F I L E D

United States Court of Appeals

Tenth Circuit

FEB 6 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY GONZALES,

Petitioner-Appellant,

v.

DAVID MCKUNE, Warden, Lansing

Correctional Facility; CARLA

STOVALL, Attorney General, Kansas

Respondents-Appellees.

No. 00-3003

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 97-CV-3168-DES)

ON REHEARING EN BANC

Jean K. Gilles Phillips, The Paul E. Wilson Defender Project, University of

Kansas School of Law, Lawrence, Kansas, for Petitioner - Appellant.

Jared S. Maag, Assistant Attorney General, Office of the Kansas Attorney

General, Topeka, Kansas, for Respondents - Appellees.

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY,

BRISCOE, LUCERO, and MURPHY, Circuit Judges

EBEL, Circuit Judge.
1

 See Strickland v. Washington, 466 U.S. 668, 694 (1984).

2

 See Brady v. Maryland, 373 U.S. 83, 87 (1963).

3

 We emphasize that this is not a case where a state chose to remain silent

on the exhaustion issue until after an opinion had been issued and then asserted

the non-exhaustion defense as to those portions of the opinion with which it was

(continued...)

-2-

This court granted rehearing en banc primarily to consider whether the

panel correctly applied deference under the Antiterrorism and Effective Death

Penalty Act (AEDPA) to the cumulation of Strickland1

 prejudice and Brady2

materiality where the state courts had not adjudicated the Strickland-Brady

cumulation issue on the merits. See Gonzales v. McKune, 247 F.4d 1066, 1077-

79 (10th Cir. 2001). At en banc oral argument, the State asserted for the first

time that Gonzales had failed to exhaust the Strickland-Brady cumulation issue in

state court. Because we agree that Gonzales failed to raise this issue in state

court and thus procedurally defaulted it, we vacate our order granting rehearing

en banc as improvidently granted. Further, we vacate Part V of the panel

opinion, which addressed Strickland-Brady cumulation.

Discussion

We begin by noting that the State did not waive the defense of exhaustion

as to the Strickland-Brady cumulation claim by failing to assert it prior to en banc

oral argument.3 See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to
3

(...continued)

not satisfied. As explained more fully in the last paragraph of this section, the

State acted properly in this case by addressing the exhaustion issue in its answer

to the habeas petition before the district court. The present confusion regarding

exhaustion of the Strickland-Brady cumulation issue arose largely because

Gonzales failed to raise that issue until after the State already had addressed

exhaustion.

4

 Gonzales’ petition for discretionary review to the Kansas Supreme Court

was not included in the record by either party until, after en banc oral argument,

this court specifically instructed the parties to submit it as a supplement to the

record.

5

 Indeed, in his petition before the Kansas Supreme Court, Gonzales did

not assert any of the arguments later raised in his present habeas petition: the

sole “issue” raised in the state supreme court petition for review was a

“request[]” that the court “review his motion on a de facto [sic] basis” because

“[w]ithout a de facto review Mr. Gonzales is without a form [sic] to address his

issues.” Brief of Appellant, Petition for Review at 3, State v. Gonzales, (Kan.

1995) (No. 94-71217-A). The State nevertheless conceded that Gonzales

exhausted the arguments raised in his habeas petition and memorandum in

(continued...)

-3-

have waived the exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly waives the

requirement.”). Cf. Hale v. Gibson, 227 F.3d 1298, 1327 n.12 (10th Cir. 2000)

(holding that state did not waive exhaustion on appeal by failing to assert the

issue before district court).

In his petition for discretionary review filed with the Kansas Supreme

Court during post-conviction proceedings, Gonzales did not assert a StricklandBrady cumulation argument.4

 Brief of Appellant, Petition for Review at 1-4,

State v. Gonzales, (Kan. 1995) (No. 94-71217-A).5 Claims not included in a
5

(...continued)

support thereof. Answer & Return at 2, Gonzales v. McKune (D. Kan. 1999)

(97-3168-DES).

-4-

petition for discretionary review to the state’s highest court are not exhausted and

are procedurally defaulted when, as here, they are now time-barred. O’Sullivan

v. Boerckel, 526 U.S. 838, 845 (1999).

In his supplemental brief on the exhaustion issue, Gonzales makes no

effort to argue that he asserted the Strickland-Brady cumulation issue in state

court. Nor does he argue that any procedural default of this issue is excused by

adequate cause and actual prejudice or a fundamental miscarriage of justice. See

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Instead, he offers two

arguments for overcoming the exhaustion and procedural default requirements. 

The second of these arguments plainly is without merit. Gonzales argues that any

failure to exhaust the Strickland-Brady cumulation claim is excused because

exhaustion of this claim would have been futile. Such futility, he argues, is

established by the fact that “[t]here can be no conceivable purpose in requiring

state litigation to include an argument of cumulation of various errors when the

state courts refused to find any error existed in the first place.” (Aplt Supp. B.

5.) This argument fails for two reasons. It is wrong as a factual matter, because

only the court of appeals “refused to find any [Brady] error existed in the first

place.” The Kansas Supreme Court never stated its reason for denying review;
-5-

thus only through pure speculation could we conclude that its denial was based

on a conclusion that the undisclosed material was not exculpatory. Further, it

fails as a legal matter, because Gonzales fails to present any authority – and we

have found none – in support of the position that an argument is futile merely

because in retrospect it appears that the claim would have been denied.

Gonzales’ other argument for overcoming the exhaustion requirement is

that § 2254’s exhaustion requirement simply does not require that he have argued

for Strickland-Brady cumulation before the state courts. He argues that

exhaustion requires only that the substance of the claim be presented, and that

requirement was satisfied here because the factual and legal basis for both the

Strickland and the Brady claims, considered separately, was presented in state

court. According to Gonzales, to require more–to require that Gonzales have

articulated an argument as to cumulative error combining Strickland and Brady

errors–would be to require more than the existing standard demands. Instead,

such a requirement would create “a regime of pleading that is impossible for

litigants to meet.” (Aplt. Supp. B. 2.)

We find this argument unpersuasive. Here, the substance of the claim is

that the state courts should have cumulated Strickland prejudice and Brady

materiality in determining whether its confidence in the outcome was

undermined. The Kansas Supreme Court might have found this argument
6

 Because the panel only found deficient performance as to one of

Gonzales’ ineffective assistance of counsel claims, and Gonzales only asserted

one Brady violation, the panel properly did not address cumulative error as to

Strickland or Brady claims alone.

-6-

persuasive, but it never had an opportunity to consider it. To grant Gonzales

relief now, on the basis of an argument that he failed (without explanation) to

present to the relevant state court, would be contrary to 28 U.S.C. § 2254(b)(1).

Accordingly, we hold that Gonzales failed to exhaust the issue of

Strickland-Brady cumulation and that the issue now is procedurally defaulted

without cause and prejudice or a fundamental miscarriage of justice. Because

consideration of that issue was the central reason why the en banc court granted

rehearing, we now vacate our order granting rehearing en banc as improvidently

granted.

The remaining issue we must resolve is the status of the original panel

opinion in this case. The panel decision resolved the Strickland-Brady

cumulation issue on the merits, while the State now properly asserts that this

issue was not exhausted and should instead have been disposed of by the panel

on that ground. We agree. Accordingly, the portion of the panel opinion

discussing the Strickland-Brady cumulation issue – Part V of the opinion, 247

F.4d 1066, 1077-79 – is vacated.6

Although it now appears that, in light of O’Sullivan, none of the issues
7

 See supra note 5.

8

 The State, correctly addressing the exhaustion issue in its answer to the

habeas petition, “admit[ted] that petitioner has properly exhausted the issues now

presented to this Court.” Answer & Return at 2, Gonzales v. McKune (D. Kan.

1999) (97-3168-DES). This admission does not apply to the Strickland-Brady

cumulation issue for the simple reason that at the time the admission was made,

Gonzales had not yet asserted the Strickland-Brady cumulation issue.

-7-

addressed in the panel opinion may have been exhausted,7

 the State does not

argue that we should vacate the entire panel opinion. (Aple Supp. B. 5 (arguing

“the panel’s decision in this matter should stand without reference to the

cumulative error argument”).) For several reasons, we choose to vacate only the

discussion of Strickland-Brady cumulation in Part V rather than the entire panel

opinion. First, it was permissible for the panel to deny Gonzales’ other claims,

even if unexhausted, on the merits. 28 U.S.C. § 2254(b)(2) (“An application for

a writ of habeas corpus may be denied on the merits, notwithstanding the failure

of the applicant to exhaust the remedies available in the courts of the State.”). 

More significantly, the State “expressly waive[d],” § 2254(b)(3), the exhaustion

requirement as to all other issues addressed in the panel opinion. Answer &

Return at 2, Gonzales v. McKune (D. Kan. 1999) (97-3168-DES).8 In any event,

we perceive no reason to take the unusual step of sua sponte raising exhaustion

as to the other issues discussed in the panel opinion. Hardiman v. Reynolds, 971

F.2d 500, 502 (10th Cir. 1992) (“Generally, where the parties have not raised a
-8-

defense [of exhaustion or procedural default], the court should not address the

defense sua sponte.”). We note that, unlike the Strickland-Brady cumulation

issue, the other issues addressed in the panel opinion were issues that were

analyzed by the state court of appeals and discussed in detail by the district court. 

See id. at 503 n.5 (“[S]ua sponte consideration of a state procedural default might

be inefficient where substantial resources have already been spent litigating the

merits of a petition or where the defaulted issue is recurring.”). Accordingly, we

vacate only Part V of the panel opinion.

Conclusion

For the foregoing reasons, Part V of the panel opinion in this case is

VACATED, and the order granting rehearing en banc is VACATED.