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

                                    TENTH CIRCUIT                              December 7, 2017

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 MICHAEL D. WALKER,

               Petitioner - Appellant,

v.                                                            No. 17-3151
                                                    (D.C. No. 5:15-CV-03230-DDC)
 DAN SCHNURR, Interim Warden, El                              (D. Kansas)
 Dorado Correctional Facility; DEREK
 SCHMIDT, Attorney General of the State
 of Kansas,

               Respondents - Appellees.


                              ORDER DENYING
                      CERTIFICATE OF APPEALABILITY 


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       Michael D. Walker, a Kansas inmate appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his petition for writ of

habeas corpus under 28 U.S.C. § 2254. We deny a COA and dismiss this matter.


       
       Pursuant to Fed. R. App. P. 43(c)(2), Warden James Heimgartner is replaced by
Dan Schnurr, Interim Warden, El Dorado Correctional Facility.
       **
          This order is not binding precedent, except under the doctrines of law of the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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
         Because Mr. Walker is pro se, “we liberally construe his filings, but we will not
act as his advocate.” James v. Wadas, 

, 1315 (10th Cir. 2013).
                                    I.         BACKGROUND

       Mr. Walker is serving a life sentence, having been convicted of first-degree felony

murder and criminal discharge of a firearm at an occupied dwelling. State v. Walker, 

, 1263 (Kan. 2007). His convictions and sentence arose from a gang-related

drive-by shooting. 

evidence presented at trial established that gunshots

emanating from a vehicle driven by Mr. Walker struck a sixteen-month-old child as she

slept on a couch in her family’s living room, killing her. See 

       In the federal court proceedings below, Mr. Walker asserted twelve grounds for

habeas relief, all of which the district court denied. See Walker v. Heimgartner, No. 15-

CV-3230-DDC, 

, at *1 (D. Kan. Mar. 31, 2017) (the “District Court

Order”). The court deemed none of the twelve grounds presented as close questions. To

the contrary, the district court opined that its rulings “are not the type that reasonable

jurists could debate or would conclude were wrong.” 

As such, the district court

declined to issue a COA. 

       On appeal, Mr. Walker has trimmed his proposed grounds for relief from twelve to

three: he now bases his petition on alleged violations of (1) due process arising from the

trial court’s decision denying Mr. Walker’s motion to suppress statements and evidence

discovered during a police investigation; (2) the Fourth Amendment because his arrest

was not supported by probable cause; and (3) the Sixth Amendment due to ineffective




                                                   2
assistance of counsel.2 But because the district court declined to issue a COA, we lack

jurisdiction to consider the merits of any of these claims unless and until we issue a COA

as to one or more of the claims Mr. Walker wishes to appeal. See 28 U.S.C.

§ 2253(c)(1)(A); Miller-El v. Cockrell, 

, 327 (2003).

       A habeas petitioner is entitled to a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As in

the district court below, this standard requires Mr. Walker to demonstrate “that

reasonable jurists could debate whether . . . 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). Mr. Walker has not met that standard. To see why, we now turn to each of the

three issues he seeks to appeal.

                                   A. Due Process Violations

       Citing Wong Sun v. United States, 

(1963), Mr. Walker argues that

certain unspecified “vehicle evidence” should have been suppressed as tainted. As to this

first issue, Mr. Walker’s handwritten pro se brief states, in its entirety:

              Their [sic] was no independent source and the lead Detective
       Randall Reynolds said It was from me that the police got the Information
       the lead [sic] to the car. and that came from the part of the statement that
       was suppressed by the Court.

       2
          The first two issues correspond to the first and twelfth issues identified by the
district court. See Walker v. Heimgartner, No. 15-CV-3230-DDC, 

, at
*1 (D. Kan. Mar. 31, 2017) (the “District Court Order”). The third issue was raised for
the first time in Mr. Walker’s motion to alter or amend the district court’s judgment under
Fed. R. Civ. P. 59(e), which the district court denied. See Walker v. Heimgartner, No. 15-
CV-3230-DDC, 

, at *1 (D. Kan. June 15, 2017).
                                                   3
              ....

              The District Court was wrong when it said the Kansas Supreme
       Court was right when it denied my issue about the vehicle evidence and all
       evidence that came from the police interrogation. Fourth, Fifth, and
       Fourtee[n]th Amendment due process right. Under Wong Sun v. United
       States, all the evidence must be suppressed as fruit of the poison tree. Their
       [sic] was no independent source. The lead Detective said Good police work
       would have lead [sic] them to it. Yet they relied on evidence from the
       inadmissible portion. The lead Detective said without the name Scott that
       evidence would have been almost impossible to find and he said that on the
       stand.

Criminal defendants are indeed sometimes constitutionally entitled to the suppression of

evidence deemed to be “fruit of the poisonous tree,” i.e., evidence discovered as a result

of unlawful police activity. See Wong 

; United States v. Olivares-

Rangel, 

, 1108–09 (10th Cir. 2005). Relying on Mr. Walker’s brief alone,

it would be impossible for us to understand the factual underpinnings of his claim, much

less find that he has made “a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), or “that the issues presented [a]re adequate to deserve

encouragement to proceed further,” 

(internal quotation marks

omitted).

       Construing his filings liberally, however, we understand from prior court opinions

that Mr. Walker’s due process arguments under the Fifth and Fourteenth Amendments

arise from the state trial court’s decision denying his motion to suppress physical

evidence that came to light in part because of statements made by Mr. Walker after he




                                                 4
was unconstitutionally deprived of his right to counsel.3 See District Court Order, at *6–

8; 

–71. In affirming Mr. Walker’s conviction on direct appeal,

the Kansas Supreme Court described the circumstances surrounding the police’s

interrogation of Mr. Walker and the evidence gathered therefrom:

               The police interrogation of Walker occurred at the Wichita Police
       Investigations Bureau. Walker came to the bureau voluntarily after hearing
       that police wanted to speak with him. Walker was advised of his Miranda
       rights, and Walker indicated that he understood and wished to waive those
       rights and speak to the police. He initialed and signed a Miranda waiver
       form. Several hours into the interview, Walker made inculpatory
       statements, admitting to driving the car involved in the shooting.

               Sometime after making that statement, Walker said, “If I could talk
       to my grandma right now, I just need to talk to a lawyer, man—I can't wait
       till I go downstairs.” In Walker I, this court held that the police were
       required to honor that request to speak to an attorney and should have
       stopped the interrogation. Their failure to cease questioning required the
       suppression of all statements subsequent to Walker’s request for counsel.

               Upon retrial, the trial court followed the holding in Walker I by
       suppressing all statements made after Walker’s request for counsel.
       However, Walker sought a broader order of suppression, arguing his
       statements were not voluntary but rather were elicited through coercive
       tactics. He also argued that because the detectives continued questioning
       him after he asserted his right to counsel, all evidence discovered as a direct
       result of the interrogation should have been excluded as “fruit of the
       poisonous tree.”

              Based upon the trial court’s ruling that the statement was voluntary,
       the State, over defense counsel’s objection, introduced into evidence a
       single statement from Walker’s police interrogation: his admission to being
       the driver of the vehicle involved in the shooting.




       3
         Without explanation, Mr. Walker also cites the Fourth Amendment, but he
waived any Fourth Amendment claim in his reply brief filed in the district court. See
District Court Order, at *6 n.1
                                                 5


–65 (citations omitted). On appeal to this court, Mr. Walker

focuses on the admission of physical evidence pertaining to the vehicle he was driving

during the shooting. He contends that evidence should have been suppressed because

there “was no independent source.” Rather, Mr. Walker says the vehicle was discovered

only on account of statements he made after requesting counsel, the point at which his

interrogation became unconstitutional.

      The Kansas Supreme Court carefully considered Mr. Walker’s suppression

argument on direct appeal:

             Walker further contends that the trial court erred in denying his
      motion to suppress physical evidence discovered as the fruit of a Miranda
      violation. Walker specifically argues that evidence pertaining to the vehicle
      should have been suppressed because statements given by Walker in
      violation of his right to counsel led law enforcement officers to locate the
      evidence.

            The State argues the evidence should not be suppressed under the
      independent source test.

              The exclusionary rule that prohibits the use of wrongfully obtained
      confessions also prohibits the use of any evidence obtained as a result of
      the wrongfully obtained statements under the fruit of the poisonous tree
      doctrine. Silverthorne Lumber Co. v. United States, 

, 392, 

, 

(1920) (“The essence of a provision forbidding
      the acquisition of evidence in a certain way is that not merely evidence so
      acquired shall not be used before the Court but that it shall not be used at
      

, 

.

             The evidence may be used, however, if police can trace the evidence
      to an independent and lawful source. Wong Sun v. United States, 

, 487–88, 

, 

(1963). . . .

             ....

              In this case, at the suppression hearing, the prosecutor acknowledged
      that after Walker requested counsel, he described the car that was used in

                                               6
the crime and started telling officers about how he obtained the vehicle.
Also, in the inadmissible portion of the interrogation, Walker provided law
enforcement with the name “Scott” as the owner of the vehicle and the fact
that the vehicle was maroon in color. But, officers’ testimony revealed that
Walker gave the wrong make of the car and the wrong location. The trial
court ultimately found that the police used some information from the
admissible portion of the interrogation, in conjunction with independent
police investigation, to determine who owned the car, where it was located,
and how Walker got the car on the night of the drive-by shooting.

       Substantial competent evidence supports the trial court’s conclusion
that the prosecution established, by a preponderance of the evidence, that
the unlawfully obtained evidence would have ultimately or inevitably been
discovered by lawful means. Detective Reynolds testified that, during the
admissible portion of the interview, Walker provided the police with the
name of “Shawntell” Thomas as an alibi witness. Walker also mentioned
that he and Thomas were in a car together on the night of the incident.
Later, officers talked to Thomas who described the car as maroon in color.

       Officers’ testimony also revealed that Walker mentioned the names
of Shaun Bell and Reginald Hunt during the admissible portion of the
interview. Reynolds testified that, based on an address for a crack house
provided by Walker during the inadmissible portion of the interview, the
police went to Hunt's residence and talked to Hunt who admitted knowing
Walker. It was a narcotics search warrant executed at Hunt’s residence that
led police to Scott Shaffer and his vehicle—the one that was used in the
drive-by shooting. Regardless, Reynolds’ testimony also indicated that,
even if Walker had not given Hunt’s address and the name “Scott” during
the inadmissible portion of the interrogation, officers would have gone to
the house to interview Hunt because Walker and Lowe had been there on
the night of the drive-by shooting incident. Walker mentioned he had been
at Hunt’s house before he requested counsel.

       The record shows that, while officers used evidence from both the
admissible and inadmissible portions of Walker’s interrogation to
investigate further into the details of the case, none of the statements made
by Walker in the inadmissible portion of the interrogation led officers
directly to the car used in the incident. The car was located only after law
enforcement followed other leads, conducted interviews of other witnesses,
and assimilated independent information.

       The trial court correctly denied Walker’s motion to suppress the
vehicle evidence.

                                         7


       On federal habeas review, the district court held that the above-quoted analysis “is

consistent with federal constitutional law” and “constitutes a reasonable determination of

the facts considering the evidence presented.” District Court Order, at *8. Against this

backdrop, Mr. Walker’s naked protestation that there “was no independent source” falls

far short of the “substantial showing of the denial of a constitutional right” that is

required for us to grant a COA. See 28 U.S.C. § 2253(c)(2).4

                               B. Fourth Amendment Violation

       Mr. Walker next argues that he was arrested without probable cause, in violation

of his rights under the Fourth Amendment. As a result, Mr. Walker suggests that all

evidence obtained through exploitation of his illegal seizure should have been

suppressed. As the district court correctly noted, “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” District Court Order, at

*12 (quoting Stone v. Powell, 

, 494 (1976)). The district court evaluated the

state-court proceedings in detail and determined that Mr. Walker was given an

opportunity for full and fair litigation of his Fourth Amendment claim in state court:

       4
         Mr. Walker also claims that Detective Reynolds testified at trial that “without the
name Scott that evidence would have been almost impossible to find.” But Mr. Walker
cites nothing in the record substantiating that claim, and our own review of the record
turned up no such testimony. We also note that Mr. Walker’s account seems to be
internally inconsistent, as he also asserts that Detective Reynolds “said Good police work
would have lead [sic] them to” the vehicle, anyway.
                                                  8
       [T]he record shows that petitioner had a full and fair opportunity to litigate
       this Fourth Amendment claim. Petitioner presented the issue to the trial
       court in his Kan. Stat. Ann. § 60-1507 motion. Petitioner’s counsel fully
       briefed the issue and argued the matter at a hearing before the district court
       on October 5, 2012. At the conclusion of the hearing, the district court
       found that probable cause existed to arrest petitioner, and it denied the
       requested relief. Petitioner then had the opportunity to appeal the issue
       directly to the Kansas Court of Appeals with the assistance of newly
       appointed counsel. Petitioner’s counsel fully briefed the issue for the
       appellate court’s consideration. The Kansas Court of Appeals sufficiently
       considered the issue and denied petitioner’s claim for relief. See Walker,
       

, at *6–8. In its opinion, the Kansas Court of Appeals
       reasonably applied the correct and controlling constitutional standard. See
       

v. Gates, 

, 234–35 (1983); Michigan v.
       DeFillippo, 

, 37 (1979); Dunaway v. New York, 

,
       208 n.9 (1979) (further citations omitted)). Under these facts, the State
       provided petitioner a full and fair opportunity to litigate his Fourth
       Amendment claim.

court thus concluded that it could not grant federal habeas relief for any

Fourth Amendment violation based on Mr. Walker’s probable cause argument. 

further held that, even were his Fourth Amendment claim not barred by Stone, Mr.

Walker failed to show that the Kansas Court of Appeals’ decision was based on an

unreasonable application of Supreme Court precedent or involved an unreasonable

determination of the facts. 

       On appeal, Mr. Walker offers no argument as to why the Kansas proceedings were

deficient, instead baldly claiming that the Kansas courts “did not hold a hearing” at all,

without providing any hint as to why the district court’s reading of the state court record

was in error. He further presents various arguments as to why the state courts’ merits

decisions were wrong under federal law. “But the ultimate accuracy of a state court’s

legal analysis is not relevant to the inquiry required by Stone unless ‘the state court


                                                  9
willfully refuse[d] to apply the correct and controlling standards.” Fuller v. Warden, Ark.

Valley Corr. Facility, 698 F. App’x 929, 941 (10th Cir. 2017) (alteration in original)

(quoting Gamble v. Oklahoma, 

, 1165 (10th Cir. 1978)). That plainly was

not the case here, 

, and we therefore conclude that reasonable jurists could not

debate the district court’s determination that Mr. Walker is not entitled to federal habeas

relief on his Fourth Amendment claim because the state courts provided him a full and

fair opportunity to litigate that claim.

                              C. Ineffective Assistance of Counsel

       Finally, Mr. Walker argues that his lawyer was “ineffective for not filing a petition

for review” with the Kansas Supreme Court. To be sure, Mr. Walker’s counsel filed

multiple petitions for review with the Kansas Supreme Court, on both direct review, see

State v. Walker, 

(Kan. 2003) (reversing and remanding for a new trial); see

also Walker, 

(affirming Mr. Walker’s convictions and sentences on

retrial), and state habeas review, see District Court Order, at *4 (noting that the Kansas

Supreme Court granted Mr. Walker’s petition for review of the Kansas Court of Appeals’

2010 habeas decision, which it summarily reversed); 

Mr. Walker filed an

unsuccessful petition for review of the Kansas Court of Appeals’ 2014 habeas decision).

Mr. Walker’s contention is that his counsel was ineffective for not petitioning the Kansas

Supreme Court for review of the Kansas Court of Appeals’ 2012 habeas decision, see

Walker v. State, 

, 

, at *5–6 (Kan. Ct. App. Feb. 17, 2012)

(“Walker II”) (unpublished table opinion), which decision found that various issues were

procedurally barred but nonetheless remanded to the district court to determine whether

                                                10
other issues not procedurally barred had merit. The district court held that Mr. Walker’s

failure to petition for review of Walker II’s holding that certain claims were procedurally

barred amounted to a failure to ever present those claims to the highest state court in

Kansas, which in turn means those claims are barred in federal court by the doctrines of

exhaustion and procedural default. See District Court Order, at *5. But Mr. Walker does

not argue the district court’s holding that these claims were barred is incorrect; instead,

he faults his attorney for ineffective assistance of counsel, an argument made for the first

time on reconsideration.

       Even if we were to assume (which we do not) that Mr. Walker’s counsel was

ineffective in failing to petition for review of Walker II, this sort of ineffective-assistance

claim is not cognizable under federal habeas law. See 28 U.S.C. § 2254(i) (“The

ineffectiveness or incompetence of counsel during Federal or State collateral post-

conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.”). It is thus not a matter that reasonable jurists could debate and we again

decline to issue a COA on this final ground for review.

                                   III.   CONCLUSION

       The request for a COA is denied and this appeal is dismissed.

                                               Entered for the Court

                                               Carolyn B. McHugh
                                               Circuit Judge




                                                  11