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

                                    TENTH CIRCUIT                               January 11, 2016

                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
 RICHARD T. POWELL,

               Petitioner - Appellant,
                                                                  No. 15-3241
 v.                                                  (D.C. No. 5:12-CV-03119-SAC)
                                                                  (D. Kansas)
 JAMES HEIMGARTNER and DEREK
 SCHMIDT,

               Respondent - Appellee.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before KELLY, LUCERO and McHUGH, Circuit Judges.




       Petitioner Richard T. Powell, a Kansas prisoner appearing pro se,1 seeks a

certificate of appealability (COA) to challenge the district court’s denial of his petition

for habeas relief under 28 U.S.C. § 2254. We deny Mr. Powell’s request for a COA and

dismiss the appeal.



       *
          This order is not binding precedent, except under the doctrines of law of the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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule
32.1.
       1
        Because Mr. Powell appears pro se, we construe his filings liberally. See Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
                                   I.   BACKGROUND

       Mr. Powell was convicted of capital murder and criminal possession of a firearm

based on the shooting deaths of Mark and Melvin Mims. He was sentenced to life in

prison for the murder convictions and a consecutive term of twenty-three months for the

firearm conviction. The Kansas Supreme Court affirmed his convictions on direct appeal.

State v. Powell (Powell I), 56 P.3d 189 (Kan. 2002). Mr. Powell then sought state

postconviction relief, but was denied relief in the trial court and on appeal to the Kansas

Court of Appeals. Powell v. State (Powell II), 239 P.3d 114 (Kan. Ct. App. 2010)

(unpublished table decision) (per curiam).

        After the termination of his state-court proceedings, Mr. Powell filed the present

petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. In his habeas

petition, Mr. Powell presented six grounds for relief, separated into three categories:

(1) trial counsel was ineffective for failing to (a) object when the trial court required him

to wear a stun belt during his trial, (b) call a certain alibi witness, and (c) investigate and

discover the motive of two witnesses who testified against him; (2) the trial court denied

him a fair trial and violated his Sixth and Fourteenth Amendment rights by requiring him

to wear a stun belt during trial; and (3) the trial court erred in failing to poll the jurors on

whether they saw a newscast about Mr. Powell that aired during his criminal trial. The

district court denied relief on all grounds and declined to grant a certificate of

appealability (COA). Mr. Powell filed a timely notice of appeal.




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                                   II.   DISCUSSION

        We liberally construe Mr. Powell’s combined opening brief and application for a

COA to this court as seeking a COA on three claims: (1) the district court erred in

requiring him to wear a stun belt, (2) trial counsel was ineffective for failing to call his

alibi witness, and (3) trial counsel was ineffective for failing to discover that two of the

prosecution’s witnesses had allegedly been offered favorable plea deals in their own

criminal matters in exchange for their testimony against Mr. Powell.

       A state prisoner must obtain a COA as a jurisdictional prerequisite to challenge a

federal district court’s denial of habeas corpus relief. 28 U.S.C. § 2253(c)(1)(A); Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has

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

§ 2253(c)(2). To meet this burden, the petitioner must show 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) (internal quotation marks

omitted). A petitioner need not show his appeal will succeed to be entitled to a COA, but

he must “prove something more than the absence of frivolity or the existence of mere

good faith.” Miller-El, 537 U.S. at 338 (internal quotation marks omitted).

       In deciding whether a petitioner has made a substantial showing of the denial of a

constitutional right, we view the merits of his claims through the deferential lens

prescribed by the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA

requires federal courts to uphold a state court’s merits adjudication unless the petitioner

                                                  3
demonstrates the state-court decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court” or

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

presented in the State court proceeding.” 28 U.S.C. § 2254(d). Our analysis therefore

focuses less on the petitioner’s underlying claims than on the state court’s disposition of

those claims. Moreover, in assessing whether a state-court decision comports with

Supreme Court precedent, we focus “on what a state court knew and did,” and we

measure the state court’s decision “against [the Supreme] Court’s precedents as of the

time the state court renders its decision.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011)

(internal quotation marks omitted).

       Mr. Powell first asserts the Kansas trial court erred in requiring him to wear a stun

belt during his criminal trial. On direct appeal, the Kansas Supreme Court thoroughly

assessed Mr. Powell’s challenges to the trial court’s use of the stun belt. Powell I, 56 P.3d

at 195–201. The court explained that the decision to require such restraint mechanisms

must be left in the sound discretion of the trial court, which has “direct contact with

difficult situations and must have the necessary flexibility to insure that fair trials are held

consistent with safety to all concerned.” Id. at 201. The Kansas Supreme Court concluded

that the trial court in Mr. Powell’s case did not abuse its discretion in requiring him to

wear the stun belt due to the serious nature of the charges against him and the evidence

showing Mr. Powell had been involved in violent altercations with fellow inmates, had

been disruptive at a severance hearing, and had refused to come out of his cell for another

prior hearing. Id. at 195, 201. The court also concluded Mr. Powell had failed to show

                                                   4
that the jury had noticed the stun belt or that wearing it otherwise prejudiced him. Id. at

201.

       In his application for state postconviction relief, Mr. Powell raised new,

constitutional arguments regarding the use of the stun belt. Powell II, 239 P.3d 114, at

*6–9. Specifically, he argued that use of the stun belt deprived him of a fair trial and that

trial counsel was ineffective for failing to raise the constitutional claim. Id. The Kansas

Court of Appeals concluded that even if trial counsel had raised the constitutional

challenge, the result of his trial would have been the same and therefore Mr. Powell

failed to show prejudice. Id. at *9.

       In his federal habeas proceedings, Mr. Powell has failed to demonstrate that these

well-reasoned state-court decisions were contrary to or involved an unreasonable

application of U.S. Supreme Court precedent or were based on an unreasonable

determination of the facts. The only Supreme Court case upon which Mr. Powell relies,

Riggins v. Nevada, ruled that the administration of antipsychotic medication despite

petitioner’s objection was improper where the drug’s interference was “particularly

severe” and where the trial court failed to determine whether there was a less intrusive

alternative, whether the medication was medically appropriate, and whether it was

necessary to ensure the safety of petitioner and others. 504 U.S. 127, 134–36 (1992).

Riggins is inapposite to Mr. Powell’s case. Here, the evidence demonstrates the stun belt

was only mildly intrusive, as there is no evidence the jury saw it or that it altered Mr.

Powell’s behavior in a significant way. The evidence also demonstrates that the trial court

reasonably determined that use of the stun belt was necessary to ensure the safety of the

                                                  5
proceedings. Reasonable jurists therefore could not debate whether Mr. Powell was

denied a fair trial or was otherwise prejudiced by the trial court’s requirement that he

wear a stun belt. Accordingly, we deny Mr. Powell a COA on this claim.2

       Mr. Powell next contends trial counsel rendered ineffective assistance by failing to

call Flora Jean McElroy as an alibi witness. Ms. McElroy allegedly would have testified

that she was with Mr. Powell at the time the crimes were committed and that he could not

have committed the murders. As part of the state postconviction proceedings, the Kansas

Court of Appeals remanded to the trial court for an evidentiary hearing to develop this

claim. Powell II, 239 P.3d 114, at *1. During the evidentiary hearing, Mr. Powell

acknowledged there may have been credibility issues with Ms. McElroy’s testimony. Id.

at *9. After the conclusion of the evidentiary hearing, the trial court agreed. It ruled that

trial counsel made a reasonable, tactical decision to exclude Ms. McElroy’s testimony

based on questions about her credibility and on counsel’s belief that the trial was going

well. Id. The Kansas Court of Appeals affirmed that decision. Id. at *9–10.

       We evaluate a claim of ineffective assistance of counsel under the familiar two-

part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires

a showing “that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and “that the deficient

performance prejudiced the defense.” 466 U.S. at 687. Strickland also instructs that our


       2
        Because no reasonable jurist could conclude that the trial court erred in requiring
Mr. Powell to wear the stun belt, no reasonable jurist could conclude that trial counsel
was ineffective for failing to object to the use of the stun belt. Thus, a COA would also be
inappropriate for any ineffectiveness claim based on the failure to object to the stun belt.
                                                  6
“scrutiny of counsel’s performance must be highly deferential.” Id. at 689. In determining

whether to grant a COA on an ineffective-assistance claim, we add a second layer of

deference to determine whether reasonable jurists could debate whether counsel’s

performance was deficient and whether the deficiency was prejudicial. Our review is thus

“doubly deferential.” Pinholster, 563 U.S. at 190.

       We find no basis to conclude that reasonable jurists could debate the state court’s

denial of relief on this ineffective-assistance-of-counsel claim. Instead, based on the

evidence demonstrating Ms. Elroy’s credibility issues, reasonable jurists could not

conclude that trial counsel’s tactical decision to exclude her testimony was irrational. We

therefore deny Mr. Powell’s request for a COA on this claim.

       Finally, Mr. Powell asserts trial counsel was ineffective for failing to discover that

two of the prosecution’s witnesses allegedly received favorable plea deals in their own

criminal proceedings for testifying against him. Specifically, Mr. Powell contends Mylon

Williams and Kenton “Reece” Williams received leniency in exchange for their

testimony against him. This claim was also developed in the evidentiary hearing on

remand during Mr. Powell’s state postconviction proceedings. See Powell II, 239 P.3d

114 at *10. At the hearing, Mr. Powell testified as to his belief that Mylon and Reece

each received leniency in exchange for their testimony. But on cross-examination, the

state demonstrated Reece had pled no contest in a criminal prosecution regarding drug

possession, that his plea agreement in that case included no provision requiring him to

testify against Mr. Powell, and that a burglary charge against Reece had been resolved

and Reece began serving his sentence before the murders in this case were committed. Id.

                                                 7
As to Mylon, who is Mr. Powell’s nephew, id. at *1, the state established through its

cross-examination of Mr. Powell that Mylon’s criminal charge and sentencing had been

completed, in part, before Mr. Powell’s crimes, id. at *5. And the State asserted during

state postconviction proceedings that it made no leniency agreements with either Mylon

or Reece in exchange for their testimony against Mr. Powell. Id. at *10. Based on this

evidence and the lack of evidence supporting Mr. Powell’s claim, the Kansas Court of

Appeals ruled that Mr. Powell failed to prove trial counsel was ineffective for failing to

discover “deals that did not exist.” Id.

       During his federal habeas proceedings in the district court, Mr. Powell submitted

new evidence to support this claim: an affidavit from Mylon recanting his testimony

against Mr. Powell and stating the prosecution had threatened that if he did not testify

against Mr. Powell he would receive “the max on [his] drug case.” In his combined brief

and application for a COA to this court, Mr. Powell relies heavily on Mylon’s affidavit in

support of his ineffective-assistance claim. But because the Kansas state courts addressed

this claim on its merits, our review under § 2254 “is limited to the record that was before

the state court.” Pinholster, 563 U.S. at 181. Therefore, we may not consider the evidence

contained in Mylon’s affidavit. But even if the affidavit were properly before us, recanted

testimony “is notoriously unreliable.” Case v. Hatch, 731 F.3d 1015, 1044 (10th Cir.

2013). Indeed, such testimony is “easy to find but difficult to confirm or refute: witnesses

forget, witnesses disappear, witnesses with personal motives change their stories many

times, before and after trial.” Id. (internal quotation marks omitted). Thus, with or

without Mylon’s affidavit, Mr. Powell has not shown that reasonable jurists could debate

                                                 8
whether trial counsel was ineffective for failing to discover evidence of Mylon’s and

Reece’s deals for testifying against him where he has produced no reliable evidence that

such deals exist.

       Because we conclude no reasonable jurist would find the denial of Mr. Powell’s

habeas petition debatable, we deny a COA on all claims and dismiss the matter.

                                             ENTERED FOR THE COURT


                                             Carolyn B. McHugh
                                             Circuit Judge




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