Filed: Apr. 10, 2020
Latest Update: Apr. 10, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 10, 2020 _ Christopher M. Wolpert Clerk of Court WAYNE DUKE KALBAUGH, Petitioner - Appellant, v. No. 19-6151 (D.C. No. 5:18-CV-00951-C) JIMMY MARTIN, Warden, (W.D. Okla.) Respondent - Appellee. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _ Wayne Duke Kalbaugh, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate of ap
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 10, 2020 _ Christopher M. Wolpert Clerk of Court WAYNE DUKE KALBAUGH, Petitioner - Appellant, v. No. 19-6151 (D.C. No. 5:18-CV-00951-C) JIMMY MARTIN, Warden, (W.D. Okla.) Respondent - Appellee. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _ Wayne Duke Kalbaugh, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate of app..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
WAYNE DUKE KALBAUGH,
Petitioner - Appellant,
v. No. 19-6151
(D.C. No. 5:18-CV-00951-C)
JIMMY MARTIN, Warden, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
Wayne Duke Kalbaugh, an Oklahoma state prisoner proceeding pro se,1 seeks
a certificate of appealability (COA) to challenge the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. Kalbaugh also seeks to
proceed in forma pauperis and requests that this court appoint him counsel and
enlarge the record on appeal. Because Kalbaugh has failed to satisfy the standard for
the issuance of a COA, we deny his request and dismiss this matter. We also deny his
*
This order is not binding precedent, except under the doctrines of law of the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.
1
Because Kalbaugh proceeds pro se, we construe his pleading liberally, but we
do not act as his advocate. E.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1188
(10th Cir. 2003) (citing Northington v. Jackson,
973 F.2d 1518, 1520–21 (10th Cir.
1992)).
request for appointment of counsel and his request to enlarge the record. Finally, we
grant his request to proceed in forma pauperis.
BACKGROUND
In November 2014, Kalbaugh led Oklahoma police on a high-speed pursuit
through multiple counties. Kalbaugh v. Martin, No. CIV-18-951-C, 2019 WL 4666360,
at *1 (W.D. Okla. July 23, 2019), report and recommendation adopted, No. CIV-18-951-
C,
2019 WL 4658368 (W.D. Okla. Sept. 24, 2019). When Kalbaugh ended the chase, he
exited the car with two firearms and a knife.
Id. Kalbaugh was arrested and a search
of his vehicle yielded “a kit of smoking pipes, scales, and small plastic baggies” with
“[m]ethamphetamine residue,” along with two more firearms.
Id. Kalbaugh was tried
in Oklahoma state court for “aggravated attempting to elude an officer (Count 4),
possession of methamphetamine (Count 5), possession of a firearm after conviction of a
felony (Count 6), and possession of an offensive weapon in the commission of a felony
(Count 8), all after former conviction of two or more felonies.”2
Id.
At trial, Kalbaugh “admitted (1) that he was a multiple felon, (2) that all the
firearms [found on his person and in the vehicle] were his, and (3) that he had smoked
methamphetamine shortly before the chase.”
Id. The jury found Kalbaugh guilty on all
four counts.
Id. The trial court judge sentenced Kalbaugh “to consecutive sentences of
thirty years’ imprisonment on Count 4, fifteen years’ imprisonment on Count 5, twenty-
five years’ imprisonment on Count 6, and thirty years’ imprisonment on Count 8,” for a
2
The state dismissed the other counts before Kalbaugh’s trial. Kalbaugh, 2019
WL 4666360, at *1 n.2.
2
total of 100 years’ imprisonment. Id. Kalbaugh filed a direct appeal with the Oklahoma
Court of Criminal Appeals, which affirmed his convictions and sentences on all counts.
Id. at *2. Kalbaugh then filed a habeas petition with the Oklahoma District Court for the
Western District of Oklahoma, seeking relief under 28 U.S.C. § 2254.
Id. Kalbaugh
sought relief under ten separate grounds, arguing (1) the admission of other bad-acts
evidence violated the Fifth and Fourteenth Amendments, (2) insufficient evidence
supported his convictions, (3) his convictions under Count Six and Count Eight violated
the “Double Jeopardy Clauses” of the United States Constitution and an Oklahoma
statute, (4) multiple instances of prosecutorial misconduct, (5) his Fifth and Fourteenth
Amendment rights were violated “by the admission of multiple felonies from the same
transaction for sentence enhancement,” (6) the trial court applied an improper sentencing
enhancement, (7) the trial court made an “instructional error” that denied him a “fair
trial,” (8) multiple instances of ineffective assistance of counsel, (9) the trial court
improperly refused to give credit for time served, and (10) cumulative trial errors
warranting a new trial.
Id. at *3.
The magistrate judge, in a report and recommendation, recommended that habeas
relief be denied. Id. at *16. Kalbaugh filed objections to the report and recommendation.
The district court considered Kalbaugh’s objections, adopted the magistrate judge’s
report and recommendation, and overruled Kalbaugh’s objections. Kalbaugh v. Martin,
No. CIV-18-951-C,
2019 WL 4658368, at *1 (W.D. Okla. Sept. 24, 2019). The district
court determined that Kalbaugh’s claims did not warrant relief, so it denied his petition.
Id. The district court also denied Kalbaugh’s request for a COA. Kalbaugh now seeks a
3
COA from this court. He raises ten claims, the same ten raised in the district court, and
we discuss each in turn.
DISCUSSION
The Oklahoma state courts adjudicated Kalbaugh’s claims on the merits, so to
obtain habeas relief he must show that “the state court[s’] 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[.]” Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011)
(internal quotation marks and citations omitted) (quoting 28 U.S.C. § 2254(d)(1),
(d)(2)). Kalbaugh “must show that the state court’s ruling[s] on the claim[s] being
presented in federal court w[ere] so lacking in justification that there
w[ere] . . . error[s] well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103
(2011) (explaining that this standard was intended to be hard to meet).
To appeal the district court’s dismissal of his § 2254 petition, Kalbaugh must first
obtain a COA. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A COA may be
granted only “if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Our COA analysis “is not coextensive
with a merits analysis” and is limited to the question of “whether the applicant has
shown that ‘jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate
4
to deserve encouragement to proceed further.’” Buck v. Davis, 137 S. Ct. 759, 773
(2017) (quoting
Cockrell, 537 U.S. at 327). For the reasons discussed below, we
determine that reasonable jurists would agree that the district court’s decision was
not debatable, so we deny Kalbaugh’s request for a COA.
I. Admission of Other-Acts Evidence
Kalbaugh first argues that the trial court erred in admitting evidence that he “was a
drug dealer involved in the dope game handling large quantities of meth.” Appellant’s
Opening Br. 11. Kalbaugh argues that this evidence was admitted for the improper
purpose of showing he had a “propensity to commit crimes,” violating his due-process
rights.3 Id. at 11–12.
Generally, “[f]ederal habeas review is not available to correct state law evidentiary
errors.” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999); see also 28 U.S.C.
§ 2254(d). But if the complained-of “evidence [that] is introduced . . . is so unduly
prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of
the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee,
501 U.S. 808, 825 (1991).
3
Kalbaugh also argues that this evidence violated Oklahoma state statutes, but we
decline to consider any allegations of state-law violations. Kalbaugh’s state-law claims
have no place in “a federal court’s habeas review of a state conviction.” See Estelle v.
McGuire, 502 U.S. 62, 67 (1991). The Supreme Court has “reemphasize[d] that it is
not the province of a federal habeas court to reexamine state-court determinations on
state-law questions” and “federal court[s are] limited to deciding whether a
conviction violated the constitution, laws, or treaties of the United States.”
Id. at 67–
68 (citations omitted). To the extent that Kalbaugh’s remaining claims also raise
state-law claims, we decline to consider those for the same reason. See
id.
5
On direct appeal, the Oklahoma Court of Criminal Appeals ruled that the
statements that Kalbaugh complains of were “closely connected with the charges and
explained certain facts” that were relevant to giving the jury a complete understanding of
the entire criminal transaction. Suppl. R. at 15. We agree that the admitted evidence
complained of by Kalbaugh “demonstrated both context and consciousness of guilt and
could not logically be separated from the charged crimes.” Kalbaugh,
2019 WL 4666360,
at *4. And given the relevance of the admitted evidence, Kalbaugh fails to show that the
Oklahoma Court of Criminal Appeals erred in concluding that the evidence did not
render his trial fundamentally unfair. See Holland v. Allbaugh,
824 F.3d 1222, 1230 (10th
Cir. 2016). As such, reasonable jurists could not debate whether a due process error
occurred.
II. Insufficiency of the Evidence
Kalbaugh next argues that the prosecution failed to present sufficient evidence to
support his conviction for possession of a firearm after a felony conviction (Count Six),
violating his Fifth and Fourteenth Amendment rights to due process. He argues that “[t]he
charge of possession of a firearm [after conviction of a felony] requires the state to prove
that the firearm was capable of discharging a lethal projectile.” Appellant’s Opening Br.
12. The Oklahoma Court of Criminal Appeals rejected this argument, concluding that the
Oklahoma statute has no such requirement, and even if it did “a rational juror could have
inferred as much from the testimony of the officers who examined the weapons.” Suppl.
R. at 15.
6
We review a § 2254 sufficiency-of-the-evidence claim under a “twice-deferential
standard,” Parker v. Matthews, 567 U.S. 37, 43 (2012), asking whether “any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt,”
Jackson v. Virginia,
443 U.S. 307, 319 (1979).
Kalbaugh’s argument fails at the outset, because under Oklahoma law, “whether
or not the firearm in the suspect’s possession was capable of firing is not an element that
must be proven to sustain a conviction of possession of a firearm by a felon.” Maixner v.
Rudek, 492 F. App’x 920, 923 (10th Cir. 2012) (unpublished) (citing Sims v. State, 762
P.2d 270, 272 (Okla. Crim. App. 1988) (interpreting Okla Stat. tit. 21, § 1283)). The
statute instead makes it unlawful for a felon to knowingly and willingly possess “any
pistol, imitation or homemade pistol, altered air or toy pistol, machine gun, sawed-off
shotgun or rifle, or any other dangerous or deadly firearm.” Okla. Stat. Ann. tit. 21,
§ 1283(A) (West 2014). Because there is no “lethal projectile” requirement under section
1283, we conclude that no reasonable jurists would debate whether the district court’s
denial of this claim was objectively unreasonable.
III. Double Jeopardy
For his third ground, Kalbaugh argues that his convictions under both Count
Six and Count Eight violated the “double jeopardy clause[] of the federal
constitution” because “the same firearms were on the person and in the possession of
Mr. Kalbaugh during the same incident, at the same place[,] and during the same
course of events[,] forming” the factual basis for both counts. Appellant’s Opening
Br. 13–14 (capitalization removed). Kalbaugh argues that “[t]he Blockburger test will
7
support [his] position on the issue of Double Jeopardy.” Id. at 14. On direct appeal,
the Oklahoma Court of Criminal Appeals determined that there was a “sufficient factual
distinction between the two firearm-related crimes (one for merely possessing firearms,
the other for using them in the commission of another felony) to warrant cumulative
punishments.” Kalbaugh,
2019 WL 4666360, at *7 (citations omitted); Suppl. R. at 16.
In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court
concluded that “where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.”
Id.
at 304. To convict Kalbaugh under Count Six, felonious possession of a weapon, the jury
had to conclude that Kalbaugh (1) “knowingly and willfully,” (2) possessed,4 (3) a pistol,
(4) after being convicted of a felony. Instruction No. 6-39, OUJI-CR(2d); see also Okla.
Stat. Ann. tit. 21, § 1283(A) (West 2014). And to convict Kalbaugh under Count Eight,
use of a firearm while committing a felony, the jury had to conclude that Kalbaugh was a
person who had, (1) “knowing,” (2) “willful,” (3) “possession of,” (4) a firearm or
“offensive weapon” (including knives), (5) while committing or attempting to commit the
felony, (6) satisfy the elements of the underlying felony, and (7) “possession of the
weapon was connected to the commission or” attempted commission of “the felony.”
4
Alternatively, instead of possessing a firearm on his person, Kalbaugh could
have satisfied the second element by merely operating a vehicle that had a firearm in
it. See OUJI-CR-6-39; Okla. Stat. Ann. tit. 21, § 1283(A) (West 2014).
8
Instruction No. 6-38OUJI-CR(2d); see also Okla. Stat. Ann. tit. 21, § 1287(A) (West
2014).
Thus, Count Six requires the person possessing the firearm be a felon, while Count
Eight requires that the person possessing the firearm be “committing or attempting to
commit a felony.” Compare § 1283(A), with § 1287(A). Because the statutes require
“proof of a fact which the other does not,” reasonable jurists would agree that the
district court’s decision was not debatable, so we deny Kalbaugh a COA on this
ground.
IV. Prosecutorial Misconduct
Kalbaugh next argues that his right to due process was violated because of
prosecutorial misconduct, alleging three separate instances: (1) that the prosecutor
improperly argued “other crimes” evidence, (2) that the prosecutor asked improper
questions during cross-examination, and (3) that the prosecutor made improper
statements with the sole intent of inflaming the “passions of the jury.” Appellant’s
Opening Br. 15 (capitalization removed). When a petitioner does not allege a specific
constitutional right affected by the prosecutor’s conduct, he will only be entitled to
habeas relief if the prosecutor’s conduct is so egregious that it renders the entire trial
fundamentally unfair. See Littlejohn v. Trammell, 704 F.3d 817, 837 (10th Cir. 2013)
(listing as an example “the privilege against compulsory self-incrimination, as to amount
to a denial of that right” (citing Donnelly v. DeChristoforo,
416 U.S. 637, 645 (1974)));
see also Patton v. Mullin,
425 F.3d 788, 811 (10th Cir. 2005) (listing “the presumption of
innocence or privilege against self-incrimination” as examples of “specific constitutional
9
rights”). The Oklahoma Court of Criminal Appeals concluded that there was no
prosecutorial misconduct, and the district court agreed, denying Kalbaugh relief on this
claim.
We adopt the district court’s thorough analysis and conclude that reasonable
jurists would agree that Kalbaugh’s trial was fundamentally fair. As such, he is not
entitled to relief on this claim.
V. Improper Sentence Enhancement for Same-Transaction Felonies
Kalbaugh next argues that the trial court erred by using “felonies from the same
transaction” to improperly enhance his sentences. Appellant’s Opening Br. 16–17.
Kalbaugh testified to having three prior felony convictions but argues that those felonies
were part of the same transaction and that the prosecution made improper “repeated
references to them in both the guilt and punishment closing argument,” conduct that he
alleges resulted in plain error.5 Id. at 17.
Because this argument challenges the admission of evidence, we must determine
whether reasonable jurists could debate the state court’s determination that this evidence
did not render Kalbaugh’s trial fundamentally unfair. See Payne, 501 U.S. at 825;
5
Kalbaugh also argues that his “transactional priors” error claim is also an
Equal Protections Clause violation claim, Appellant’s Opening Br. 17–18, but
because Kalbaugh raised this argument for the first time in a reply brief only, the
district court declined to address it. Kalbaugh, 2019 WL 4666360, at *10 n.6. And
because an argument raised for the first time in a reply brief is not a properly
presented argument, see Tyler v. Mitchell,
416 F.3d 500, 504–05 (6th Cir. 2005), we
decline to consider it for the first time on appeal, Stouffer v. Trammell,
738 F.3d
1205, 1221 n.13 (10th Cir. 2013) (citing Parker v. Scott,
394 F.3d 1302, 1327 (10th
Cir. 2005)).
10
Gibson, 191 F.3d at 1275. The Oklahoma Court of Criminal Appeals rejected this claim,
noting that “[o]nly two prior felony convictions were needed to achieve the sentence
ranges” for Kalbaugh’s charges and Kalbaugh’s “real complaint is that in closing
argument, the prosecutor briefly referred to three counts in one of the prior cases as
separate crimes.” Suppl. R. at 17. But Kalbaugh has five felony convictions, so the court
went on to conclude that there was no plain error. The district court agreed and denied
Kalbaugh relief on this claim. Kalbaugh,
2019 WL 4666360, at *11.
After a review of the record, we adopt the district court’s thorough analysis and
conclude that reasonable jurists would not dispute whether this evidence rendered
Kalbaugh’s trial fundamentally unfair.
VI. Improper Sentence Enhancement
For his sixth ground for relief, Kalbaugh argues that the trial court erred by
improperly enhancing his sentence for possession of an offensive weapon in the
commission of a felony (Count Eight). Because this claim raises only a state-sentencing
issue, we are generally bound by the interpretation announced by the Oklahoma Court of
Criminal Appeals. See Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir. 1994) (“We will
not second guess a state court’s application or interpretation of state law on a petition for
habeas unless such application or interpretation violates federal law.”).
The district court accepted the findings from the Oklahoma Court of Criminal
Appeals that though the “trial court’s sentence-range instruction on Count 8 was in fact
11
erroneous for other reasons, . . . that error inured to Appellant’s benefit.” Suppl. R. at 17.6
The court then concluded that “[a] conviction under § 1287 is subject to enhancement
like any other violent crime, unless all other prior convictions are for that offense as well”
and denied Kalbaugh relief on this ground. Id. The district court also determined that
Kalbaugh makes no argument rebutting “the presumption of correctness this Court
gives to the O[klahoma Court of Criminal Appeal]’s implicit factual finding that
none of his priors fell under § 1287 and, notably, the record supports [this] decision.”
Kalbaugh,
2019 WL 4666360, at *12. We see no argument that any of Kalbaugh’s
prior felony convictions fell under section 1287, thus we conclude that reasonable
jurists could not debate the district court’s determination, and we deny Kalbaugh a
COA on this issue.
VII. Jury Instructions
As his seventh ground for relief, Kalbaugh argues that the trial court made several
“instructional error[s that] denied” him his constitutional right to a fair trial. Appellant’s
Opening Br. 20–22. Kalbaugh argues that (1) the trial court erred in refusing to issue a
“lesser related offense” jury instruction, (2) the trial court erred in refusing to issue a
“cautionary other crimes” instruction and an “appropriate range of punishment” jury
instruction, and (3) “defense counsel failed to object” to the “range of punishment” jury
instruction, a derivative argument that we will address below. Id.
6
The court found that the trial court improperly instructed the jury “that the
sentence range for a conviction under § 1287, after two or more prior felonies, was
six years to life, when in fact it was twenty years to life.” Suppl. R. at 17 n.2
(citations omitted).
12
Kalbaugh’s first instructional-error claim fails to raise a constitutional error
because “[t]he Supreme Court has never recognized a federal constitutional right to a
lesser included offense instruction in non-capital cases, and neither has this court.”
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (citing Beck v. Alabama,
447 U.S.
625, 638 n.14 (1980)). Because this circuit has a “rule of ‘automatic non-reviewability’
for claims based on a state court’s failure, in a non-capital case, to give a lesser included
offense instruction,” reasonable jurists would agree Kalbaugh is not entitled to habeas
relief on this ground. See
id. (quoting Chavez v. Kerby,
848 F.2d 1101, 1103 (10th Cir.
1988)).
Kalbaugh’s second and third instructional-error claims also fail. “As a general
rule, errors in jury instructions in a state criminal trial are not reviewable in federal
habeas corpus proceedings, ‘unless they are so fundamentally unfair as to deprive
petitioner of a fair trial and to due process of law.’” Nguyen v. Reynolds, 131 F.3d 1340,
1357 (10th Cir. 1997) (quoting Long v. Smith,
663 F.2d 18, 23 (6th Cir. 1981)). And
“[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.” Henderson v. Kibbe,
431 U.S. 145, 155 (1977).
We agree with the district court that Kalbaugh fails to meet his burden of
demonstrating that failure to give either jury instruction “so infected the trial that the
resulting conviction[s] violate[d] due process.” Reynolds, 131 F.3d at 1357 (quoting
Maes v. Thomas,
46 F.3d 979, 984 (10th Cir. 1995)). So we adopt the district court’s
thorough analysis and conclude that reasonable jurists could not disagree with the
district court’s denial of this claim.
13
VIII. Ineffective Assistance of Counsel
Kalbaugh alleges four instances of ineffective assistance: (1) counsel’s failure to
object to acts of prosecutorial misconduct, (2) counsel’s failure to ask for other-crimes
jury instructions, and (3) counsel’s failure to challenge the prosecution’s use of
transactional priors. We also consider Kalbaugh’s claim that his counsel was ineffective
by failing to object to the “range of punishment” jury instruction. See Appellant’s
Opening Br. 22. Allegations of ineffective assistance of counsel are reviewed under a
two-prong standard: Kalbaugh must show that (1) trial counsel’s actions “fell below an
objective standard of reasonableness,” and that (2) these missteps “prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland is a high
standard to meet—failure to meet either prong is fatal. See
id. And appellate courts
proceed on the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.”
Id. at 689 (internal quotation marks and citation omitted). Because the
Oklahoma Court of Criminal Appeals determined that Kalbaugh failed to meet this high
bar, we ask only whether “the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s performance fell
below Strickland’s standard.”
Harrington, 562 U.S. at 101. The district court concluded
that all four allegations of ineffective assistance of counsel failed to “overcome the
‘doubly’ deferential hurdle created by Strickland and § 2254(d) to obtain habeas corpus
relief.” Kalbaugh,
2019 WL 4666360, at * 15 (citing
Harrington, 562 U.S. at 105).
14
We adopt the district court’s thorough analysis and conclude that reasonable
jurists could not disagree with the district court’s denial of this claim.
IX. Credit for Time Served
As his ninth ground for relief, Kalbaugh argues that the trial court violated his
“5th, 8th, and 14th amendment[]” rights by refusing to give him “credit for time served
which amounted to 450 days of credit.” Appellant’s Opening Br. 24. Kalbaugh argues
that this decision was in error because the trial court, at the same hearing, “gave Mr.
Kalbaugh credit for the same jail time for other sentences for which he was detained
during the same time frame.” Id. But Kalbaugh explicitly waived this claim before the
district court, so we will not consider it here. See Richison v. Ernest Grp., Inc.,
634 F.3d
1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application on
appeal . . . surely marks the end of the road for an argument for reversal not first
presented to the district court.” (citing McKissick v. Yuen,
618 F.3d 1177, 1189 (10th Cir.
2010))).
X. Cumulative Errors
Based on our determination that Kalbaugh is not entitled to a COA under Claims
One through Nine, Kalbaugh’s request for a COA under cumulative error is without
merit, so we deny him a COA.
XI. Unexhausted Claims
Kalbaugh also requests that this court consider two additional claims for relief.
But Kalbaugh removed these same two grounds from his habeas petition after the
district court ordered he “show good cause for a stay or amend his petition to delete
15
his unexhausted [state-law] claims.” Kalbaugh, 2019 WL 4666360, at *1. So we
decline to consider either issue. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a
writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State.”); Brown v. Shanks,
185 F.3d 1122,
1124 (10th Cir. 1999).
CONCLUSION
We deny Kalbaugh’s requests for a COA, to expand the record, and for
appointment of counsel, and we dismiss this matter. We grant his request to proceed in
forma pauperis.
Entered for the Court
Gregory A. Phillips
Circuit Judge
16
