal or should have been

raised as trial errors in the direct appeal, or were actually addressed by the state

district court in post-conviction proceedings. The court noted that the KCOA

separately addressed one claim – that counsel erred in allowing a conference

regarding a jury question to occur outside Mr. Davis’s presence. The court then

quoted the KCOA’s analysis in which it found no evidence of ineffective

assistance of counsel. The court also excerpted the state district court’s factual

analysis (which the KCOA reviewed and affirmed), in which the state court

carefully reviewed the claims of ineffectiveness and found them contradicted by

the record and/or non-prejudicial.

                                          -8-
      The district court itself, in turn, conducted its own habeas review under

AEDPA standards, noting that ineffective assistance of counsel claims must be

analyzed under the familiar framework of Strickland v. Washington, 466 U.S. 668

(1984). The district court acknowledged that its review of Mr. Davis’s claim of

ineffectiveness is “doubly deferential.” As we recently stated, “[s]urmounting

Strickland’s high bar is never an easy task. Even under de novo review, the

standard for judging counsel’s representation is a most deferential one.

Establishing that a state court’s application of Strickland was unreasonable under

§ 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both highly deferential, and when the two apply in tandem, review

is doubly so.” Howell v. Trammell, 728 F.3d 1202, 1223 (10th Cir. 2013)

(quoting Richter, 131 S. Ct. at 787). The district court concluded: “[i]n denying

Petitioner’s claims of ineffective assistance of trial counsel, the KCOA evaluated

the evidence of record and applied law consistent with the United States Supreme

Court’s Strickland standard for ineffective counsel. Its factual findings were

objectively reasonable. Thus no basis for habeas relief has been shown.”

Memorandum & Order at 17 (citing Davis v. State, 2007 WL 1109528 (Kan. App.

2007); State v. Gleason, 88 P.3d 218 (Kan. 2004)).

      (4) Ineffective assistance of appellate counsel:

      The district court then considered Mr. Davis’s claim that his appellate

counsel had been ineffective in several respects. The court determined that the

                                        -9-
claim that appellate counsel was ineffective in failing to raise the issue of the trial

counsel’s alleged failings was itself procedurally defaulted because it was “never

raised in any of the state court proceedings.” Id. at 18. The court did, however,

address other claims of appellate ineffectiveness, which Mr. Davis had raised in

his Kansas post-conviction proceedings. These claims were that appellate

counsel failed to challenge the sufficiency of the evidence and that he “failed to

brief new issues in his petition for review.” Id.

      In reviewing the Kansas state court assessment of Mr. Davis’s ineffective

assistance of appellate counsel claims, the district court observed that the KCOA

“did not specifically address the merits” of those claims, “but concluded that the

[state] district court’s findings of fact and conclusions of law were supported by

the record, and that the district court adequately addressed Davis’ overall claim of

ineffective assistance of counsel.” Id. at 19 (citing Davis, 2007 WL 1109528, at

*3). “Further, the KCOA was not convinced that, but for counsel’s deficiencies,

there was a reasonable probability of a different outcome.” Id.

      The district court then evaluated the ineffective assistance of appellate

counsel claim on its merits, concluding that “[c]ounsel cannot be found

ineffective for failing to raise meritless claims.” Id. at 20 (citing Strickland, 466

U.S. at 691-96). The court summarized its conclusions as follows:

            In denying this claim, the KCOA reviewed the record and
      applied law consistent with Strickland. Its factual findings were
      objectively reasonable, as the district court’s order shows in more

                                          -10-
       detail. Petitioner has not shown that his appellate counsel’s
       performance was objectively unreasonable, or demonstrated a
       reasonable probability that but for his counsel’s alleged errors, he
       would have prevailed on appeal, as is required. Thus no basis for
       habeas relief has been shown.

Id. at 21.

       (5) Failure to instruct on lesser included offense:

       Mr. Davis’s fifth argument is that the trial court’s failure to instruct on the

lesser included offense of criminal restraint denied him a fair trial. The court

quickly dismissed this claim, stating that it “cannot review the merits of this state

law issue. The Supreme Court has never recognized a federal constitutional right

to a lesser included offense instruction in non-capital cases.” Id. at 21 (citing

Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); Dockins, 374 F.3d at 938).

       (6) Right to be present:

       Mr. Davis next argued that his constitutional right to be present during trial

was violated because he was absent when the judge conferred with counsel by

telephone about a question asked by the jury during its deliberations, and he was

also absent when the judge answered the question. In answering the question, the

trial judge referred the jury back to the instructions it had received earlier.

       The KCOA found that Mr. Davis was present when the jury instructions

were resolved at trial, yet made no objection to them, and that the relevant

instructions had come directly from the Pattern Instructions for Kansas. It further

found no prejudice by Mr. Davis’s absence when the jury question was resolved,

                                         -11-
because his counsel was present, and the answer proposed by the court and

approved by counsel contained no new jury instructions. Rather, the court merely

referred the jury back to instructions previously given (without objection). The

state court accordingly found no reversible error.

      The district court, on habeas review, considered whether Mr. Davis had a

meritorious federal constitutional claim regarding this issue. It noted that “[i]t is a

basic premise of our justice system that during a felony prosecution, the

defendant has a Fourteenth Amendment privilege to be present under certain

circumstances.” Memorandum & Order at 23 (citing Kentucky v. Stincer, 482

U.S. 730, 745 (1987)). “Thus, a defendant is guaranteed the right to be present at

any stage of the criminal proceeding that is critical to its outcome if his presence

would contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745.

      The district court noted, however, that when the defendant’s “presence

would be useless, or the benefit but a shadow,” due process does not require the

defendant’s presence at a trial proceeding. Snyder v. Massachusetts, 291 U.S. 97,

106-07 (1934). “In determining whether exclusion of a defendant from a

proceeding violated due process, the court considers the proceedings ‘in light of

the whole record.’” Memorandum & Order at 24 (quoting United States v.

Gagnon, 470 U.S. 522, 526-27 (1985)). The district court then discussed relevant

Supreme Court and Tenth Circuit cases and concluded that Mr. Davis “has . . .

failed to establish that the KCOA’s resolution of this issue was contrary to or an

                                          -12-
unreasonable application of law clearly established by the Supreme Court.” Id. at

25.

      (7) Improper aggravated burglary jury instruction:

      Mr. Davis next argued that the aggravated burglary instruction (given on

Count 1 of his conviction) was improper. This claim was procedurally defaulted

because Mr. Davis never challenged that instruction in his state court

proceedings. The district court nevertheless determined that, even had the state

courts addressed the claim, Mr. Davis would not have prevailed.

      The district court observed that Mr. Davis “must demonstrate that the

instructional error ‘so infected the entire trial that the resulting conviction

violates due process.’” Memorandum & Order at 26 (quoting Henderson v. Kibbe,

431 U.S. 145, 154 (1977)). The court concluded that Mr. Davis “has not shown

any prejudicial error either in the instruction itself, or in the State’s

characterization of it to the jury.” Id. at 27.

      (8) Witness intimidation:

      Mr. Davis’s eighth claim was that C.S., the victim of his indecent liberties

charge, wanted to recant the testimony she gave to the police, but was intimidated

by the state and was persuaded to testify erroneously.

      Mr. Davis raised this issue in his state post-conviction motion/petition, and

the KCOA affirmed the denial of his petition without specifically addressing the




                                          -13-
issue. The state district court had concluded that the jury was aware of C.S.’s

recanted testimony.

      The federal district court accordingly addressed this issue, beginning with

the statement that habeas relief “is not warranted unless the prosecutorial

misconduct ‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Memorandum & Order at 28 (quoting

Donnelly, 416 U.S. at 643). After examining relevant case law and the record,

the court concluded that:

      the record does not reflect that the prosecutor’s conduct toward C.S.
      was improper. Petitioner has shown no threats of perjury, use of
      coercive or intimidating language, or other tactics that could have
      substantially interfered with C.S.’s free and unhampered decision to
      testify. In contrast, the record reveals that C.S. did testify and
      testified freely, as evidenced by her contradicting in large part the
      prior statements she had given to police. Under these circumstances,
      no basis for habeas relief has been shown.

Id. at 29-30.

      (9) Denial of Mr. Davis’s Kan. St. Ann. § 60-1507 motion:

      Mr. Davis next claimed that the state district court erred in ruling on his

state post-conviction motion because it adopted the state’s response to his § 60-

1507 motion, rather than independently analyzing the issues and drafting its own

order. The federal district court resolved this issue as follows:

             Petitioner has not shown that he has a constitutional right that
      the district court may have violated by the manner in which it
      reported its decision in his post-conviction proceeding. While
      habeas relief is available to address defects in a criminal defendant’s

                                        -14-
      conviction and sentence, alleged defects in a collateral proceeding do
      not state a basis for habeas relief.

Id. at 30 (citing United States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006);

Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998)).

      (10) Fraud on the court:

      Mr. Davis’s tenth and final argument before the district court was that the

district court and his state habeas counsel had conspired to commit fraud on the

court. This argument is similar to the issue just discussed, in that Mr. Davis

challenges the manner in which the state district court resolved his § 60-1507

motion, claiming that the judge did not review the record in the case. As the

federal district court noted, this amounts to an attack on the integrity of the state

habeas proceeding. But, as the court further stated, alleged defects in a collateral

proceeding do not state a basis for habeas relief, inasmuch as federal habeas

courts do not address alleged errors of state law. Estelle, 502 U.S. at 67-68.

      The federal district court accordingly denied Mr. Davis’s habeas petition,

after concluding that there was no need for an evidentiary hearing. The court also

denied Mr. Davis a COA, finding that he has not met the standard for issuance of

a COA “as to any issue squarely presented in this case.” Memorandum & Order

at 32. Mr. Davis now seeks a COA from our court.




                                         -15-
                                   DISCUSSION

      Before Mr. Davis can challenge the district court’s denial of his habeas

petition, he must first obtain a COA. We will only issue a COA upon “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(1)(A) & (2). To meet that standard, Mr. Davis must 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). And when a district court denies a petition

on procedural grounds, a COA may issue only if the prisoner additionally shows

that “jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id.

      Because AEDPA standards govern the merits of Mr. Davis’s habeas

petition, we must consider those standards in determining his entitlement to a

COA. Thus, to grant Mr. Davis a COA, we must conclude that reasonable jurists

could debate the district court’s decision that he is not entitled to habeas corpus

relief under the standards set forth in AEDPA. Dockins, 374 F.3d at 937.

      As the above analysis and discussion clearly demonstrates, the district court

carefully examined each of Mr. Davis’s claims under applicable AEDPA

standards. We have no doubt that reasonable jurists would find that analysis

beyond reproach and eminently reasonable and correct. We accordingly agree

                                         -16-
with the district court that Mr. Davis has not met the standards for issuance of a

COA.

       For the foregoing reasons, we DENY a COA and DISMISS this matter. We

also DENY Mr. Davis’s request to proceed on appeal in forma pauperis (“ifp”)

and remind Mr. Davis that all filing fees are due in full.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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