                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            June 17, 2019
                                    TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 WILLIS SHANE GORDON,

               Petitioner - Appellant,

 v.                                                            No. 18-3210
                                                     (D.C. No. 5:17-CV-03184-DDC)
 SAM CLINE,                                                     (D. Kan.)

               Respondent - Appellee.


             ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.


       Petitioner Willis Shane Gordon, a state prisoner representing himself pro se, seeks

a certificate of appealability to appeal the district court’s dismissal of his § 2254 habeas

corpus petition.

       Petitioner was charged in Kansas state court of one count each of rape, aggravated

kidnapping, attempted robbery, and aggravated battery. The first three counts involved a

female victim, while the fourth involved a male victim. The female victim testified at

trial that she met up with Petitioner to see an apartment he had told her he would help her



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
to rent, but soon after they entered the apartment, Petitioner threatened her with a knife,

attempted to take her phone away from her—breaking it in the process—then forced her

to go into a bedroom, where he raped her. When she was able to escape from the

apartment, she saw the male victim, who had given her a ride to the apartment earlier that

evening, standing outside. The male victim testified at trial that he had come back to the

apartment to see if anything was wrong because he was concerned that the female victim

had not been answering his phone calls and texts. He testified that soon after he got there,

he saw the female victim running out of the apartment wearing nothing and screaming

that “he” had raped her. Petitioner then followed the female victim out of the apartment

and began chasing her, so the male victim tackled Petitioner. After Petitioner cut him in

the face with a knife, the male victim yelled at the female victim to get the knife away

from Petitioner. She was able to do so, and then she ran and found other help. The police

arrived soon thereafter.

       Petitioner did not deny either that he had sex with the female victim or that he was

involved in a fight with the male victim. Instead, he testified at trial that the sex was both

consensual and paid, that the male victim came into the apartment and attempted to extort

him by threatening to have the female victim run out of the apartment crying rape if

Petitioner did not give him the rest of the money he was carrying, and that the male

victim began the fight with Petitioner and was cut with his own knife when Petitioner

tried to defend himself.



                                             -2-
       The jury found Petitioner guilty on all of the charges against him. He was

sentenced to 460 months of imprisonment based in part on his criminal history. The

Kansas Court of Appeals affirmed his convictions and sentence on direct appeal. See

State v. Gordon, No. 103,029, 2011 WL 420743 (Kan. Ct. App. Jan. 28, 2011). Petitioner

then filed a pro se state court motion for habeas relief. The state trial court appointed

counsel to represent him in the state habeas proceeding, and counsel filed a modified

habeas motion. Following a limited evidentiary hearing, the state trial court denied relief.

On appeal, the state appellate court held that Petitioner was procedurally barred from

raising most of his appellate arguments because these arguments either were required to

be brought on direct appeal or had not been properly raised below; however, the court

then analyzed several of these claims on the merits and held that they were alternatively

subject to dismissal on the merits. See Gordon v. State, No. 112,591, 2016 WL 6137901

(Kan. Ct. App. Oct. 21, 2016). The appellate court accordingly affirmed the dismissal of

Petitioner’s state habeas motion. The Kansas Supreme Court denied certiorari.

       Petitioner then filed the instant petition for federal habeas relief. Construed

liberally, this petition asserted five grounds for relief: (1) the government violated Brady

v. Maryland, 373 U.S. 83 (1963), by failing to provide the defense with (a) photographs

taken by a police officer of Petitioner’s injured finger, which appeared to have been

almost severed by a knife, and (b) a police report detailing the female victim’s statements,

including her statement that Petitioner’s finger was cut because he was holding onto the

blade of the knife when she pulled it out of his hands; (2) the prosecutor violated Doyle v.

                                             -3-
Ohio, 426 U.S. 610 (1976), by asking questions about Petitioner’s silence at the time of

arrest; (3) trial and appellate counsel were ineffective for failing to realize and/or argue

that the government had violated Brady and Doyle; (4) Petitioner’s convictions for rape

and aggravated kidnapping were multiplicitous; and (5) Petitioner’s sentence was

impermissibly increased based on facts not found by a jury. The district court held that

the Brady claim, Doyle claim, and related ineffective assistance claim were all

procedurally barred based on the state appellate court’s conclusion that Petitioner had not

properly raised these claims. The district court considered Petitioner’s multiplicity claim

on the merits, concluding that Petitioner had not shown that the state court’s denial of this

claim constituted an unreasonable application of federal law. Finally, the district court

declined to consider Petitioner’s sentencing claim on the ground that he had only raised it

in his traverse, not in his habeas petition. Petitioner seeks a certificate of appealability to

appeal the dismissal of all of these claims.

       To receive a certificate of appealability for a claim that the district court addressed

on the merits—here, only the multiplicity claim—a petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claim[]

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For claims that were

dismissed on procedural grounds—all of the other claims in this case—Petitioner must

show both “that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id. “Each

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component of [this] showing is part of a threshold inquiry, and a court may find that it can

dispose of the application in a fair and prompt manner if it proceeds first to resolve the

issue whose answer is more apparent from the record and arguments.” Id. at 485.

       We begin by considering Petitioner’s argument that the government violated Brady

by failing to provide the defense with evidence that would have corroborated his self-

defense theory. Petitioner does not dispute that he failed to raise this claim in his direct

criminal appeal; however, he argues that this procedural default should be excused for

cause and prejudice because the Brady violations only came to light during his state

habeas proceedings and the withheld evidence would likely have had an impact on the

jury’s verdict. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“[F]ederal habeas

review of [procedurally defaulted] 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.”).

       After reviewing the record in this case, we are persuaded that reasonable jurists

could not debate the district court’s conclusion that Petitioner failed to satisfy the

“prejudice” prong of this test. At trial, all three participants testified that at one point both

Petitioner and the female victim had their hands on the knife, and then the female victim

pulled it away from Petitioner. It was also undisputed that both Petitioner and the female

victim sustained cuts to their fingers, and a police officer agreed that one of Petitioner’s

fingers was cut badly enough that it was almost to the point of falling off. Petitioner

                                              -5-
argues that if the jury had seen the photographs of his injuries and heard that the victim

originally told a police officer that Petitioner’s hand was on the blade when she pulled the

knife away from him, then the jury would likely have believed his theory of self-defense.

We are not persuaded. Contrary to Petitioner’s contentions, it was in fact entirely

possible for his hand or finger to have ended up on the blade during the course of the

struggle even if—as the jury apparently believed—he was the one who originally

produced and used the knife. The alleged Brady evidence was largely consistent with the

evidence introduced at trial, and to the extent it was not, we are not persuaded that it was

significant enough to create a reasonable probability that the jury’s verdict would have

been different if this evidence had been disclosed to the defense. See United States v.

Cooper, 654 F.3d 1104, 1119–20 (10th Cir. 2011) (holding that defendant seeking new

trial based on Brady violation must show that suppressed evidence was “material,”

meaning “there is a reasonable probability that . . . the result of the proceeding would

have been different” if the evidence had been disclosed to the defense; evidence that

“would have provided only marginal additional support for the defense” fails to meet this

standard (internal quotation marks and brackets omitted)).

       We turn then to Petitioner’s claim that the prosecutor violated Doyle by asking

questions about Petitioner’s silence at the time of his arrest. The district court denied

habeas relief on procedural grounds, which Petitioner contests for numerous reasons. We

need not consider his arguments on the procedural question, however, because we are

persuaded that reasonable jurists could not debate the state court’s resolution of this issue

                                             -6-
on the merits. See Slack, 529 U.S. at 485. The state appellate court held that this claim

failed on the merits because defense counsel opened the door by asking Petitioner if the

police had ever asked to hear his side of the story, and the prosecutor only introduced

rebuttal testimony from a police officer to clarify that the police were not permitted to

question Petitioner about the incident—even though they spent some hours together in the

hospital room where he was receiving treatment for his injured fingers—because he had

invoked his right to an attorney. See Gordon, 2016 WL 6137901, at *7–9. Petitioner has

not shown that this holding constituted an unreasonable application of clearly established

federal law, nor has he shown that it was based on an unreasonable determination of the

facts in light of the evidence presented. See 28 U.S.C. § 2254(d); see also United States

v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir. 2008) (“We, and other circuits, have

continued to recognize this ‘open the door’ or ‘reply’ exception to Doyle . . . .”). We thus

conclude that Petitioner is not entitled to a certificate of appealability on this issue.

       We are likewise persuaded that reasonable jurists could not debate the state court’s

resolution on the merits of Petitioner’s claim of ineffective assistance relating to the

alleged Doyle and Brady violations. Under the circumstances of this case, the state court

could reasonably conclude that Petitioner was not prejudiced by defense counsel’s alleged

failures to discover or pursue these claims at trial or on direct appeal.

       Petitioner’s next argument is that his convictions for rape and aggravated

kidnapping were multiplicitous and thus contrary to the Supreme Court’s decision in

Blockburger v. United States, 284 U.S. 299 (1932). However, the Kansas appellate court

                                              -7-
held, based on the language of the pertinent statutes, that each of these offenses required

proof of an element that the other offense did not. See Gordon, 2016 WL 6137901, at

*4–5. This is all that Blockburger requires, and we see no error in the state court’s

application of this test to the two offenses at issue here. See Blockburger, 284 U.S. at

304; see also, e.g., Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975) (“If each

[offense] requires proof of a fact that the other does not, the Blockburger test is satisfied,

notwithstanding a substantial overlap in the proof offered to establish the crimes.”).

Thus, reasonable jurists could not debate the correctness of the state court’s resolution of

this issue.

       Finally, Petitioner argues that his sentence was impermissibly increased based on

facts not found by a jury. The district court did not address this claim because the court

believed Petitioner had not raised this argument in his habeas petition. Reading the

petition liberally, we agree with Petitioner that this argument was actually raised.

Nevertheless, we conclude that Petitioner is not entitled to a certificate of appealability on

this issue because reasonable jurists could not debate the state court’s resolution of this

claim on the merits. See Slack, 529 U.S. at 485. Petitioner contends that his sentencing

violated the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), 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.” He argues that the Kansas sentencing scheme goes

beyond “the fact of a prior conviction” because it considers whether prior offenses were

                                              -8-
“person” or “nonperson” offenses and recommends increased sentences for a defendant

who has committed “person” offenses. See Kan. Stat. Ann. § 21-6811; see also Kan.

Sentencing Guidelines Desk Reference Manual App. D at 2 (2009). However, it is clear

from the record that the sentencing court did not look at the underlying facts of

Petitioner’s past criminal offenses. Certain prior offenses were classified as “person”

offenses based on the statutory elements of those offenses, not based on any

individualized factfinding about Petitioner’s specific conduct in those cases. Petitioner

has not shown that this constituted an unreasonable application of federal law; indeed,

this approach appears to be consistent with the Supreme Court’s categorical approach for

federal courts to apply in determining whether a defendant’s prior offense should be

characterized as a “violent felony”—a characterization which, like Kansas’s “person”

characterization of prior offenses, may affect the length of the defendant’s sentence. See

Taylor v. United States, 495 U.S. 575, 600 (1990). Accordingly, Petitioner has not shown

that reasonable jurists could debate the state court’s resolution of this claim under the

deferential standard required by § 2254(d).

       We therefore DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge


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