(D. Kansas) (D.C. No. 5:06-CV-03317-JAR).
The opinion of the court was delivered by: Harris L Hartz Circuit Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, McKAY, and O'BRIEN, Circuit Judges.
A Kansas state-court jury convicted Lisa J. Graham on two counts of attempted first-degree murder and three counts of aggravated assault of a law-enforcement officer. The aggravated-assault convictions were reversed on direct appeal. After unsuccessfully pursuing state collateral remedies, Ms. Graham filed an application for federal habeas relief under 28 U.S.C. § 2254 in the United States District Court for the District of Kansas on November 17, 2006. The application raised 12 challenges to her attempted-murder convictions. The district court ruled that she had procedurally defaulted eight of her claims and that the remaining four lacked merit. Ms. Graham, appearing pro se, seeks a certificate of appealability (COA) from us to challenge the district court's rulings. See 28 U.S.C. § 2253(c)(1)(A) (COA is necessary to appeal denial of relief in § 2254 proceeding). Because a reasonable jurist could not debate the correctness of the district court's decision, we deny her application for a COA and dismiss the appeal.
Ms. Graham's convictions arose from a confrontation with police in her home. Knowing that authorities were looking for her to execute an arrest warrant, Ms. Graham doused her house in gasoline and positioned a candle and bowl of charcoal fluid behind her front door. She also strung a wire across the back door to prevent it from opening. Two police officers knocked on the front door and received no response. They then entered Ms. Graham's home through an unlocked window, whereupon Ms. Graham retreated to the basement and lit several roman candles(a firework that propels flaming balls) in an effort to "burn the house down." R. Vol. 2 (State Ct. Tr. Vol. III) at 388. It took the officers one to two minutes to exit the premises. With fire spreading through the house, one of the officers reentered to pull Ms. Graham out alive. As the officer rushed towards her, she brandished a firearm, which discharged as she was tackled. Neither the officer nor Ms. Graham was struck by the bullet.
In her § 2254 application Ms. Graham raised three claims that she had pursued on direct appeal in state court-namely, that (1) her attempted-murder conviction rested on insufficient evidence of guilt; (2) she was charged with multiplicitous counts; and (3) the prosecutor made untrue and inflammatory statements in his closing argument.She also complained that her state-court motion for collateral relief had been summarily denied. The district court rejected these claims on the merits. In addition, the court ruled that eight claims in Ms. Graham's § 2254 application had been procedurally defaulted because they had not been raised in state court. Construed liberally, Ms. Graham's request for a COA challenges each of the district court's rulings. See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (pro se filings must be liberally construed).
A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 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) (internal quotation marks omitted). In other words, an applicant must show that the district court's resolution of the constitutional claim was either "debatable or wrong." Id. If the application was denied on procedural grounds, the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional right, but she must also show "that jurists of reason would find it debatable . . . whether the district court was correct in its procedural ruling." Id. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of a case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id.
Also pertinent to our standard of review, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a claim has been adjudicated on the merits in state court, a federal court will grant habeas relief only when the applicant establishes that 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." 28 U.S.C. § 2254(d)(1), (2). As we have explained:
Under the "contrary to" clause, we grant relief 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 [Supreme Court] has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, relief is provided 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. Thus we may not issue a habeas writ simply because we conclude in our independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and internal quotation marks omitted). Therefore, for those of Ms. Graham's claims that were adjudicated on the merits in state court, "AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of [her] request for COA." Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
A. Sufficiency of the Evidence
Ms. Graham argues that the state adduced insufficient evidence of intent to convict her of attempted first-degree murder. In assessing such an argument, a court must defer to the fact-finding role of the jury. Thus, evidence of guilt is sufficient if "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). When a habeas applicant's insufficient-evidence claim has been addressed in state court,§ 2254(d) requires an additional layer of deference. See Diestel v. Hines, 506 ...