UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

JOHN F. FRANCIS, 

 Petitioner - Appellant,

v.

CHANDLER CHEEKS, Lansing 

Correctional Facility Warden; 

DEREK SCHMIDT, Attorney 

General of the State of Kansas, 

 Respondents - Appellees.

No. 22-3165

(D.C. No. 5:21-CV-03079-DDC)

(D. Kan.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BACHARACH, KELLY, and LUCERO, Circuit Judges.

_________________________________

This appeal involves a habeas action, which arose from the killing of 

Mr. John Francis’s cousin. For that killing, Mr. Clem Hollingsworth IV

was charged. Believing that Mr. Hollingsworth was guilty, Mr. Francis 

allegedly tried to obtain bond for Mr. Hollingsworth in order to murder 

* Oral argument would not help us decide the appeal, so we have 

decided the appeal based on the record and the parties’ briefs. See Fed. R. 

App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel.

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

FILED

United States Court of Appeals

Tenth Circuit

February 7, 2024

Christopher M. Wolpert

Clerk of Court

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him. This alleged effort didn’t succeed, but Mr. Hollingsworth later 

obtained release when his mother bonded him out. The next day, 

Mr. Hollingsworth was shot to death. For this shooting, the trial court 

convicted Mr. Francis of first-degree murder.

After exhausting remedies in state court, Mr. Francis sought habeas 

relief in federal district court. The district court denied habeas relief, and 

Mr. Hollingsworth appeals. We address two main issues:

1. The materiality of information undermining the credibility of a 

bondsman who had testified against Mr. Francis

2. Actual innocence of Mr. Hollingsworth

1. Nondisclosure of information about the bondsman’s credibility 

doesn’t entitle Mr. Francis to habeas relief. 

In the habeas petition, Mr. Francis claimed that the prosecution had 

withheld exculpatory information about a bondsman who testified at the 

trial.

a. We defer to the state supreme court’s decision as long as the 

court reasonably applied precedent of the United States 

Supreme Court.

The state supreme court rejected this claim, and Mr. Francis 

unsuccessfully renewed this claim in his habeas petition. We conduct de 

novo review over the district court’s ruling. Menzies v. Powell, 52 F.4th 

1178, 1195 (10th Cir. 2022), cert. denied, 144 S. Ct. 122 (2023). In 

conducting that review, we apply the same standard that governed in 

federal district court. Id. There the court had to apply a deferential 

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standard before considering the merits. Id. Under this deferential standard, 

the district court couldn’t grant relief on the merits unless the state 

supreme court had 

• acted contrary to Supreme Court precedent,

• unreasonably applied such precedent, or

• unreasonably determined the facts.

28 U.S.C. § 2254(d)(1)–(2).

b. The state supreme court didn’t unreasonably apply Supreme 

Court precedent.

In his opening brief, Mr. Francis argues that the state supreme court 

unreasonably applied a test created by the United States Supreme Court for

evidence undermining the credibility of a prosecution witness. For this 

argument, Mr. Francis claims that the prosecution withheld evidence that 

the bondsman had post-traumatic-stress disorder (PTSD) and had expressed 

confusion about some matters that he was expected to testify about. 

When the nondisclosed evidence is material, the Supreme Court has 

said that nondisclosure violates the defendant’s right to due process. Giglio 

v. United States, 405 U.S. 150, 154–55 (1972). When the state supreme 

court issued its decision, the United States Supreme Court had regarded 

evidence as material if disclosure would have created a reasonable 

probability of a different result. United States v. Bagley, 473 U.S. 667, 682 

(1985). 

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We consider not only this test but also the federal district court’s 

standard for evaluating the state supreme court’s application of the test. 

This standard prevents habeas relief if the state supreme court’s 

application of the test was reasonable. 28 U.S.C. § 2254(d)(1). The court’s 

application of the test was reasonable unless the state supreme court made 

an error so “well understood and comprehended in existing law” that it lay 

“beyond any possibility for fair-minded disagreement.” Harrington v. 

Richter, 562 U.S. 86, 103 (2011). In considering the possibility of fairminded disagreement, we give considerable leeway to the state supreme 

court in light of the generality of the Supreme Court’s standard for 

materiality. See Andrew v. White, 62 F.4th 1299, 1330 (10th Cir. 2023) 

(stating that we provide “substantial deference” to the state appellate court 

in light of the generality of the Supreme Court’s “disclosure rule . . .

announced in [Brady v. Maryland, 373 U.S. 83 (1963)]”).

Finally, we consider the reasonableness of the state supreme court’s 

reasoning based on the arguments that Mr. Francis had presented. 

See Menzies v. Powell, 52 F.4th 1178, 1201 (10th Cir. 2022) (“We review 

the reasonableness of the Utah Supreme Court’s decision based on the 

arguments presented.”), cert. denied, 144 S. Ct. 122 (2023); Wellman v. 

Colo. Dep’t of Corr., 952 F.3d 1242, 1249 (10th Cir. 2020) (“[U]nder 

Section 2254(d), we review the reasonableness of the state court’s decision 

in light of the arguments the petitioner raised in the state court.”). 

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To the state supreme court, Mr. Francis asserted that the PTSD and 

confusion were material because the bondsman was an important witness:

The evidence that the State’s witness, [the bondsman] told Det. 

Daniels that he had post-traumatic stress and was confusing the 

issues in this case was material impeachment information which 

would have affected the outcome of the trial. Evidence at trial 

proved that [the bondsman’s] testimony was integral to the 

State’s case. The failure of the State to disclose the information, 

which was explicitly requested by the defense, was a direct 

violation of the Brady rule and its progeny and K.S.A. § 22-

3212. The State’s discovery violation irreparably prejudiced the 

Defendant and denied him a fair trial. The trial court abused its 

discretion in denying the Defendant’s motion to dismiss, or 

alternatively, grant him a new trial due to the discovery 

violations.

Appellant’s Opening Br. at 82–83, No. 04-92087-5 (Kan. 2005), available 

at 2005 WL 2395690. But Mr. Francis didn’t say why PTSD or confusion 

would have materially undermined the bondsman’s credibility.

Given the lack of discussion about the importance of the PTSD or 

confusion, the state supreme court acted reasonably in concluding that the 

new evidence hadn’t satisfied the United States Supreme Court’s test for 

materiality. The bondsman testified at trial that 

• Mr. Francis and others had tried to get a bond for 

Mr. Hollingsworth,

• the group had said that Mr. Hollingsworth would be out only a 

few days, 

• Mr. Francis had said that his cousin had been killed by 

Mr. Hollingsworth, and

• someone in the group had said that the bondsman would be off 

the bond as soon as Mr. Hollingsworth’s body was found.

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Shortly before the bondsman testified at trial, however, he had 

expressed concern to the lead detective. The bondsman said that he had 

PTSD and his own son had been murdered, creating confusion “on a couple 

of issues.” State v. Francis, 145 P.3d 48, 70 (Kan. 2006). The prosecution 

didn’t disclose that statement, and Mr. Francis claims that the Constitution 

entitled him to the information before the bondsman testified. 

The state supreme court disagreed. The court acknowledged that the 

bondsman was a “key witness” who gave “important testimony.” Id. at 71. 

But the court concluded that the PTSD and confusion wouldn’t have 

created a reasonable probability of a different result. Id. at 72. For this 

conclusion, the court reasoned that

• the bondsman was unlikely to confuse his son’s murder with 

the unusual solicitation of a bond for someone who the group 

wanted dead and 

• the bondsman’s account was consistent during the 

investigation, the preliminary hearing, and the trial.

Id.

Perhaps the court could have applied the facts differently and arrived 

at a different result. After all, the bondsman was undoubtedly a key 

witness for the prosecution. But the state supreme court acknowledged the 

importance of the bondsman’s testimony. It was the peculiarity of the 

situation that magnified the testimony: Mr. Francis and others approached 

the bondsman to issue a bond for Mr. Hollingsworth, but the group

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obviously hated Mr. Hollingsworth. According to the bondsman, 

Mr. Francis said that a close relative had been killed by Mr. Hollingsworth, 

calling him a “mother******.” Then, the group assured the bondsman that 

his risk would end in just a few days when Mr. Hollingsworth’s body was 

found. The state supreme court reasonably concluded that the bondsman 

was unlikely to confuse these circumstances with those surrounding his 

son’s murder.

Granted, the bondsman said shortly before testifying that he was 

experiencing some confusion on “a couple of issues” that the prosecution 

wanted him to testify about. In analyzing the bondsman’s confusion, 

however, the state supreme court needed to address an ambiguous record: 

No one ever asked the bondsman what he was confused about. So the court 

needed to assess probabilities and concluded that the confusion was 

unlikely to involve the critical parts of the bondsman’s account. Though 

jurists might weigh the probabilities differently, the state supreme court’s 

analysis was reasonable. See McCray v. Capra, 45 F.4th 634, 644–45 (2d 

Cir. 2022). 1 So the district court couldn’t grant habeas relief unless the 

1 There the petitioner was convicted of rape, and the central issue was 

whether the sex had been consensual. McCray, 45 F.4th at 637–38. The 

petitioner sought habeas relief based in part on the prosecution’s 

withholding of prior assessments of the victim’s mental health. Id. at 640–

41, 644–45. The state appellate court rejected the claim, and the Second 

Circuit held that the state court could reasonably view the assessments as 

immaterial because they were ambiguous as to the victim’s ability to 

remember whether the sex had been consensual. Id. at 644–45.

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state court had (1) acted contrary to Supreme Court precedent or (2) 

unreasonably determined the facts. See p. 3, above.

c. We decline to consider whether the state supreme court 

acted contrary to a precedent by the United States Supreme 

Court or unreasonably determined the facts. 

In his reply brief, Mr. Francis argues that the state supreme court

acted contrary to precedent from the United States Supreme Court and 

unreasonably determined the facts. For two reasons, Mr. Francis waited too 

long to make these arguments. 

First, Mr. Francis failed to preserve these arguments by failing to 

raise them in federal district court. Menzies v. Powell, 52 F.4th 1178, 1201 

(10th Cir. 2022), cert. denied, 144 S. Ct. 122 (2023). If Mr. Francis had 

urged plain error, we could address the arguments under the plain-error 

standard. See Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015). 

But Mr. Francis didn’t urge plain error. So we consider the arguments 

waived. Id. 2

2

 Our precedents are inconsistent in discussing preservation in cases 

involving habeas review. We sometimes treat unpreserved issues as

waived, sometimes as forfeited. See Harmon v. Sharp, 936 F.3d 1044, 

1085–91 (10th Cir. 2019) (Holmes, J., concurring) (discussing this 

inconsistency in our case law). The difference here is academic. If the 

issue involves forfeiture rather than waiver, we could consider the issue 

under the plain-error standard. United States v. Carrasco-Salazar, 494 F.3d 

1270, 1272 (10th Cir. 2007). But Mr. Francis has not argued plain error, so 

we would not entertain the issue even if it had been forfeited rather than

waived. See Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015). 

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Second, in his appellate briefing, Mr. Francis waited until his reply 

brief to make these arguments. The reply brief was too late for these

arguments, resulting in a second waiver. 

For both reasons, we consider the arguments waived.

2. Mr. Francis hasn’t shown actual innocence.

A habeas petitioner must generally follow state procedural 

requirements before raising the same underlying claims in a habeas 

petition. Coleman v. Thompson, 501 U.S. 722, 731–32 (1991). The failure 

to satisfy these requirements can generally trigger a procedural default, 

preventing habeas relief. Davila v. Davis, 582 U.S. 521, 527 (2017). An 

exception exists when the petitioner demonstrates actual innocence.

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).

The district court regarded five of the habeas claims as procedurally 

defaulted:

1. refusal to consider the jury’s question about an instruction

2. refusal to instruct the jury on the need to show more than mere 

association or presence with someone who committed the crime

3. introduction of evidence involving ownership of a gun and 

ammunition

4. permission for the lead detective to sit near the prosecution 

table

5. presence of cumulative errors

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To avoid the procedural defaults, Mr. Francis has invoked the exception 

for actual innocence. The district court concluded that Mr. Francis hadn’t 

satisfied his burden, and we engage in de novo review. Taylor v. Powell, 

7 F.4th 920, 932 (10th Cir. 2021). On de novo review, we agree with the 

district court. 

For actual innocence, the petitioner must present evidence that

• is new and reliable and

• shows “that it is more likely than not that no reasonable juror 

would have convicted him in light of the new evidence.”

Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Trying to satisfy this 

exception, Mr. Francis relies on three categories of new evidence:

1. evidence undermining the credibility of Mr. Hollingsworth’s 

mother,

2. an affidavit from Mr. Corey Shannon, a friend of both 

Mr. Francis and Mr. Hollingworth, and

3. evidence about the bondsman’s PTSD.

In our view, the combination of new evidence doesn’t make an acquittal 

more likely than not. 

Mr. Hollingsworth’s mother testified that she was driving her son 

when the killing took place. According to the mother, Mr. Hollingsworth 

was in the back seat of her car, another car pulled next to her, and multiple 

individuals started shooting into her car. She said that she saw Mr. Francis 

in the front seat of the shooters’ car.

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At trial, Mr. Francis’s attorney thoroughly cross-examined the 

mother, eliciting admissions that

• Mr. Francis had been to her house only once,

• she had given the police the names of two other individuals 

who might want to harm Mr. Hollingsworth,

• someone had been watching Mr. Hollingsworth,

• the mother thought that she had ducked when the gunfire 

started,

• she didn’t actually see a gun,

• she had said after the shooting that she was not certain and had 

“just suspected” that it was Mr. Francis in the car, Appellant’s 

Supp. App. Vol. IV at 248–49, and 

• she had told the police that she wished that she “had seen for 

sure,” id. at 252.

Despite the existing impeachment of Mr. Hollingsworth’s mother, 

Mr. Francis refers to new evidence undermining her credibility. The new 

evidence consists of an affidavit from a private investigator. In the 

affidavit, the investigator said that he had spoken to someone (Reggie 

Gant), who in turn had said that the mother had tried to convince him to 

confess to the murder. Mr. Francis’s appellate argument about this 

evidence consists of one sentence: “Additionally, the district court’s 

failure to analyze Gant’s affidavit is reversible error because this Court 

held in [Fontenot v. Crow, 4 F.4th 982 (10th Cir. 2021)] that all newly 

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presented evidence must be analyzed in the gateway innocence calculus.” 

Appellant’s Opening Br. at 29.

Though Mr. Francis points out that the district court didn’t discuss 

this evidence, he doesn’t say why it is important. Generally, doublehearsay adds little to a claim of actual innocence. See Thomas v. Williams, 

822 F.3d 378, 387 (7th Cir. 2016) (stating that “hearsay within hearsay” 

had “little probative value” in establishing actual innocence). Even if we 

were to accept what Mr. Gant had purportedly said, it would have added 

little to the existing impeachment. Mr. Hollingsworth’s mother admitted 

that 

• she had given the police the names of two other individuals 

who might have wanted to harm her son and 

• she still thought that these two individuals had been involved 

in the murder. 

Appellant’s Supp. App. Vol. IV at 246.

Mr. Francis also points to three affidavits involving Mr. Corey 

Shannon. In the affidavits, Mr. Shannon said that (1) Mr. Francis had 

nothing to do with the murder of Mr. Hollingsworth and 

(2) Mr. Hollingsworth’s mother acknowledged in a phone call that she 

hadn’t seen the fatal shots. The district court regarded this evidence as 

insufficient for actual innocence.

So do we. The mother never said that she had seen the fatal shots. 

She instead said that she had seen Mr. Francis, along with others, shooting 

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from the nearby car. And Mr. Shannon didn’t say how he would have 

known who had shot Mr. Hollingsworth. At the time of the shooting, Mr. 

Shannon was in a Missouri prison.

Lastly, Mr. Francis points to new evidence about the bondsman’s 

confusion and PTSD. We’ve concluded above that the state supreme court 

reasonably regarded that evidence as immaterial. For similar reasons, we 

conclude that this evidence added little to Mr. Francis’s claim of actual 

innocence. 

Mr. Francis argues that the PTSD and confusion would have 

undermined the bondsman’s credibility. Even if Mr. Francis were correct, 

the evidence wouldn’t have shown that Mr. Francis was actually innocent 

of the crime. See Stafford v. Saffle, 34 F.3d 1557, 1562 (10th Cir. 1994)

(stating that the new evidence was “only impeachment evidence, rather 

than evidence of actual innocence”). 

Regardless of whether the new evidence is viewed separately or 

together, Mr. Francis failed to show a likelihood that no jury would have 

found him guilty. 3 So we reject his claim of actual innocence.

* * *

3 In his reply brief, Mr. Francis also points to new evidence that the 

bondsman later recanted his trial testimony. But Mr. Francis failed to make 

this argument in district court or in his opening appellate brief. The reply 

brief was too late. See pp. 8–9, above. 

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We affirm the denial of habeas relief. 4

Entered for the Court

Robert E. Bacharach

Circuit Judge

4 Mr. Francis moves for judicial notice and a certificate of 

appealability on other issues. The requested judicial notice involves 

materials from the state-court record. The government doesn’t object, and 

we grant the motion. But we deny a certificate of appealability on all 

issues other than those discussed above.

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