Victor M. Logan v. SHANNON MEYER, Warden, Lansing Correctional Facility

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
VICTOR M. LOGAN,
Petitioner - Appellant,
v.
SHANNON MEYER, Warden, Lansing
Correctional Facility; DEREK SCHMIDT,
Kansas Attorney General,
Respondents - Appellees.
No. 20-3218
(D.C. No. 5:18-CV-03177-JTM)
(D. Kansas)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BRISCOE, KELLY, and McHUGH, Circuit Judges.
_________________________________
A Kansas jury convicted Victor Logan of one count of aggravated indecent
liberties with a child, two counts of indecent liberties with a child, and one count of lewd
and lascivious behavior. The Johnson County District Court sentenced Mr. Logan to 171
months’ imprisonment. He directly appealed and collaterally challenged these
convictions, but both efforts were unsuccessful.
Mr. Logan then filed an application for relief under 28 U.S.C. § 2254 in the United
States District Court for the District of Kansas. His habeas petition stated three grounds
* This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 30, 2021
Christopher M. Wolpert
Clerk of Court
FILED
United States Court of Appeals
Tenth Circuit
September 30, 2021
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for relief: (1) the judge in his collateral challenge was biased against him, (2) trial counsel
provided ineffective assistance by not advising him of a plea offer and by not requesting
a psychological evaluation of the alleged victims, and (3) the state engaged in
prosecutorial misconduct when it urged the jury to believe the alleged victims’
statements. The district court denied his application and a certificate of appealability
(“COA”). He now requests a COA from this court. We deny his request and dismiss this
matter.
We lack jurisdiction to review the denial of a § 2254 petition absent the issuance
of a COA. See 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). This
standard requires “a demonstration that . . . includes showing 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. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893, 922 n.4 (1983)). Thus, Mr. Logan must show that the district
court’s resolution of the constitutional claim was either “debatable or wrong.” Id.
Mr. Logan seeks a COA on three grounds: (1) a due process violation resulting
from various alleged procedural errors during his arrest and trial, (2) a due process
violation based on an incorrect charge, as Mr. Logan asserts the alleged victim was not a
child, and (3) a Sixth Amendment violation arising from an unlawful and non-speedy jury
trial. See Aplt. Br. at 8–10. But Mr. Logan argued none of these three grounds to the
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district court, and therefore none of the arguments pursued in this appeal have been
adjudicated by the district court. These arguments are therefore waived.
“We do not generally consider issues that were not raised before the district court
as part of the habeas petition.” Stouffer v. Trammell, 738 F.3d 1205, 1221 n. 13 (10th Cir.
2013); see also Harmon v. Sharp, 936 F.3d 1044, 1069 (10th Cir. 2019) (refusing to
reach claims not raised in a habeas petition before the district court). While this court has
discretion to consider waived arguments on appeal, we will not do so here, as Mr. Logan
primarily seeks to relitigate factual and evidentiary disputes considered in state court. The
Antiterrorism and Effective Death Penalty Act of 1996 governs this appeal and instructs
us to “presume factual findings [of a state court] are correct absent clear and convincing
evidence to the contrary.” Sharp, 936 F.3d at 1050.
For the foregoing reasons we DENY Mr. Logan’s request for a COA and
DISMISS this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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