Gaines (ID 33515) v. Heimgartner et al

Filing 15

MEMORANDUM AND ORDER-IT IS THEREFORE ORDERED BY THE COURT that Petitioner Michael Gaines'Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) is denied filed by Michael L. Gaines Signed by Chief District Judge Julie A Robinson on 10/20/2017.Mailed to pro se party Michael L. Gaines by regular mail (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL L. GAINES,
Petitioner,
v.

Case No. 17-3001-JAR

JAMES HEIMGARTNER, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Michael Gaines’ Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner, who is
proceeding pro se, seeks relief claiming ineffective assistance of trial and appellate counsel, and
illegal sentence. Respondents James Heimgartner, the Warden of El Dorado Correctional
Facility, and Kansas Attorney General Derek Schmidt (collectively “the State”) filed their
Answer and Return.1 The motion is fully briefed, and the Court is prepared to rule. After a
careful review of the record and the arguments presented, the Court denies Petitioner’s motion
without need for an evidentiary hearing.
I.

Legal Standard
The Court reviews Petitioner’s challenge to state court proceedings pursuant to the

Antiterrorism and Effective Death Penalty Act (“AEDPA”).2 AEDPA requires that federal
courts give “significant deference to state court decisions” adjudicated on the merits.3 Under 28
U.S.C. § 2254(d), a federal court may not grant habeas relief on any claim adjudicated in state

1

Doc. 9.

2

Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013).

3

See id.

court, unless the petitioner establishes the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”4
A state court’s decision is “contrary to” an established federal law if the state court
reaches a different result than the Supreme Court has “done on a set of materially
indistinguishable facts” or “if the state court applies a rule different from the governing law” set
forth in Supreme Court cases.5 A decision is an “unreasonable application” of clearly
established federal law if a “state court correctly identifies the governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies it to the facts of [a petitioner’s] case.”6
Additionally, “an unreasonable application may occur if [a] state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a
new context where it should apply.”7 Courts employ an objective standard in determining what
is unreasonable.8
A federal court must presume the state court’s factual findings, including credibility
findings, are correct in the absence of clear and convincing evidence to the contrary.9 The law
“stops just ‘short of imposing a complete bar on federal court relitigation of claims already
rejected in state proceedings.’”10 Courts may not issue a writ of habeas corpus if “‘fairminded

4

Williams v. Trammel, 782 F.3d 1184, 1191 (10th Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1)–(2)).

5

Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)).

6

Id. (citing Williams, 529 U.S. at 407–08).

7

House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).

8

Bell, 535 U.S. at 694 (2002) (citing Williams, 529 U.S. at 409–10).

9

28 U.S.C. § 2254(e)(1).

10

Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014) (quoting Harrington v. Richter, 562 U.S. 86, 102

(2011)).

2

jurists could disagree’ on the correctness of the state court’s decision.”11 Even when a petitioner
has a strong case for relief, this “does not mean that the state court’s contrary conclusion was
unreasonable.”12
Because Gaines proceeds pro se, the Court must construe his pleadings liberally and
apply a less stringent standard than what is applicable to attorneys.13 However, the Court may
not provide additional factual allegations “to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.”14 The Court need only accept as true Plaintiff’s “well-pleaded
factual contentions, not his conclusory allegations.”15
II.

Factual and Procedural Background
Absent clear and convincing evidence to the contrary, a federal habeas court must

presume that the state courts’ factual findings are correct.16 The facts underlying Petitioner’s
convictions for battery against two law enforcement officers, as determined by the Kansas Court
of Appeals (“KCOA”) on Petitioner’s direct appeal, are as follows:
At Gaine[s’] jury trial, uncontested evidence established
that Sedgwick County Detention Facility deputies Robyn Diericks
and Michael Eaglin were inside the county jail’s medical clinic just
prior to the incident that led to the charges against Gaines. Gaines
and other inmates were in line waiting to have their blood glucose
levels checked when Gaines started to argue with another inmate.
There was conflicting evidence as to what took place next.
The State presented testimony that upon hearing the argument,
Eaglin stepped outside the clinic to see what was happening and
saw that Gaines had his fist on top of the other inmate’s forehead.
11

Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

12

Id. at 102.

13

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); Whitney v. New Mexico,
113 F.3d 1170, 1173 (10th Cir. 1997).
14

Whitney, 113 F.3d at 1773.

15

E.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

16

28 U.S.C. § 2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004).

3

Eaglin approached Gaines and told him to turn around and “cuff
up.” Gaines did not comply, so Eaglin grabbed Gaines’ arm,
pushed him against the wall, and again told him to turn cuff up.
Gaines broke free of Eaglin’s grip and swung his arms at Eaglin in
an attempt to hit him. Diericks came to Eaglin’s assistance, but
Gaines kept resisting so Diericks knocked him to the ground by
taking his legs out from under him. Gaines continued to struggle
with Eaglin and Diericks despite their commands to stop. During
the struggle, Gaines said, “mother fucker, I’m going to kill you and
your family when I[get] out of here.” Deputy Leonel Verduzco
came to assist Eaglin and Diericks, and the three deputies finally
gained control of Gaines, put handcuffs on him, and stood him on
his feet. Gaines then spit blood and saliva at Eaglin and Verduzco,
hitting them in their faces.
At a jury trial, Gaines testified and presented witnesses who
disputed the State’s account of the incident. Gaines stated he was
waiting outside of the medical clinic when another inmate
approached him in an aggressive fashion. Gaines stuck out his arm
to protect himself. Eaglin then came out of the medical clinic and
launched an unprovoked attack on Gaines, pushing him into the
wall and punching him in the back of the head. Gaines denied
struggling with or spitting on the deputies.
At the close of the evidence, the district court instructed the
jury on the elements of battery against a law enforcement officer, a
felony. The court did not instruct on the lesser included offense of
misdemeanor battery and Gaines did not request such an
instruction. The jury acquitted Gaines of a criminal threat charge
and found him guilty on two counts of battery against a law
enforcement officer. The court later imposed the aggravated
sentence provided for in the appropriate grid box of the [Kansas
Sentencing Guidelines Act] for each count and ordered the
sentences to run consecutively. That resulted in a total controlling
sentence of 162 months in prison.17
The KCOA affirmed Gaines’ conviction and sentence, and the Kansas Supreme Court denied
review.18 One of the issues rejected by the KCOA on direct appeal was Petitioner’s claim that he
was subjected to an illegal aggravated sentence based on facts not found by a jury.

17

Kansas v. Gaines, No. 101,461, 2010 WL 3211672, at *1 (Kan. Ct. App. Aug. 6, 2010), rev. denied Oct.

20, 2010.
18

Id. at *2–4.

4

On August 19, 2011, Petitioner filed a motion for post-conviction relief under K.S.A. §
60-1507. Petitioner’s motion raised several ineffective assistance of counsel arguments, and
again claimed that his sentence was illegal.19 On March 8, 2012, the Sedgwick County District
Court denied Petitioner’s motion under K.S.A. § 60-1507 without an evidentiary hearing, finding
that the motions, files, and records conclusively show that he is not entitled to relief.20
Petitioner appealed as to his ineffective assistance of counsel claims, including that: (1)
his appellate counsel, Korey Kaul, was ineffective for failing to raise the issue of vindictive
sentencing on direct appeal; and (2) his trial counsel, Casey Cotton, was ineffective when he
failed to obtain a ruling in limine from the district court to exclude Gaines’ medical history and
racially offensive comments and further failed to object to the introduction of such evidence at
trial. On August 20, 2013, the KCOA affirmed the district court.21 It determined that appellate
counsel’s decision not to raise the issue of vindictive sentencing on appeal was not
constitutionally ineffective because there were no grounds to appeal the presumptive sentence.22
The court determined that trial counsel’s failure to argue for exclusion of evidence of Petitioner’s
medical condition and offensive racial comments did not amount to ineffective assistance
because he could not demonstrate prejudice by showing that the outcome of the trial would have
been different but for counsel’s allegedly deficient performance.23 The Kansas Supreme Court
granted review and affirmed.24

19

Case 11-cv-2933, Pet’r’s Mot. 9, 32, 40, 45, 48 (Aug. 19, 2011).

20

Case 11-cv-2933, slip op. at 5 (Kan. Dist. Ct. Mar. 8, 2012).

21

Gaines v. Kansas, No. 107, 993, 2013 WL 4729631 (Kan. Ct. App. Aug. 30, 2013).

22

Id. at *4–6.

23

Id. at *6–7.

24

No. 107,993, 2015 WL 340286 (Kan. Jan. 16, 2015).

5

While the § 60-1507 proceeding was on appeal, Petitioner filed a Motion to Correct
Sentence in his underlying criminal case in Sedgwick County District Court. He argued that the
district court miscalculated his criminal history score under Kansas v. Murdock, where the
Kansas Supreme Court considered how to determine whether certain pre-Kansas Sentencing
Guidelines Act (“KSGA”) convictions are person or nonperson crimes for criminal history
scoring purposes.25 The district court entered a Journal Entry of Hearing on Motion to Correct
Illegal Sentence on November 3, 2014, finding that the Murdock decision did not apply to
Petitioner’s pre-1993 in-state felony, and thus Petitioner’s criminal history score was correctly
calculated and should not be altered.26 Petitioner appealed, and the KCOA summarily affirmed
the district court without an opinion.27 On December 21, 2016, the Kansas Supreme Court
denied review.28
Petitioner attempted to file a federal habeas petition after his original state habeas petition
was denied, but before he had exhausted his appeal on the motion to correct sentence. Finding
Petitioner’s federal habeas petition contained an unexhausted claim, Judge Crow dismissed it
without prejudice and directed him to file a new petition upon fully exhausting his state court
remedies.29 Petitioner timely filed this action on January 4, 2017, after the motion to correct
sentence was exhausted. Liberally construing his petition as the Court must, Petitioner asserts
three challenges to his state court proceedings: (1) his trial counsel was ineffective by failing to
litigate a motion in limine or contemporaneously object with respect to evidence about

25

323 P.3d 846 (Kan. 2014), overruled by Kansas v. Keel, 357 P.3d 251 (Kan. 2015), cert. denied, 136 S.
Ct. 865 (2016).
26

Case 07-CR-3091, Journal Entry at 1–2 (Kan. Dist. Ct. Nov. 3, 2014).

27

Case 07-CR-3091, Mandate (Kan. Ct. App. Jan. 11, 2017).

28

See id.

29

Case No. 15-3053-SAC-DJW, slip op. at 3–4 (D. Kan. Mar. 15, 2016).

6

Petitioner’s HIV-positive status, and about racially offensive comments he had made in the past;
(2) his appellate counsel was ineffective by failing to argue that his sentence was vindictive on
direct appeal; and (3) his sentence was illegal because it was aggravated on the basis of his
conduct in court during the sentencing hearing, in violation of Apprendi.
III.

Discussion
A.

Ineffective Assistance of Counsel

The Court reviews Petitioner’s ineffective assistance of counsel claim under the familiar
test set forth in Strickland v. Washington, which requires Petitioner to show that (1) his counsel’s
performance fell below an objective standard of reasonableness; and (2) counsel’s performance
prejudiced his defense.30 The Court’s review under the first prong of this test is “highly
deferential: ‘counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.’”31 To be deficient,
counsel’s performance “must have been completely unreasonable, not merely wrong.”32
“[S]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.”33 Under the prejudice prong, Petitioner must demonstrate
that “but for counsel’s errors, there is a reasonable probability ‘the result of the proceeding
would have been different.’”34 When reviewing an ineffective assistance claim under §
2254(d)(1), the Court applies a “doubly deferential” standard: it must determine whether the
relevant state court decision was unreasonable in concluding that counsel’s performance did not

30

466 U.S. 668, 687–88 (1984).

31

Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010) (quoting Strickland, 466 U.S. at 690).

32

Id. (quoting Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999)).

33

Knowles v. Mirzayance, 556 U.S. 111, 124 (2009).

34

Id. (quoting Strickland, 466 U.S. at 694).

7

meet the deferential Strickland test.35 For purposes of review under 28 U.S.C. § 2254, the
relevant state court decision as to Petitioner’s ineffective assistance claims is the KCOA decision
denying state habeas relief under K.S.A. § 60-1507.
1.

Trial Counsel

Petitioner’s first point of error is that trial counsel was ineffective for failing to challenge
admission of the State’s evidence of his HIV-positive status, and of certain racially charged
comments he had made in the past. He argues that the statements about his medical condition
violated his right to privacy and violated his right to a fair trial. The KCOA assumed without
deciding that trial counsel was deficient by failing to secure an in limine ruling on these issues,
and by failing to object at trial.36 Nonetheless, the court determined that Petitioner failed to
establish prejudice because he could not show a reasonable probability that the result of the trial
would have been different.37
Under the applicable standard of review, this Court must determine whether Petitioner
has overcome the doubly deferential standard that applies here by establishing that the KCOA’s
finding on the prejudice prong was unreasonable. He has not. The KCOA largely relied on the
fact that Petitioner was acquitted of the criminal threat count, which demonstrated that the jury
could not have placed undue emphasis on the allegedly prejudicial evidence Petitioner believes
should have been excluded. Petitioner conclusorily asserts that the repeated references to his
HIV status caused him an unfair trial. He argues that the criminal threat charge was a
“trump[ed]-up baseless charge,” which is the only reason he was acquitted. But to demonstrate
prejudice, Petitioner must show that the KCOA decision was unreasonable in determining that

35

Id. at 123.

36

Gaines v. Kansas, No. 107, 993, 2013 WL 4729631, at *6 (Kan. Ct. App. Aug. 30, 2013).

37

Id. at *7.

8

there was not a reasonable probability that the outcome would have changed if counsel had
challenged the evidence at issue. “Reasonable probability is more than mere speculation, and an
applicant must show more than ‘some conceivable effect on the outcome of the proceeding.’”38
Petitioner’s arguments are mere conjecture. According to the KCOA decision, there was a
factual dispute about whether Petitioner struggled or spit on the deputies. The jury found beyond
a reasonable doubt that Petitioner committed battery against the deputies, but did not find
sufficient evidence to establish the State met the elements of the criminal threat charge. It was
not unreasonable for the KCOA to rely on this acquittal in determining that the unchallenged
evidence did not prejudice the jury.39 Likewise, it was not unreasonable for the KCOA to rely
on the well-established principle that the jury is presumed to follow the instructions given,40
which included an instruction that it is not to consider the case with sympathy or prejudice for
either party.
Accordingly, the KCOA’s decision that trial counsel’s failure to object to the admission
of evidence of Petitioner’s HIV status, or his racially offensive comments, did not violate
Petitioner’s right to effective assistance of counsel under the Sixth Amendment was not contrary
to nor an unreasonable application of federal law.
2.

Appellate Counsel

Next, Petitioner challenges the KCOA’s determination that appellate counsel’s failure to
argue vindictive sentencing on direct appeal was not constitutionally ineffective. The KCOA

38

Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012) (quoting Turrentine v. Mullin, 390 F.3d 1181,
1205 (10th Cir. 2004)).
39

See Kansas v. Holman, 284 P.3d 251, 263 (Kan. 2012) (finding no real possibility that jury would have
rendered a different verdict if a limiting instruction had been given along with prejudicial evidence where jury
acquitted on some of the charges), overruled on other grounds by Kansas v. Dunn, 375 P.3d 332 (Kan. 2016).
40

See, e.g., Kansas v. Mitchell, 275 P.3d 905, 913 (Kan. 2012) (“we presume the jury follows the
instructions given.”).

9

determined that appellate counsel had no grounds to appeal the presumptive aggravated sentence
provided for under the KSGA, and thus his performance did not fall below the applicable
objective standard of reasonableness. Petitioner’s challenge is largely based on a letter sent to
him by his appellate counsel before he filed the direct appeal, where counsel advised Petitioner
that although “you may have a claim of vindictive sentencing by Judge Pilshaw[,] . . . I cannot
raise this on your direct appeal. She gave you a presumptive sentence and those are not
appealable.”41 The KCOA explained that while it is true that “an appellate court may disturb a
criminal sentence that is within statutory limits upon a showing of . . . vindictiveness on the part
of the sentencing court,” there were “no facts alleged that, if true, would prove vindictiveness by
the sentencing judge.”42
This decision was not contrary to nor an unreasonable application of Strickland, or other
federal law. A Fourteenth Amendment Due Process claim may arise where there is
“vindictiveness against a defendant for having successfully attacked his first conviction” on
resentencing.43 Challenges for vindictive sentencing arise in the context of resentencing after a
remand for new trial or resentencing.44 Here, there was no increased sentence because Judge
Pilshaw only announced her sentencing decision once, at the end of the sentencing hearing, after
Defendant “made some rather lewd and vulgar comments” that necessitated his removal from the
courtroom.45 Petitioner has provided this Court with no grounds upon which to find it was
unreasonable for the KCOA not to extend the vindictive sentencing presumption to a case where
41

Doc. 1-1; see also Gaines, 2013 WL 4729631, at *5.

42

Gaines, 2013 WL 4729631, at *5–6.

43

North Carolina v. Pearce, 395 U.S. 711, 725 (1969); Macomber v. Hannigan, 15 F.3d 155, 156–57 (10th
Cir. 1994).
44

See, e.g., Pearce, 395 U.S. at 726 (involving a greater sentence imposed after a retrial following
successful appeal); Kansas v. Merrills, 149 P.3d 869, (Kan. Ct. App. 2007) (considering increased sentence after
sentence was vacated and case remanded for resentencing).
45

Tr. Sentencing Hr’g at 25:18–25.

10

a single sentence was announced and imposed based on conduct that occurred during the
sentencing hearing itself.
Moreover, in order to prove vindictiveness under Kansas law, which is consistent with
federal law,46 Petitioner must have been able to demonstrate actual vindictiveness because the
presumption of vindictiveness does not apply here where there was no increased sentence
announced upon resentencing.47 It is undisputed that Judge Pilshaw sentenced Petitioner within
the presumptive sentencing range that applied to his battery convictions. While it is true that she
considered his outburst in the courtroom during the sentencing hearing when she imposed the
aggravated presumptive sentence of 128 months on Count 1, and 34 months on Count 2, to run
consecutively, the KCOA determination that “this reasoning was appropriate for the crime and
within the district court’s province” was not unreasonable.48 Judge Pilshaw presided over the
jury trial where Petitioner was convicted of two counts of battery against a law enforcement
officer and was therefore familiar with the evidence upon which Petitioner was convicted. In
sentencing Petitioner, Judge Pilshaw noted that he had “an obvious contempt for those in
authority, for those who are in a position to discipline you.”49 Given that Petitioner’s disrespect
for the court during sentencing was relevant to the crimes for which Petitioner was convicted,
and given that Judge Pilshaw did not “increase” a previously imposed sentence based on
Petitioner’s courtroom conduct, it was not unreasonable for the KCOA to find that appellate

46

See Kansas v. Rinck, 923 P.2d 67, 70–72 (Kan. 1996) (following Pearce, 395 U.S. at 726 and Wasman v.
United States, 468 U.S. 559 (1984)).
47

Gaines, 2013 WL 4729631, at *5 (citing Kansas v. Merrills, 149 P.3d 869, (Kan. Ct. App. 2007)).

48

It is undisputed that under the KSGA Petitioner was facing a possible standard sentence of 120 months, a
mitigated sentence of 114 months, or an aggravated sentence of 128 months on Count 1. On Count 2, Petitioner
was facing a possible standard sentence of 32 months, a mitigated sentence of 31 months, or an aggravated sentence
of 34 months. See Kansas Sentencing Guidelines Presentence Investigation Report Face Sheet at 1 (July 14, 2008);
Tr. Sentencing Hr’g at 7:8–11 (amending Face Sheet as to Count 1 based on criminal history not reflected therein).
49

Tr. Sentencing Hr’g at 26:17–20.

11

counsel’s failure to raise this issue on direct appeal did not fall below an objectively reasonable
standard under the first prong of Strickland because Judge Pilshaw’s sentence was well within
her discretion under the KSGA for the crimes of conviction.
B.

Illegal Sentence

Finally, Petitioner asserts “illegal sentence” as a ground for relief. Petitioner fails to
provide an explanation of or any factual basis for this claim,50 but when read in conjunction with
his prior habeas petition filed on March 16, 2015, the Court construes this claim as a challenge to
the district court’s aggravated sentence under the KSGA without putting the aggravated factors
before a jury, in violation of Apprendi v. New Jersey51 and Cunningham v. California.52 Those
cases make clear that any fact that increases a sentence beyond the statutory maximum sentence
must be found by a jury beyond a reasonable doubt.53 In Cunningham, the Court found that the
California sentencing scheme violated the Sixth Amendment because it authorized the
sentencing judge to impose an aggravated sentence based on judicial fact finding on the relevant
statutory factors.54 The relevant state court decision that this Court reviews is the KCOA’s
decision on direct appeal,55 which found that the Kansas Supreme Court’s decision in Kansas v.
Johnson56 foreclosed this argument. Petitioner concedes that Johnson forecloses his argument,
but wishes to preserve the issue for appeal.
50

To the extent Petitioner challenges the Sedgwick County District Court’s denial of his motion to correct
sentence based on the Murdock case, which was summarily affirmed by the KCOA and Kansas Supreme Court, that
decision dealt with a Kansas state-law challenge to his sentence. This Court does not review state-court
determinations on questions of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991).
51

530 U.S. 466 (2000).

52

549 U.S. 270 (2007).

53

Cunningham, 549 U.S. at 281–82 (discussing Apprendi, 530 U.S. at 490).

54

Id. at 293–94.

55

Kansas v. Gaines, No. 101,461, 2010 WL 3211672, at *1 (Kan. Ct. App. Aug. 6, 2010), rev. denied, Oct.

20, 2010.
56

190 P.3d 207, 225 (Kan. 2008).

12

As the Kansas Supreme Court explained in Johnson, which the KCOA followed in this
case, the aggravated sentencing option under the KSGA that applied to Petitioner’s sentence does
not violate the Sixth and Fourteenth Amendments under the holdings of Apprendi and
Cunningham, because the judge is not required to conduct fact finding in order to impose an
aggravated sentence.57 Instead, K.S.A. § 21-4704(e)(1), which has since been repealed, provided
the sentencing judge with discretion to sentence within the presumptive grid block, and the upper
limit of the grid block is the “statutory maximum” for purposes of the Apprendi analysis.58 Here,
the sentencing judge imposed the longest term possible within the applicable grid block of 128
months. It was therefore not an unreasonable application of clearly established federal law for
the KCOA to deny Petitioner’s direct appeal on this basis.59
IV.

Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases requires the federal district court

reviewing a habeas petition to “issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Under U.S.C. § 2253(c)(2), the court may issue a certificate of
appealability “only if the applicant makes a substantial showing of the denial of a constitutional
right.” A petitioner must demonstrate either that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong” or that issues in the petition
are “adequate to deserve encouragement to proceed further.”60 Moreover, a movant does not
need to demonstrate his appeal will succeed to be entitled to a Certificate of Appealability, but
must “prove something more than the absence of frivolity or the existence of mere good faith.”61
57

Id. at 225.

58

Id.

59

Accord Harms v. Cline, 27 F. Supp. 3d 1173, 1183–84 (D. Kan. 2014).

60

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).

61

United States v. Williams, 410 F. App’x 97, 99 (10th Cir. 2010) (citation omitted).

13

For the same reasons explained above, the Court denies a certificate of appealability on
the issues raised in Petitioner’s habeas petition. He has failed to make a substantial showing that
he was denied his constitutional right to effective counsel, or that he was sentenced in violation
of the Sixth or Fourteenth Amendments.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner Michael Gaines’
Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc.
1) is denied.
IT IS SO ORDERED.
Dated: October 20, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

14