Upchurch v. Bruce, 02-3242.

Decision Date18 June 2003
Docket NumberNo. 02-3242.,02-3242.
Citation333 F.3d 1158
PartiesDavid L. UPCHURCH, Petitioner-Appellee, v. L.E. BRUCE, Warden, Hutchinson Correctional Facility; Carla Stovall, Kansas Attorney General, Respondents-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

John K. Bork, Assistant Attorney General (Jared S. Maag, Assistant Attorney General on the briefs), Topeka, KS, for the Respondents-Appellants.

Gary W. Owens, Roger L. Falk & Associates, P.A., Wichita, KS, for the Petitioner-Appellee.

Before LUCERO, McWILLIAMS, and ANDERSON, Circuit Judges.

LUCERO, Circuit Judge.

In this habeas case, the district court granted relief to petitioner David Upchurch on the basis that his appellate counsel failed to mount an adequate challenge to his kidnapping charge. On appeal, we consider whether the Kansas Court of Appeals' ("KCOA's") decision denying post-conviction relief constituted an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We exercise jurisdiction pursuant to 28 U.S.C. § 2253, and reverse the district court's grant of habeas relief.

I

Around midnight on Labor Day in 1995, Jessica Green was preparing for bed when she heard a knock at the front door. Kevin Loggins and an unknown male asked to speak with Green's husband Daron. Recognizing Loggins from a previous encounter, Green invited the two men inside and returned to the bathroom. Loggins then pointed a gun at Green's husband, ordering him onto the floor and demanding money and certain property. At some point, the unknown male let Upchurch into the house. As Green entered the living room, Loggins pointed the gun at her and directed Upchurch to accompany her to the bedroom. Upchurch demanded that she give him all her money and, when Green explained that she had none, threatened, "If you don't give me your money, I'm going to kill you." (Appellant's App. at 103.) Green informed Upchurch that her wallet was outside in her car. Upchurch started to exit the room, ostensibly to find Green's wallet, only to turn around, grab Green by her collar, and pull her outside. As they approached the car, Green noticed that one of Upchurch's cohorts was already inside the car stealing the car stereo system. Ordered to find her wallet, Green was able to do so and handed it to Upchurch.1

Upchurch was charged with and convicted of one count of aggravated burglary, two counts of aggravated robbery, and two counts of aggravated kidnapping, and sentenced to 442 months' imprisonment. On direct appeal of his conviction, Upchurch raised numerous claimed errors, including an unsuccessful challenge to the sufficiency of the evidence in support of his convictions for the kidnapping of Jessica and Daron Green. He argued that inconsistencies in the testimony made it impossible to establish guilt beyond a reasonable doubt. Upchurch's counsel did not argue that his client's alleged actions failed to satisfy the elements of aggravated kidnapping under Kansas law. Following the KCOA's rejection of his direct appeal, Upchurch filed a petition for state post-conviction relief, claiming that his appellate counsel was constitutionally ineffective for having failed to argue the elements of aggravated kidnapping under state law. The petition was denied by the KCOA.

In a 28 U.S.C. § 2254 petition, Upchurch presented to the district court the same ineffective-assistance-of-appellate-counsel argument with respect to the kidnapping charges that he raised in his petition for state post-conviction relief. In granting habeas relief, the district court concluded that Upchurch's appellate counsel's failure to argue that Upchurch's actions did not satisfy the elements of aggravated kidnapping constituted "the omission of a dead-bang winner" that would have resulted in reversal on appeal. Upchurch v. Bruce, No. 01-3196-DES, slip op. at 2 (D. Kan. June 5, 2002). Kansas appeals, contending that the KCOA's denial of habeas relief on Upchurch's ineffective-assistance-of-appellate-counsel claim as it relates to the kidnapping of Jessica Green did not constitute an unreasonable application of Strickland.2

II

Upchurch filed his federal habeas petition on May 16, 2001, and therefore the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs our review. See Paxton v. Ward, 199 F.3d 1197, 1204 (10th Cir.1999) (stating that AEDPA applies to habeas petitions filed after April 24, 1996, regardless of the date of the criminal trial forming the basis of the conviction). Section 2254, as amended by AEDPA, provides that a writ of habeas corpus may not be issued with respect to any claim adjudicated on the merits in state court unless that adjudication resulted in a decision:

(1) ... that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) ... that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

§ 2254(d)(1)-(2). Under the "contrary to" clause, federal habeas courts may issue the writ only "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal court may grant habeas relief only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495; see also Lockyer v. Andrade, ___ U.S. ___, ___, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (holding that "objectively unreasonable" analysis under § 2254(d)(1) is also different from "clear error" review).

Upchurch's claim regarding appellate counsel ineffectiveness is governed by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was clearly established at the time his state-court conviction became final. See Williams, 529 U.S. at 390-91, 120 S.Ct. 1495 (concluding that Strickland qualifies as clearly established federal law under AEDPA even though the test, by necessity, requires a case-by-case examination of the evidence); see also Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003) ("The proper standard for assessing a claim of ineffectiveness of appellate counsel is that set forth in Strickland v. Washington."). Under Strickland, two prongs must be satisfied to show ineffective assistance of counsel in violation of the Sixth Amendment:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. 2052. To establish the first component — deficient performance — a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. To establish the second component — prejudice — a defendant "must show that there is a reasonable 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." Id. at 694, 104 S.Ct. 2052.

Claims of appellate-counsel ineffectiveness are often based on counsel's failure to raise a particular issue on appeal. See Cargle, 317 F.3d at 1202. "[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Although it is possible to bring a Strickland claim based on counsel's failure to raise a particular issue, "it is difficult to demonstrate that counsel was incompetent." Id. In order to evaluate appellate counsel's performance, "we look to the merits of the omitted issue." Cargle, 317 F.3d at 1202 (quotation omitted). "If the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance...." Id. On the other hand, if the omitted issue "has merit but is not so compelling, ... [we must assess] ... the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance."3 Id. (citing Smith, 528 U.S. at 288, 120 S.Ct. 746).

In ruling on Upchurch's claim, the KCOA determined that Upchurch's counsel was not objectively deficient under the first prong of Strickland.4 Because the KCOA adjudicated the merits5 of Upchurch's claim under the correct legal standard, this case turns on whether the KCOA's ultimate disposition was an unreasonable application of Strickland. See Aycox, 196 F.3d at 1178; see also Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir.2003) ("[W]hen a state court fails...

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