Love v. Roberts

                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 6, 2007
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                               TENTH CIRCUIT                        Clerk of Court



 LEVI LOVE,

             Petitioner-Appellant,                      No. 07-3210
       v.                                                (D. Kansas)
 RAY ROBERTS, Warden,                           (D.C. No. 05-CV-3481-CM)
 ATTORNEY GENERAL OF
 KANSAS,

             Respondents-Appellees.



                                     ORDER


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.


      Levi Love, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s order denying his 

 petition. In his § 2254 petition, Mr. Love raised at least nineteen claims

stemming from his trial and conviction of first-degree murder and attempted first

degree murder. Before this court, he raises at least thirty-seven contentions. The

district court determined that all of Mr. Love’s claims “except the claims of

newly discovered evidence and a few specific ineffective assistance [of] counsel

claims” were procedurally barred. Rec. vol. I, doc. 38, at 4 (Memorandum and

Order, filed July 19, 2007). The district court dismissed the remaining claims,
which encompassed newly discovered evidence, ineffective assistance of trial and

appellate counsel, and the trial court’s failure to conduct an evidentiary hearing.

Mr. Love also seeks to be released on his own recognizance. Agreeing with the

reasoning of the district court’s Memorandum and Order, which is attached to this

Order, because Mr. Love has failed to make a “substantial showing of the denial

of a constitutional right,” see 

(c)(2), we deny his application for

a COA, dismiss all outstanding motions, and dismiss this appeal.

                                 I. BACKGROUND

      On November 5, 1997, a jury convicted Mr. Love of first-degree murder

and attempted murder, and the state court sentenced him to concurrent terms of

life imprisonment and 816 months’ imprisonment. Mr. Love appealed, arguing

(1) the trial court should have suppressed certain evidence, (2) insufficiency of

evidence to support the convictions, and (3) violation of his Confrontation Clause

right through the admission of hearsay evidence. The Kansas Court of Appeals

and the Kansas Supreme Court affirmed his convictions.

      On December 16, 1999, Mr. Love sought post-conviction relief where he

raised two contentions: (1) newly discovered evidence warranted a new trial; and

(2) his trial and appellate counsel were ineffective. Mr. Love filed a “new

revised” post-conviction motion that added sixteen additional issues to his

petition. The state district court denied any relief, which the Kansas Court of




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Appeals affirmed. The Kansas Supreme Court denied Mr. Love’s request for

review.

      After the state district court denied relief, Mr. Love also filed a motion to

correct his sentence, which the state district court denied. The Kansas Supreme

Court affirmed the denial of relief.

                                   II. DISCUSSION

      A COA can issue only “if the applicant has made a substantial showing of

the denial of a constitutional right.” 

(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with

the district court's resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 

 (2003). When a district court

has dismissed a habeas petition on procedural grounds, a certificate will only

issue when “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 

(2000). The court did not address whether to grant Mr. Love a certificate of

appealability, see 

(c)(1) (requiring a COA to appeal denial of

habeas application), which we deem a denial. See United States v. Kennedy, 

, 1193 n.3 (10th Cir. 2000). Finally, we construe Mr. Love’s pro se

petition and appellate filings liberally. See Haines v. Kerner, 

(1972); Cummings v. Evans, 

 (10th Cir. 1998).


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      Here, the district court denied the bulk of Mr. Love’s claims on procedural

grounds because of failure to exhaust state remedies. The district court concluded

that Mr. Love did not raise these claims in his direct appeal, and the Kansas state

courts concluded in post-conviction review that he had procedurally defaulted

these claims. We agree with the district court that the Kansas Supreme Court

Rule 183(c)(3) (procedural bar rule) provided an independent and adequate basis

not to reach the merits of these claims.

      On habeas review, we will not review claims defaulted in state court on an

independent and adequate state procedural ground absent a showing that: (1) a

cause outside the control of the petitioner caused the default, and the petitioner

has suffered prejudice; or (2) a fundamental miscarriage of justice would occur

absent review. Bousley v. United States, 

 (1998). We also agree

with the district court that Mr. Love cannot establish cause for his procedural

default on these claims. Mr. Love has not argued that fundamental miscarriage of

justice would result. Therefore, these claims are barred from federal habeas

review.

      As to the newly discovered evidence claim, we presume the state district

court’s factual finding that this evidence was not credible and cumulative to be

correct. 

(e)(1). As to Mr. Love’s claim regarding ineffective

assistance of trial and appellate counsel, the Kansas Court of Appeals reasonably

rejected these claims, properly applying Strickland v. Washington, 

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(1984). Finally, we agree with the district court that the state court’s failure to

conduct a full evidentiary hearing does not amount to constitutional error. As to

all of the ineffective assistance of counsel claims, Mr. Love has failed to make a

substantial showing of the denial of a constitutional right.

                                 III. CONCLUSION

      Because jurists of reason would not find the district court's conclusions

debatable, we DENY Mr. Love’s request for a COA, DENY any outstanding

motions, and DISMISS the matter.

                                 Entered for the Court,




                                 ELISABETH A. SHUMAKER, Clerk




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