                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         May 23, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                         Clerk of Court
                                 TENTH CIRCUIT



 ADRIAN M. REQUENA,

               Petitioner-Appellant,                      No. 07-3282
          v.                                              (D. of Kan.)
 RAY ROBERTS, Warden, El Dorado                   (D.C. No.07-CV-3058-JWL)
 Correctional Facility; ATTORNEY
 GENERAL OF KANSAS,

               Respondents-Appellees.


           ORDER DENYING PETITION FOR HABEAS RELIEF AND
                  CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Adrian M. Requena appeals a district court order denying his petition for

habeas relief from a conviction of rape under Kansas state law. The federal

district court denied him relief on all of his claims, but granted him a certificate

of appealability (COA) on an ineffective assistance of counsel claim. We review



      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the district court’s orders pursuant to 28 U.S.C. §§ 1291 and 2253, and AFFIRM

the district court’s denial of habeas relief on the ineffective assistance claim. We

also DENY Requena’s request for a COA on the remaining issues and DISMISS

his appeal as it relates to these issues.

                                    I. Background

      J.C., the victim in this case, suffers from various serious ailments such as

multiple sclerosis and takes numerous medications to help alleviate her

symptoms. At the time of the crime, her friend, Susan Andrey, lived in the same

house as J.C. and helped her with daily activities such as driving, bathing, and

housework that she was not able to do as a result of her condition.

      On March 26, 1999, J.C. and Andrey were playing bingo at the American

Legion. While playing bingo, J.C. took a Remeron tablet so that she would be

able to sleep when she returned home. The pill took effect sooner than expected,

however, because she fell asleep at the bingo table. Andrey took J.C. home and

helped her get to bed. Andrey testified that J.C. was “pretty helpless,” and

Andrey was unable to help her take her clothes off. Andrey left J.C. in her

bedroom wearing a t-shirt, sweatshirt, jeans, and socks.

      Andrey went to sleep around midnight, but later awoke when she heard

J.C.’s cat meow. Andrey walked over to J.C.’s room to investigate why the cat

was not in the room with J.C. Andrey noticed that J.C.’s door was open. When

she looked in, she saw a naked man lying next to J.C. She recognized the man as

                                            -2-
the petitioner Requena. Both J.C. and Andrey knew Requena because they met

him at an Alcoholics Anonymous meeting. J.C. considered Requena a friend, but

there was no prior sexual relationship between them.

      When J.C. awoke the next morning, Andrey asked her why Requena had

been naked in J.C.’s bed. J.C. replied, “Are you sure you don’t mean Robert?”

R., Vol. VII at 55. Robert was a man J.C. had previously been attracted to. The

man J.C. had thought was in her bed could not have been Robert, however,

because Robert was living in a halfway house. After this conversation, J.C. went

back to sleep. J.C. awoke again later in the day and further discussed the incident

with Andrey. J.C. decided to report what happened to the police and have a rape

examination conducted at the hospital.

      Requena was charged with one count of rape in violation of K.S.A. § 21-

3502(a)(1)(C) and one count of aggravated burglary in violation of K.S.A. § 21-

3716. A Kansas jury convicted Requena of the rape charge but acquitted him of

the aggravated burglary charge. Requena appealed his conviction and sentence.

The Kansas Court of Appeals affirmed, and the Kansas Supreme Court denied

review.

      Requena then brought a motion for post-conviction relief pursuant to

K.S.A. § 60-1507. The trial court dismissed his claim, the Kansas Court of

Appeals affirmed, and the Kansas Supreme Court denied review. Requena filed a

habeas petition in the United States District Court for the District of Kansas. In

                                         -3-
his petition, Requena raised the following issues: (1) insufficient evidence

supported his conviction for rape; (2) the district court erred in failing to instruct

the jury on the meaning of “incapable of giving consent”; (3) the district court

erred in refusing to consider Requena’s motion for a new trial; (4) the district

court erred in failing to conduct an evidentiary hearing on his claim of ineffective

assistance of counsel; and (5) he received ineffective assistance of counsel. The

court denied relief on all of these claims, but granted Requena a COA for one of

his ineffective assistance of counsel claims. This pro se appeal follows. 1

                                    II. Discussion

      On appeal, we review the district court’s denial of federal habeas relief on

Requena’s ineffective assistance of counsel claim and the district court’s denial of

a COA on the remaining issues.

A.    Ineffective Assistance of Counsel

      We review the denial of federal habeas relief de novo, applying the same

standards used by the district court. Jackson v. Ray, 390 F.3d 1254, 1259 (10th

Cir. 2004). Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA),

a federal court may not grant habeas relief on a claim adjudicated on the merits in

state court, unless the state court decision “was contrary to, or involved an


      1
         Because Requena proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).


                                           -4-
unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

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

proceeding,” id. § 2254(d)(2).

      To prevail on an ineffective assistance of counsel claim, a petitioner must

show (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) petitioner was prejudiced by the deficient representation.

E.g., Hill v. Lockhart, 474 U.S. 52, 57 (1985). To establish that defendant was

prejudiced by counsel’s assistance during plea negotiations, the defendant must

show there was “a reasonable probability that but for incompetent counsel [the]

defendant would have accepted the plea offer and pleaded guilty.” United States

v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997).

      Requena argues his trial counsel mistakenly told him the maximum

sentence he could face for a rape conviction was 205 months in prison, when in

fact Kansas’s guidelines indicated he faced a sentence of between 242 and 270

months. 2 The government made a plea bargain offer of 27 months, but Requena


      2
        The criminal complaint against Requena mistakenly stated he was charged
with a level 2 offense, when in fact his conduct supported a charge of a level 1
offense. The guidelines indicated a sentence for a level 2 offense was between
242 and 270 months, while a sentence for a level 1 offense was between 322 and
356 months. Over the government’s objection, the trial court subsequently
sentenced Requena as if he had been convicted of a level 2 offense and gave him
256 months in prison. Therefore, Requena never faced a maximum exposure
greater than 270 months.

                                         -5-
rejected it. After a jury convicted him of rape, he was sentenced to 256 months in

prison. Requena argues but for his counsel’s inaccurate advice about his

maximum exposure, he would have accepted the plea bargain offer of 27 months.

      The Kansas Court of Appeals reasonably concluded Requena failed to

demonstrate prejudice in this case. It denied post-conviction relief for three

reasons:

      First, to satisfy the prejudice prong of the analysis, Requena must
      show a reasonable probability that, but for counsel’s errors, he would
      have accepted the State’s plea bargain offer. We consider de novo
      whether this would have been so. See State v. Mathis, 281 Kan. 99,
      110, 130 P.3d 14 (2006). Requena was facing a presumptive
      sentence of as much as 270 months. In the face of this prospect, he
      asserts that he rejected a plea bargain offer of 27 months’
      imprisonment. Requena has the burden of showing us that a different
      outcome was a reasonable probability, not merely a possibility.
      Given the substantial sentence Requena was facing under the original
      charges and the generosity of the proposal he rejected, we are not
      convinced that there was a reasonable probability he would have
      accepted the offer had it been made to the more serious charge.

      Second, there is nothing to suggest that the State would have
      extended the same offer to Requena for a level 1 person felony.

      Third, at the time the charging and sentencing error was realized,
      Requena had ample opportunity to raise the issue in his direct appeal.
      Though his direct appeal had already been docketed, his brief on
      appeal had not yet been submitted. The docketing statement form
      that is required asks for a concise statement of the issues proposed to
      be raised, but states: “You will not be bound by this statement, but
      should include issues now contemplated.” Supreme Court Rule 2.041
      (2005 Kan. Ct. R. Annot. 13, 17). He had until the submission of his
      appellate brief to raise this issue regarding the improper charge.




                                         -6-
Requena v. State, No. 95,443, 2006 WL 3740879, at *2–*3 (Kan. Ct. App. 2006). 3

      In sum, the record supports the Kansas Court of Appeal’s conclusion that

Requena, who turned down a 27-month offer in the face of a lengthy—albeit

mistaken—205 month sentence, has shown no prejudice even if he could

overcome a procedural bar. Since Requena turned down a generous plea

agreement in the face of an already potentially lengthy sentence, we agree there is

no “reasonable probability that but for incompetent counsel,” Carter, 130 F.3d at

1442, he would have accepted the offer if he knew his actual exposure was 270

months rather than 205 months.

      Because the Kansas Court of Appeals properly decided Requena failed to

establish prejudice, it is unnecessary for us to evaluate the first prong of the

Strickland test. Strickland v. Washington, 466 U.S. 668, 697 (1984) (“If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed. Courts should strive to ensure that

ineffectiveness claims not become so burdensome to defense counsel that the

entire criminal justice system suffers as a result.”).




      3
        The district court found this explanation compelling under Strickland v.
Washington, 466 U.S. 668. The court also noted that Requena refused a sentence
that was approximately 13 percent of the purported maximum (27/205 months)
compared to a sentence of 10 percent of the actual maximum (27/270 months).

                                          -7-
       Applying AEDPA deference, we agree with the district court that the

Kansas Court of Appeal’s application of Strickland was reasonable and therefore

deny Requena’s petition for federal habeas relief.

B. Certificate of Appealability

       The federal district court denied Requena a COA on nine additional

ineffective assistance of counsel claims, which we discuss below. The court also

denied him a COA on his claims that (1) there was insufficient evidence to

support his conviction for rape; (2) the district court erred in failing to instruct the

jury on the meaning of “incapable of giving consent”; (3) the district court erred

in refusing to consider Requena’s motion for a new trial; and (4) the district court

erred in failing to conduct an evidentiary hearing on his claim of ineffective

assistance of counsel.

       To obtain a COA, Requena must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Requena “must

show that reasonable jurists could debate whether . . . the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003) (internal quotation marks omitted). “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that [the] petitioner will not prevail.” Id. at

338.

                                          -8-
      1. Ineffective Assistance of Counsel

      Requena argues his attorney provided ineffective assistance of counsel by

(1) asking Requena to write an affidavit of the night in question but never using

it; (2) explaining to Requena that he had just won a case and did not think the

district attorney would let him win another; (3) failing to provide Requena any

information about the rape shield law; (4) failing to present the jury evidence of

the Kansas Bureau of Investigation (KBI) lab report and failing to call a forensic

scientist witness to discuss the report; (5) failing to object to testimony about

J.C.’s alleged prior theft of narcotics during her employment; (6) telling Requena

he would subpoena an independent physician but failing to do so; (7) failing to

excuse the jury due to one potential juror’s outburst; (8) failing to request an

evaluation of J.C.’s mental capacity; and (9) failing to let Requena testify.

      We have conducted a complete review of the state court record. For

substantially the same reasons as set forth in the federal district court’s order, we

reject Requena’s claims. First, the district court properly concluded that Requena

failed to provide any evidence or analysis in allegations 1, 2, 3, 5, 8, and 9

demonstrating his attorney’s conduct was deficient. With respect to arguments 1,

2, 3, 5, and 8, Requena also failed to provide any evidence or explanation for why

counsel’s conduct prejudiced the defendant.

      We address allegations numbered 4, 6, and 7 in greater detail.




                                         -9-
      (Allegation #4). Requena claims his counsel was ineffective for failing to

introduce a lab report as evidence and failing to call a forensic scientist with the

KBI to discuss the findings of the report. Requena implies the report may have

contained DNA evidence that would have exonerated him. While the report may

have contained DNA evidence, identity was not a reasonable defense in this case.

Requena had admitted he was present at J.C.’s house and in her bed the night the

alleged rape occurred. The primary issue for the jury, instead, was whether J.C.

consented to the sexual encounter. Because it is unlikely the DNA evidence

would have altered the outcome of the trial, the Kansas Court of Appeals properly

concluded the attorney’s performance was not deficient and Requena was not

prejudiced by the attorney’s conduct.

      (Allegation #6). Requena also alleges his attorney falsely told him that he

would subpoena a doctor, and this doctor would testify that a lay person is not

capable of recognizing the effects of certain medications. Requena suggests this

testimony would show that Requena reasonably believed J.C. consented to the

sexual encounter. As an initial matter, Requena failed to provide an affidavit or

any other proof suggesting a doctor would provide such testimony. Even if

Requena provided such evidence, he would not be able to establish prejudice

under Strickland. As the district court convincingly explained, sufficient

evidence existed from which the jury could reasonably infer that Requena knew

J.C. was incapable of consenting. In particular, Requena admitted he was aware

                                         -10-
of J.C.’s serious medical condition and symptoms. Because he was aware of

these severe symptoms, the jury could reasonably infer that Requena knew these

symptoms would prevent J.C. from consenting to sexual intercourse, even if

Requena was not aware of the effects of J.C.’s medication.

         Therefore, the federal district court properly denied Requena a COA on this

issue.

         (Allegation #7). Requena alleges that during voir dire, one potential juror

said in the presence of the other jurors, “I have been raped,” and began crying.

The judge excused her for cause. Requena claims his counsel was ineffective for

not asking each remaining juror if the outburst would affect their judgment.

         “[A]n attorney’s actions during voir dire are considered to be matters of

trial strategy, which cannot be the basis of an ineffective assistance claim unless

counsel’s decision is . . . so ill chosen that it permeates the entire trial with

obvious unfairness.” Neill v. Gibson, 278 F.3d 1044, 1055 (10th Cir. 2001)

(internal quotation marks omitted). A statement by an excused juror about a past

experience generally does not permeate a trial with obvious unfairness, unless the

statement is related to the guilt of the defendant or the veracity of a witness. Cf.

United States v. Buchanan, 787 F.2d 477 (10th Cir. 1986). In Buchanan, the

district court asked a potential juror whether he knew of any reason he couldn’t

be fair and impartial in a case involving arson. Id. at 480. The juror responded,

“yes, . . . [i]n the last five years my mobile home has been vandalized three times

                                          -11-
and I have had real estate burned.” Id. The court excused the juror and denied

the defendant’s motion for a mistrial. On appeal, the Tenth Circuit concluded the

trial court did not err in refusing to grant a mistrial because the juror’s “remark

did not constitute an opinion on the defendant’s guilt or the veracity of anyone

involved in the case.” Id.

      The attorney’s failure in the present case to question the remaining jurors

about the excused juror’s statement did not permeate the trial with obvious

unfairness. Like the excused juror in Buchanan, the juror did not express an

opinion about the guilt of Requena or the veracity of anyone involved in the case.

Because the attorney’s conduct did not constitute ineffective assistance, we

conclude Requena is not entitled to a COA on this basis.

      2. Sufficiency of Evidence

      The Kansas Court of Appeals rejected Requena’s claim that there was

insufficient evidence supporting his rape conviction. In reaching this conclusion,

it applied a standard of review nearly identical to the one required under Jackson

v. Virginia, 443 U.S. 307, 319 (1979). See State v. Requena, 41 P.3d 862, 865

(Kan. Ct. App. 2001) (citing State v. Mason, 986 P.2d 387 (Kan. 1999)). Because

the court reasonably applied the correct standard to the facts of the case, see 28

U.S.C. § 2254, we conclude Requena is not entitled to a COA on this ground.

      3. Jury Instruction




                                         -12-
      Requena argues the trial court erred by not instructing the jury on the

meaning of “incapable of giving consent.” A defendant in a habeas proceeding

has a substantial burden to overcome when attacking a state court judgment based

on an erroneous jury instruction. Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.

1995). “A state conviction may only be set aside in a habeas proceeding on the

basis of erroneous jury instructions when the errors had the effect of rendering the

trial so fundamentally unfair as to cause a denial of a fair trial.” Id. This burden,

in fact, “is even greater than the showing required to establish plain error on

direct appeal.” Id.

      We conclude Requena failed to overcome this substantial burden. The

Kansas Court of Appeals reasonably rejected Requena’s argument because the

term “‘incapable of giving consent’ is one which people of common intelligence

and understanding can comprehend and is not a term that requires definition.”

Requena, 41 P.3d at 866. Furthermore, nothing in the record indicates that the

instructions were improper or the fundamental fairness of the trial was

undermined by the court’s failure to define this phrase.

      Because the Kansas Court of Appeals’s resolution of this issue was a

reasonable application of Supreme Court precedent or federal law, we deny

Requena’s request for a COA on this basis.

      4. Motion for a New Trial




                                         -13-
      Requena argues that the trial court erred in refusing to consider his

untimely motion for a new trial. In the motion, he only alleged ineffective

assistance of counsel. The Kansas Court of Appeals concluded the trial court did

not abuse its discretion in denying the motion. Furthermore, it concluded even if

it abused its discretion, it was not reversible error because Requena did not

demonstrate that he received ineffective assistance of counsel. Because we agree

Requena failed to establish that his attorney was deficient, we deny Requena’s

request for a COA.

      5. Post-Conviction Evidentiary Hearing

      Finally, Requena argues he is entitled to a COA because the state trial court

erroneously denied his request for an evidentiary hearing in connection with his

post-conviction motion alleging ineffective assistance of counsel. We have

previously held that challenges to a state’s post-conviction procedures are

generally not cognizable in federal habeas proceedings. E.g. Sellers v. Ward, 135

F.3d 1333, 1339 (10th Cir. 1998) (holding petitioner may not challenge state

court’s denial of post-conviction evidentiary hearing because “federal habeas

corpus relief does not lie for errors of state law”).

      Because Requena’s claim is not cognizable in a federal habeas proceeding,

we deny his request for a COA.




                                          -14-
                                 III. Conclusion

       Based on our review of the record, we are not persuaded that the Kansas

Court of Appeals’s denial of Requena’s ineffective assistance of counsel claim

was based on an unreasonable application of clearly established federal law or

based on an unreasonable determination of the facts. Likewise, we are not

persuaded jurists of reason would disagree with the federal district court’s

disposition of Requena’s petition. Accordingly, we AFFIRM the district court’s

denial of habeas relief on the ineffective assistance claim. We also DENY

Requena’s request for a COA on the remaining issues and DISMISS his appeal as

it relates to these issues.

                                      Entered for the Court,



                                      Timothy M. Tymkovich
                                      Circuit Judge




                                        -15-
