UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________ 

KENNETH UEDING, 

 Petitioner - Appellant, 

v. 

COLORADO DEPARTMENT OF 

CORRECTIONS; THE ATTORNEY 

GENERAL OF THE STATE OF 

COLORADO, 

 Respondents - Appellees.

No. 22-1417 

(D.C. No. 1:22-CV-02166-LTB-GPG) 

(D. Colo.) 

_______________________________________ 

ORDER

_______________________________________ 

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. 

_______________________________________ 

Mr. Kenneth Ueding obtained a conviction in state court and asked a 

federal district court for habeas relief based on the delay in bringing him 

to trial. The district court denied habeas relief, and Mr. Ueding seeks a 

certificate of appealability so that he can appeal. 28 U.S.C. 

§ 2253(c)(1)(A). We deny this request. 

Mr. Ueding based his habeas claim on both state law and the federal 

constitution. The district court concluded that (1) habeas relief is 

unavailable for violations of state law and (2) the constitutional claim is 

procedurally barred. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 28, 2023

Christopher M. Wolpert 

Clerk of Court

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For the state-law claim, we consider whether Mr. Ueding has made “a 

substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 336 (2003). Under this standard, any reasonable 

jurist would reject the state-law claim because it doesn’t involve a 

constitutional right. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) 

(stating that habeas relief does not lie for the violation of state law). So 

the state-law claim doesn’t merit a certificate of appealability. 

For the constitutional claim, the district court declined to reach the 

merits based on a procedural default. So here we consider whether a 

reasonable jurist could debate the applicability of a procedural default. 

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In our view, the applicability 

of a procedural default is not reasonably debatable. 

A procedural default occurs when “a state court dismisses [a] federal 

habeas claim on the basis of noncompliance with adequate and independent 

state procedural rules.” Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 

2012). A state procedural rule is “adequate” if it is “strictly or regularly 

followed and applied evenhandedly to all similar claims.” Id. (quoting 

Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012)). A rule is 

“independent” “if it relies on state law, rather than federal law, as the basis 

for the decision.” Simpson v. Carpenter, 912 F.3d 542, 571 (10th Cir. 

2018) (quoting Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012)). 

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Here the federal district court concluded that the state court’s 

application of the plain-error standard constituted an adequate and 

independent defect. For this conclusion, the district court reasoned that the 

application of the plain-error standard 

 was adequate because it had been evenhandedly applied and 

 independent because it had been based on state law. 

In seeking a certificate of appealability, Mr. Ueding contests the 

existence of a procedural default, arguing that application of the plainerror standard was not independent because he had presented a 

constitutional claim when objecting to joinder. 

We disagree with Mr. Ueding’s interpretation of his objection in 

state court. There he argued that joinder would lead to the admission of 

unfairly prejudicial evidence. Here he’s asserting the denial of a speedy 

trial. Mr. Ueding did not say anything in his objection to joinder that 

would alert the state courts to a claim involving the denial of a speedy 

trial. So any reasonable jurist would reject Mr. Ueding’s reliance on his 

objection to joinder in state court. See Finlayson v. State, 6 F.4th 1235, 

1241 (10th Cir. 2021) (concluding that when a state court recognizes or 

assumes a constitutional error but denies relief because the error is not 

plain, the plain-error standard “serves as an independent state rule” for 

purposes of procedural default). 

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Given the procedural bar, we could consider the merits of the claim 

only if Mr. Ueding satisfies the requirements for one of two exceptions: (1) 

cause and prejudice or (2) a fundamental miscarriage of justice based on 

actual innocence. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Mr. 

Ueding has not invoked either exception. 

We thus deny Mr. Ueding’s request for a certificate of appealability 

and dismiss the appeal.1

Entered for the Court 

Robert E. Bacharach 

Circuit Judge 

1

 Mr. Ueding also requests leave to proceed in forma pauperis and 

release on his own recognizance pending the appeal. We grant leave to 

proceed in forma pauperis, but our dismissal moots the request for release 

pending the appeal. 

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