Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`March 3, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`Petitioner - Appellee/Cross-
`Appellant,
`
`Respondent - Appellant/Cross-
`Appellee.
`
`
`
`
`
`
`Nos. 20-3186 & 20-3206
`(D.C. No. 5:19-CV-03267-JWL)
`(D. Kan.)
`
`TIMOTHY SUMPTER,
`
`
`
`
`v.
`
`STATE OF KANSAS,
`
`
`
`
`-----------------------------
`
`NATIONAL ASSOCIATION OF
`CRIMINAL DEFENSE LAWYERS,
`
` Amicus Curiae.
`_________________________________
`
`ORDER
`_________________________________
`
`Before HOLMES, Chief Judge, and KELLY, and MATHESON, Circuit Judges.
`_________________________________
`
`These matters are before the court on the Petition for Rehearing filed by
`
`Petitioner-Appellee/Cross-Appellant. We also have a response from Respondent-
`
`Appellant/Cross-Appellee.
`
`Pursuant to Fed. R. App. P. 40, panel rehearing is granted in part to the extent of
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`the modifications in the attached revised opinion. The court’s December 28, 2022 opinion
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`
`
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`

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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 2
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`is withdrawn and replaced by the attached revised opinion effective nunc pro tunc to the
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`date the original opinion was filed.
`
`The petition for rehearing and the attached revised opinion were transmitted to all
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`judges of the court who are in regular active service. As no member of the panel and no
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`judge in regular active service on the court requested that the court be polled, the request
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`for rehearing en banc is denied. See Fed. R. App. P. 35(f).
`
`Petitioner-Appellee/Cross-Appellant’s January 18, 2023 “Motion for Extension of
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`Time to File Brief” is denied as moot.
`
`Entered for the Court,
`
`CHRISTOPHER M. WOLPERT, Clerk
`
`
`
`
`
`2
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`

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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 3
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`December 28, 2022
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`
`Nos. 20-3186 & 20-3206
`
`
`Petitioner - Appellee/Cross-
`Appellant,
`
`Respondent - Appellant/Cross-
`Appellee.
`
`TIMOTHY SUMPTER,
`
`
`
`
`v.
`
`STATE OF KANSAS,
`
`
`
`
`-----------------------------
`
`NATIONAL ASSOCIATION OF
`CRIMINAL DEFENSE LAWYERS,
`
` Amicus Curiae.
`
`
`_________________________________
`
`Appeal and Cross-Appeal from the United States District Court
`for the District of Kansas
`(D.C. No. 5:19-CV-03267-JWL)
`_________________________________
`
`Kurtis K. Wiard, Assistant Solicitor General (Derek Schmidt, Attorney General and
`Kristafer R. Ailslieger, Deputy Solicitor General, with him on the briefs), Office of
`Attorney General, Topeka, Kansas, for Respondent-Appellant/Cross-Appellee.
`
`Ruth Anne French Hodson of Sharp Law, LLP, Prairie Village, Kansas, for Petitioner-
`Appellee/Cross-Appellant.
`
`Norman R. Mueller of Haddon, Morgan and Foreman, P.C., Denver, Colorado and Tyler
`J. Emerson and Kari S. Schmidt of Conlee, Schmidt & Emerson, L.L.P., Wichita, Kansas,
`filed an amicus curiae brief for National Association of Criminal Defense Lawyers.
`
`
`
`
`
`

`

`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 4
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`_________________________________
`
`Before HOLMES, Chief Judge, KELLY, and MATHESON, Circuit Judges.
`_________________________________
`
`HOLMES, Chief Judge.
`_________________________________
`
`Timothy Sumpter was convicted of aggravated kidnapping, attempted rape,
`
`and aggravated sexual battery, arising from his 2011 sexual assault of J.B. in
`
`Wichita, Kansas. The controlling sentence was for aggravated kidnapping, a
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`conviction which added over 15 years to Mr. Sumpter’s sentence.
`
`After proceeding through the Kansas courts, Mr. Sumpter filed a petition for a
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`Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, claiming that his convictions
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`were obtained in violation of his constitutional rights. The district court granted in
`
`part Mr. Sumpter’s petition for relief. Specifically, the district court vacated Mr.
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`Sumpter’s aggravated kidnapping conviction but denied his remaining claims.
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`Furthermore, the district court denied Mr. Sumpter’s request for a certificate of
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`appealability (“COA”) with respect to his unsuccessful claims.
`
`The State of Kansas now appeals from the partial grant of habeas relief; Mr.
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`Sumpter seeks to appeal from the partial denial. We reverse the district court’s grant
`
`of habeas relief, concluding—under the deference prescribed in the Antiterrorism and
`
`Effective Death Penalty Act of 1996 (“AEDPA”)—that the Kansas Court of Appeals
`
`(“KCOA”) was reasonable in determining that any ineffective assistance of counsel
`
`was not prejudicial because the evidence was sufficient to support the aggravated
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`kidnapping conviction. Furthermore, even assuming, arguendo, that the KCOA’s
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`2
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 5
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`decision was not entitled to AEDPA deference, we conclude—under de novo
`
`review—that the KCOA’s decision should be upheld. As such, we remand the case
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`with instructions to enter judgment for the State of Kansas. Additionally, having
`
`concluded that Mr. Sumpter is required to obtain a COA for the claims comprising
`
`his cross-appeal, we deny Mr. Sumpter a COA; accordingly, we dismiss his cross-
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`appeal for lack of jurisdiction.
`
`I
`
`We limit our recitation of the facts to those found by the KCOA. See Sumpter
`
`v. State (Sumpter I), No. 117,732, 2019 WL 257974, at *3 (Kan. Ct. App. Jan. 18,
`
`2019) (unpublished); see also Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir.
`
`2013) (“[I]n reviewing a state court decision under § 2254(d)(1), we must ‘limit[ ]’
`
`our inquiry ‘to the record that was before the state court that adjudicated the claim on
`
`the merits.’” (second alteration in original) (quoting Cullen v. Pinholster, 563 U.S.
`
`170, 181 (2011))); Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir. 2015) (“[S]tate-
`
`court findings of fact are entitled to great deference . . . . ‘The presumption of
`
`correctness also applies to factual findings made by a state court of review based on
`
`the trial record.’” (quoting Morgan v. Hardy, 662 F.3d 790, 797–98 (7th Cir. 2011))).
`
`Around 1:00 a.m. on January 11, 2011, Mr. Sumpter accosted J.B., a young
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`woman, as she walked to her car in the Old Town entertainment district in Wichita,
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`Kansas. When they arrived at J.B.’s car, Mr. Sumpter forced his way in, grabbed
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`J.B., and attempted to sexually assault her. Mr. Sumpter had his knee across J.B.’s
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`throat as he tried to touch her vagina. She briefly lost consciousness. When she
`3
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 6
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`regained consciousness, Mr. Sumpter was masturbating and forced J.B. to touch his
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`penis.
`
`During the attack, Mr. Sumpter took J.B.’s car keys from her as she attempted
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`to fight him off and threw them out the window. Part way through the attack, J.B.
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`was able to force Mr. Sumpter out of the car and lock the doors. Mr. Sumpter then
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`retrieved the keys and displayed them to J.B. in an effort to get her to open the door.
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`J.B. relented, and Mr. Sumpter forced his way back into the car and resumed his
`
`assault.
`
`Eventually, another car pulled up and Mr. Sumpter went to speak with the
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`driver. In the meantime, J.B. found her keys and drove away.
`
`The State charged Mr. Sumpter with aggravated kidnapping, attempted rape,
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`and aggravated sexual battery. When Mr. Sumpter was charged, Kansas law defined
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`kidnapping as “the taking or confining of any person, accomplished by force, threat
`
`or deception, with the intent to hold such person . . . to facilitate . . . the commission
`
`of any crime.” K.S.A. § 21-3420 (repealed 2011) (emphases added). Aggravated
`
`kidnapping “is kidnapping . . . when bodily harm is inflicted upon the person
`
`kidnapped.” K.S.A. § 21-3421 (repealed 2011).
`
`In State v. Buggs, the Kansas Supreme Court construed the “facilitate” element
`
`as the “key word” to avoid “convert[ing] every robbery and every rape into the more
`
`serious offense of kidnapping.” 547 P.2d 720, 726, 730–31 (Kan. 1976). The Buggs
`
`framework requires the State to show confinement by force that: (1) “Must not be
`
`slight, inconsequential and merely incidental to the other crime”; (2) “Must not be of
`4
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`

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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 7
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`the kind inherent in the nature of the other crime”; and (3) “Must have some
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`significance independent of the other crime in that it makes the other crime
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`substantially easier of commission or substantially lessens the risk of detection.” Id.
`
`at 731.
`
`In March 2012, the Sedgwick County District Court conducted a consolidated
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`jury trial.1 Mr. Sumpter’s trial counsel did not offer any testimony about Mr.
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`Sumpter’s withholding of the keys as a means of confining J.B. in her vehicle. Nor
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`did counsel cross-examine J.B. about that issue. Trial counsel did move, however,
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`for a judgment of acquittal at the end of the State’s case. Yet counsel did not
`
`mention the Buggs standard or any specific evidentiary deficiency related to the
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`facilitation element of the aggravated kidnapping charge.
`
`The jury found Mr. Sumpter guilty of all counts. Although trial counsel
`
`moved for a judgment of acquittal after the verdict, counsel again did not base the
`
`motion on the Buggs standard. For the aggravated kidnapping charge, the state
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`district court sentenced Mr. Sumpter to 186 months of imprisonment. In total, the
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`court sentenced Mr. Sumpter to 351 months of imprisonment. On direct appeal,
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`appellate counsel for Mr. Sumpter did not challenge the sufficiency of the evidence
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`as to the aggravated kidnapping conviction. The Kansas Court of Appeals affirmed
`
`
`Over the course of seven months, Mr. Sumpter sexually assaulted three
`1
`other women in Sedgwick County, in addition to J.B. Given the similar nature of
`these attacks, the state district court consolidated the cases relating to these assaults
`for a single trial.
`
`
`
`
`5
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 8
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`Mr. Sumpter’s convictions and sentence, and the Kansas Supreme Court denied
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`review. See State v. Sumpter, 313 P.3d 105, 2013 WL 6164520 (Kan. Ct. App. Nov.
`
`22, 2013) (unpublished).
`
`Mr. Sumpter filed a petition for a Writ of Habeas Corpus in state court
`
`pursuant to K.S.A. § 60-1507. Mr. Sumpter argued that his “Trial Counsel Provided
`
`Ineffective Assistance by Failing to Challenge the Insufficiency of the State’s
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`Aggravated Kidnapping Charges.” Jt. App., Vol. III, at 349 (Am. Pet. for Writ of
`
`Habeas Corpus & In Forma Pauperis Aff., filed July 21, 2016). Additionally, Mr.
`
`Sumpter claimed that his constitutional rights were violated because of “Ineffective
`
`Assistance of Appellate Counsel in . . . Failing to Argue the Sufficiency of the
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`Kidnapping Charges related to J.B.” Id. at 357. Specifically, Mr. Sumpter argued
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`that his trial and appellate counsel were ineffective because they did not argue that
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`his confinement of J.B. in her car was “inherent in committing the underlying
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`attempted rape” and had no significance independent of the attempted rape itself. Id.
`
`at 352.
`
`The Sedgwick County District Court denied Mr. Sumpter’s claims. The court
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`reasoned that, as a matter of law, “[c]onfining a victim in a car; physically restraining
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`her from leaving that car; and physically prohibiting her from yelling for help is not
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`inherent in the nature of rape or attempted rape.” Id. at 464 (Mem. Order Den. Pet.
`
`for Writ of Habeas Corpus, filed May 2, 2017). Therefore, the court concluded that
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`“[t]he outcome of the trial would not have changed, even if trial counsel would have
`
`raised the issue at any time before or during the trial. Because the prejudice prong is
`6
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`not met, there is no reason for this [state trial] court to consider the reasonableness
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`prong of the [Strickland] test.” Id. at 465.
`
`Mr. Sumpter appealed to the KCOA. He argued, among other things, that his
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`“trial counsel was ineffective because [counsel] did not understand the elements of
`
`the aggravated kidnapping count and, as a result, failed to challenge the sufficiency
`
`of the State’s evidence at every phase.” Jt. App., Vol. IV, at 563 (Petitioner-
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`Appellant Timothy Sumpter’s Br. to the KCOA, filed Aug. 25, 2017). Furthermore,
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`Mr. Sumpter claimed that his “appellate counsel provided ineffective assistance by
`
`failing to raise sufficiency of the evidence on the aggravated kidnapping count.” Id.
`
`at 579.
`
`In January 2019, the KCOA issued an opinion denying each of Mr. Sumpter’s
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`claims. Sumpter I, 2019 WL 257974. At the outset of its opinion, the KCOA plainly
`
`stated its holding:
`
`We find [Mr.] Sumpter has failed to show a constitutional
`injury depriving him of a fundamentally fair adjudication of
`the charges against him, meaning he has not persuaded us
`that absent the errors he alleges there is a reasonable
`probability the outcome would have been different.
`
`Id. at *1 (emphasis added).
`
`The KCOA then laid out the Strickland standard:
`
`To prevail . . ., a convicted defendant must show both that
`his or her legal representation fell below the objective
`standard of reasonable competence guaranteed by the right
`to counsel in the Sixth Amendment to the United States
`Constitution and that absent the substandard lawyering there
`probably would have been a different outcome in the
`criminal case. Strickland v. Washington, 466 U.S. 668,
`7
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 10
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`687–88, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984) . . . .
`A
`reasonable probability of a different outcome
`“undermine[s] confidence” in the result and marks the
`criminal proceeding
`as
`fundamentally unfair. See
`Strickland, 466 U.S. at 694. The movant, then, must prove
`both
`constitutionally
`inadequate
`representation
`and
`sufficient prejudice attributable to that representation to
`materially question the resulting convictions.
`
`Id. (alteration in original) (emphasis added). With this standard in mind, the KCOA
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`evaluated and ultimately rejected Mr. Sumpter’s Strickland claim that his trial
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`counsel was ineffective for failing to challenge the sufficiency of the evidence of the
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`aggravated kidnapping conviction:
`
`For the aggravated kidnapping charge, the State had to
`prove [Mr.] Sumpter “confin[ed]” J.B. by force “to
`facilitate” his intent to rape her and she suffered bodily harm
`as a result . . . .
`
` .
`
` . . .
`
`
`Here, [Mr.] Sumpter confined J.B. in the midst of the
`criminal episode when she forced him out of her car and he
`retrieved her keys that he had earlier thrown out the window.
`At that point, J.B. was unable to leave. If she tried to get
`out of the car, [Mr.] Sumpter could easily seize her. And
`she couldn’t drive the car away, thereby escaping, without
`the keys. [Mr.] Sumpter had, thus, effectively trapped J.B.
`in the enclosed space of the vehicle—a circumstance he
`highlighted by displaying the keys to her. [Mr.] Sumpter
`then used the keys as part of a ploy to get J.B. to unlock the
`car to get them back. When she did, he forced his way in
`and resumed his assault of her. The confinement was clear,
`deliberate, and more than instantaneous. To support a
`kidnapping or aggravated kidnapping conviction,
`the
`confinement need not be extended. No particular amount of
`time is required; the fact of confinement is sufficient.
`Buggs, 219 Kan. at 214; State v. Ellie, No. 110,454, 2015
`WL 2342137, at *6 (Kan. App. 2015) (unpublished
`opinion).
`
`
`
`8
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`
`The standoff between [Mr.] Sumpter and J.B. and, thus, the
`confinement cannot be characterized as simply incidental to
`or inherent in the sexual assault. [Mr.] Sumpter held J.B.
`hostage in a specific place and sought to gain access to that
`place to commit a crime against her. But that situation could
`have been the prelude to all sorts of crimes and was not
`unique to rape or even sex offenses. Having gotten into the
`car, [Mr.] Sumpter could have robbed or severely beaten
`J.B. The point is [Mr.] Sumpter trapped J.B. in a small,
`closed place of limited safety and induced J.B. to
`compromise that safety in an effort to escape. Her effort
`permitted [Mr.] Sumpter entry to the car making the
`commission of the crime that followed “substantially
`easier” than if he had to physically break in to the car. The
`circumstances fit within the Buggs test for a confinement
`sufficiently distinct from the underlying crime to be
`successfully prosecuted as an aggravated kidnapping given
`J.B.’s undisputed injuries . . . .
`
`Because the trial evidence was sufficient for the jury’s
`verdict, [Mr.] Sumpter could have suffered no prejudice
`from his lawyers’ handling of the charge and conviction
`either in the district court leading up to and during the trial
`or on direct appeal in this court. He has failed to show a
`basis for relief under K.S.A. 60-1507.
`
`Id. at *3–5 (second alteration in original) (emphasis added). The KCOA then
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`dismissed the remainder of Mr. Sumpter’s claims. Id. at *5–15. Mr. Sumpter appealed
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`to the Kansas Supreme Court. However, the Kansas Supreme Court denied Mr.
`
`Sumpter’s request for review.
`
`
`
`After exhausting his state options, Mr. Sumpter requested federal habeas relief,
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`pursuant to 28 U.S.C. § 2254, in the United States District Court for the District of
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`Kansas. On September 10, 2020, the district court entered a memorandum and order
`
`vacating Mr. Sumpter’s aggravated kidnapping conviction but denying Mr. Sumpter’s
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`
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`remaining claims. See Sumpter v. Kansas (Sumpter II), 485 F. Supp. 3d 1286 (D.
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`Kan. 2020). In reaching its conclusion, the district court did not apply AEDPA
`
`deference to the KCOA’s decision. Specifically, the court stated:
`
`The KCOA concluded that [Mr. Sumpter] confined J.B.
`after he had been kicked out of the car by retrieving her keys
`and thus trapping her in the car (she could not drive away,
`and he could seize her if she attempted to get out).
`See Sumpter [I], 2019 WL 257974, at *4. The KCOA
`further concluded that such confinement was independent of
`the attempted rape for purposes of Buggs. See id. at *5.
`The KCOA reached that conclusion in deciding that the
`evidence was sufficient to support a kidnapping conviction
`and that [Mr. Sumpter] therefore could not establish the
`necessary prejudice under Strickland. See id. at *3. The
`KCOA applied the wrong standard, however – the issue is
`not whether the evidence was legally sufficient; the issue is
`whether there is a reasonable probability of a different
`outcome. Thus, the state court’s ruling deviated from the
`controlling federal standard and was contrary to clearly
`established federal law. See Milton v. Miller, 744 F.3d 660,
`670 (10th Cir. 2014). The result is that this Court does not
`defer to the KCOA’s resolution of this claim, and instead
`reviews the claim de novo. See id. at 671.
`
`Id. at 1296 (emphasis added).
`
`
`
`Exercising de novo review, the district court found that the “KCOA did not
`
`address . . . or explain how [Mr. Sumpter’s] conduct outside the car constituted
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`confinement by force.” Id. As such, the court then conducted an extensive
`
`evaluation of Kansas kidnapping law, reasoning as follows:
`
`Cabral [i.e., State v. Cabral, 619 P.2d 1163 (Kan. 1980)] is
`the most apt precedent by which to consider the application
`of Buggs to [Mr. Sumpter’s] conduct in J.B.’s car. [Mr.
`Sumpter’s] conduct in restraining J.B. occurred while
`fighting with her in his attempt to commit sexual assault,
`and the Kansas Supreme Court made clear in Cabral that
`
`
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`such conduct is merely incidental to the assault. The state
`trial court cited [Mr. Sumpter’s] conduct in grabbing J.B.’s
`hand when she reached for the door handle; but as the
`supreme court recognized, a perpetrator must confine the
`victim somewhat – and obviously prevent her from leaving
`– to commit the crime of rape. [Mr. Sumpter] did not take
`J.B. to another location to avoid detection or otherwise to
`facilitate the rape; in the parlance of the Cabral court, he
`simply proceeded to assault J.B. once he was alone with her
`in the car.
`
`Some Kansas courts, in distinguishing Cabral, have noted
`that the victim in Cabral had consensually ridden around
`with the defendant for a period of time preceding the assault.
`Indeed, J.B. did not voluntarily spend the evening with [Mr.
`Sumpter] prior to the assault in this case. The point of the
`Cabral court in citing that fact, however, was that the
`defendant had not taken or confined the victim until
`immediately prior to and as part of the assault. Moreover,
`in each of
`those other cases
`in which Cabral was
`distinguished, there was some conduct by the defendant that
`took the case beyond the “ordinary” rape in a single
`confined place in a relatively short time frame – for
`instance, the defendant had taken the victim or used
`restraints or moved the victim to a different place to
`facilitate the assault. See, e.g., State v. Halloway, 256 Kan.
`449, 452–53, 886 P.2d 831 (1994) (defendant did not rape
`the victim in the car, but dragged her into woods away from
`the highway to lessen the risk of detection); State v.
`Blackburn, 251 Kan. 787, 794, 840 P.2d 497 (1992)
`(defendant lessened the risk of detection by driving the
`victim to other locations); State v. Zamora, 247 Kan. 684,
`696, 803 P.2d 568 (1990) (conduct went beyond that
`of Cabral; defendant’s tying and gagging the victim and his
`lying in front of the door to the residence to prevent escape
`was not merely incidental to and inherent in an “ordinary”
`rape); State v. Howard, 243 Kan. 699, 702, 763 P.2d 607
`(1988) (defendant restrained the victim in a house for hours
`and refused to let her leave when she tried to flee after the
`assault); State v. Coberly, 233 Kan. 100, 105, 661 P.2d 383
`(1983) (victim rode with the defendant for a prolonged
`period because of deception); State v. Montes, 28 Kan. App.
`2d 768, 772, 21 P.3d 592 (2001) (defendant drove the victim
`
`
`
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 14
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`the assault), rev.
`facilitate
`to
`location
`to another
`denied (Kan. June 12, 2001, and July 11, 2001).
`
`Again, in the present case, the alleged confinement took
`place within the car, at a single location, during the
`attempted assault. The State has not addressed the conduct
`inside the car, and thus the State has not cited any Kansas
`case in which such conduct solely within a vehicle has been
`found sufficient to support a kidnapping conviction.
`Cabral is thus the most apt case here.
`
`
`Id. at 1297–98.
`
`The district court then conducted an independent factual investigation and
`
`determined that Mr. Sumpter’s conduct did not constitute confinement by force:
`
`One might argue (although the State made no such argument
`here) that [Mr. Sumpter] confined J.B. when he forcibly
`took her car keys while in the car, thereby hindering her
`ability to flee. Such conduct would not necessarily be
`required as part of the assault. The testimony at trial,
`however, does not support such a theory of confinement.
`J.B. testified that [Mr. Sumpter] made reference to the
`attached mace and took the keys to prevent J.B. from
`using that mace. She also testified that she did not know
`how the keys ended up outside the car. [Mr. Sumpter]
`testified that he ripped the mace off the keys and discarded
`it, and that he grabbed the keys away so that J.B. could no
`longer hit him with the keys in her hand. He further testified
`that he did not know whether he threw the keys out of the
`car. Thus, there was no certain evidence (only [Mr.
`Sumpter]’s speculation that he might have done so) that
`[Mr. Sumpter] threw the keys out of the car (as opposed to
`finding the keys outside where they fell when [Mr. Sumpter]
`was kicked out), and there was no evidence at all that he
`took the keys to prevent J.B. from driving away. Thus, a
`reasonable jury that followed the testimony would not likely
`find that [Mr. Sumpter] confined J.B. by taking her keys and
`throwing them outside the car.
`
`Id. at 1298–99 (emphasis added).
`
`
`
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`Based on its interpretation of Kansas law and its factual findings, the district
`
`court ultimately found in favor of Mr. Sumpter, holding:
`
`The Court thus concludes, based on the Kansas precedent,
`that if confronted with the issue the Kansas Supreme Court
`would rule that [Mr. Sumpter’s] conduct inside the car (after
`he forced his way inside) did not constitute a separate crime
`of kidnapping under the Buggs standard. As discussed
`above, [Mr. Sumpter] also had a strong defense based on his
`conduct outside the car.
`
`Accordingly, [Mr. Sumpter] could have raised a defense to
`the kidnaping charge as submitted to the jury (confinement
`only, by force only) with a great likelihood of success based
`on the kidnapping statute as interpreted in Buggs and
`Cabral. Based on the strength of that defense, there is little
`doubt that counsel’s failure to raise that defense, based on
`settled caselaw, before or during or after trial, was
`objectively unreasonable.
`
` .
`
` . . . The strength of this defense under Kansas law creates
`a probability of a different outcome sufficient to undermine
`confidence in the kidnapping conviction. [Mr. Sumpter] is
`therefore entitled to relief.
`
`
`Id. at 1299.
`
`The district court then summarily denied Mr. Sumpter’s remaining claims. See
`
`id. at 1300–07. Furthermore, the court denied Mr. Sumpter’s request for a certificate
`
`of appealability with respect to his remaining claims, including:
`
`1. Mr. Sumpter was denied his rights under the Sixth Amendment because the
`jury venire did not include any African Americans;
`
`2. Appellate counsel’s performance was constitutionally deficient in failing to
`argue instances of prosecutorial misconduct; and
`
`3. Trial counsel’s performance was constitutionally deficient in obtaining
`continuances of the trial date without Mr. Sumpter’s consent, thereby
`forfeiting Mr. Sumpter’s speedy trial rights.
`
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`
`Id. at 1308.
`
`The State of Kansas now appeals from the district court’s grant of habeas
`
`relief. First, the State argues that the KCOA reasonably applied Strickland v.
`
`Washington—in particular, that case’s prejudice standard—thereby entitling the
`
`KCOA’s decision to AEDPA deference. Under AEDPA deference, the State
`
`contends the KCOA’s decision must be affirmed. The State further contends that,
`
`even under de novo review, the KCOA’s decision should be affirmed. On cross-
`
`appeal, Mr. Sumpter seeks to appeal from the district court’s partial denial of habeas
`
`relief. Specifically, Mr. Sumpter asserts that he may not need a certificate of
`
`appealability for his cross-appeal of his remaining claims. Alternatively, Mr.
`
`Sumpter requests that we grant a certificate of appealability as to his remaining
`
`claims.
`
`II
`
`
`
`“[H]abeas corpus is not intended as a substitute for appeal, nor as a device for
`
`reviewing the merits of guilt determinations at criminal trials. Instead, it is designed
`
`to guard against extreme malfunctions in the state criminal justice systems.” Jackson
`
`v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring) (citation omitted).
`
`Accordingly, “[t]he [AEDPA] circumscribes our review of claims adjudicated on the
`
`merits in state court proceedings.” Littlejohn, 704 F.3d at 824; see also Harrington
`
`v. Richter, 562 U.S. 86, 102–03 (2011) (“Section 2254(d) [i.e., a central provision of
`
`AEDPA] reflects the view that habeas corpus is a ‘guard against extreme
`
`
`
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 17
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`malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
`
`correction through appeal.” (quoting Jackson, 443 U.S. at 332 n.5)).
`
`
`
`“Under AEDPA, a petitioner is entitled to federal habeas relief on a claim only
`
`if he can establish that the state court’s adjudication of the claim on the merits
`
`(1) ‘resulted in a decision that was contrary to, or involved an unreasonable
`
`application of, clearly established Federal law’; or (2) ‘resulted in a decision that was
`
`based on an unreasonable determination of the facts in light of the evidence presented
`
`in the State court proceeding.’” Littlejohn, 704 F.3d at 824 (quoting 28 U.S.C.
`
`§ 2254(d)(1), (2)). Under the AEDPA standard, “‘state-court decisions [should] be
`
`given the benefit of the doubt’ and ‘[r]eadiness to attribute error is inconsistent with
`
`the presumption that state courts know and follow the law.’” Washington v. Roberts,
`
`846 F.3d 1283, 1293 (10th Cir. 2017) (alterations in original) (quoting Holland v.
`
`Jackson, 542 U.S. 649, 655 (2004) (per curiam)).
`
`
`
`“Under § 2254(d)(1), the threshold question is whether there exists clearly
`
`established federal law.” Hooks v. Workman (Victor Hooks II), 689 F.3d 1148, 1163
`
`(10th Cir. 2012) (citing House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008)).
`
`“‘Clearly established Federal law’ refers to the Supreme Court’s holdings, not its
`
`dicta.” Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (quoting Williams
`
`v. Taylor, 529 U.S. 362, 412 (2000)).
`
`If there exists clearly established federal law, a state-court decision is
`
`“contrary to” it “if the state court applies a rule different from the governing law set
`
`forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme
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`Appellate Case: 20-3186 Document: 010110821613 Date Filed: 03/03/2023 Page: 18
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`Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535
`
`U.S. 685, 694 (2002). A state court decision involves an “unreasonable application”
`
`of clearly established federal law if “the state court identifies the correct governing
`
`legal principle from [Supreme Court] decisions but unreasonably applies that
`
`principle to the facts of the prisoner’s case.” Bland v. Sirmons, 459 F.3d 999, 1009
`
`(10th Cir. 2006) (alteration in original) (quoting Williams, 529 U.S. at 413).
`
`“Critically, an ‘unreasonable application of federal law is different from an incorrect
`
`application of federal law.’” Wood, 907 F.3d at 1289 (quoting Williams, 529 U.S. at
`
`410). “[E]ven a clearly erroneous application of federal law is not objectively
`
`unreasonable.” Id. (alteration in original) (quoting Maynard v. Boone, 468 F.3d 665,
`
`670 (10th Cir. 2006)). “Rather, a state court’s application of federal law is only
`
`unreasonable if ‘all fairminded jurists would agree the state court decision was
`
`incorrect.’” Id. (emphasis added) (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th
`
`Cir. 2014)).
`
`“We review the district court’s legal analysis of the state court decision de
`
`novo.” Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011) (quoting Bland, 459
`
`F.3d at 1009). “Furthermore, in reviewing a state court decision under § 2254(d)(1),
`
`we must ‘limit[ ]’ our inquiry ‘to the record that was before the state court that
`
`adjudicated the claim on the merits.’” Littlejohn, 704 F.3d at 825 (alteration in
`
`original) (quoting Pinholster, 563 U.S. at 181). “Factual findings of the state court
`
`are presumed correct unless the applicant rebuts that presumption by ‘clear and
`
`convincing evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)).
`16
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`Fin