## 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 Defende r Project, University of Kansas School of Law, Lawrence, Kansas, for Petitio ner - Appellant. Jared S. Maag, Assistant Attorney General, Office o f the Kansas Attorney General, Topeka, Kansas, for Respondents - Appellee s.

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 stat e 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 c onsider whether the panel correctly applied deference under the Antiter rorism and Effective Death Penalty Act (AEDPA) to the cumulation of Strickland 1 prejudice and Brady 2 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 Strick land -Bradycumulation 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 -Bradycumulation.

Discussion We begin by noting that the State did not waive the defense of exhaustion as to the Strickland -Bradycumulation 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 deem ed to3 (...continued)

not satisfied. As explained more fully in the lastparagraph 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 -Bradycumulation 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 th e Kansas Supreme Court was not included in the record by either party unti l, after en banc oral argument, this court specifically instructed the parties to s ubmit 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 habea s petition: the sole “issue” raised in the state supreme court peti tion 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 withou t 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 con ceded that Gonzales exhausted the arguments raised in his habeas petiti on and memorandum in (continued...) -3- have waived the exhaustion requirement or be estopp ed from reliance upon the requirement unless the State, through counsel, expr essly 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 app eal 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 Strickland

Bradycumulation 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 a5 (...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 hi ghest 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 -Bradycumulation issue in state court. Nor does he argue that any procedural defau lt of this issue is excused by adequate cause and actual prejudice or a fundamenta l miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). Instead, he offers two arguments for overcoming the exhaustion and procedu ral default requirements. The second of these arguments plainly is without me rit. Gonzales argues that any failure to exhaust the Strickland -Bradycumulation claim is excused because exhaustion of this claim would have been futile. S uch futility, he argues, is established by the fact that “[t]here can be no con ceivable purpose in requiring state litigation to include an argument of cumulati on of various errors when the state courts refused to find any error existed in t he first place.” (Aplt Supp. B. 5.) This argument fails for two reasons. It is wr ong as a factual matter, because only the court of appeals “refused to find any [Bra dy ] 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 conclud e that its denial was based on a conclusion that the undisclosed material was n ot 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 a n argument is futile merely because in retrospectit appears that the claim would have been denied. Gonzales’ other argument for overcoming the exhaust ion requirement is that § 2254’s exhaustion requirement simply does no t require that he have argued for Strickland -Bradycumulation 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 st ate court. According to Gonzales, to require more–to r equire that Gonzales have articulated an argument as to cumulative error comb ining Strickland and Brady errors–would be to require more than the existing s tandard demands. Instead, such a requirement would create “a regime of pleadi ng that is impossible for litigants to meet.” (Aplt. Supp. B. 2.) We find this argument unpersuasive. Here, the subs tance of the claim is that the state courts should have cumulated Strickl and prejudice and Brady materiality in determining whether its confidence i n the outcome was undermined. The Kansas Supreme Court might have fo und this argument6 Because the panel only found deficient performanc e as to one of

Gonzales’ ineffective assistance of counsel claims, and Gonzales only asserted one Brady violation, the panel properly did not address cumu lative error as to Strickland or Brady claims alone. -6- persuasive, but it never had an opportunity to cons ider it. To grant Gonzales relief now, on the basis of an argument that he fai led (without explanation) to present to the relevant state court, would be contr ary to 28 U.S.C. § 2254(b)(1). Accordingly, we hold that Gonzales failed to exhaus t the issue of Strickland -Bradycumulation and that the issue now is procedurally defaulted without cause and prejudice or a fundamental miscar riage of justice. Because consideration of that issue was the central reason why the en banc court granted rehearing, we now vacate our order granting reheari ng en banc as improvidently granted. The remaining issue we must resolve is the status o f 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 bee n disposed of by the panel on that ground. We agree. Accordingly, the portio n of the panel opinion discussing the Strickland -Bradycumulation 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 issues7 See supranote 5.

8 The State, correctly addressing the exhaustion is sue in its answer to the habeas petition, “admit[ted] that petitioner has pr operly exhausted the issues now presented to this Court.” Answer & Return at 2, G onzales 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 -Bradycumulation issue.

-7- addressed in the panel opinion may have been exhaus ted, 7 the State does not argue that we should vacate the entire panel opinio n. (Aple Supp. B. 5 (arguing “the panel’s decision in this matter should stand w ithout reference to the cumulative error argument”).) For several reasons, we choose to vacate only the discussion of Strickland -Bradycumulation in Part V rather than the entire panel opinion. First, it was permissible for the panel t o deny Gonzales’ other claims, even if unexhausted, on the merits. 28 U.S.C. § 2 254(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 s ua sponte raising exhaustion as to the other issues discussed in the panel opini on. Hardiman v. Reynolds , 971 F.2d 500, 502 (10th Cir. 1992) (“Generally, where t he 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 St rickland -Bradycumulation issue, the other issues addressed in the panel opin ion were issues that were analyzed by the state court of appeals and discusse d 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 alr eady been spent litigating the merits of a petition or where the defaulted issue i s recurring.”). Accordingly, we vacate only Part V of the panel opinion.

Conclusion For the foregoing reasons, Part V of the panel opin ion in this case is VACATED, and the order granting rehearing en banc i s VACATED.