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    Graham v. Koerner, 10th Cir. (2006)

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    This order denies Lisa Graham's request for a certificate of appealability to appeal the denial of her 28 U.S.C. § 2254 petition for habeas corpus. Graham had filed two applications for post-conviction relief in Kansas state court claiming ineffective assistance of counsel, both of which were denied. She failed to appeal the denial of her first application and failed to comply with state rules in appealing the denial of her second application. The federal district court denied Graham's § 2254 petition, finding she had procedurally defaulted on her claims. The circuit court agrees and denies her request for a certificate of appealability, as she has not shown cause for her procedural defaults in state court or that denial of her petition would result

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    Graham v. Koerner, 10th Cir. (2006)

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    This order denies Lisa Graham's request for a certificate of appealability to appeal the denial of her 28 U.S.C. § 2254 petition for habeas corpus. Graham had filed two applications for post-conviction relief in Kansas state court claiming ineffective assistance of counsel, both of which were denied. She failed to appeal the denial of her first application and failed to comply with state rules in appealing the denial of her second application. The federal district court denied Graham's § 2254 petition, finding she had procedurally defaulted on her claims. The circuit court agrees and denies her request for a certificate of appealability, as she has not shown cause for her procedural defaults in state court or that denial of her petition would result

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    Filed: 2006-05-16 Precedential Status: Precedential Docket: 05-3485

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    This order denies Lisa Graham's request for a certificate of appealability to appeal the denial of her 28 U.S.C. § 2254 petition for habeas corpus. Graham had filed two applications for post-conviction relief in Kansas state court claiming ineffective assistance of counsel, both of which were denied. She failed to appeal the denial of her first application and failed to comply with state rules in appealing the denial of her second application. The federal district court denied Graham's § 2254 petition, finding she had procedurally defaulted on her claims. The circuit court agrees and denies her request for a certificate of appealability, as she has not shown cause for her procedural defaults in state court or that denial of her petition would result

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    17 views5 pages

    Graham v. Koerner, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    This order denies Lisa Graham's request for a certificate of appealability to appeal the denial of her 28 U.S.C. § 2254 petition for habeas corpus. Graham had filed two applications for post-conviction relief in Kansas state court claiming ineffective assistance of counsel, both of which were denied. She failed to appeal the denial of her first application and failed to comply with state rules in appealing the denial of her second application. The federal district court denied Graham's § 2254 petition, finding she had procedurally defaulted on her claims. The circuit court agrees and denies her request for a certificate of appealability, as she has not shown cause for her procedural defaults in state court or that denial of her petition would result

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    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    TENTH CIRCUIT

    May 16, 2006


    Elisabeth A. Shumaker
    Clerk of Court

    LISA JANE GRAHAM ,


    Petitioner-A ppellant,
    v.
    RICHARD KOERNER; and PHIL
    KLINE,

    No. 05-3485
    (D.C. No. 03-CV-3075-SAC)
    (D . Kan.)

    Respondents-Appellees.

    OR DER DENYING CERTIFICATE


    OF APPEALABILITY

    Before KELLY, M cKA Y, and LUCERO, Circuit Judges.

    Lisa Graham, a Kansas state prisoner proceeding pro se, requests a


    certificate of appealability (COA) to appeal the denial of her 28 U.S.C. 2254
    petition for habeas corpus. For substantially the same reasons set forth by the
    district court, we D EN Y a COA and DISM ISS.
    After being convicted of making a criminal threat, battery, and criminal
    trespass in 1999, Graham appealed to the Kansas Court of Appeals arguing that
    her rights to a fair trial and to a unanimous jury verdict were violated by the trial
    courts failure to give the jury a unanimity instruction. The Court of Appeals
    affirmed the convictions, and the Kansas Supreme Court denied review.

    Graham then filed a petition for post-conviction relief in Saline County


    District Court under K.S.A. 60-1507, alleging that she had been denied effective
    assistance of counsel both during trial and on direct appeal (first application for
    post-conviction relief). Summarily denying her petition, the state district court
    found Grahams claim was moot because she was serving a term of
    imprisonment imposed for another subsequent criminal violation. Graham did not
    appeal this judgment. Instead, she filed a second 60-1507 petition reasserting
    her ineffective assistance of counsel claim and alleging misconduct by the
    prosecutor in his closing argument and error by the trial court in not instructing
    the jury on lesser included crimes (second application for post-conviction
    relief). This petition was summarily dismissed as successive, and, as a result,
    Graham w as precluded from filing additional challenges (including an appeal of
    this second denial) without the permission of the court. Thus, even though
    Graham filed a notice of appeal of this second petition, no appeal was docketed
    by the Kansas Court of Appeals.
    Graham then filed the instant 2254 habeas petition in federal district court
    repeating the claims asserted in her second 60-1507 petition. The district court
    denied the petition finding that Graham procedurally defaulted by failing to
    comply with state rules for filing an appeal from the denial of post-conviction

    -2-

    relief. Her subsequent application for a COA was also denied. Failing to secure
    a COA from that court, Graham now seeks a COA from this court. 1
    Under 28 U.S.C. 2254(b)(1), habeas corpus may not be granted unless the
    applicant has exhausted the remedies available in the state courts. The
    exhaustion requirement is satisfied if the federal issue has been properly
    presented to the highest state court, either by direct review of the conviction or in
    a postconviction attack. Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534
    (10th Cir. 1994).
    Graham failed to appeal the denial of her first post-conviction petition.
    This court may not consider issues raised in a habeas petition that have been
    defaulted in state court on an independent and adequate procedural ground [ ]
    unless the petitioner can demonstrate cause and prejudice or a miscarriage of

    Grahams petition was filed after April 24, 1996, the effective date of the
    Antiterrorism and Effective D eath Penalty Act (AEDPA); as a result, AEDPAs
    provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
    (10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
    conditions a petitioners right to appeal a denial of habeas relief under 2254
    upon a grant of a COA. 28 U.S.C. 2253(c)(1)(A ). A COA may be issued only
    if the applicant has made a substantial showing of the denial of a constitutional
    right. 2253(c)(2). This requires G raham to show 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. M cDaniel, 529 U.S. 473,
    484 (2000) (quotations omitted). Because the district court denied Graham a
    COA, she may not appeal the district courts decision absent a grant of COA by
    this court.
    -3-

    justice. Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (alteration in
    original) (citation omitted).
    In this case, Graham procedurally defaulted twice. She first defaulted when
    she failed to appeal the denial of her first application for post-conviction relief.
    She also procedurally defaulted with respect to her second application for postconviction relief by failing to comply with state rules for filing an appeal.
    Because Graham failed to exhaust her state court remedies, we may not review
    her claims unless she shows cause and prejudice or a fundamental miscarriage of
    justice. Id.
    Graham argues that counsel during her criminal trial and direct appeal
    failed to preserve or raise claims of constitutional deprivation based on the
    alleged misconduct of the prosecutor and the trial courts failure to properly
    instruct the jury. Attorney error amounting to constitutionally ineffective
    assistance of counsel can constitute cause for a petitioners procedural default.
    See Coleman v. Thompson, 501 U.S. 722, 754 (1991). However, an ineffective
    assistance of counsel claim asserted as cause must be presented as an independent
    claim to the state courts. Hawkins v. M ullin, 291 F.3d 658, 670 (10th Cir. 2002).
    If, as in this case, that independent claim of ineffective assistance of counsel was
    itself procedurally defaulted, then petitioner must establish cause and prejudice
    for that default before the independent claim of ineffective assistance of counsel

    -4-

    can serve as cause and prejudice for her other defaulted claims. See Edw ards v.
    Carpenter, 529 U.S. 446, 453 (2000).
    As to her first procedural default, Graham states only that she w as unaw are
    of her legal right to appeal the denial of relief on her first post-conviction motion.
    Grahams ignorance of applicable rules, however, does not demonstrate cause.
    See W atson v. New M exico, 45 F.3d 385, 388 (10th Cir. 1995).
    Grahams request for a COA is DENIED and the appeal is DISM ISSED.

    ENTERED FOR THE COURT

    Carlos F. Lucero
    Circuit Judge

    -5-

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