## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID L. UPCHURCH, Petitioner - Appellee, v. L.E. BRUCE, Warden, Hutchinson Correctional Facility; CARLA STOVALL, Kansas Attorney General, Respondents - Appellants. No. 02-3242

Appeal from the United States District Court

for the District of Kansas (D.C. No. 01-CV-3196-DES)
John K. Bork, Assistant Attorney General (Jared S. Maag, Assistant Attorney General on the briefs), Topeka, Kansas for the Resp ondents-Appellants. Gary W. Owens, Roger L. Falk & Associates, P.A., Wi chita, Kansas for the Petitioner-Appellee.

Before LUCERO , McWILLIAMS , and ANDERSON , Circuit Judges.

LUCERO , Circuit Judge.-2-

In this habeas case, the district court granted rel ief to petitioner David Upchurch on the basis that his appellate counsel fa iled 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 Strickla nd v. Washington , 366 U.S. 688 (1984). We exercise jurisdiction pursuant to 2 8 U.S.C. § 2253, and reverse the district court’s grant of habeas relief.
I Around midnight on Labor Day in 1995, Jessica Greenwas preparing for bed when she heard a knock at the front door. Kevi n Loggins and an unknown male asked to speak with Green’s husband Daron. Re cognizing Loggins from a previous encounter, Green invited the two men insid e and returned to the bathroom. Loggins then pointed a gun at Green’s hu sband, ordering him onto the floor and demanding money and certain property. Atsome 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 acc ompany her to the bedroom. Upchurch demanded that she give him all her money a nd, when Green explained that she had none, threatened, “If you don’t give m e 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 r oom, ostensibly to find Green’s1 In the process of doing so, Green was sexually ab used by a third person;

that event is only tangentially relevant and we do not develop those facts further. -3- wallet, only to turn around, grab Green by her coll ar, 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 syst em. 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 coun t of aggravated burglary, two counts of aggravated robbery, and two counts of aggravated kidnapping, and sentenced to 442 months’ imprisonme nt. On direct appeal of his conviction, Upchurch raised numerous claimed errors , including an unsuccessful challenge to the sufficiency of the evidence in sup port of his convictions for the kidnapping of Jessica and Daron Green. He argued t hat inconsistencies in the testimony made it impossible to establish guilt bey ond 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 pe tition for state post-conviction relief, claiming that his appellate counsel was con stitutionally ineffective for having failed to argue the elements of aggravated k idnapping under state law. The petition was denied by the KCOA. In a 28 U.S.C. § 2254 petition, Upchurch presented to the district court the2 Kansas does not appeal the district court’s grantof habeas relief with

respect to the kidnapping of Daron Green. -4- same ineffective-assistance-of-appellate-counsel ar gument with respect to the kidnapping charges that he raised in his petition f or state post-conviction relief. In granting habeas relief, the district court concl uded 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. Upchurc h v. Bruce , No. 01-3196-DES, slip op. at 2 (D. Kan. June 5, 2002). Kansas appea ls, contending that the KCOA’s denial of habeas relief on Upchurch’s ineffective-a ssistance-of-appellate-counsel claim as it relates to the kidnapping of Jessica Gr een did not constitute an unreasonable application of Strickland

. 2
II Upchurch filed his federal habeas petition on May 1 6, 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 co rpus may not be issued with respect to any claim adjudicated on the merits in s tate court unless that-5-

adjudication resulted in a decision:

(1) . . . that was contrary to, or involved an unre asonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . that was based on an unreasonable determi nation 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 conc lusion 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 materi ally indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 413 (2000). Under the “unreasonabl e application” clause, a federal court may grant habe as relief only “if the state court identifies the correct governing legal principle fr om [the Supreme Court’s] decisions but unreasonably applies that principle t o 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 th e relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer v. Andrade , 123 S. Ct. 1166, 1175 (2003) (holding that “objecti vely unreasonable” analysis under § 2254(d)(1) is also different from “clear er ror” review). Upchurch’s claim regarding appellate counsel ineffe ctiveness is governed by the Supreme Court’s decision in Strickland v. Wa shington , 466 U.S. 668-6-

(1984), which was clearly established at the time h is state-court conviction became final. See Williams , 529 U.S. at 390–91 (concluding that Strickland qualifies as clearly established federal law under AEDPA even though the test, by necessity, requires a case-by-case examination of t he evidence); see also Cargle v. Mullin , 317 F.3d 1196, 1202 (10th Cir. 2003) (“The properstandard 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 t he Sixth Amendment:

First, the defendant must show that counsel’s perfo rmance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ g uaranteed the defendant by the Sixth Amendment. Second, the defe ndant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so seri ous as to deprive the defendant of a fair trial, a trial whose resultis reliable. 466 U.S. at 687. 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. To establish the second component—prejudice—a defendant “must show that the re 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. Claims of appellate-counsel ineffectiveness are oft en based on counsel’s3 In Neill v. Gibson , 278 F.3d 1044 (10th Cir. 2001), cert. denied , 123 S.

Ct. 145 (2002), we rejected the proposition that om ission of a “dead bang winner” is necessaryto prevail on a claim of ineffective assistance of appellate counsel. Id. at 1057 n.5. At the same time, of course, omissio n of a “dead bang winner” can be a sufficientbasis for such a claim. Cargle , 317 F.3d at 1202 n.4. -7- 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 amon g them in order to maximize the likelihood of success on appeal.” Smith v. Rob bins , 528 U.S. 259, 288 (2000) (citing Jones v. Barnes , 463 U.S. 745 (1983)). Although it is possible to bring a Stricklandclaim based on counsel’s failure to raise a partic ular issue, “it is difficult to demonstrate that counsel was incompete nt.” Id. In order to evaluate appellate counsel’s performance, “we look to the me rits of the omitted issue.” Cargle , 317 F.3d at 1202 (quotation omitted). “If the om itted 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 meri t but is not so compelling, . . . [we must assess] . . . th e 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 i s meritless, its omission will not constitute deficient performance.” 3 Id. (citing Smith , 528 U.S. at 288). In ruling on Upchurch’s claim, the KCOA determined that Upchurch’s4 Although the KCOA did not cite to Strickland , it utilized the Kansas

standard for ineffective-assistance-of-counsel clai ms, laid out in Baker v. State , 755 P.2d 493 (Kan. 1988). Bakermirrors the Stricklandstandard. See 755 P.2d at 498. Neither party contends that the KCOA’s dec ision was “contrary to” Stricklandunder § 2254(d)(1). See also Early v. Packer , 123 S. Ct. 362, 365 (2003) (explaining that failure to cite to Supreme Court law does not automatically result in a decision that is “contrary to” established federal law under AEDPA).

5 It is unclear from the KCOA’s decision denying Up church postconviction relief on his ineffectiveness claim whet her the court determined (1) that Upchurch’s counsel was not deficient for faili ng to challenge Upchurch’s conviction under Kansas law, or (2) that Upchurch’s counsel on direct appeal was not deficient because counsel didassert that Upchurch’s actions did not constitute aggravated kidnapping under Kansas law insofar as c ounsel broadly challenged the sufficiency of the evidence. Notwithstanding t he cryptic nature of the KCOA’s decision, however, it is well-settled in thi s circuit that it amounts to a decision “on the merits” for AEDPA purposes. See Aycox v. Lytle , 196 F.3d 1174, 1177 (10th Cir. 1999) (holding that there is an adjudication “on the merits” in the absence of evidence that the state court did not consider and reach the merits of petitioner’s claims). “We owe deference to the state court’s result , even if its reasoning is not expressly stated.” Id. ; see also Neill , 278 F.3d at 1058 n.6 (noting that “this court still defers to the state appellate court’s decision denying relief, even though that court did not expressly st ate its reasoning on each specific claim”). Thus, it is the KCOA’s result—denying Upc hurch’s claim on the basis that he did not establish deficient performance by his appellate counsel—to which we owe deference. -8- counsel was not objectively deficient under the fir st prong of Strickland

. 4 Because the KCOA adjudicated the merits 5 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 to articulate the rationale underlying its rejectio n of a petitioner’s claim, and-9-

when that rejection is on the merits, the federal c ourt will focus its review on whether the state court’s ultimate decision was an ‘unreasonable application’ of clearly established Supreme Court precedent.” (quot ation omitted)).
III We proceed to inquire whether the KCOA’s applicati on of Stricklandwas objectively unreasonable under § 2254(d)(1). Upchu rch’s contention is that, although his appellate counsel challenged the suffi ciency of the evidence to support Upchurch’s conviction for aggravated kidnap ping based on inconsistencies in witness testimony, counsel was d eficient for not arguing that there was insufficient evidence for the jury to con vict Upchurch because Upchurch’s actions in transporting Green outside to retrieve her wallet did not satisfy the elements of kidnapping under Kansas law . In order to evaluate Upchurch’s counsel’s performance under Strickland , “we look to the merits of the omitted issue.” Cargle , 317 F.3d at 1202. In evaluating the sufficiency of the evidence in acriminal case, the Kansas courts determine “whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate co urt is convinced that a rational factfinder could have found the defendant guilty be yond a reasonable doubt.” State v. Jamison, 7 P.3d 1204, 1211 (Kan. 2000). Kansas defines kidnapping as follows:-10-

Kidnapping is the taking or confining of any person , accomplished by force, threat or deception, with the intent to hold such person: (a) For ransom, or as a shield or hostage; (b) to facilitate flight or the commission of any c rime; (c) to inflict bodily injury or to terrorize the vi ctim or another; or (d) to interfere with the performance of any govern mental or political function. K.S.A. § 21-3420. Aggravated kidnapping requires p roof that “bodily harm is inflicted upon the person kidnapped.” § 21-3421. At trial, the state argued that Upchurch committed the aggravated kidnapping of Gre en under § 21-3420(b), because he moved her outside to facilitate the comm ission of the crime of robbery. In State v. Buggs , 547 P.2d 720, 730 (Kan. 1976), the Kansas Supreme Court held that the Kansas kidnapping statute “requ ir[es] no particular distance of removal, nor any particular time or place of confin ement.” Describing subsection (b), the court held that “a taking is a kidnapping if its purpose is to ‘facilitate’ the commission of any crime, even if the crime facilitated be a less serious crime such as robbery or rape.” Id. To facilitate the commission of a crime “means something more than just to make more convenient” a nd “must have some significant bearing on making the commission of the crime ‘easier’ as, for example, by lessening the risk of detection.” Id. “Whether a taking substantially ‘facilitates’ another crime or whether it is ‘merel y incidental’ are two different things.” Id. at 731. Buggs set forth a three-part test to determine whether a-11-

taking or confinement is done to facilitate the com mission of a crime:

[I]f a taking or confinement is alleged to have bee n done to facilitate the commission of another crime, to be kidnapping t he resulting movement or confinement: (a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. Id. In Buggs , the defendant accosted two Dairy Queen employees in the parking lot after they had closed the store, direct ed the victims to unlock the door, and forced them inside, where he raped one of the v ictims and robbed the store. The court concluded that the defendant’s actions co nstituted kidnapping because the movement of the victims into the store substant ially reduced the risk of detection of both the robbery and the rape. Id. ; see also State v. Alires , 792 P.2d 1019, 1022 (Kan. 1990) (concluding that the defenda nt committed kidnapping when he forced the victim of a convenience-store ro bbery out of the store to conceal the fact that a robbery was in progress); S tate v. Turbeville , 686 P.2d 138, 145 (Kan. 1984) (finding a kidnapping where the def endant moved victims from the front display area of the store to an office in the rear of the store before committing attempted murder). By contrast, in State v. Fisher , 891 P.2d 1065, 1073 (Kan. 1995), the-12-

Kansas Supreme Court concluded that the defendant’s actions did notconstitute kidnapping. Fisher, while robbing a restaurant, mo ved two victims to the back office to obtain a key to the safe. Reversing the defendant’s conviction for kidnapping, the court concluded that the movement o f the victims “neither made the crime substantially easier . . . nor did it su bstantially lessen the risk of detection.” Id. Because the defendant moved the victims out of me re convenience—i.e., the victims knew where the key to the safe was located, and the movement did not lessen the risk of detection—t he court concluded that the defendant’s actions were “no different from the for ced direction of a store clerk to cross the store to open a cash register,” which the Buggs court explicitly described as not kidnapping. Id. (quotation omitted). Similarly, in State v. Kemp , 46 P.3d 31, 34 (Kan. Ct. App. 2002), the Kansas C ourt of Appeals held that a kidnapping did not occur where the defendantmoved a robbery victim down a hallway to a central location, where other v ictims were confined. “Moving all victims to a central location before co mmencing the gathering of their property appears to be a matter of convenienc e rather than an act which makes the robbery substantially easier to effect orwhich lessens the risk of detection.” Id. The state argues that Upchurch’s actions constitute d kidnapping because, as in Buggs , moving Green outside was not inherent in the crim e of robbery and6 The state also emphasizes the fact that, when the district court reviewed

Upchurch’s co-defendant Loggins’s § 2254 motion, th e court concluded in a footnote that “a reasonable fact-finder could have found beyond a reasonable doubt that [Loggins] was guilty of aggravated kidnapping. Green was taken by force from her home to her vehicle to locate her wa llet so that robbers could deprive her of her property.” (Appellant’s Br. at 1 8 (quoting Loggins v. Hannigan , No. 99-3102-DES, slip op. at 11–12 n.2 (D. Kan. S ept. 11, 2001))). The statement indicates that the district court con tradicted itself by granting Upchurch habeas relief on this ground, argues the s tate. We conclude that this statement by the district court was dicta, because Loggins did not make a claim of ineffective assistance of appellate counsel in his petition for habeas relief. Accordingly, we do not rely on this statement. -13- made it substantially easier for Upchurch to committhe robbery. 6 In response, Upchurch asserts that, like the defendants in Fishe rand Kemp , his actions merely made the robbery more convenient and, unlike the ac tions of the defendant in Buggs , his actions increased, rather than decreased, the risk of detection of the robbery. Upchurch argues that his actions resemble the forced direction of a store clerk to open a cash register, and thus he did not commit aggravated kidnapping. He asserts that there was no purpose in moving Gree n outside that is distinct from committing the underlying robbery, and thus the tak ing or confinement of Green did not “facilitate” the robbery under the Kansas s tatute and applicable case law. Failure of his counsel on direct appeal to make thi s argument, contends Upchurch, was objectively deficient. In our analysis, whether Upchurch’s actions constit uted kidnapping under Kansas law is unclear, and claiming on direct appea l that there was insufficient-14-

evidence for a rational jury to convict Upchurch wo uld not have been plainly meritorious. As discussed above, Kansas case law e xemplifies the difficulty in differentiating between a taking or confining that “facilitates” the commission of another crime versus conduct that is merely inciden tal to the commission of another crime. While an argument that Upchurch’s a ctions did not constitute kidnapping under Kansas law may have merit, we are not persuaded that it is compelling to a degree that a rational jury could n ot have found Upchurch guilty beyond a reasonable doubt. In this situation, we m ust view this omitted issue in relation to the rest of the appeal and give deferen ce to any professional judgment involved in its omission. Cargle , 317 F.3d at 1202. Consistent with Upchurch’s alibi defense at trial, counsel on direct appeal included the argument that inconsistencies in witne ss testimony resulted in insufficient evidence of Upchurch’s guilt. Rather than simply asking the KCOA to reweigh the credibility of witness testimony, co unsel could have argued both that Upchurch was not present at the crime scene an dthat, even if the jury believed the evidence presented by the state, a rat ional jury could not have found that Upchurch’s actions constituted kidnapping unde r Kansas law. However, we are not persuaded that the omitted argument is obvi ously stronger than the issue counsel did raise so as to render counsel’s perform ance “objectively unreasonable” under Strickland . Cognizant of the Supreme Court’s mandate that7 Although the district court did not explicitly st ate that the KCOA’s

decision was unreasonable, the court did cite the c orrect AEDPA standard at the beginning of its order and thus implicitly decided that the state court’s application of Stricklandwas unreasonable. Indeed, in subsequently denying the state’s motion to file a motion for reconsideration out of time, the court described its earlier decision in the following way: In granting petitioner habeas relief, the court fou nd that the Kansas Court of Appeals (“KCOA”) unreasonably applied the test f ound in Strickland v. Washington. . . as it applies to ineffective assistance of appellate counsel. Specifically, the court found that petitioner’s app ellate counsel’s failure to properly challenge petitioner’s convictions for agg ravated kidnaping was an omission of a ‘dead-bang winner,’ resulting in inef fective assistance of appellate counsel. The KCOA’s failure to recognize this was found to be an unreasonable application of Strickland

. Upchurch v. Bruce , No. 01-3196-DES, slip op. at 2 (D. Kan. Aug. 7, 2 002). Therefore, we conclude that the district court appl ied the correct AEDPA analysis. -15- “[j]udicial scrutiny of counsel’s performance must be highly deferential” and “every effort be made to eliminate the distorting e ffects of hindsight,” Strickland , 466 U.S. at 689, we are left with substantial reservations that preclude a conclusion that Upchurch’s appellate counsel was co nstitutionally ineffective. Even were we to conclude that Upchurch’s counsel pr ovided objectively deficient assistance, we cannot say that the KCOA’s decision to the contrary was unreasonable. 7 As the Supreme Court has iterated time and again, “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.” Williams , 529 U.S. at 409. Constrained by AEDPA’s-16-

deferential standard of review, we hold that it was not unreasonable for the KCOA to conclude that Upchurch received effective a ssistance of appellate counsel. Given the Kansas kidnapping statute and r elevant case law, it is not entirely clear whether Upchurch’s actions facilitat ed the robbery, or merely made it more convenient; Upchurch’s argument that a rati onal jury could not have concluded that he committed the offense of kidnappi ng is far from compelling. Because the KCOA’s decision was not an unreasonable application of Strickland , Upchurch is not entitled to habeas relief.
III For the foregoing reasons, we REVERSE the judgment of the district court granting Upchurch habeas relief.