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Petitioner Sherrell Brinkley, a Kansas state prisoner proceeding pro se, requested a certificate of appealability to appeal the district court’s denial of his 28 U.S. Code 2254 petition.
In 1992, Brinkley pleaded guilty in the U.S. District Court for the Western District of North Carolina to possession of a stolen vehicle and to several federal firearms offenses. In 1993, a Kansas state jury convicted Brinkley of a 1990 murder involving one of the firearms from his federal convictions. On appeal, the Kansas Supreme Court affirmed his conviction, but vacated his sentence and remanded for resentencing. Brinkley continued to serve his federal sentence outside of Kansas until 2017 when he was returned to Kansas for resentencing on the murder. The Kansas court resentenced Brinkley to a single life sentence.
Represented by the same counsel as at his state resentencing, Brinkley appealed his new state sentence but voluntarily dismissed the appeal before briefing. Later, after the Kansas court appointed Brinkley new counsel at his request, Brinkley sought state habeas relief under Kan. Stat. Ann. 60-1507, arguing Kansas lacked jurisdiction to resentence him because of the manner in which he was returned to Kansas for resentencing, the 22-year delay in resentencing violated his due-process rights and the resentencing violated the double jeopardy clause because a federal court had supposedly enhanced his federal sentence with the state murder conviction. The Kansas trial court denied Brinkley’s habeas motion and Brinkley appealed to the Kansas Court of Appeals. the Kansas Court of Appeals dismissed Brinkley’s claims on procedural grounds.
Proceeding pro se, in 2023, Brinkley filed a federal habeas petition in the District of Kansas, raising the same claims as he presented in his state collateral challenge. The district court found Brinkley didn’t exhaust his claims in state court and his claims were procedurally defaulted. The district court ordered Brinkley to show cause why it shouldn’t dismiss the case.
In response, Brinkley asserted ineffective assistance of his post-trial counsel. But the district court denied Brinkley’s habeas petition and denied a certificate of appealability after concluding his ineffective-assistance-of-counsel claim was procedurally barred because he had never asserted this claim in Kansas state court. Brinkley timely filed this appeal seeking a certificate of appealability.
When a district court denies a certificate of appealability, the 10th Circuit can grant one if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and [if] jurists of reason would find it debatable whether the district court was correct in its procedural ruling,” the opinion noted, citing the U.S. Supreme Court decision in Slack v. McDaniel. The 10th Circuit concluded the district court’s procedural ruling is not reasonably debatable, so it denied Brinkley’s request for a certificate of appealability.
According to the 10th Circuit opinion, the district court denied Brinkley’s habeas petition and his application for a certificate of appealability because he didn’t exhaust his three claims in state court and because he didn’t show cause for this failure. A petitioner for habeas relief must have “exhausted the remedies available in the courts of the State” according to 28 U.S.C. 2254(b)(1)(A), (B). Brinkley argued he exhausted his claims on direct appeal and in a 60-1507 motion. But neither properly exhausted Brinkley’s federal claims in state court, the opinion added. Brinkley voluntarily dismissed his direct appeal before the briefing, and the court dismissed his 60-1507 motion on procedural grounds, so his claims weren’t properly exhausted in state court, the opinion noted, citing the decision in the U.S. Supreme Court case Castille v. Peoples.
But if Brinkley could show “either cause for the failure to appeal and prejudice resulting therefrom, or the denial of habeas would result in a fundamental miscarriage of justice,” the opinion noted, citing multiple court cases including the 10th Circuit Court of Appeals decision in Beavers v. Saffle; then the 10th Circuit could grant Brinkley’s certificate of appealability even though it’s procedurally barred.
Brinkley didn’t show either, the opinion noted. For cause, he claimed he received ineffective assistance of counsel during and after his state resentencing. But, as the U.S. Supreme Court has ruled, “a claim of ineffective assistance . . . generally must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default,” the opinion noted, citing the decisions in Edwards v. Carpenter and Murray v. Carrier.
In his state-court collateral challenge, Brinkley didn’t challenge the effectiveness of his post-trial counsel, the 10th Circuit explained and that omission defeated his ability to show cause. Nor can Brinkley show a fundamental miscarriage of justice because he didn’t attempt to “make a colorable showing of factual innocence,” according to the Beavers decision.
According to the 10th Circuit panel, it isn’t reasonably debatable Brinkley’s claims are procedurally barred, nor is it reasonably debatable Brinkley didn’t excuse this procedural bar. The 10th Circuit denied Brinkley’s request for a certificate of appealability and dismissed his case.