FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                            FOR THE TENTH CIRCUIT                              March 18, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 LAFAYETTE D. COSBY,

       Petitioner - Appellant,

 v.                                                            No. 18-3029
                                                     (D.C. No. 5:15-CV-03213-KHV)
 WARDEN DAN SCHNURR,                                            (D. Kan.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HARTZ, McKAY, and McHUGH, Circuit Judges.
                  _________________________________

       Lafayette D. Cosby, a pro se Kansas inmate, seeks a certificate of appealability

(COA) to challenge the denial of his 28 U.S.C. § 2254 application for federal habeas

corpus relief. See 

(requiring a COA to appeal the denial of a § 2254

application). For the reasons that follow, we deny a COA and dismiss this matter.

                                             I

       Mr. Cosby was convicted of premeditated first-degree murder. His conviction was

reversed on appeal, see State v. Cosby, 

, 1143 (Kan. 2007), but after a

second trial, he was reconvicted of premeditated first-degree murder and his conviction



       
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
was upheld by the Kansas Supreme Court, see State v. Cosby, 

, 287, 296

(Kan. 2011). Mr. Cosby unsuccessfully sought post-conviction relief in the state courts

and then turned to the federal courts for relief. The district court denied his § 2254

application, ruling some claims were procedurally defaulted because they were neither

properly presented to, nor considered by, the state courts. The district court denied the

remaining claims on the merits. After the court denied a COA, Mr. Cosby moved for

reconsideration, but before the court ruled on his motion, he filed a notice of appeal. The

court later denied the motion for reconsideration, and Mr. Cosby now seeks a COA to

contest both the denial of his § 2254 application and the denial of his motion for

reconsideration.

                                             II

       A. Scope of Review

       We first consider the scope of our review. Mr. Cosby timely appealed the order

denying his § 2254 application, but because he filed his notice of appeal before the

district court ruled on his motion for reconsideration, he was obligated to amend his

notice of appeal or file a new one once the court ruled on his motion for reconsideration

to appeal the denial of that motion. See Fed. R. App. P. 4(a)(4)(B)(ii); Ysais v.

Richardson, 

, 1179 (10th Cir. 2010). He did not, and therefore, the order

denying his motion for reconsideration is not before us.

       We also note that Mr. Cosby attempts to incorporate by reference all his prior

arguments made in his original Kan. Stat. Ann. § 60-1507 motion, his § 2254 application,

his traverse to the State’s answer in the § 2254 proceedings, and his “Motion for

                                             2
Summary Judgment” filed in the district court. Aplt. Br. at 31. He cannot do so, as we

have held that such efforts to incorporate prior arguments by reference is unacceptable,

even for pro se litigants. Wardell v. Duncan, 

, 963-64 (10th Cir. 2006).

Accordingly, we restrict our review to the arguments Mr. Cosby properly makes in his

opening brief seeking a COA to appeal the denial of his § 2254 application.

       B. COA Standards

       A COA is a jurisdictional prerequisite to our review. See Miller-El v. Cockrell,

, 336 (2003). To obtain a COA, an applicant must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant

must show “that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,

, 484 (2000) (internal quotation marks omitted). Where the court denies a

claim on procedural grounds, the petitioner must show both “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” 

Our decision to grant or deny a

COA is based on an “overview of the claims in the habeas petition and a general

assessment of their merits.” 

.

       1. Procedural Default

       We begin with the claims the district court denied as procedurally defaulted.

“This court cannot address claims that were defaulted in state court on independent and

                                              3
adequate state procedural grounds unless petitioner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice.” Hamm

v. Saffle, 

, 1216 (10th Cir. 2002) (brackets and internal quotation marks

omitted).

       Mr. Cosby’s conviction became final on October 3, 2011. Under Kansas law, he

had one year to seek postconviction relief. See Kan. Stat. Ann. § 60-1507(f)(1). On

September 10, 2012, he filed a timely motion for post-conviction relief under Kan. Stat.

Ann. § 60-1507, raising a single claim: The “[t]rial court violated [his] Due Process

Rights by dismissing his numerous Request[s] for New Counsel without conducting a

proper inquiry into [his] grievances and constitutional interests.” R., Vol. II (§ 60-1507

Mot. at 7, Cosby v. State, No. 2012-CV-487 (Douglas Cty., Kan. Sept. 10, 2012)).

Elsewhere in his motion, Mr. Cosby noted that “Appellate Counsel on Direct Appeal

failed to Raise these issues” and he did not receive the trial transcripts until after his

appeal was final. 

       After the one-year deadline had passed, on October 31, 2012, Mr. Cosby moved to

amend his § 60-1507 motion, adding seven new claims: 1) the trial court refused to hear

impeachment and bad faith evidence regarding police destruction of exculpatory

evidence; 2) the trial court imposed upon him an ineffective attorney who indicated he

was not being paid enough to effectively defend him; 3) the trial court imposed upon him

an ineffective attorney who failed to present his version of the facts; 4) trial counsel was

ineffective in failing to object to prosecutorial misconduct in using perjured testimony;

                                               4
5) trial counsel was ineffective in failing to object to prosecutorial misconduct that

improperly bolstered the credibility of state witnesses; 6) insufficient evidence of guilt;

and 7) cumulative error. The state post-conviction court denied relief without addressing

these new claims.

       On appeal, the Kansas Court of Appeals held that all but two claims from the

amended § 60-1507 motion were untimely, did not relate back to the original motion, and

need not be considered. See Cosby v. State, No. 109,880, 

, at *3-4

(Kan. Ct. App. Sept. 5, 2014) (per curiam) (unpublished). The court of appeals

determined the remaining two claims—those alleging the trial court erred by imposing

counsel who indicated he was not paid enough and who failed to present Mr. Cosby’s

version of the facts—arose from the same general issue implicated by his original claim:

the trial court’s failure to appoint substitute counsel. See 

The court of appeals

interpreted the former claim as alleging bias based on counsel’s background in law

enforcement, which related to an allegation in the original claim that counsel was acting

under various conflicts of interest. See 

of appeals read the latter claim as

alleging that counsel disallowed Mr. Cosby’s version of the facts, similar to allegations in

his original claim asserting a breakdown in communication. See 

the

record, the court of appeals ruled that Mr. Cosby and his attorney repeatedly reconciled

their differences and he provided only conclusory and generic assertions to the contrary.

Moreover, because the two amended claims simply restated sub-issues of the

original claim, the court of appeals held they, too, were “embraced by [his] overarching

claim” for which he was “conclusively not entitled to relief.” 

                                              5
       Mr. Cosby petitioned the Kansas Supreme Court for review, asserting the lower

state courts took an overly narrow view of his motion, though he did not challenge the

Kansas Court of Appeals’ conclusion that his additional claims did not relate back to the

original claim. The Kansas Supreme Court denied review.

       Mr. Cosby then filed his § 2254 application, raising many of the same claims the

state courts refused to consider, as well as some entirely new ones. He claimed:

1) appellate counsel failed to raise his post-conviction claims on direct appeal; 2) the trial

court “violated [his] Due Process Rights by dismissing his numerous Requests for new

counsel without conducting a proper inquiry into [his] grievances and constitutional

interests,” R. at 39; 3) the trial court refused to hear impeachment and bad faith evidence

regarding police destruction of exculpatory evidence; 4) the trial court obstructed his

ability to present his version of the facts; 5) the trial court imposed upon him an

ineffective attorney who indicated he was not being paid enough to effectively defend

Mr. Cosby; 6) the trial court imposed upon him an ineffective attorney who failed to

present his version of the facts; 7) trial counsel rendered ineffective assistance by

representing him under known conflicts of interest; 8) trial counsel was ineffective in

failing to object to prosecutorial misconduct in using perjured testimony; 9) trial counsel

was ineffective in failing to object to prosecutorial misconduct that improperly bolstered

the credibility of state witnesses; 10) there was insufficient evidence of guilt;

11) cumulative error; and 12) the state courts on post-conviction review failed to provide

a full and fair hearing on the merits of his § 60-1507 claims.



                                              6
       The district court concluded that claims 3, 4, 7, 8, 9, 10, and 11 were procedurally

defaulted. The court reasoned that the Kansas Court of Appeals refused to consider these

claims on timeliness grounds and Mr. Cosby failed to challenge that ruling before the

Kansas Supreme Court. Moreover, the district court observed that there was no basis for

excusing the default, and Mr. Cosby made only conclusory allegations that he was

actually innocent. Thus, the court denied these claims as procedurally barred.

       The district court’s conclusion is not reasonably debatable. State prisoners must

“exhaust[] the remedies available in the courts of the State” before seeking federal habeas

relief. 28 U.S.C. § 2254(b)(1)(A). They “must give the state courts one full opportunity

to resolve any constitutional issues by invoking one complete round of the State’s

established appellate review process.” O’Sullivan v. Boerckel, 

, 845 (1999).

Although the inmate need not cite “book and verse on the federal constitution,” Bland v.

Sirmons, 

, 1011 (10th Cir. 2006) (internal quotation marks omitted), he

“must fairly present his claim in each appropriate state court (including a state supreme

court with powers of discretionary review), thereby alerting that court to the federal

nature of the claim,” Baldwin v. Reese, 

, 29 (2004) (internal quotation marks

omitted). “[I]f the court to which [the inmate] must present his claims in order to meet

the exhaustion requirement would now find those claims procedurally barred, there is a

procedural default for purposes of federal habeas review.” 

(internal quotation marks omitted).

       Here, claim 7 was never presented to any of the state courts. Nor did Mr. Cosby

timely present claims 3, 4, 8, 9, 10, or 11 to the state post-conviction court. The Kansas

                                             7
Court of Appeals ruled these claims were untimely and did not relate back to the original

§ 60-1507 motion. The court of appeals therefore declined to consider these claims, and

Mr. Cosby failed to challenge that ruling in the Kansas Supreme Court. His failure to

properly present these claims to the state courts for one complete round of review

compels us to conclude that they were procedurally defaulted.

       To overcome the procedural default, Mr. Cosby must show cause and prejudice or

a fundamental miscarriage of justice. See 

. Mr. Cosby does not

attempt to show cause and prejudice, though he does make several references to the

miscarriage-of-justice exception, asserting he is actually innocent. But to satisfy the

“demanding” actual-innocence exception to the procedural default rule, a petitioner must

“demonstrate that more likely than not, in light of [] new evidence, no reasonable juror

would find him guilty beyond a reasonable doubt.” House v. Bell, 

, 538

(2006). He “must present evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial unless the court is also satisfied that the trial was

free of nonharmless constitutional error.” Cummings v. Sirmons, 

, 1223

(10th Cir. 2007) (brackets and internal quotation marks omitted). He “must support his

allegations of constitutional error with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that

was not presented at trial.” 

marks omitted).

       Mr. Cosby does not make this showing. The only “evidence” he has produced is

what he calls “Exhibit A1F1,” which consists of several hundred pages of background

information, argument, and other material, some of which appears to be portions of the

                                              8
trial transcripts. R. at 75-745. But there is no indication this information is new;

Mr. Cosby tells us only that he attempted to supplement the state court record with this

information on post-conviction review and the Kansas Court of Appeals denied his

requests. See Aplt. Br. at 17. Given the trial transcripts, it appears that at least some of it

was before the trial court. Moreover, there is no indication this material would establish

he is actually innocent. In this context, “‘actual innocence’ means factual innocence, not

mere legal insufficiency.” Bousley v. United States, 

, 623 (1998).

Mr. Cosby says this exhibit shows he acted reasonably in response to threat of imminent

danger posed by the victim, but he does not deny killing the victim. Presented with

Mr. Cosby’s showing, reasonable jurists would not debate the district court’s conclusion

that he failed to show a miscarriage of justice to excuse the procedural default.

       In addition to these claims, we conclude claim 1 also is procedurally defaulted.

The district court considered this claim on the merits, but “we may deny a COA if there is

a plain procedural bar to habeas relief, even though the district court did not rely on that

bar,” Davis v. Roberts, 

, 834 (10th Cir. 2005). Claim 1 alleges that

Mr. Cosby’s appellate attorney was ineffective in failing to raise all of the amended

§ 60-1507 claims on direct appeal. But Mr. Cosby never presented this claim to the state

courts, nor did the Kansas Court of Appeals consider it. His original § 60-1507 motion

merely noted that “Appellate Counsel on Direct Appeal failed to Raise these issues,”

referring to his original claim that the “[t]rial court violated [his] Due Process Rights by

dismissing his numerous request[s] for New Counsel without conducting a proper inquiry

into [his] grievances and constitutional interests.” R., Vol. II (§ 60-1507 Mot. at 5, 7,

                                               9
Cosby v. State, No. 2012-CV-487 (Douglas Cty., Kan. Sept. 10, 2012)). Because

Mr. Cosby failed to raise his original claim of trial court error on direct appeal, the State

argued during post-conviction appellate proceedings that the original claim was barred.

The Kansas Court of Appeals rejected that argument because Mr. Cosby noted that his

appellate attorney failed to raise the issue on direct appeal. See Cosby, 

, at *4-5. But Mr. Cosby did not allege an independent claim that his appellate

counsel was ineffective, and the Kansas Court of Appeals did not construe his comment

as an independent claim for ineffective assistance of appellate counsel. Nor did the court

of appeals consider any such claim. Therefore, because Mr. Cosby never presented claim

1 to the state courts, the claim is unexhausted and now procedurally defaulted. See, e.g.,

Hawkins v. Mullin, 

, 669 (10th Cir. 2002) (holding claim of trial court error

for failure to ensure knowing and voluntary waiver of opportunity to present mitigating

evidence did not exhaust claim of ineffective assistance of counsel for failure to

investigate possible mitigating evidence). “A claim of ineffective assistance of appellate

counsel can serve as cause and prejudice to overcome a procedural bar, if it has merit.”

Ryder ex rel. Ryder v. Warrior, 

, 747 (10th Cir. 2016). But Mr. Cosby does

not attempt to make this showing, and for the reasons explained above, he cannot show a

miscarriage of justice. Accordingly, Mr. Cosby is barred from raising this claim.

       2. Merits

       We turn now to the claims that were not procedurally defaulted (claims 2, 5, and

6). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), to

obtain federal habeas relief for a claim adjudicated on the merits by a state court, an

                                              10
applicant must show that the state-court decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). A decision is “contrary to” federal law “only if the state court arrives

at a conclusion 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 materially

indistinguishable facts.” Gipson v. Jordan, 

, 1196 (10th Cir. 2004)

(brackets and internal quotation marks omitted). A decision is an “unreasonable

application” of federal law “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” 

internal quotation marks omitted).

       Claims 2, 5, and 6 all arise out of the trial court’s refusal to appoint substitute

counsel. The district court recited state court findings and observed that federal law

affords a trial court considerable discretion in deciding whether to appoint substitute

counsel. The court further observed that to warrant substitute counsel, a defendant must

show “good cause, such as a conflict of interest, a complete breakdown in

communication or an irreconcilable conflict which leads to an apparently unjust verdict.”

R. at 827 (internal quotation marks omitted). The court then separately analyzed

Mr. Cosby’s claims alleging a conflict of interest (Claim 5), a breakdown of

communication (Claim 6), and the trial court’s failure to conduct a proper inquiry into the

nature of his grievances (Claim 2), and concluded that he was not entitled to relief.

                                              11
       a. Claim 5-Conflict of Interest

       The Supreme Court has held that the Sixth Amendment right to assistance of

counsel may be violated when a defendant’s attorney actively represents conflicting

interests. Mickens v. Taylor, 

, 166 (2002). Although reversal is automatic

when a trial court compels an attorney to actively represent multiple defendants over

counsel’s objection without inquiry, see 

outside of that context a defendant

claiming conflicted counsel must show a reasonable probability that counsel’s

performance prejudiced his defense, see 

Strickland v. Washington, 

, 694 (1984).

       Here, the Kansas Court of Appeals denied relief, ruling that Mr. Cosby “never

specified exactly what it is [counsel] should have done or [what other] defenses he failed

to develop.” Cosby, 

at *7. The court of appeals observed that the

trial court allowed Mr. Cosby to express his concerns multiple times and each time

counsel indicated that he could adequately represent Mr. Cosby. 

of appeals

also cited the trial court’s findings that Mr. Cosby and his attorney repeatedly reconciled

their differences, he waited until the eve of his second trial to request substitute counsel,

and his attorney did “a fine job.” 

marks omitted). Additionally,

the Kansas Court of Appeals noted that Mr. Cosby offered no new information to

question the trial court’s findings. See 

analysis, the district court

concluded that the Kansas Court of Appeals’ decision was not contrary to or an

unreasonable application of Federal law, nor an unreasonable determination of the facts.



                                              12
       Reasonable jurists would not debate the district court’s conclusion. The Kansas

Court of Appeals effectively determined that Mr. Cosby failed to show prejudice.

Although Mr. Cosby suggests prejudice should be presumed under Wood v. Georgia,

(1981), Wood does not help him. Wood remanded to the trial court to

determine whether the potential conflict of interest strongly suggested by the record

actually existed. See 

This is because “an actual conflict of interest meant

precisely a conflict that affected counsel’s performance—as opposed to a mere

theoretical division of loyalties.” 

(internal quotation marks

omitted). In the multiple representation context, “a defendant who shows that a conflict

of interest actually affected the adequacy of his representation need not demonstrate

prejudice in order to obtain relief.” 

internal quotation marks omitted).

But Mr. Cosby never made this showing; he was the lone defendant, the trial “court

allowed [him] to voice his concerns multiple times,” and he never specified what else

counsel should have done. Cosby, 

, at *7. The district court’s denial

of this claim is not debatable.

       b. Claim 6-Breakdown of Communication

       Mr. Cosby also claimed substitution of counsel was warranted because there was a

breakdown of communication between himself and his attorney. The Supreme Court has

held that the Sixth Amendment right to assistance of counsel does not “guarantee[] a

meaningful relationship between an accused and his counsel.” Morris v. Slappy,

, 14 (1983) (internal quotation marks omitted). The Kansas Court of Appeals

denied relief, characterizing Mr. Cosby’s relationship with his attorney as an “on-again-

                                            13
off-again relationship.” Cosby, 

, at *5, 8. The district court concluded

that the Kansas Court of Appeals’ decision was not contrary to or an unreasonable

application of Federal law, nor an unreasonable determination of the facts.

       Here again, reasonable jurists would not debate the district court’s conclusion.

Mr. Cosby offers no Supreme Court authority to question the Kansas Court of Appeals’

decision. See Simpson v. Carpenter, 

, 568 (10th Cir. 2018) (“[W]hen a

defendant is unable to find any clearly established Supreme Court precedent in support of

his claim, habeas relief is impossible to obtain.” (brackets, ellipsis, and internal quotation

marks omitted)). He does cite Chapman v. California, 

(1967), apparently for

the proposition that the government must prove beyond a reasonable doubt that an error

was harmless, see Aplt. Br. at 19. But any harmless error analysis would require a

threshold showing of a constitutional violation, which Mr. Cosby has not made.

       Mr. Cosby also contests the Kansas Court of Appeals’ characterization of his

relationship with his attorney as an “on-again-off-again relationship.” Even if this

characterization can be deemed a factual finding, however, Mr. Cosby fails to show the

court of appeals’ characterization of his relationship was an unreasonable determination

of the facts in light of the record, see 28 U.S.C. § 2254(d)(2). He merely notes that

counsel told the trial court during the first status conference before the retrial that

Mr. Cosby might want another attorney. See Aplt. Br. at 21. Yet the Kansas Court of

Appeals recognized this in evaluating the nature of their relationship. See Cosby,

, at *6. Accordingly, reasonable jurists would not debate the district

court’s denial of this claim.

                                              14
       c. Claim 2-Duty to Inquire into the Nature of the Attorney/Client Conflict

       Mr. Cosby also claimed the trial court failed to inquire into the nature of the

attorney/client conflict. The Supreme Court has held that a trial court has a duty to

inquire into the nature of a conflict of interest when counsel actively represents multiple

defendants and notifies the court of an alleged conflict, but, outside of that context, the

duty of inquiry arises “only when the trial court knows or reasonably should know that a

particular conflict exists.” 

(internal quotation marks

omitted). If a trial court fails to inquire into a conflict of interest, a defendant must show

an actual conflict of interest that adversely affected counsel’s performance. See 

       The Kansas Court of Appeals denied relief, noting that the trial court allowed

Mr. Cosby to express his concerns multiple times, counsel assured the court he could

adequately represent Mr. Cosby, and both Mr. Cosby and counsel repeatedly reconciled

their differences. The court of appeals also reasoned that Mr. Cosby offered nothing to

question the trial court’s conclusions and “never specified exactly what it is he contends

[counsel] should have done or [what other] defenses he failed to develop.” Cosby,

, at *7. Given this conclusion, the district court determined the Kansas

Court of Appeals’ decision was not contrary to or an unreasonable application of Federal

law because it concluded that he failed to show the alleged conflicts adversely affected

counsel’s performance or that he suffered prejudice. Again, this conclusion was not

debatable: this was not a multiple representation case, the trial court heard Mr. Cosby’s



                                              15
grievances, and the Kansas Court of Appeals found that he failed to show the alleged

conflict prejudiced his defense.

       3. Claim 12—Failure of State Post-Conviction Courts to Hold a Hearing

       Finally, Mr. Cosby seeks a COA on his claim that the state courts failed to hold a

full and fair hearing during his post-conviction proceedings. The district court denied

this claim, ruling it was not cognizable in federal habeas because it challenged the

procedures of the state post-conviction remedy rather than the judgment under which

Mr. Cosby is incarcerated. Reasonable jurors would not debate the denial of this claim

because even if Mr. Cosby was entitled to a hearing under state law, “federal habeas

corpus relief does not lie for errors of state law,” Swarthout v. Cooke, 

, 219

(2011) (per curiam) (internal quotation marks omitted).

                                            III

       Because reasonable jurists would not debate the district court’s decision, we deny

a COA and dismiss this matter.


                                                          Entered for the Court


                                                          Monroe G. McKay
                                                          Circuit Judge




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