Roberto Rincon v. DAN SCHNURR, Warden, Hutchinson Correctional Facility

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ROBERTO RINCON,
Petitioner - Appellant,
v.
DAN SCHNURR, Warden, Hutchinson
Correctional Facility,
Respondent - Appellee.
No. 21-3182
(D.C. No. 5:20-CV-03165-EFM)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, KELLY, and CARSON, Circuit Judges.
_________________________________
Roberto Rincon, a Kansas prisoner proceeding pro se, requests a certificate of
appealability (COA) to appeal the district court’s order denying his 28 U.S.C. § 2254
habeas application. Rincon v. Schnurr, No. 20-cv-03165, 2021 WL 4243125 (D. Kan.
Sept. 17, 2021). We deny a COA and dismiss this matter.
I. BACKGROUND
A Kansas state court issued a protection order against Mr. Rincon that required
him to turn over all firearms to police. When he failed to do so, a Detective applied for a
search warrant for Mr. Rincon’s residence and vehicle to recover firearms the Detective
* This order is not binding precedent except under the doctrines of law of the case,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.
FILED
United States Court of Appeals
Tenth Circuit
June 7, 2022
Christopher M. Wolpert
Clerk of Court
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believed Mr. Rincon possessed in violation of 18 U.S.C. § 922(g)(8). The state court
issued the warrant and county police officers executed it. The search yielded several
loaded firearms, hundreds of rounds of ammunition, and a methamphetamine laboratory.
Mr. Rincon was charged with several drug-related crimes under Kansas law. He
filed two pre-trial motions to suppress. The first alleged that the supporting affidavit for
the warrant relied on stale information and failed to establish probable cause. The second
argued that the affidavit contained material misstatements of fact. The state district court
denied both motions. After a bench trial, the court found Mr. Rincon guilty and
sentenced him to 156 months in prison.
On direct appeal, Mr. Rincon claimed the trial court erred by denying his motions
to suppress. The Kansas Court of Appeals (KCOA) affirmed, and the Kansas Supreme
Court denied review. Proceeding pro se, Mr. Rincon then filed for post-conviction relief
under Kan. Stat. Ann. § 60-1507, claiming trial counsel was ineffective for failing to seek
suppression on the ground that the warrant was based only on a violation of federal law
and required the involvement of federal law enforcement officers. The state district court
appointed counsel to represent Mr. Rincon and, after a hearing, denied his motion. The
KCOA affirmed, and the Kansas Supreme Court denied review.
Proceeding pro se, Mr. Rincon next filed his § 2254 habeas application in federal
district court alleging that the warrant that led to the discovery of incriminating evidence
was unlawful because it was based on a violation of federal law and no federal law
enforcement officers were present at its execution. In his reply brief, he also claimed
counsel was ineffective for failing to raise the first claim in a motion to suppress. The
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district court declined to address the merits of either claim. It held that the first was
procedurally defaulted because Mr. Rincon failed to raise it in state court, and that he had
not shown cause and prejudice or a fundamental miscarriage of justice to excuse the
procedural default. The court held that the second claim was waived because Mr. Rincon
raised it for the first time in his reply brief. The court thus denied his § 2254 application.
II. DISCUSSION
Mr. Rincon must obtain a COA to appeal from the denial of his § 2254
application. See 28 U.S.C. § 2253(c)(1)(A). To do so, he must make “a substantial
showing of the denial of a constitutional right,” id. § 2253(c)(2), and establish “that
reasonable jurists could debate whether . . . the petition should have been resolved in a
different manner,” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a claim has been
dismissed on procedural grounds, such as the failure to exhaust state court remedies, Mr.
Rincon must also show “that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id.
A. Failure to Exhaust Search Warrant Claim
“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless . . . the applicant has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
A state prisoner must show he has exhausted his available state remedies. McCormick v.
Kline, 572 F.3d 841, 851 (10th Cir. 2009). To satisfy the exhaustion requirement, a
prisoner must fairly present his claims to the state’s highest court — either by direct
review or in a postconviction attack — before asserting them in federal court. See
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Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009). A claim is exhausted only
if the prisoner presented “the state courts with the same claim he urges upon the federal
courts.” Picard v. Connor, 404 U.S. 270, 276 (1971). Where a prisoner has not
exhausted the claim in state court, it is procedurally defaulted for purposes of federal
habeas review. Coleman v. Thompson, 501 U.S. 722, 732 & 735 n.1 (1991).
A federal court may consider procedurally defaulted claims if the prisoner shows
cause for the default and prejudice from a violation of federal law, id. at 750, or that
denying review would result in “a fundamental miscarriage of justice,” id., because he
has made a “credible showing of actual innocence,” McQuiggin v. Perkins, 569 U.S. 383,
392 (2013). To satisfy the cause standard, the petitioner must show that some external
factor prevented him from raising his claim. Coleman, 501 U.S. at 753. Counsel’s
ineffectiveness in failing to preserve a claim for review in state court may be the basis for
overcoming a procedural default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
The district court held that Mr. Rincon failed to exhaust his first claim because,
although he challenged the warrant in state court, he did so on different grounds than in
his § 2254 application. Mr. Rincon challenged the warrant in state court based on
allegations of stale information, insufficient information to establish probable cause, and
misstatements of material fact, while his § 2254 application claimed that state police
lacked authority to execute a warrant that alleged violations of federal law. The district
court recognized that Mr. Rincon argued in the state habeas proceedings that trial counsel
was ineffective for not seeking suppression based on the lack of federal involvement in
the warrant’s execution. But the court explained that the ineffective-assistance claim was
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rooted in the Sixth Amendment, not the Fourth Amendment, and Mr. Rincon did not
challenge the constitutionality of the warrant based on the lack of federal involvement “as
a freestanding claim” in state court. Rincon, 2021 WL 4243125, at *3.
Although Mr. Rincon argues that the district court relied on a technicality and
failed to construe his state court pleadings liberally, we disagree. Liberal construction
cannot overcome compliance with basic procedural rules and substantive law. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Although
constitutionally ineffective assistance of counsel can constitute cause for failing to raise
an unexhausted claim in state court, the district court recognized that the KCOA rejected
Mr. Rincon’s ineffective-assistance claim for lack of prejudice, Rincon v. State, No.
119,391, 2019 WL 1412590, at *7 (Kan. Ct. App. Mar. 29, 2019), and its determination
was not an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Finally,
the district court concluded that Mr. Rincon could not show factual innocence to
demonstrate a fundamental miscarriage of justice should his claim not be heard. No
reasonable jurist could debate the correctness of the federal district court’s rulings
concerning the failure to exhaust, procedural bar, and the absence of grounds to excuse it.
B. Waiver of Ineffective Assistance of Counsel Claim
The district court declined to consider the merits of Mr. Rincon’s ineffective
assistance of counsel claim, concluding he waived it by raising it for the first time in his
reply brief. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011). Mr. Rincon
argues that the district court held his pro se pleadings to too high a standard, but this basic
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rule applies to all, Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012), and the district
court’s determination is not reasonably debatable.
CONCLUSION
We deny a COA and dismiss this matter.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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