                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          June 19, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                             FOR THE TENTH CIRCUIT
                           ______________________________

PATRICK HOBBS,

       Petitioner-Appellant,

v.                                                             No. 06-3428
                                                        (D.C. No. 06-CV-3133-RDR)
DAVID R. MCKUNE, Warden,                                          (D. Kan.)
Lansing Correctional Facility;
PHILL KLINE, Attorney General,
State of Kansas,

       Respondents-Appellees.

                          _______________________________

                             ORDER AND JUDGMENT*
                          _______________________________

Before MURPHY and O’BRIEN, Circuit Judges, and KANE,** Senior District Court
Judge.
                   _______________________________

       Patrick Hobbs, a Kansas state prisoner serving a 174-month sentence on a 2001

vehicular homicide conviction, commenced this appeal under 28 U.S.C. § 2253(c)

seeking a certificate of appealability to challenge the sentencing court’s actions in using a

prior juvenile residential burglary adjudication to enhance his sentence under the Kansas

Sentencing Guidelines. After oral argument, the matter stands submitted on the question


       *
               This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
       **
              The Honorable John L. Kane, Jr., Senior United States District Judge for the
District of Colorado, sitting by designation.
of whether the 1995 juvenile burglary conviction may be treated as a “person” felony for

purposes of sentencing under the Kansas Sentencing Guidelines. While we express

dismay that poor record-keeping in the Kansas juvenile courts creates a situation where it

is impossible to say, with 100% confidence, that Petitioner’s sentence was properly

enhanced by the state court, the issue is one of state law and was resolved with finality by

the Kansas Supreme Court. The question before us on habeas review is whether the state

sentencing and appellate courts’ actions violated Petitioner’s clearly established federal

constitutional rights. Under all applicable Supreme Court precedent, we conclude they

did not. The district court’s denial of habeas relief is AFFIRMED.

                                             I.

                               Facts and Procedural History.

       The facts underlying Hobbs’s 2001conviction and sentence forming the basis of

his federal habeas petition are not at issue on appeal and are adequately set forth in the

Kansas Supreme Court’s decision confirming both. See State v. Hobbs, 71 P.3d 1140

(Kan. 2003). Briefly summarized, on the night of June 5, 2000, when he was 21 years

old, Hobbs drove several friends from a concert venue in Bonner Springs, Kansas.

According to witnesses, while approaching heavy traffic, Hobbs passed cars on the

shoulder of the road at a high rate of speed and then attempted to cut back into the traffic

lane. While doing so his car struck the back of one vehicle, went airborne, struck the top

of another vehicle and skidded into the back of a third. A passenger in the first vehicle




                                              2
died as a result of injuries from the crash, and several others were injured. Hobbs initially

fled the scene but was found wandering down a highway hours later.

       On April 6, 2001, Hobbs was convicted in Wyandotte County District Court on

charges of involuntary manslaughter, a severity level 5 person felony, in violation of Kan.

Stat. Ann. § 21-3404; aggravated battery, a severity level 5 person felony, in violation of

Kan. Stat. Ann. § 21-3414; and leaving the scene of an injury accident, a misdemeanor, in

violation of Kan. Stat. Ann. § 8-1602. At the time, Hobbs had three previous convictions

on his record: a 1995 juvenile adjudication in which Hobbs pled to one count of burglary;

an adult burglary conviction in 1997; and a drug conviction in 1998. After a series of

delays in which the sentencing judge in the vehicular homicide case ordered briefing,

scheduled argument and then overruled Hobbs’s objection to his presentence

investigation (PSI) criminal history report, Hobbs was sentenced in December 2001 to

consecutive prison terms of 128, 34 and 12 months, respectively.

       The 128-month sentence included a 68-month enhancement based on Hobbs’s

disputed status under the Kansas Sentencing Guidelines as a level-five, Category B

offender with two previous “person” felony convictions. See Kan. Stat. Ann. § 21-4704.

Hobbs did not dispute that the 1997 burglary conviction was a “person” felony, but

objected strenuously to the classification of his 1995 juvenile conviction as a “person”

felony when the Journal Entry of his plea characterized the burglary charge as being a

“severity level 7 nonperson felony.” While Hobbs has never denied that his 1995 plea

was to a residential burglary (a “person” felony under the charging statute), he maintained

                                             3
the Journal Entry recording that adjudication as a “nonperson” felony was dispositive and

that he should properly have been considered a Category C offender not subject to the 68-

month enhancement.1

       In a written decision issued on the parties’ briefs and after oral argument (see Tr.,

R., vol. 13), the sentencing court disagreed, finding “the categorization of the residential


       1
              The 1994 juvenile Complaint and 1995 Journal entry are important to
understanding the actions of the various state courts that reviewed Hobbs’s sentence in
the underlying case. In the Complaint (Aplt. App. 84), Hobbs was charged with two
counts – the first for theft of a shotgun, shotgun case and liquor, and the second for
burglary. The burglary (Count II), alleged Hobbs unlawfully entered a “building,” which
was a “house,” “owned by Cynthia Britt,” “which is a dwelling,” “with the intent to
commit a theft, a severity level 7 non-person felony, therein in violation of K.S.A. 21-
3715.” Id. (emphasis added). The Kansas burglary statute at Kan. Stat. Ann. § 21-3715
defines three different categories of burglary, including the entry into a

       (a) Building, manufactured home, mobile home, tent or other structure which is a
       dwelling, with intent to commit a felony, theft or sexual battery therein;

       (b) building, manufactured home, mobile home, tent or other structure which is not
       a dwelling, with intent to commit a felony . . . ; or

       (c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of
       persons or property, with intent to commit a felony . . . .

The statute goes on to state that:

       Burglary as described in subsection (a) is a severity level 7, person felony.
       Burglary as described in subsection (b) is a severity level 7, nonperson felony. . . .

In the Journal Entry on Hobbs’s plea to Count II, the juvenile court judge indicates
“Respondent waived reading of the Complaint,” and “admitted his guilt as to Count II of
the Complaint.” (Aplt. App. 86-87.) The Court concludes that “Respondent was
determined to be a Juvenile Offender as to Count II of the Complaint 94JV2481 (Felony,
Kan. Stat. Ann. § 21-3715, Severity Level 7, non-person felony), within the meaning of
the Juvenile Code of the State of Kansas, applicable thereto.”

                                              4
burglary which was the foundation of the defendant’s 1994 juvenile conviction as a non-

person felony in both the charging language and the Journal Entry signed by the judge

was a clerical error.” See Order 3 (Aug. 15, 2001) (Aplt. App. 72). In reaching this

conclusion, the trial judge relied heavily on a 1998 PSI criminal history report (PSR) that

had been prepared in connection with the 1997 drug case, which also included the 1995

juvenile adjudication and classified it as a “person” felony. After lengthy plea

negotiations that resulted in Hobbs receiving a significant downward departure to his

sentence, Hobbs had approved the criminal history computation, including the “person”

felony characterization of the 1995 plea, on the record. (Id.) Writing that the 1995

burglary conviction was “clearly a residential burglary and therefore a person felony

pursuant to the Kansas Sentencing Guidelines,” the court applied Kan. Stat. Ann.

§ 21-4714(f) to take judicial notice of the accuracy and authenticity of the 1998 PSR, and

overruled Hobbs’s objection to his 2001 PSR, which reiterated the characterization of the

1995 juvenile adjudication as “person” felony. (Id. at 71-72.)

       Hobbs appealed both his conviction and his sentence, asserting numerous claims of

error, including the criminal history computation characterizing the 1995 adjudication as

a “person,” rather than “nonperson” felony. In a lengthy opinion filed July 11, 2003, the

Kansas Supreme Court rejected each of his asserted claims of error and affirmed both his

conviction as well as the sentencing court’s findings and conclusions concerning the

criminal history computation, see Hobbs, 71 P.3d 1140, and thereafter denied Hobbs’s

Motion for Rehearing or Modification. Hobbs filed no petition for certiorari with the

                                             5
U.S. Supreme Court and his conviction therefore became final 90 days after September

23, 2003. See State v. Heath, 563 P.2d 418, 422 (Kan. 1977)(discussing finality of

criminal convictions).

       In March 2005, Hobbs filed a motion for post-conviction (state habeas corpus)

relief in the Wyandotte district court pursuant to Kan. Stat. Ann. § 60-1507. He raised

multiple claims of ineffective assistance of counsel and urged reconsideration of the

“person”/”nonperson” criminal history calculation issue under a then-recent Kansas

Supreme Court case he believed supported his assertion that the Journal Entry for his

1995 juvenile adjudication trumped all other evidence in characterizing a state conviction.

See State v. Kralik, 80 P.3d 1175 (Kan. 2003). Judge Sieve, the same judge who had

presided over Hobbs’s original trial and sentencing, distinguished Kralik, denied the

motion and Hobbs appealed. On March 17, 2006, the Kansas Court of Appeals issued a

written decision affirming the district court. Hobbs v. State, No. 94,194 (Kan. Ct. App.)

(unpublished decision).

       Rather than pursue a further state court appeal, Hobbs filed a petition for federal

habeas relief under 28 U.S.C. § 2254 in the United States District Court for the District of

Kansas asserting seven grounds for relief. With respect to the criminal history

computation and the state sentencing judge’s finding that the 1995 juvenile adjudication

was a “person,” rather than “nonperson,” felony, Hobbs argued the state court’s actions

violated his federal constitutional rights under the Fifth, Eighth and Fourteenth

Amendments generally, and also specifically in contravention of Shepard v. United

                                             6
States, 544 U.S. 13 (2005). (Aplt. App. vol. 2, 134.) In particular, Hobbs argued

Shepard’s holding limiting the inquiry a sentencing court may make in determining

whether a prior conviction qualifies as a predicate offense crime for purposes of the

federal Armed Career Criminal Act (ACCA) “mandated” habeas relief in his case. (Id.)

       In a substantive Memorandum and Order dated November 8, 2006, the District

Court rejected each of Hobbs’s federal habeas claims. Hobbs v. McKune, No. 06-3133-

RDR, slip op., 2006 WL 3246772 (D. Kan. Nov. 8, 2006)(unpublished decision), (Aplt.

App. 5-23). With respect to Hobbs’s Shepard arguments, the district court concluded (1)

Shepard did not apply retroactively in this case because Hobbs’s conviction was final

before it was decided; (2) Shepard’s holding was limited to matters of federal statutory

interpretation and did not articulate a governing principle of constitutional law; and (3)

the state sentencing court’s actions in this case comported with the Shepard requirements

in any event. (Aplt. App. 12-13.)2 Hobbs filed a Notice of Appeal, and requested a

certificate of appealability from the District Court.

       On December 13, 2006, the District Court denied Hobbs’s request for a certificate

of appealability. (Aplt. App. 23(A).) Because a certificate of appealability is a

prerequisite to any consideration of Petitioner’s appeal on its merits, see 28 U.S.C.

§ 2253(c)(1) and Fed. R. App. P. Rule 22(b), Appellees notified the court of their intent

       2
              We note the district court addressed Hobbs’s Shepard argument without
addressing the State’s contention at pages 9 and 15-17 of its Answer and Return that
Hobbs’s failure to assert “any” constitutional claims regarding the computation of his
criminal history renders habeas review of that issue procedurally defaulted. (Aplt. App.
Vol II pp. 207, 213-15.)

                                              7
not to file a response brief unless otherwise ordered. Hobbs filed his brief on January 3,

2007, and on April 11, 2007, the parties were notified that the case would be submitted to

a panel on the briefs under Rule 34 for Conference Calendar.

       The Conference Calendar panel did not issue a ruling on the certificate of

appealability and instead, withdrew the matter from the Conference Calendar and directed

Appellees to file a response on the limited issue of whether Hobbs’s “1995 juvenile

burglary conviction may be treated as a person felony for purposes of sentencing.” See

Order, dated July 11, 2007 (Baldock, J.). The matter was set for argument on the

November 2007 oral argument calendar and is now ripe for determination.

                                              II.

                                    Standard of Review.

       Because Hobbs filed his habeas petition after April 24, 1996, the provisions of the

Antiterrorism and Effective Death Penalty Act (AEDPA) govern the proceedings. See

Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citing Lindh v. Murphy,

521 U.S. 320, 326-27 (1997)). The AEDPA amended the provisions of 28 U.S.C. § 2254

generally to require that in considering habeas petitions, federal courts give deference to

state court adjudications of a petitioner’s claims.

                                Certificate of Appealability.

       A certificate of appealability (COA) must be granted before we may review the

merits of a habeas appeal. 28 U.S.C. § 2253(c)(1). Section 2253(c)(2) provides that a

COA will issue “only if the applicant has made a substantial showing of the denial of a

                                              8
constitutional right.” In Slack v. McDaniel, 529 U.S. 473, 484 (2004), the Court said this

standard requires “a demonstration 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.’”

Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).

       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, 937 (10th Cir. 2004). Therefore, we may grant a COA on a claim that was

adjudicated by the state court only if the appellant makes the requisite showing under §

2253(c)(2) that the propriety of the state court’s decision conflicts with clearly established

federal law or was the result of an unreasonable determination of the facts in light of the

evidence presented. 28 U.S.C. § 2254(d)(1)-(2).

                         Merits Review under 28 U.S.C. § 2254(d).

       In reviewing the denial of a petition for writ of habeas corpus on the merits, we are

subject to two different modes of analysis. If the constitutional claim was not heard on

the merits by the state court and the federal district court made its own determination in

the first instance, we review the district court’s conclusions of law de novo and its

findings of fact, if any, for clear error. LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.

1999). But when reviewing the merits of a claim already decided by the state courts, we

are bound to deny relief unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

                                              9
Supreme Court” or “resulted in a decision that was based on an unreasonable

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

proceeding.” Id. (quoting 28 U.S.C. §§ 2254(d)(1)-(2)). A state court decision is

       ‘contrary to, or involves an unreasonable application of, clearly established
       Federal law, as determined by the Supreme Court of the United States’ if:
       (1) the state court decision is in square conflict with Supreme Court
       precedent which is controlling on law and fact or (2) if its decision rests
       upon an objectively unreasonable application of Supreme Court precedent
       to new facts. Quite simply, the ‘AEDPA increases the deference to be paid
       by the federal courts to the state court’s factual findings and legal
       determinations.’

Id. at 711 (quoting Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997)).

       Under any application of the law, this court does not stand to correct errors of state

law and is bound, in the absence of any violation or misapplication of clearly established

federal law, by a state court’s interpretation of its own law. Estelle v. McGuire, 502 U.S.

62, 67-68 (1991).

                                             III.

                                        Discussion.

       Given the procedural history of this case and the impact on petitioner’s sentence of

the treatment of his 1995 juvenile adjudication as a “person,” rather than “nonperson”

felony, we concur Petitioner’s challenge to the constitutionality of the state court’s

actions deserved encouragement to proceed and now issue a COA to address that specific

question on its merits. We decline to issue a COA on the other issues raised in Hobbs’s

Petition.


                                             10
       The standard of review to apply to this question on appeal is mixed under

LaFevers, in that Hobbs’s generalized Sixth and Fourteenth Amendment constitutional

challenge3 to the sentencing judge’s criminal history determination was considered and

rejected by the Kansas state courts, while the specific propriety of the sentencing court’s

actions under Shepard was decided in the first instance by the district court below. Given

the outcome of this case and the fact that the district court addressed Shepard

notwithstanding Hobbs’s purported failure to exhaust under § 2254(b)(2), we do the

same. We consider Hobbs’s arguments premised on Shepard and related Supreme Court

cases first under a de novo standard in accordance with LaFevers, and then consider the

remaining arguments raised first in the Kansas state courts thereafter under § 2254(d).




       3
              As Appellees correctly point out, the only explicit mention of the United
States Constitution occurred on page 46 of Hobbs’s direct appeal brief to the Kansas
Supreme Court, and only by way of comparison in the context of making a generalized
due process argument that the sentencing court’s actions denied him his rights under the
Kansas Constitution to “demand the nature and cause of the action” against him. Hobbs
argued the Kansas Bill of Rights included similar language to that of the Sixth
Amendment, extending to an accused criminal defendant “the right ‘to be informed of the
nature and cause of the accusation.’” (DOA Br. at 46, citing State v. Hall, 793 P.2d 737
(Kan. 1990)). Hobbs also cited State v. Larson, 958 P.2d 1154 (Kan. 1998), and State v.
Gould, 23 P.3d 801 (Kan. 2001), for the proposition that a defendant “cannot be
convicted of a crime greater than that with which he is charged.” Id. at 47. Both Larson
and Gould apply Sixth Amendment federal due process concepts to the Kansas
Sentencing Guidelines.

                                             11
                                             A.

          The sentencing court’s sentence calculation did not offend Shepard or
                           related Supreme Court precedent.

       For the first time on habeas review, Hobbs argued the state court’s actions in

looking beyond the 1995 juvenile case Journal Entry to declare its reference to a

“nonperson” felony a clerical error violated his due process rights under Shepard v.

United States, 544 U.S. 13 (2005). See Pet. for Writ of Habeas Corpus, Civ. Action

No. 06-3133, 35. On appeal, Hobbs relies further on the Supreme Court’s decision in

Taylor v. United States, 495 U.S. 575 (1990), which informed the Supreme Court’s

decision in Shepard.

       At issue in both Shepard and Taylor was the limit of a sentencing court’s inquiry

into the nature of prior state court generic burglary convictions in determining whether

those convictions could be deemed “violent” felonies for purpose of federal sentence

enhancement under the Armed Career Criminal Act (ACCA). Describing its holding in

Taylor, the Court in Shepard stated “the ACCA generally prohibits the later court from

delving into particular facts disclosed by the record of conviction, thus leaving the court

normally to ‘look only to the fact of conviction and the statutory definition of the prior

offense.’” 544 U.S. at 17 (quoting Taylor). In Shepard the Court looked to the

circumstances under which the rule in Taylor, which arose in the context of convictions

on a jury verdict, could be applied also to convictions on pleas. Id. at 19. It held the

       enquiry under the ACCA to determine whether a plea of guilty to burglary
       defined by a nongeneric statute necessarily admitted elements of the generic

                                             12
       offense is limited to the terms of the charging document, the terms of a plea
       agreement or transcript of colloquy between judge and defendant in which
       the factual basis for the plea was confirmed by the defendant, or to some
       comparable judicial record of this information.

Id. at 26. Based on our review of the law and our own cases interpreting Shepard, we

agree with the district court not only that the Kansas courts’ actions in upholding the state

sentencing judge are not implicated by Shepard or Taylor, but also that, even if they were,

the sentencing judge’s actions would not have offended them.

       We find our decision in United States v. Christensen, 456 F.3d 1205 (10th Cir.

2006), dispositive on both counts. In Christensen we clarified that Shepard and Taylor

were not constitutional decisions and decided only matters of federal statutory

interpretation under the ACCA. Id. at 1206-07. Shepard took pains, for example, to limit

its holding that federal courts are constrained to look only at certain court documents in

determining whether a prior state burglary conviction was a “violent” crime to the

language of the ACCA itself, and not the constitution. Shepard, 544 U.S. at 25 (invoking

the rule of reading statutes to avoid serious risks of unconstitutionality). Absent

additional authority from the Supreme Court, then, neither Taylor nor Shepard provides a

constitutional basis for challenging the Kansas courts’ actions in this case.

       Moreover, even if we were to interpret Shepard’s holding as articulating a new

constitutionally-based rule constraining sentencing courts from looking beyond charging

documents and plea colloquies for sentence enhancement purposes, that rule would not

apply retroactively to Hobbs, whose conviction and sentence became final in late 2003 –


                                             13
more than a year before Shepard was decided. See Christensen, 456 F.3d at 1207. And

finally, we agree that the Court’s holdings in Taylor and Shepard – even if they were

determined to state a principle of constitutional law rather than statutory interpretation

and were applicable to the Kansas courts’ actions in approving the enhancement of

Hobbs’s sentence as a Category B, rather than C, offender – were not clearly offended by

the sentencing court’s actions in finding the “nonperson” felony reference in the 1995

Complaint and Journal Entry to have been clerical error. Even without reference to the

1998 PSR of which it took judicial notice under Kan. Stat. Ann. § 21-4714(f), the court

compared the facts charged in the Complaint and admitted in the Journal Entry to the

applicable burglary statute language to find Hobbs plead to a “person,” rather than

“nonperson,” felony within the import of both Supreme Court cases.

       Reviewing Hobbs’s claim for habeas relief premised on Shepard and Taylor de

novo, we affirm the district court and deny the Petition on its merits.

                                             B.

    The state courts’ approval of the sentencing court’s actions in treating the 1995
  adjudication as a “person” felony did not otherwise run afoul of clearly established
  Federal law and was not an “unreasonable” determination of the facts in light of the
                      evidence presented under § 2254(d)(1) & (2).

       In its decision on direct appeal, the Kansas Supreme Court found Hobbs’s Kansas

state – and by implication, Sixth Amendment due process – arguments “without merit.”

(Aplt. App. 41.) Rather than address the arguments directly, however, the Court

determined that the sentencing judge had been authorized by operation of Kan. Stat. Ann.


                                             14
§ 27-4715(c) to take judicial notice of the 1998 PSR prepared in connection with his drug

conviction because Hobbs had failed, in that case, to object to it. (Id.)

       Under § 2254(d)(1), we are bound to deny relief on Hobbs’s arguments premised

on Hall, Larson, and Gould unless the Kansas court’s decision is in “square conflict” with

Supreme Court precedent or if it rests upon an “objectively unreasonable application of

Supreme Court precedent to new facts.” LaFevers, 182 F.3d at 711. Hobbs’s only

specific arguments that the state courts’ actions run contrary to established Supreme

Court precedent rely on Shepard and Taylor, which we have already resolved against him

as stated above.

       Based on our independent review of clearly established federal law, we cannot

conclude the Kansas Supreme Court’s reliance on the judicial notice provisions of Kan.

Stat. Ann. § 27-4715 to reject Hobbs’s arguments premised on Hall, Larson and Gould

offended any established principle of federal law. Under habitual offender sentencing

schemes such as Kansas’s, the repeat offender is not being “accused” or convicted

“again” for his prior offenses; instead, his prior convictions establish a sentencing

classification for his current conviction, which is the only one being punished. See State

v. Landon, 900 P.2d 254, 256 (Kan. Ct. App. 1995). Having failed to persuade us the

sentencing court’s actions ran afoul of Taylor or Shepard, the Kansas courts’ approval of

the sentencing judge’s actions in declaring Hobbs’s 1995 adjudication a “person” rather

than “nonperson” felony is contrary to no other identified or identifiable Supreme Court

precedent. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (prior convictions are

                                             15
exempt from rule that facts sufficient to raise the limit of a possible criminal sentence

must be found by a jury absent a waiver by defendant).

       Hobbs devotes the majority of his argument under § 2254(d) to the assertion that

the treatment of his 1995 juvenile adjudication as a “person” felony constituted an

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

Court proceeding” under § 2254(d)(2). Hobbs’s argument is that, when he objected to the

characterization of his 1995 conviction as a “person” felony in his 2001 criminal history

report, the burden shifted to the State to establish the fact of that conviction. Because the

State failed to come forward with any evidence to rebut the “nonperson” designation in

the juvenile court’s 1995 Journal Entry, Hobbs concludes the sentencing court’s actions

in judicially noticing that the offense was actually a “person” felony and ascribing

“clerical error” to the Journal Entry constituted an unreasonable finding of fact based on

the “evidence” presented under § 2254(d)(2).

       At oral argument counsel for Hobbs was pressed to relate this alleged error to a

specific Supreme Court case or established federal constitutional right, the touchstone of

any remedy under § 2254. Again he asserted the sentencing court’s actions violated his

fundamental rights to “due process,” which, besides his reliance on Shepard and Taylor,

he supports in his briefing with citations to Beem v. McKune, 317 F.3d 1175, 1187-96

(10th Cir. 2003)(McKay, J., dissenting) as well as the Hall, Larson and Gould trilogy

already rejected above.




                                             16
       Beem, a decision in which this court, en banc, denied habeas relief to Kansas state

prisoners who had been convicted of rape of a child but resentenced in accordance with

an intervening Kansas Supreme Court case to lesser terms that conformed to convictions

for aggravated incest. 317 F.3d at 1184-85. Because the “effect” of the state court’s

actions left the underlying convictions for general sex crimes intact and imposed

sentences less than that authorized by the jury’s guilty verdict, a plurality of the court held

petitioners’ due process rights under Apprendi were not violated, and denied habeas

corpus relief. Id. Judge McKay dissented, arguing petitioners’ sentencing on offenses

that were never charged offended their procedural due process rights under Cole v.

Arkansas, 333 U.S. 196 (1948) (the due process under the Sixth Amendment requires

notice of specific charge and chance to be heard in a trial on issues raised by that charge).

       Neither Beem nor Cole have any application here. Hobbs was convicted and

sentenced on the offense charged (vehicular homicide) and asserts no defect in the notice

received or his chance to be heard at trial on the issues raised by that charge. Hobbs’s

assertion that the sentencing court’s treatment of his 1995 “nonperson” felony as a

“person” felony to enhance his sentence “convict[s] him of a crime greater than that with

which he was charged” (Aplt. Br. at 35 (citing Hall, Larson and Gould)) is similarly

unavailing. As previously stated, Hobbs misunderstands the function of his burglary

conviction under the Kansas Sentencing Guidelines. Neither his current conviction nor

his enhanced sentence “punishes” him again for a prior crime. Instead, the prior

conviction merely led to an enhanced sentence for a new crime.

                                              17
       Moreover, we note Hobbs’s reliance on § 2254(d)(2) to characterize the sentencing

court’s clerical error determination as an unreasonable finding of fact given the evidence

presented is fundamentally misplaced. Section 2254(d)(2) is directed at the evidentiary

sufficiency of a petitioner’s state court conviction under a standard where a presumption

of correctness applies to all findings of fact. § 2254(e)(1). The relevant question, under a

§ 2254(d)(2) review, “is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

Hobbs’s argument that the determination his 1995 juvenile adjudication was a “person”

rather than “nonperson” felony was “unreasonable” conflates an argument regarding the

propriety of the sentencing court’s actions in making a legal determination regarding a

defendant’s criminal history with the standard for evaluating the evidentiary sufficiency

of a conviction under § 2254(d)(2). While the sentencing judge’s determination in this

case included reviewing the 1995 case Complaint and Journal Entry, consulting the

statutory elements of the crime of burglary, and giving effect, under Kan. Stat. Ann. § 21-

4714(f), to Hobbs’s failure to object to that same criminal history in his 1998 PSR, the

determination was a legal one reviewable after AEDPA only for reasonableness and

consistency with “clearly established Federal law” under § 2254(d)(1). See State v.

Presha, 8 P.3d 14, 16 (Kan. Ct. App. 2000) (what constitutes a prior conviction for

purposes of determining a defendant’s criminal history under the Kansas Sentencing




                                             18
Guidelines Act, Kan. Stat. Ann. § 21-4701 et seq. is a question of law). It was not

reviewable as an evidentiary challenge under 2254(d)(2).

       Finally, we note that even if the sentencing judge’s finding of clerical error is

viewed as a factual finding on evidence presented in accordance with Kan. Stat. Ann. §

21-4715(c), that finding is presumed correct in habeas proceedings under § 2254(e)(1). It

is Hobbs who has the burden of rebutting that presumption of correctness by a

preponderance of the evidence, see id., and the record before us belies any such

conclusion.

                                             IV.

                                        Conclusion.

       We agree with the federal district court that Mr. Hobbs has failed to establish that

the state sentencing court’s treatment of his 1995 juvenile adjudication as a “person”

rather than a “nonperson” felony for purposes of enhancing his sentence under the Kansas

Sentencing Guidelines constituted a denial of his rights under the United States

Constitution. Accordingly, we AFFIRM.



                                                   Entered for the Court.

                                                   John L. Kane
                                                   Senior U.S. District Judge




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