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

                            FOR THE TENTH CIRCUIT                         June 10, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
DENNIS W. THOMPSON,

             Petitioner-Appellant,

v.                                                         No. 12-3239
                                                  (D.C. No. 5:10-CV-03242-SAC)
DAVID MCKUNE, Warden, Lansing                                (D. Kan.)
Correctional Facility; STEPHEN N. SIX,
Attorney General of the State of Kansas,

             Respondents-Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.


      Dennis W. Thompson seeks to appeal the district court’s denial of his

28 U.S.C. § 2254 application challenging, under Apprendi v. New Jersey, 530 U.S.

466 (2000), the sentence he received for manufacturing methamphetamine. We grant

a certificate of appealability (COA), but we affirm the district court’s denial of

habeas relief.

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                      Background

      Kan. Stat. Ann. § 65-4159 made manufacturing methamphetamine a drug

severity level 1 felony. In early 2004, the Kansas Supreme Court held that because

§ 65-4159 and another statute of lesser severity proscribed identical conduct, a

person convicted of violating § 65-4159 could be sentenced only under the lesser

penalty provision applicable to the other statute. State v. McAdam, 83 P.3d 161, 167

(Kan. 2004). In response to McAdam, effective on May 20, 2004, the Kansas

legislature amended § 65-4159 so that it would again carry penalties of level 1

severity. Accordingly, violations of § 65-4159 that occurred on or after May 20,

2004, were subject to sentences much greater than would apply to violations of

§ 65-4159 that were committed on or before May 19, 2004.

      Just six days after the amendment, on May 26, 2004, police stopped

Mr. Thompson’s truck for a broken headlight. A search of the truck revealed

evidence of methamphetamine use and manufacture. A search of Mr. Thompson’s

garage that same day revealed more evidence of methamphetamine manufacture.

Mr. Thompson was charged with, and eventually convicted by a jury of,

manufacturing methamphetamine in violation of § 65-4159 “on or about” May 26,

2004. The trial court sentenced him to the standard sentence for a level 1 severity

offense—158 months of imprisonment.

      On appeal, Mr. Thompson argued that the court erred in sentencing him under

severity level 1, asserting that (1) the state failed to prove that any manufacture


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occurred on or after May 20, 2004, and (2) the jury was not instructed to find that the

offense occurred on or after May 20, 2004. In support of both arguments, among

other authorities he cited Apprendi, in which the Supreme Court held that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490.

       The Kansas Court of Appeals rejected his arguments. State v. Thompson,

No. 94,254, 2009 WL 764503 (Kan. App. 2009) (unpublished). Construing the first

argument as attacking the sufficiency of the evidence, the court held that the evidence

was sufficient for a reasonable factfinder to conclude that Mr. Thompson

manufactured methamphetamine “‘on or about May 26, 2004.’” Id. at *2. The court

then reviewed the second argument for clear error because Mr. Thompson had not

objected to the jury instructions at trial. Id. It held:

              Given the benefit of hindsight, justice might have been better
       served if the phrase “or about” had been deleted under these
       circumstances. Nevertheless, applying our standard of review, we are
       firmly convinced that the exclusion of the commonly used phrase “on or
       about” does not create any real possibility that the jury would have
       reached a different verdict. Moreover, we are firmly convinced that any
       failure to use the phrase “on or after May 20, 2004” similarly does not
       create any such possibility for a different verdict. Again, the clear
       evidence that Thompson had an “active” methamphetamine laboratory
       in his garage on May 26, 2004, does not leave us any room to think that
       there was likely any issue in the juror’s minds about the date of offense.
       It may seem unfair that a mere 6 days in the commission of this offense
       could change its severity level from a level 1 felony to a level 3 felony,
       but we are bound by controlling precedent, clear legislative amendment
       and effective date, and our limited standard of review.


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Id. The court concluded that “[t]here was no clear error in sentencing Thompson for

manufacturing methamphetamine, a level 1 offense on the date he committed this

offense.” Id. at *3. The court did not cite Apprendi with regard to either issue. The

Kansas Supreme Court denied review.

      In his federal habeas application, Mr. Thompson argued that sentencing him at

severity level 1 violated his Sixth and Fourteenth Amendment rights, as construed by

Apprendi, because by finding that he acted “on or about May 26, 2004,” the jury

never actually found that his conduct occurred on or after May 20, 2004. The district

court held that Mr. Thompson failed to show that the Kansas courts’ decision was

contrary to or an unreasonable application of Apprendi, as required by 28 U.S.C.

§ 2254(d). The district court further stated that, “[e]ven assuming the petitioner

could fashion an arguable violation of Apprendi, the court would find this error to be

harmless” because the evidence regarding the offense date was “clear and

overwhelming.” R. Vol. 1 at 69. Accordingly, the district court denied relief and

denied a COA.

                                      Discussion

                                    COA Standards

      To proceed with this appeal, Mr. Thompson must first secure a COA,

see 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003),

which “may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). An applicant satisfies this


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requirement by “showing 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). “Where a district court has rejected the constitutional claims on the merits

. . . [t]he petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Id.

      Having reviewed the briefs, the record, and the applicable law, we conclude

that the issues presented by Mr. Thompson are adequate to deserve encouragement to

proceed further. Accordingly, we grant a COA on the issue of whether

Mr. Thompson’s Sixth and Fourteenth Amendment rights were violated when he was

sentenced at drug severity level 1 after the jury convicted him of manufacturing

methamphetamine “on or about” May 26, 2004. Mr. Thompson’s custodian has

already filed a merits brief, so we continue to the merits of the appeal.

                                        Analysis

      As relevant to this proceeding, “with respect to any claim that was adjudicated

on the merits in State court proceedings,” a federal court may grant a writ of habeas

corpus only if the adjudication “resulted in a decision that was contrary to, or

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

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).




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       “When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state-law procedural principles to the

contrary.” Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). “[A] state court

need not cite or even be aware of our cases under § 2254(d).” Id. at 784. “[W]e owe

deference to the state court’s result, even if its reasoning is not expressly stated.”

Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). “Under § 2254(d), a habeas

court must determine what arguments or theories supported or . . . could have

supported[] the state court’s decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent

with the holding in a prior decision of this Court.” Harrington, 131 S. Ct. at 786.

       Mr. Thompson argues that the Kansas Court of Appeals’ decision was contrary

to Apprendi, or in the alternative, it was an unreasonable application of Apprendi.

We disagree.

1.     Not Contrary to Supreme Court Precedent

       Mr. Thompson first asserts that the Kansas decision was contrary to Apprendi

and its predecessor, Jones v. United States, 526 U.S. 227 (1999), because “the

sentencing court engaged in independent judicial fact-finding” and “assume[d] the

jury’s verdict, which stated Mr. Thompson manufactured methamphetamine ‘on or

about’ May 26, 2004, implied that Mr. Thompson manufactured methamphetamine

after May 20, 2004.” Aplt. Br. at 17. A state-court decision is contrary to clearly


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established law “if the state court applies a rule that contradicts the governing law set

forth in [the Supreme Court’s] cases” or “confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362,

405-06 (2000).

      Mr. Thompson notes the state court’s determinations that (1) it “was ‘firmly

convinced that the exclusion of the commonly used phrase “on or about” [did] not

create any real possibility that the jury would have reached a different verdict,’” and

(2) there was no clear error in submitting the “on or about” instruction to the jury

because “‘the clear evidence that Thompson had an “active” methamphetamine

laboratory in his garage on May 26, 2004, does not leave us any room to think that

there was likely any issue in the juror’s minds about the date of offense.’” Aplt Br.

at 17-18 (quoting Thompson, 2009 WL 764503, at *2). He treats these holdings as

examples of how the state court’s ruling was contrary to Apprendi and Jones. To the

contrary, however, the state court’s analysis was consistent with Supreme Court

precedent regarding Apprendi error.

      In Washington v. Recuenco, 548 U.S. 212, 218-22 (2006), the Supreme Court

held that Apprendi error is subject to a harmless-error analysis. Recuenco indicates

that the proper question is “whether the jury would have returned the same verdict

absent the error.” Id. at 221. The Kansas Court of Appeals addressed this very

question, concluding that there was no “real possibility that the jury would have


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reached a different verdict” had it been instructed to determine whether the offense

occurred on or after May 20, 2004. Thompson, 2009 WL 764503, at *2.

Accordingly, the state court’s analysis was not contrary to Recuenco, but instead was

consistent with it.

       Further, in United States v. Cotton, 535 U.S. 625, 631-32 (2002), the Supreme

Court determined that an unpreserved Apprendi error is subject to plain-error review.

The Cotton Court then concluded that “the error did not seriously affect the fairness,

integrity, or public reputation of judicial proceedings,” and therefore did not require

correction, because the evidence of the omitted element “was overwhelming and

essentially uncontroverted.” Id. at 632-33 (internal quotation marks omitted).

Similarly, here the Kansas Court of Appeals determined that in light of the weight of

the evidence, there was no clear error. Again, instead of being contrary to Supreme

Court precedent, the state court’s approach was consistent with it.

       For these reasons, the district court correctly denied relief on § 2254(d)(1)’s

“contrary to” prong.

2.     Not an Unreasonable Application of Supreme Court Precedent

       In the alternative, Mr. Thompson contends that the Kansas decision was an

unreasonable application of Apprendi. A state-court decision involves an

unreasonable application of clearly established law “if the state court identifies the

correct governing legal rule from [the Supreme] Court’s cases but unreasonably

applies it to the facts of the particular state prisoner’s case” or “if the state court


                                            -8-
either unreasonably extends a legal principle from [Supreme Court] precedent to a

new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Williams, 529 U.S. at 407. The

unreasonable-application standard “‘is ‘difficult to meet’: To obtain habeas corpus

relief from a federal court, a state prisoner must show that the challenged state-court

ruling rested on ‘an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.’” Metrish v. Lancaster, 133 S. Ct. 1781,

1786-87 (2013) (quoting Harrington, 131 S. Ct. at 786-87). Importantly, “an

unreasonable application of federal law is different from an incorrect application of

federal law.” Williams, 529 U.S. at 410; see also Renico v. Lett, 130 S. Ct. 1855,

1862 (2010) (reiterating this point).

      As discussed above, the Kansas Court of Appeals applied principles consistent

with Recuenco and Cotton. Even if that court erred in determining that the evidence

was overwhelming, as Mr. Thompson contends, an incorrect application of federal

law is not an unreasonable application of such law. See Renico, 130 S. Ct. at 1862;

Williams, 529 U.S. at 410. Because these circumstances present ample “possibility

for fairminded disagreement,” the Kansas decision fails to satisfy the

unreasonable-application standard. Harrington, 131 S. Ct. at 786 (“It bears repeating

that even a strong case for relief does not mean the state court’s contrary conclusion

was unreasonable.”); see also Renico, 130 S. Ct. at 1865 (holding that when the state




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court’s interpretation of trial record was subject to varying reasonable interpretations,

the state court’s decision was not objectively unreasonable).

      Accordingly, the district court did not err in denying relief on § 2254(d)(1)’s

“unreasonable application” prong.

3.    Harmless Error

      Having concluded that Mr. Thompson is not entitled to relief under

§ 2254(d)(1), we need not consider the district court’s alternative determination that

any Apprendi error was harmless.

                                      Conclusion

      The district court’s denial of Mr. Thompson’s § 2254 application is affirmed.



                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




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