Counts v. Wilson
699 F. App'x 779
10th Cir.2017Background
- Counts was tried in Wyoming for aggravated burglary and kidnapping; convicted on those counts and acquitted of aggravated assault and battery. A subsequent habitual-offender jury found three prior felonies and he received two concurrent life sentences. Wyoming Supreme Court affirmed.
- At the incident, Counts forced entry into his girlfriend’s home, chased and dragged her back inside, choked and confined her in a bedroom for about an hour; police found a knife and a folding knife in the victim’s bedroom. The victim initially gave a statement but later recanted or changed details; prosecution learned Counts had pressured her to change her story.
- Counts sought federal habeas relief under 28 U.S.C. § 2254; the district court denied relief and entered judgment on November 1, 2016. Counts sought an extension to file a notice of appeal and later mailed a notice that was returned for insufficient postage and refiled. The district court granted excusable neglect but the appeal-timing rules were implicated.
- The Tenth Circuit considered whether Counts’ motions constituted a timely notice of appeal (functional-equivalent theory) and whether he made a substantial showing of constitutional error sufficient for a certificate of appealability (COA).
- Counts raised multiple claims for a COA: denial of right to cross-examine victim; prosecutorial misconduct; ineffective assistance of trial counsel; Brady/discovery failures; failure to provide bill of particulars; faulty jury instructions; insufficiency of kidnapping evidence; and challenge to habitual sentence based on a juvenile conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts timely appealed | Counts argues his November 21 extension motion or his December 10 prison-mailbox filing (returned for postage) made the appeal timely | Respondents contend the eventual notice was filed after the extended deadlines and the excusable-neglect motion was untimely under Fed. R. App. P. 4 | The court treated the November 21 extension motion as the functional equivalent of a timely notice of appeal (so appealable) but rejected the later untimely excusable-neglect filing as creating jurisdictional defect if relied on alone |
| Denial of right to cross-examine victim | Counts contends he was improperly limited in cross-examining the victim, violating confrontation rights | Respondents argue state-court rulings on scope of cross-examination were reasonable and not contrary to federal law | Court denied COA — reasonable jurists would not debate the district court’s rejection of this claim |
| Prosecutorial misconduct and discovery/Brady claims | Counts alleges the prosecutor committed misconduct and withheld/excluded evidence (including files and bill of particulars) that deprived him of a fair trial | Respondents maintain the state-court adjudication was reasonable and procedural/default rules or harmlessness applied | Court denied COA — claims were not shown to be debatable under §2254(d) standards |
| Ineffective assistance of counsel and sufficiency of evidence/habitual sentence challenge | Counts alleges counsel was constitutionally ineffective and that kidnapping evidence was insufficient; he also argues a prior juvenile conviction should not enhance sentence | Respondents assert the state court’s factual and legal determinations were reasonable and entitled to deference | Court denied COA on these claims as well; reasonable jurists would not find the district court’s rulings debatable |
Key Cases Cited
- Watkins v. Leyba, 543 F.3d 624 (10th Cir. 2008) (untimely notice of appeal can deprive appellate court of jurisdiction)
- United States v. Smith, 182 F.3d 733 (10th Cir. 1999) (motion for extension can be treated as functional equivalent of a notice of appeal)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for certificate of appealability; when denial on procedural grounds COA requires showing that reasonable jurists would find the ruling debatable)
- Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004) (federal habeas courts must incorporate AEDPA deference into COA analysis)