FRANKLIN L. GRAMMER, JR., Petitioner - Appellant,
M. SAUERS, Warden, Ellsworth Correctional Facility; ATTORNEY GENERAL STATE OF KANSAS, Respondents - Appellees.
No. 5:16-CV-03170-EFM) (D. Kan.)
PHILLIPS, McKAY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Terrence L. O'Brien United States Circuit Judge
2009, Franklin L. Grammer, Jr., killed his ex-wife, Betty
Grammer (Betty). On that day, she was painting a house in
Johnson County, Kansas, with Jeff Robinson and Samuel Shanks.
Grammer walked up to her, put her in a headlock, and shot her
in the head. He then walked across the front yard of the
residence holding the gun in a ready position apparently
looking for Robinson and Shanks. He never found them: they
had fled the scene and hid. He left and was later apprehended
was initially charged in state court with the premediated
first-degree murder of Betty. He eventually pled guilty to
second-degree murder of Betty (Count 1) and no-contest to
attempted first-degree murder of Shanks (Count 2). He
requested a sentence of 240 months in prison, a downward
departure from the presumptive sentence of 294 months. The
sentencing judge denied that request and sentenced him to 294
months imprisonment. Grammer appealed from that denial. The
Kansas Court of Appeals dismissed the appeal for want of
jurisdiction, concluding it lacked authority to review his
sentence because the sentencing judge had imposed the
presumptive term of imprisonment for the crimes. See
State v. Grammer, No. 104, 862, 2011 WL 3558314, at *1
(Kan.Ct.App. Aug. 12, 2011) (unpublished) (citing Kan. Stat.
Ann. § 21-4721(c)(1) (appellate court shall not review
any sentence within the presumptive sentencing range for the
filed a motion for post-conviction relief under Kan. Stat.
Ann. § 60-1507. He argued: (1) there was an insufficient
factual basis to support his conviction on Count 2 and (2)
his appellate counsel was ineffective for failing to raise
this issue on direct appeal. After holding an evidentiary
hearing, the trial court denied the motion. The Kansas Court
of Appeals affirmed. See Grammer v. State, No. 111,
967, 2015 WL 5036829 (Kan.Ct.App. Aug. 21, 2015)
concluded the proffer made by the State at the change of plea
hearing "clearly and sufficiently supported a factual
basis for Grammer's plea of no-contest to attempted
first-degree murder with Shanks as the victim."
Id. at *7. That proffer noted Shanks had witnessed
Betty's murder and had run from the residence believing
he would be the next victim. Id. at *2. It also
explained that the residents of the house being painted saw
Grammer walk across their front yard holding the handgun
"in a ready position as if he was looking for other
people." Id. (quotation marks omitted). One of
the owners also said that based on Grammer's demeanor, it
looked as though he was pursuing the other painters to do
them harm. Id.
court also decided appellate counsel's performance was
not deficient under Strickland v. Washington, 466
U.S. 668 (1984). Id. at *6. It concluded
"appellate courts lack jurisdiction to review challenges
to the factual basis for a plea when, as in this case, the
defendant has failed to file a motion to withdraw plea [with]
the [trial] court." Id. at *6. As a result, had
appellate counsel raised the factual basis issue on appeal,
the appellate court would have dismissed it. Id.
Appellate counsel had no obligation to raise a meritless
issue. Id. The Kansas Supreme Court denied review on
June 21, 2016.
pro se 28 U.S.C. § 2254 habeas petition raises the same
claims as those raised in his state petition for
post-conviction relief. The district judge denied relief,
concluding the Kansas Court of Appeals' decision was
neither (1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States"
nor (2) "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). He also denied a
certificate of appeal ability (COA). Grammer renews his
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue 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). He
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, 529 U.S. 473, 484
(2000) (quotation marks omitted). He has not met his burden.
continues to contest the factual basis for his no-contest
plea to Count 2, arguing he never attempted to murder
anyone. He calls the State's story that he did
a "blatant lie." (Appellant's Form COA
Application at 2.) He points out that the attempted murder
charge was not an original charge and he was only charged
with it as part of his plea bargain, which did not occur
until a year after the proceedings commenced. According to
him, "if an actual Attempted Murder had occurred then no
law-abiding [District Attorney] would have failed to file
those charges from the very beginning." (Id. at
4.) He claims (correctly) that he raised this issue in the
district court but the judge never addressed it. He also
provides for the first time in his COA application witness
statements taken the day of the incident and his own
affidavit which, he claims, refute his attempted murder
record reveals the attempted murder charge occurred as the
result of plea negotiations. Grammer was originally charged
with the premediated first-degree murder of Betty, which
carried a potential sentence of life imprisonment.
See http://www.jococourts.org/CrRoa.aspx (Case No.
09-CR-01462) (June 10, 2009). Initially, the State refused to
allow him to plead to lesser charges. See Grammer,
2015 WL 5036829, at *5. However, it eventually decided to
allow Grammer to plead to lesser charges so long as they
produced a sentence close to 25 years imprisonment.
Id. The parties agreed to amend the charges to the
second-degree murder of Betsy and the attempted first-degree
murder of Shanks. Id. That Grammer was not
originally charged with the attempted murder of Shanks does
not undermine his attempted murder conviction. Plea
negotiations frequently result in defendants pleading guilty
to charges different than those originally charged. And those
negotiations often do not occur until later in the
did not produce the witness statements or his affidavit in
the district court. We would normally not consider them.
See John Hancock Mut. Life Ins. Co. v. Weisman, 27
F.3d 500, 506 (10th Cir. 1994) (noting we ordinarily do not
consider evidence offered for the first time on appeal).
Nevertheless, even considering them, they do not help him.
points to Shanks' and Robinson's statements to the
police that they had both hid from Grammer and had not been
chased. But the fact both victims were able to avoid harm
does not refute Grammer's attempted murder
conviction. The factual basis for Count 2 was based in large
part on the observations of the residents of the house being
painted. Grammer accuses one of the residents of being
"a liar." (Appellant's Form COA Application,
Ex. J.) But he conveniently ignores the fact that he agreed
with the factual basis at the change of plea hearing and pled
no-contest to Count 2, completely contrary to his affidavit
now alleging he did not attempt to murder anyone. While he
claims for the first time in his COA application that his
trial counsel coerced and manipulated him to plead to and
agree with the factual basis of Count 2, we do not consider
this claim because he never raised it with the state courts
or with the district court. See 28 U.S.C. §
2254(b)(1) (requiring a § 2254 petitioner to first
exhaust available state court remedies); Parker v.
Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (declining
to consider ...