Sumpter v. State of KansasSumpter v. State of Kansas
ORDER
Before HOLMES, Chief Judge, and KELLY, and MATHESON, Circuit Judges.
Pursuant to
The petition for rehearing and the attached revised opinion were transmitted to
Petitioner-Appellee/Cross-Appellant‘s January 18, 2023 “Motion for Extension of Time to File Brief” is denied as moot.
Entered for the Court,
CHRISTOPHER M. WOLPERT, Clerk
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Amicus Curiae.
Kurtis K. Wiard, Assistant Solicitor General (Derek Schmidt, Attorney General and Kristafer R. Ailslieger, Deputy Solicitor General, with him on the briefs), Office of Attorney General, Topeka, Kansas, for Respondent-Appellant/Cross-Appellee.
Ruth Anne French Hodson of Sharp Law, LLP, Prairie Village, Kansas, for Petitioner-Appellee/Cross-Appellant.
Norman R. Muеller of Haddon, Morgan and Foreman, P.C., Denver, Colorado and Tyler J. Emerson and Kari S. Schmidt of Conlee, Schmidt & Emerson, L.L.P., Wichita, Kansas, filed an amicus curiae brief for National Association of Criminal Defense Lawyers.
Before HOLMES, Chief Judge, KELLY, and MATHESON, Circuit Judges.
HOLMES, Chief Judge.
Timothy Sumpter was convicted of aggravated kidnapping, attempted rape, and aggravated sexual battery, arising from his 2011 sexual assault of J.B. in Wichita, Kansas. The controlling sentence was for aggravated kidnapping, a conviction which added over 15 years to Mr. Sumpter‘s sentence.
After proceeding through the Kansas courts, Mr. Sumpter filed a petition for a Writ of Habeas Corpus pursuant to
The State of Kansas now appeals from the partial grant of habeas relief; Mr. Sumpter seeks to appeal from the partial denial. We reverse the district court‘s grant of habeas relief, concluding—under the deference prescribed in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“)—that the Kansas Court of Appeals (“KCOA“) was reasonable in determining that any ineffective assistance of counsel was not prejudicial because the evidence was sufficient to support the aggravated kidnaрping conviction. Furthermore, even assuming, arguendo, that the KCOA‘s decision was not entitled to AEDPA deference, we conclude—under de novo review—that the KCOA‘s decision should be upheld. As such, we remand the case with instructions to enter judgment for the State of Kansas. Additionally, having concluded that Mr. Sumpter is required to obtain a COA for the claims comprising his cross-appeal, we deny Mr. Sumpter a COA; accordingly, we dismiss his cross-appeal for lack of jurisdiction.
I
We limit our recitation of the facts to those found by the KCOA. See Sumpter v. State (Sumpter I), No. 117,732, 2019 WL 257974, at *3 (Kan. Ct. App. Jan. 18, 2019) (unpublished); see also Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) (“[I]n reviewing a state court decision under
Around 1:00 a.m. on January 11, 2011, Mr. Sumpter accosted J.B., a young woman, as she walked to her car in the Old Town entertainment district in Wichita, Kansas. When they arrived at J.B.‘s car, Mr. Sumpter forced his way in, grabbed J.B., and attempted to sexually assault her. Mr. Sumpter had his knee across J.B.‘s throat as he tried to touch her vagina. She briefly lost consciousness. When she regained consciousness, Mr. Sumpter
During the attack, Mr. Sumpter took J.B.‘s car keys from her as she attempted to fight him off and threw them out the window. Part way through the attack, J.B. was able to force Mr. Sumpter out of the car and lock the doors. Mr. Sumpter then retrieved the keys and displayed them to J.B. in an effort to get her to open the door. J.B. relented, and Mr. Sumpter forced his way back into the car and resumed his assault.
Eventually, another car pulled up and Mr. Sumpter went to speak with the driver. In the meantime, J.B. found her keys and drove away.
The State charged Mr. Sumpter with aggravated kidnapping, attempted rape, and aggravated sexual battery. When Mr. Sumpter was charged, Kansas law defined kidnapping as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person . . . to facilitate . . . the commission of any crime.”
In State v. Buggs, the Kansas Supreme Court construed the “facilitate” element as the “key word” to avoid “convert[ing] every robbery and every rape into the more serious offense of kidnapping.” 547 P.2d 720, 726, 730–31 (Kan. 1976). The Buggs framework requires the State to show confinement by force that: (1) “Must not be slight, inconsequential and merely incidental to the other crime“; (2) “Must not be of the kind inherent in the nature of the other crime“; and (3) “Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” Id. at 731.
In March 2012, the Sedgwick County District Court conducted a consolidated jury trial.1 Mr. Sumpter‘s trial counsel did not offer any testimony about Mr. Sumpter‘s withholding of the keys as a means of confining J.B. in her vehicle. Nor did counsel cross-examine J.B. about that issue. Trial counsel did move, however, for a judgment of acquittal at the end of the State‘s case. Yet counsel did not mention the Buggs standard or any specific evidentiary deficiency related to the facilitation element of the aggravated kidnapping charge.
The jury found Mr. Sumpter guilty of all counts. Although trial counsel moved for a judgment of acquittal after the verdict, counsel again did not base the motion on the Buggs standard. For the aggravated kidnapping charge, the state district court sentenced Mr. Sumpter to 186 months of imprisonment. In total, the court sentenced Mr. Sumpter to 351 months of imprisonment. On direct appeal, appellate counsel for Mr. Sumpter did not challenge the sufficiency of the evidence as to the aggravated kidnapping conviction. The Kansas Court of Appeals affirmed
Mr. Sumpter‘s convictions and sentence, and the Kansas Supreme Court denied review. See State v. Sumpter, 313 P.3d 105, 2013 WL 6164520 (Kan. Ct. App. Nov. 22, 2013) (unpublished).
Mr. Sumpter filed a petition for a Writ of Habeas Corpus in state court pursuant to
The Sеdgwick County District Court denied Mr. Sumpter‘s claims. The court reasoned that, as a matter of law, “[c]onfining a victim in a car; physically restraining her from leaving that car; and physically prohibiting her from yelling for help is not inherent in the nature of rape or attempted rape.” Id. at 464 (Mem. Order Den. Pet. for Writ of Habeas Corpus, filed May 2, 2017). Therefore, the court concluded that “[t]he outcome of the trial would not have changed, even if trial counsel would have raised the issue at any time before or during the trial. Because the prejudice prong is not met, there is no reason for this [state trial] court to consider the reasonableness prong of the [Strickland] test.” Id. at 465.
Mr. Sumpter appealed to the KCOA. He argued, among other things, that his “trial counsel was ineffective because [counsel] did not understand the elements of the aggravated kidnapping count and, as a result, failed to challenge the sufficiency of the State‘s evidence at every phase.” Jt. App., Vol. IV, at 563 (Petitioner-Appellant Timothy Sumpter‘s Br. to the KCOA, filed Aug. 25, 2017). Furthermore, Mr. Sumpter claimed that his “appellate counsel provided ineffective assistance by failing to raise sufficiency of the evidence on the aggravated kidnapping count.” Id. at 579.
In January 2019, the KCOA issued an opinion denying each of Mr. Sumpter‘s claims. Sumpter I, 2019 WL 257974. At the outset of its opinion, the KCOA plainly stated its holding:
We find [Mr.] Sumpter has failed to show a constitutional injury depriving him of a fundamentally fair adjudication of the charges against him, meaning he has not persuaded us that absent the errors he alleges there is a reasonable probability the outcome would have been different.
Id. at *1 (emphasis added).
The KCOA then laid out the Strickland standard:
To prevail . . ., a convicted defendant must show both that his or her legal representation fell below the objective standard of reasonable competence guaranteed by the right to counsel in the Sixth Amendment to the United States Constitution and that absent the substandard lawyering there probably would have been a different outcome in the criminal case. Strickland v. Washington, 466 U.S. 668,687–88, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984) . . . . A reasonable probability of a different outcome “undermine[s] [s] confidence” in the result and marks the criminal proceeding as fundamentally unfair. See Strickland, 466 U.S. at 694. The movant, then, must prove both constitutionally inadequate representation and sufficient prejudice attributable to that representation to materially question the resulting convictions.
Id. (alteration in original) (emphasis added). With this standard in mind, the KCOA evaluated and ultimately rejected Mr. Sumpter‘s Strickland claim that his trial
For the aggravated kidnapping charge, the State had to prove [Mr.] Sumpter “confin[ed]” J.B. by force “to facilitate” his intent to rape her and she suffered bodily harm as a result . . . .
. . . .
Here, [Mr.] Sumpter confined J.B. in the midst of the criminal episode when she forced him out of her car and he retrieved her keys that he had earlier thrown out the window. At that point, J.B. was unable to leave. If she tried to get out of the car, [Mr.] Sumpter could easily seize her. And she couldn‘t drive the car away, thereby escaping, without the keys. [Mr.] Sumpter had, thus, effectively trapped J.B. in the enclosed space of the vehicle—a circumstance he highlighted by displaying the keys to her. [Mr.] Sumpter then used the keys as part of a ploy to get J.B. to unlock the car to get them back. When she did, he forced his way in and resumed his assault of her. The confinement was clear, deliberate, and more than instantaneous. To support a kidnapping or aggravated kidnapping conviction, the confinement need not be extended. No particular amount of time is required; the fact of confinement is sufficient. Buggs, 219 Kan. at 214; State v. Ellie, No. 110,454, 2015 WL 2342137, at *6 (Kan. App. 2015) (unpublished opinion).
The standoff between [Mr.] Sumpter and J.B. and, thus, the confinement cannot be characterized as simply incidental to or inherent in the sexual assault. [Mr.] Sumpter held J.B. hostage in a specific place and sought to gain access to that place to commit a crime against her. But that situation could have been the prelude to all sorts of crimes and was not unique to rape or even sex offenses. Having gotten into the car, [Mr.] Sumpter could have robbed or severely beaten J.B. The point is [Mr.] Sumpter trapped J.B. in a small, closed place of limited safety and induced J.B. to compromise that safety in an effort to escape. Her effort permitted [Mr.] Sumpter entry to the car making the commission of the crime that followed “substantially easier” than if he had to physically break in to the car. The circumstances fit within the Buggs test for a confinement sufficiently distinct from the underlying crime to be successfully prosecuted as аn aggravated kidnapping given J.B.‘s undisputed injuries . . . .
Because the trial evidence was sufficient for the jury‘s verdict, [Mr.] Sumpter could have suffered no prejudice from his lawyers’ handling of the charge and conviction either in the district court leading up to and during the trial or on direct appeal in this court. He has failed to show a basis for relief under
K.S.A. 60-1507 .
Id. at *3–5 (second alteration in original) (emphasis added). The KCOA then dismissed the remainder of Mr. Sumpter‘s claims. Id. at *5–15. Mr. Sumpter appealed to the Kansas Supreme Court. However, the Kansas Supreme Court denied Mr. Sumpter‘s request for review.
After exhausting his state options, Mr. Sumpter requested federal habeas relief, pursuant to
The KCOA concluded that [Mr. Sumpter] confined J.B. after he had been kicked out of the car by retrieving her keys and thus trapping her in the car (she could not drive away, and he could seize her if she attempted to get out). See Sumpter [I], 2019 WL 257974, at *4. The KCOA further concluded that such confinement was independent of the attempted rape for purposes of Buggs. See id. at *5. The KCOA reached that conclusion in deciding that the evidence was sufficient to support a kidnapping conviction and that [Mr. Sumpter] therefore could not establish the necessary prejudiсe under Strickland. See id. at *3. The KCOA applied the wrong standard, however – the issue is not whether the evidence was legally sufficient; the issue is whether there is a reasonable probability of a different outcome. Thus, the state court‘s ruling deviated from the controlling federal standard and was contrary to clearly established federal law. See Milton v. Miller, 744 F.3d 660, 670 (10th Cir. 2014). The result is that this Court does not defer to the KCOA‘s resolution of this claim, and instead reviews the claim de novo. See id. at 671.
Id. at 1296 (emphasis added).
Exercising de novo review, the district court found that the “KCOA did not address . . . or explain how [Mr. Sumpter‘s] conduct outside the car constituted confinement by force.” Id. As such, the court then conducted an extensive evaluation of Kansas kidnapping law, reasoning as follows:
Cabral [i.e., State v. Cabral, 619 P.2d 1163 (Kan. 1980)] is the most apt precedent by which to consider the application of Buggs to [Mr. Sumpter‘s] conduct in J.B.‘s car. [Mr. Sumpter‘s] conduct in restraining J.B. occurred while fighting with her in his attempt to commit sexual assault, and the Kansas Supreme Court made clear in Cabral that
such conduct is merely incidental to the assault. The state trial court cited [Mr. Sumpter‘s] conduct in grabbing J.B.‘s hand when she reached for the door handle; but as the supreme court recognized, a perpetrator must confine the victim somewhat – and obviously prevent her from leaving – to commit the crime of rape. [Mr. Sumpter] did not take J.B. to another location to avoid detection or otherwise to facilitate the rape; in the parlance of the Cabral court, he simply proceeded to assault J.B. once he was alone with her in the car.
Some Kansas courts, in distinguishing Cabral, have noted that the victim in Cabral had consensually ridden around with the defendant for а period of time preceding the assault. Indeed, J.B. did not voluntarily spend the evening with [Mr. Sumpter] prior to the assault in this case. The point of the Cabral court in citing that fact, however, was that the defendant had not taken or confined the victim until immediately prior to and as part of the assault. Moreover, in each of those other cases in which Cabral was distinguished, there was some conduct by the defendant that took the case beyond the “ordinary” rape in a single confined place in a relatively short time frame – for instance, the defendant had taken the victim or used restraints or moved the victim to a different place to facilitate the assault. See, e.g., State v. Halloway, 256 Kan. 449, 452–53, 886 P.2d 831 (1994) (defendant did not rape the victim in the car, but dragged her into woods away from the highway to lessen the risk of detection); State v. Blackburn, 251 Kan. 787, 794, 840 P.2d 497 (1992) (defendant lessened the risk of detection by driving the victim to other locations); State v. Zamora, 247 Kan. 684, 696, 803 P.2d 568 (1990) (conduct
went beyond that of Cabral; defendant‘s tying and gagging the victim and his lying in front of the door to the residence to prevent escape was not merely incidental to and inherent in an “ordinary” rape); State v. Howard, 243 Kan. 699, 702, 763 P.2d 607 (1988) (defendant restrained the victim in a house for hours and refused to let her leave when she tried to flee after the assault); State v. Coberly, 233 Kan. 100, 105, 661 P.2d 383 (1983) (victim rode with the defendant for a prolonged period because of deception); State v. Montes, 28 Kan. App. 2d 768, 772, 21 P.3d 592 (2001) (defendant drove the victim
to another location to facilitate the assault), rev. denied (Kan. June 12, 2001, and July 11, 2001).
Again, in the present case, the alleged confinement took place within the car, at a single location, during the attempted assault. The State has not addressed the conduct inside the car, and thus the State has not cited any Kansas case in which such conduct solely within a vehicle has been found sufficient to support a kidnapping conviction. Cabral is thus the most apt case here.
The district court then conducted an independent factual investigation and determined that Mr. Sumpter‘s conduct did not constitute confinement by force:
One might argue (although the State made no such argument here) that [Mr. Sumpter] confined J.B. when he forcibly took her car keys while in the car, thereby hindering her ability to flee. Such conduct would not necessarily be required as part of the assault. The testimony at trial, however, does not support such a theory of confinement. J.B. testified that [Mr. Sumpter] made reference to the attached mace and took the keys to prevent J.B. from using that mace. She also testified that she did not know how the keys ended up outside the car. [Mr. Sumpter] testified that he ripped the mace off the keys and discarded it, and that he grabbed the keys away so that J.B. could no longer hit him with the keys in her hand. He further testified that he did not know whether he threw the keys out of the car. Thus, there was no certain evidence (only [Mr. Sumpter]‘s speculation that he might have done so) that [Mr. Sumpter] threw the keys out of the car (as opposed to finding the keys outside where they fell when [Mr. Sumpter] was kicked out), and there was no evidence at all that he took the keys to prevent J.B. from driving away. Thus, a reasonable jury that followed the testimony would not likely find that [Mr. Sumpter] confined J.B. by taking her keys and throwing them outside the car.
Id. at 1298–99 (emphasis added).
Based on its interpretation of Kansas law and its factual findings, the district court ultimately found in favor of Mr. Sumpter, holding:
The Court thus concludes, based on the Kansas precedent, that if confronted with the issue the Kansas Supreme Court would rule that [Mr. Sumpter‘s] conduct inside the car (after he forced his way inside) did not constitute a separate crime of kidnapping under the Buggs standard. As discussed above, [Mr. Sumpter] also had a strong defense based on his conduct outside the car.
Accordingly, [Mr. Sumpter] could have raised a defense to the kidnaping charge as submitted to the jury (confinement only, by force only) with a great likelihood of success based on the kidnapping statute as interpreted in Buggs and Cabral. Based on the strength of that defense, there is little doubt that counsel‘s failure to raise that defense, based on
settled caselaw, before or during or after trial, was objectively unreasonable. . . . . The strength of this defense under Kansas law creates a probability of a different outcome sufficient to undermine confidence in the kidnapping conviction. [Mr. Sumpter] is therefore entitled to relief.
The district court then summarily denied Mr. Sumpter‘s remaining claims. See id. at 1300–07. Furthermore, the court denied Mr. Sumpter‘s request for a certificate of appealability with respect to his remaining claims, including:
- Mr. Sumpter was denied his rights under the Sixth Amendment because the jury venire did not include any African Americans;
- Appellate counsel‘s performance was constitutionally deficient in failing to argue instances of prosecutorial misconduct; and
- Trial counsel‘s performancе was constitutionally deficient in obtaining continuances of the trial date without Mr. Sumpter‘s consent, thereby forfeiting Mr. Sumpter‘s speedy trial rights.
The State of Kansas now appeals from the district court‘s grant of habeas relief. First, the State argues that the KCOA reasonably applied Strickland v. Washington—in particular, that case‘s prejudice standard—thereby entitling the KCOA‘s decision to AEDPA deference. Under AEDPA deference, the State contends the KCOA‘s decision must be affirmed. The State further contends that, even under de novo review, the KCOA‘s decision should be affirmed. On cross-appeal, Mr. Sumpter seeks to appeal from the district court‘s partial denial of habeas relief. Specifically, Mr. Sumpter asserts that he may not need a certificate of appealability for his cross-appeal of his remaining claims. Alternatively, Mr. Sumpter requests that we grant a certificate of appealability as to his remaining claims.
II
“[H]abeas corpus is not intended as a substitute for appeal, nor as a device for reviewing the merits of guilt determinations at criminal trials. Instead, it is designed to guard against extreme malfunctions in the state criminal justice systems.” Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring) (citation omitted). Accordingly, “[t]he [AEDPA] circumscribes our review of claims adjudicated on the merits in state court proceedings.” Littlejohn, 704 F.3d at 824; see also Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (“Section 2254(d) [i.e., a central provision of AEDPA] reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” (quoting Jackson, 443 U.S. at 332 n.5)).
“Under AEDPA, a petitiоner is entitled to federal habeas relief on a claim only if he can establish that the state court‘s adjudication of the claim on the merits (1) ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law‘; or (2) ‘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.‘” Littlejohn, 704 F.3d at 824 (quoting
“Under
If there exists clearly established federal law, a state-court decision is “contrary to” it “if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A state court decision involves an “unreasonable application” of clearly established federal law if “the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner‘s case.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (alteration in original) (quoting Williams, 529 U.S. at 413). “Critically, an ‘unreasonable application of federal law is different from an incorrect application of federal law.‘” Wood, 907 F.3d at 1289 (quoting Williams, 529 U.S. at 410). “[E]ven a clearly erroneous applicatiоn of federal law is not objectively unreasonable.” Id. (alteration in original) (quoting Maynard v. Boone, 468 F.3d 665, 670 (10th Cir. 2006)). “Rather, a state court‘s application of federal law is only unreasonable if ‘all fairminded jurists would agree the state court decision was incorrect.‘” Id. (emphasis added) (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).
“We review the district court‘s legal analysis of the state court decision de novo.” Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011) (quoting Bland, 459 F.3d at 1009). “Furthermore, in reviewing a state court decision under
Finally,
III
The State of Kansas raises two issues on appeal. First, it argues that the KCOA‘s decision was not contrary to, nor an unreasonable
More specifically, we agree with the State that the KCOA‘s decision was neither contrary to, nor an unreasonable application of, clearly established federal law. And, when AEDPA deference is appropriately applied to the KCOA‘s decision, we conclude that the KCOA was reasonable in determining that any ineffective assistance of counsel was not prejudicial because the evidence was sufficient to support the aggravated kidnapping conviction. Moreover, even assuming, arguendo, that the KCOA‘s decision was not entitled to AEDPA deference, we conclude that the KCOA‘s decision should be upheld under de novo review. Quite apart from AEDPA—the KCOA‘s factual findings and interpretation of state law were entitled to deference in the habeas context, and the district court wrongly denied that deference.
A
In this appeal, the clearly established federal law comes from Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner “must show both that his counsel‘s performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.‘” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting Strickland, 466 U.S. at 687–88). “These two prongs may be addressed in any order, and failure to satisfy either is ‘dispositive.‘” Littlejohn, 704 F.3d at 859 (quoting Byrd, 645 F.3d at 1168). “[R]easonableness” is measured “under prevailing professional norms.” Strickland, 466 U.S. at 688. Prejudice “requires [a] showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Specifically, the petitioner must show that “there is a reasonablе probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Williams, 529 U.S. at 391 (quoting Strickland, 466 U.S. at 694).
“The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors.” Strickland, 466 U.S. at 695. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id.
1
The State first contends that the overall substance of the KCOA’s analysis reflects that it understood and decided Mr. Sumpter’s ineffective assistance claim under the proper Strickland framework. See Aplt.’s Opening Br. at 35. Thus, the State concludes that the KCOA’s decision was not “contrary to” clearly established federal law and that the district court erred in
“A state-court decision will certainly be contrary to [the Supreme Court’s] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” but “a run-of-the-mill state-court decision applying the correct legal rule . . . to the facts of a prisoner’s case would not fit comfortably within
Here, the KCOA clearly identified Strickland as the controlling authority and applied that framework—specifically, Strickland’s prejudice standard. At the very outset of the opinion, in providing an overview of its holding, the KCOA plainly invoked the substance of the Strickland prejudice standard:
We find [Mr.] Sumpter has failed to show a constitutional injury depriving him of a fundamentally fair adjudication of the charges against him, meaning he has not persuaded us that absent the errors he alleges there is a reasonable probability the outcome would have been different.
Sumpter I, 2019 WL 257974, at *1 (emphasis added). Shortly thereafter, the KCOA correctly identified and detailed the Strickland standard:
To prevail . . ., a convicted defendant must show both that his or her legal representation fell below the objective standard of reasonable competence guaranteed by the right to counsel in the Sixth Amendment to the United States Constitution and that absent the substandard lawyering there probably would have been a different outcome in the criminal case. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance). A reasonable probability of a different outcome “undermine[s] confidence”
in the result and marks the criminal proceeding as fundamentally unfair. See Strickland, 466 U.S. at 694. The movant, then, must prove both constitutionally inadequate representation and sufficient prejudice attributable to that representation to materially question the resulting convictions.
Id. (alteration in original).
The KCOA then correctly stated the petitioner’s burden: “Regardless of the inadequacy of legal representation, a [habeas] motion fails if the movant cannot establish substantial prejudice.” Id. at *2; see Pinholster, 563 U.S. at 189 (“A reasonable probability . . . . requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” (quoting Richter, 562 U.S. at 112)). The KCOA also correctly determined that it “properly may deny a motion that falters on the prejudice component of the Strickland test without assessing the sufficiency of the representation,” which is exactly what it did here. Sumpter I, 2019 WL 257974, at *2 (citing Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”)). Therefore, in deciding Mr. Sumpter’s ineffective assistance claim, the KCOA correctly stated, and demonstrated a clear understanding of, the Strickland standard. And, contrary to the district court’s conclusion here, the KCOA applied the Strickland prejudice standard—instead of abandoning it for a sufficiency of the evidence test.
In this regard, “the KCOA’s proper articulation of the prejudice standard in other parts of its opinion confirms that it was not relying on an impermissible [sufficiency of the evidence] standard.” Frost, 749 F.3d at 1227. As noted, the KCOA correctly stated the Strickland standard at the outset of its opinion—including the standard’s test for prejudice. Sumpter I, 2019 WL 257974, at *1. Later in the opinion, when considering Mr. Sumpter’s ineffective assistance claim regarding his attorneys’ handling of the trial court’s consolidation of his several criminal cases, the KCOA further demonstrated an awareness of how Strickland’s prejudice standard worked:
The question posed here, however, is whether [Mr.] Sumpter reasonably could have expected a different outcome had the district court denied the State’s request to consolidate and ordered a separate trial for each incident. If so, then, [Mr.] Sumpter has demonstrated the sort of prejudice required under Strickland.
Id. at *8 (emphasis added). The KCOA ultimately concluded that “[Mr.] Sumpter cannot point to actual legal prejudice consistent with the Strickland test flowing from the consolidated trial as compared to separate trials.” Id. at *10 (emphasis added).
Taken together, “the overall substance of the [KCOA’s] analysis, as well as the result it reached, refleсts that the court understood and decided the ineffective-assistance issue under the proper Strickland framework.” Grant v. Royal, 886 F.3d 874, 906 (10th Cir. 2018). Therefore, we agree with the State that the KCOA’s decision was not “contrary to” clearly established federal law, and the district court erred in concluding otherwise.
Further, as we discuss below, we are unable to uphold the district court’s determination that AEDPA deference was inappropriate on the ground that the KCOA’s decision reflected an unreasonable application of Strickland. We conclude that—contrary to the district court’s concern—the KCOA did not act unreasonably in considering,
2
The State argues that the KCOA reasonably applied clearly established federal law by determining that Mr. Sumpter was not prejudiced within the meaning of Strickland by his counsel’s failures to challenge the sufficiency of the evidence supporting his aggravated kidnapping conviction because such a challenge would have been meritless—viz., the evidence was sufficient to support his aggravated kidnapping conviction. Specifically, the State contends that the KCOA analyzed the sufficiency of the evidence in order to answer the prejudice question that Strickland defines—that is, whether there was a reasonable probability of a different outcome had Mr. Sumpter’s counsel raised such a sufficiency challenge. See Aplt.’s Opening Br. at 23.
Mr. Sumpter responds that the KCOA’s decision evinсed an unreasonable application of clearly established law, as its conclusion on prejudice was “explicitly linked to a sufficiency determination.” Aplee.’s Resp. Br. at 29. Mr. Sumpter claims that the KCOA’s use of a sufficiency analysis ignored “the Supreme Court’s exhortation that the ‘reasonable probability’ determination requires the court to weigh all of the evidence before the jury and assess whether the verdict is only ‘weakly supported’ by the evidence.” Id. at 28. Yet, as Mr. Sumpter reasons, “Kansas courts have made clear that in a sufficiency determination, appellate courts only view the evidence in the light most favorable to the State and ‘do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.’” Id. (quoting State v. Brown, 387 P.3d 835, 848 (Kan. 2017)). Thus, Mr. Sumpter contends that evaluating Strickland prejudice through the application of the sufficiency of the evidence standard has the effect of forcing petitioners to satisfy a heightened, outcome-determinative test, which is inconsistent with Strickland’s “reasonability probability” standard. Accordingly, Mr. Sumpter argues that the KCOA’s approach is “not merely wrong, but ‘objectively unreasonable’ under AEDPA.” Id. (quoting Crace v. Herzog, 798 F.3d 840, 849 (9th Cir. 2015)). We disagree.
In assessing the State’s claim, we must be cognizant of our standard of review. Under
We conclude the KCOA reasonably applied Strickland. In his Opening Brief to the KCOA, Mr. Sumpter argued his trial and appellate counsel were ineffective for failing to challenge the sufficiency of the evidence to support his aggravated
quite reasonably analyzed whether Mr. Sumpter suffered prejudice under Strickland from counsel’s failure to raise such a challenge by inquiring as to whether such a sufficiency challenge would have been meritorious. Stated otherwise, the KCOA reasonably analyzed the question of prejudice under Strickland by assessing whether, but for counsel’s failure to challenge the sufficiency of the evidence, there is a reasonable probability that the result of the proceeding would have been different. That is, if the sufficiency of evidence challenge was determined to lack merit, as the KCOA ultimately posited here, it could not be said that there is a reasonable probability that the result would have been different if Mr. Sumpter’s counsel advanced such a challenge.
The KCOA’s approach is consistent with our own understanding of what the Strickland prejudice analysis entails. Specifically, we have recognized that “[w]hen, as here, the basis for the ineffective assistance claim is the failure to raise an issue, we must look to the merits of the omitted issue.” United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006); see Jones v. Gibson, 206 F.3d 946, 959 (10th Cir. 2000) (“When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue.” (quoting Hooks v. Ward (Victor Hooks I), 184 F.3d 1206, 1221 (10th Cir. 1999))). “If the omitted issue is without merit, then counsel’s failure to raise it is not prejudicial, and thus is not ineffective assistance.” Orange, 447 F.3d at 797; see Jones, 206 F.3d at 959 (“If the omitted issue is without merit, counsel’s failure to raise it does not constitute constitutionally ineffective assistance of counsel.” (quoting Victor Hooks I, 184 F.3d at 1221)).
Following this approach, under “AEDPA’s deferential standard of review, we [held] that it was not unreasonable for the KCOA to conclude that [petitioner] received effective assistance of appellate counsel.” Id. at 1167. In other words, we looked to the merits of the sufficiency of the evidence challenge in determining whether the KCOA was unreasonable in concluding that counsel acted reasonably in omitting it. See id. The KCOA precisely followed this mode of analysis here as it related to the question of prejudice under Strickland. And Upchurch strongly suggests that the KCOA acted reasonably in doing so.
More specifically, in assessing the merits of the sufficiency of the evidence claim here, the KCOA looked to the Kansas standard for assessing sufficiency of the evidence.4 See Sumpter I, 2019 WL 257974, at *3 (“To assess sufficiency we review the evidence in a light most favorable to the
sufficiently distinct from the underlying crime to be successfully prosecuted as an aggravated kidnapping given J.B.’s undisputed injuries.” Id. at *5. Accordingly, the KCOA determined that Mr. Sumpter’s sufficiency of the evidence claim was without merit.
With this conclusion in mind, the KCOA held that “[b]ecause the trial evidence was sufficient for the jury’s verdict, [Mr.] Sumpter could have suffered no prejudice from his lawyers’ handling of the charge and conviction.” Id. In other wоrds, because a challenge to the sufficiency of the evidence would have failed, there is no reasonable probability of a different outcome had Mr. Sumpter’s counsel raised such a challenge. In our view, the KCOA’s approach constituted an entirely reasonable application of Strickland—in particular, its prejudice standard. And nothing about the KCOA’s application of Strickland gave the district court a proper basis to strip away AEDPA deference.
To be sure, at the conclusion of its Strickland analysis of Mr. Sumpter’s claim based on counsel’s failure to present a sufficiency of the evidence challenge, the KCOA did not explicitly restate that there was no “reasonable probability of a different outcome.” However, such “overemphasis on the language of a state court’s rationale would lead to a grading papers approach that is outmoded in the post-AEDPA era.” Roberts, 846 F.3d at 1293 (alteration omitted) (quoting Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1337 (11th Cir. 2013)). We have “eschew[ed] the role of strict English teacher, finely dissecting every sentence of a state court’s ruling to ensure all is in good order.” Royal, 886 F.3d at 905–06. As such, we are unwilling to conclude that the KCOA’s decision constituted an unreasonable application of the clearly established law of Strickland (or was contrary to that law) simply because it failed to parrot once again the well-established Strickland prejudice standard.
Moreover, we reject Mr. Sumpter’s contention that the use of a sufficiency analysis might have resulted in the improper skewing of the KCOA’s factual findings in favor of the State. This contention is predicated on the truism that, under the sufficiency of the evidenсe standard, the facts are construed in the light most favorable to the State. See, e.g., Butler, 416 P.3d at 128; Jackson, 443 U.S. at 319. Even putting aside that our precedent—construing Strickland’s commands—clearly seems to support the KCOA’s reliance on the sufficiency of the evidence standard, Mr. Sumpter can gain no ground from this contention based on the specific circumstances here.
Even if there were some possibility of such a skewing of the factfinding process—a question upon which we do not opine—Mr. Sumpter would be positioned poorly to claim prejudice from it because of his litigation decisions in this appeal. First, Mr. Sumpter has not meaningfully
Accordingly, even if the KCOA’s use of a sufficiency of the evidence approach had the effect—to some degree—of skewing the KCOA’s factfinding, Mr. Sumpter would be hard pressed here to claim that he was harmed by this effect. That is because Mr. Sumpter has not meaningfully challenged the KCOA’s factual findings and, indeed, has expressly conceded the accuracy of key findings upon which the KCOA rested its legal confinement determination and, by logical extension, its prejudice determination under Strickland.
In sum, we conclude that the KCOA’s decision reasonably applied Strickland—most notably, its prejudice standard—and its decision regarding Mr. Sumpter’s ineffective assistance claim was entitled to AEDPA deference, which the district court here wrongly denied it. Under that deference, we discern no ground to disturb the KCOA’s overarching conclusion that Mr. Sumpter did not carry his burden to establish ineffective assistance under Strickland. Put another way, the KCOA’s determination that Mr. Sumpter’s Strickland claim lacks merit has the effect of “preclud[ing] federal habeas relief[,] . . . as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at 664).
B
However, even assuming, arguendo, that the KCOA’s decision was not entitled to AEDPA deference, we still would conclude under de novo review that the KCOA’s decision should be upheld.
The State contends that the KCOA “correctly determined that under state law, the facts established [Mr.] Sumpter confined J.B.” Aplt.’s Opening Br. at 38. As the State reasons, in overruling the KCOA’s decision, the district court inappropriately substituted its own factual determinations and interpretations of state law for that of the KCOA. Mr. Sumpter, on the other hand, claims that the district court did not err in its treatment of state law. Specifically, Mr. Sumpter contends that the State has presented no cases “indicat[ing] that a federal district court cannot evaluate state law in a de novo prejudice review to determine the strength of the defense at issue and its likelihood of success.” Aplee.’s Resp. Br. at 41. As such, Mr. Sumpter claims that the district court “evaluated ‘the strength of [the Buggs] defense under Kansas law’ and concluded that there was ‘a significant likelihood that a jury, if properly instructed on the law under Buggs and Cabral, would have found that [Mr.
We begin by noting that “[e]ven when reviewing a habeas claim de novo rather than under
Here, the KCOA made two key findings of fact, which it relied upon in conducting its confinement analysis: (1) Mr. Sumpter “retrieved [J.B.’s] keys that he had earlier thrown out the window,” and (2) Mr. Sumpter “displayed the keys in an effort to get J.B. to open the door.” Sumpter I, 2019 WL 257974, at *3–4. Mr. Sumpter has not meaningfully challenged these findings of fact—much less rebutted them by clear and convincing evidence as he would be obliged to do in challenging them pursuant to
Based on its factual findings, the KCOA made a legal determination that the requirements of kidnapping were satisfied under Kansas law. Specifically, the KCOA concluded:
For the aggravated kidnapping charge, the State had to prove [Mr.] Sumpter “confin[ed]” J.B. by force “to facilitate” his intent to rape her and she suffered bodily harm as a result . . . .
. . . .
Here, [Mr.] Sumpter confined J.B. in the midst of the criminal episode when she forced him out of her car and he retrieved her keys that he had earlier thrown out the window. At that point, J.B. was unable to leave. If she tried to get out of the car, [Mr.] Sumpter could easily seize her. And she couldn’t drive the car away, thereby escaping, without the keys. [Mr.] Sumpter had, thus, effectively trapped J.B. in the enclosed space of the vehicle—a circumstance he highlighted by displaying the keys to her. [Mr.] Sumpter then used the keys as part of a ploy to get J.B. to unlock the car to get them back. When she did, he forced his way in and resumed his assault of her. The confinement was clear, deliberate, and more than instantaneous. To support a kidnapping or aggravated kidnapping conviction, the confinement need not be extended. No particular amount of time is required; the fact of confinement is sufficient. Buggs, 219 Kan. at 214; State v. Ellie, No. 110,454, 2015 WL 2342137, at *6 (Kan. App. 2015) (unpublished opinion).
The standoff between [Mr.] Sumpter and J.B. and, thus, the confinement cannot be characterized as simply incidental to or inherent in the sexual assault. [Mr.] Sumpter held J.B. hostage in a specific place and sought to gain access to that place to commit a crime against her. But that situation could have been the prelude to all sorts of crimes and was not unique to rape or even sex offenses. Having gotten into the car, [Mr.] Sumpter could have robbed or severely beaten J.B. The point is [Mr.] Sumpter trapped J.B. in a small, closed place of limited safety and induced J.B. to compromise that safety in an effort to escape. Her effort permitted [Mr.] Sumpter entry to the car making the commission of the crime that followed “substantially easier” than if he had to physically break in to the car. The circumstances fit within the Buggs test for a confinement sufficiently distinct from the underlying crime to be successfully prosecuted as an aggravated kidnapping given J.B.’s undisputed injuries.
Id. at *3–5 (second alteration in original) (emphasis added).
We are not at liberty to second-guess the KCOA’s reading of Kansas law in reaching this result—in particular, the KCOA’s interpretation of the import of Buggs for these facts.7 See Wilson, 562 U.S. at 5 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” (alteration in original) (quoting Estelle, 502 U.S. at 67–68)); see also Hawes, 7 F.4th at 1264 (“[T]he Supreme Court has ‘repeatedly held that a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.’” (quoting Bradshaw, 546 U.S. at 76)). As such, we find the district court’s re-assessment of Kansas kidnapping law here to be inappropriate.
Even if the district court believed State v. Cabral to be “the most apt precedent by which to consider the application of Buggs to [Mr. Sumpter’s] conduct in J.B.’s
car,” it was not permitted to substitute its own independent assessment of Kansas law for that of the KCOA. Sumpter II, 485 F. Supp. 3d at 1297. Yet that is exactly what the district court did here. The court engaged in a lеngthy discussion regarding its belief that the KCOA erred in failing to apply Cabral, and concluded that, “[t]his Court does not agree with the state court . . . that such conduct is independent of and not incidental to [Mr. Sumpter’s] sexual assault of J.B.” Id. at 1296. Indeed, the district court disregarded the KCOA’s interpretation of state law and expressly purported to predict how the Kansas Supreme Court “would rule”—that the Kansas Supreme Court would determine that “[Mr. Sumpter’s] conduct . . . did not constitute a separate crime of kidnapping under the Buggs standard.” Id. at 1299.
However, U.S. Supreme Court precedent leaves no room for such analysis—viz., analysis under which habeas courts presume to know better than state courts how to interpret their own state’s law. See Wilson, 562 U.S. at 5 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on
Therefore, applying
IV
A
Mr. Sumpter posits that he was not required to obtain a certificate of appealability for his claims comprising his cross-appeal. See Aplee.’s Resp. Br. at
48.8 Specifically,
The Third Circuit answered this question in the affirmative—viz., it held that prisoners filing a cross-appeal are required to secure a COA for their claims. See Mathias v. Superintendent Frackville SCI, 876 F.3d 462, 474 (3d Cir. 2017). Because a COA requires an applicant to 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,‘” the court concluded, “[w]e perceive no reason to set aside this obligation merely because the petitioner‘s claims happen to arrive by way of cross-appeal.” Id. (omission in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The court explained that “in this context too [a COA] can serve its intended purpose of ‘screen[ing] out issues unworthy of judicial time and attention and ensur[ing] that frivolous claims are not assigned to merits panels,’ a ‘gatekeeping function’ that is satisfied ‘[o]nce a judge has made the determination that a COA is warranted and resources are deployed in briefing and argument.‘” Id. (second, third, and fourth alterations in original) (quoting Gonzalez v. Thaler, 565 U.S. 134, 145 (2012)).
The Third Circuit is not alone: a majority of the circuit courts that have ruled on the issue have reached a similar conclusion. See, e.g., Brian R. Means, FEDERAL HABEAS MANUAL § 12:73, Westlaw (database updated May 2022) (“Even if the prisoner obtains a writ in the district court, a majority of courts have concluded that he must obtain a COA in order to proceed on a cross-appeal.“). For example, prior to the Supreme Court‘s Jennings decision (cited supra)—which indicated that whether prisoners needed COAs for their cross-appeal claims was an open issue—the Second Circuit similarly opined, saying “we conclude that a habeas petitioner to whom the writ has been granted on one or more grounds may not assert, in opposition to an appeal by the state, any ground that the district court has not adopted unless the petitioner obtains a certificate of appealability permitting him to argue that ground.” Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir. 2003). Further, the Ninth Circuit agreed with the Second Circuit and explained, “[a]llowing a successful habeas petitioner to expand the
Amongst the circuits that have ruled on the COA issue, the Seventh Circuit appears to be the sole outlier, and we believe that its reasoning is at odds with the principles underlying the habeas regime. The gates of AEDPA are designed to bar the doors of appellate courts to frivolous or otherwise woefully inadequate prisoner claims by requiring those claims to clear the hurdle of a COA; this statutory objective is not materially altered simply because the claim arrives clothed in a cross-appeal. Cf. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (“By enacting AEDPA . . . Congress confirmed the necessity and the requirement of differential treatment for those appeals deserving of attention from those that plainly do not. It follows that issuance of a COA must not be pro forma or a matter of course“). By not requiring prisoner litigants to make a “substantial showing of the denial of a constitutional right” for their claims that have not already secured relief, we would be hindering AEDPA‘s goal of preventing habeas litigants from needlessly taxing courts’ judicial resources and time. See Banister v. Davis, 140 S. Ct. 1698, 1707 (2020) (“AEDPA aimed to prevent serial challenges to a judgment of conviction, in the interest of reducing delay, conserving judicial resources, and promoting finality.“).
Therefore, we join the majority of circuits that have ruled on the issue in concluding that thе COA requirement applies to claims that habeas petitioners present via cross-appeal. Accordingly, Mr. Sumpter needs a COA for his remaining claims.
B
“A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”
1
Mr. Sumpter first seeks a COA for his claim that he was denied his rights under the Sixth Amendment because the jury venire did not include any African
First, Mr. Sumpter agrees that the governing law was Berghuis, which the district court correctly determined that the KCOA identified and applied. See Aplee.‘s Resp. Br. at 49–50; Sumpter II, 485 F. Supp. 3d at 1305. Thus, the district court‘s conclusion that the KCOA‘s decision was not “contrary to” clearly established federal law is not reasonably debatable. Further, the district court cоncluded that the KCOA reasonably applied Berghuis, when it determined “that [Mr. Sumpter] had not presented any evidence that African-Americans were routinely or systematically underrepresented on jury venires in that county.” Sumpter II, 485 F. Supp. 3d at 1306. Operating under the deferential AEDPA standard, we do not believe that the district court‘s assessment of the reasonableness of the KCOA‘s application of Berghuis is open to debate by reasonable jurists. Accordingly, we deny a COA as to this claim.
2
Next, Mr. Sumpter seeks a COA for his claim that his appellate counsel was constitutionally deficient in failing to argue instances of prosecutorial misconduct. See Aplee.‘s Resp. Br. at 53–60. The district court denied Mr. Sumpter‘s request, finding that the KCOA clearly demonstrated that such an appeal would have failed under Kansas law. See Sumpter II, 485 F. Supp. 3d at 1302. Therefore, the district court concluded that Mr. Sumpter could not establish Strickland prejudice. See id. Mr. Sumpter has not demonstrated that reasonable jurists would find the district court‘s assessment of his constitutional claims debatable or wrong.
First, Mr. Sumpter claims that appellate counsel should have argued that the prosecutor misstated the intent element for attempted rape by equating it with a mere intent to have sex with the victim. Specifically, in his closing argument, the prosecutor stated:
And he told you what his intent was with [J.B.]. [Mr. Sumpter] minimizes it and says well, I didn‘t go into that car with the intent to have sex with her. But clearly he told you on the stand, I was going to have sex with her, I thought, I thought she wanted it. Clearly he intended to have sex. I don‘t have to prove rape occurred, I don‘t have to prove sex occurred, I have to prove he took her—or I‘m sоrry, he confined her with the intent to commit sex, commit rape against her. Clearly that was his intent, he told you even yesterday that‘s what he intended to do.
Jt. App., Vol. VIII, at 1653–54.
The district court noted that the “KCOA concluded that this ‘slip’ did not constitute misconduct, as the prosecutor merely ‘misspoke, realized as much, and immediately offered a revised statement of the law to the jurors.‘” Sumpter II, 485 F. Supp. 3d at 1302. Moreover, the district court noted that earlier in the prosecutor‘s closing argument, the prosecutor had correctly stated the law as:
I have to prove that he intended to commit the crime of rape. I don‘t have to prove rape occurred. I have to prove that he intended to commit it.
Id. at 1302–03; Jt. App., Vol. VIII, at 1624. Taken together, the district court concluded
Mr. Sumpter also claims that the prosecutor inaccurately described his pro se pretrial motion as including an admission that he committed lesser-included offenses. See Aplee.‘s Resp. Br. at 58–60. The district court noted that the KCOA did find that the prosecutor misrepresented the nature of Mr. Sumpter‘s motion. See Sumpter II, 485 F. Supp. 3d at 1303. Nevertheless, the district court stated that “the KCOA, applying standards set forth by the Kansas Supreme Court for claims of prosecutorial misconduct, concluded that the prosecutor‘s misrepresentation had not been flagrant or born of ill will, and that it was not so significant to have had a material effect on the verdicts.” Id. In light of the KCOA‘s conclusion, the district court effectively determined that the KCOA acted reasonably in rejecting on the basis of lack of prejudice a claim of ineffective assistance of appellate counsel stemming from counsel‘s failure to challenge the prosecutor‘s lesser-included-offense misrepresentation. We do not believe that reasonable jurists would debate this determination.
For the foregoing reasons, we deny a COA to Mr. Sumpter to pursue his claim that appellate counsel was constitutionally deficient in failing to argue instances of prosecutorial misconduct.
3
Finally, Mr. Sumpter seeks a COA for his claim that his trial counsel‘s performance was constitutionally deficient because trial counsel repeatedly sought continuances without Mr. Sumpter‘s consent, thereby forfeiting Mr. Sumpter‘s speedy trial rights. See Aplee.‘s Resp. Br. at 60–61. In rejecting Mr. Sumpter‘s claims, the district court first noted that the basis of Mr. Sumpter‘s claim arose under the Kansas Speedy Trial Act. See Sumpter II, 485 F. Supp. 3d at 1304. Therеfore, it was bound by the KCOA‘s interpretation of the statute. See id.; see also Bradshaw, 546 U.S. at 76.
The KCOA, relying on Kansas Supreme Court precedent, rejected Mr. Sumpter‘s Strickland claim, as it found that the Kansas speedy trial statute did not require reversal of his convictions. See Sumpter I, 2019 WL 257974, at *13. Specifically, the KCOA held that because Mr. Sumpter‘s counsel requested the continuances, that delay would not have been charged against the prescribed speedy trial period (i.e., the running of the speedy trial clock would have been tolled)—even if the continuances were later deemed improper because Mr. Sumpter had not been consulted. See id. As such, there could not have been any prejudice to Mr. Sumpter within the meaning of Strickland from counsel‘s failure to request that Mr. Sumpter‘s convictions be set aside on the basis that Mr. Sumpter was not consulted regarding the continuances. Id. Giving deference to the KCOA‘s interpretation of state law, the district court found no reason to conclude that the KCOA unreasonably applied Strickland in denying Mr. Sumpter‘s claim on the ground of lack of prejudice. We conclude that reasonable jurists would not find the district court‘s assessment of Mr. Sumpter‘s constitutional claim to be debatable or wrong.
Mr. Sumpter further attacks the KCOA‘s limitations decision by arguing that the state court failed to address his argument that his trial counsel violated a duty of loyalty to him.9 See Aplee.‘s Resp. Br. at 60–61. Mr. Sumpter claims that trial counsel was acting pursuant to a conflict of interest because if counsel had raised the issue after-the-fact, counsel wоuld have been required to admit her mistake in seeking the continuances without Mr. Sumpter‘s consent. See
adversely affected his lawyer‘s performance.” Id. (alteration in original) (quoting Strickland, 466 U.S. at 692). And, having discerned that Mr. Sumpter failed to show both that trial counsel was actively representing conflicting interests and that those alleged conflicts actually affected trial counsel‘s performance, the district court concluded that Mr. Sumpter had not established that any KCOA decision to deny this claim was at odds with Strickland. We cannot say reasonable jurists would conclude that the district court‘s determination on this point was debatable or wrong.
Therefore, we deny a COA to Mr. Sumpter on his claim stemming from an alleged violation of Mr. Sumpter‘s speedy trial rights.10
V
For these reasons, we REVERSE the district court‘s judgment granting habeas relief to Mr. Sumpter and REMAND THE CASE with instructions for the court to enter judgment for the State of Kansas. Furthermore, we DENY Mr. Sumpter a COA to pursue the claims asserted in his cross-appeal and, accordingly, DISMISS his cross-appeal for lack of jurisdiction.11