Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
NOV 10 2003
PATRICK FISHER
Clerk
v.
STEPHEN W. KAISER,
Respondent-Appellee.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
jury trial, petitioner was convicted in Oklahoma state court of assault and battery
with intent to kill his girlfriend, Lori Davis, and was sentenced to twenty years in
prison. His conviction was affirmed by the Oklahoma Court of Criminal Appeals
(OCCA) on direct appeal. Petitioner filed an application for post-conviction
relief, which the state district court denied. Petitioner appealed, but the OCCA
declined to accept jurisdiction over the appeal because petitioner failed to provide
a certified copy of the district courts order, as required by the OCCAs local
rules. Petitioner then filed a habeas petition in federal court, raising seven
claims.
The federal district court concluded that four of petitioners claims were
procedurally barred and that the other three did not warrant habeas relief.
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petitioner had invoked his right to counsel. Order of July 17, 2002, at 1. We
also appointed counsel to represent petitioner on that claim and ordered the
parties to file supplemental briefs on several issues relating to the claim.
Having carefully reviewed the record, the parties briefs, and the pertinent
law, we conclude that petitioner is not entitled to habeas relief on the claim for
which we previously granted him a COA. We further conclude that petitioner has
not met the standard necessary to obtain a COA on any of the other claims he
seeks to appeal. We turn first to these latter claims.
Petitioner seeks a COA on the following claims: 1) he was convicted based
on perjured testimony, in violation of his due process rights; 2) he received
constitutionally ineffective assistance of both trial and appellate counsel; 3) the
evidence was insufficient to convict him; 4) the trial court failed to instruct the
jury properly not to talk about the case before deliberations; and 5) the trial court
erroneously admitted pictures of the victim that were highly prejudicial. Unless
and until we issue a COA on these claims, we have no jurisdiction to adjudicate
them on the merits.
A COA will issue only if the requirements of [28 U.S.C.] 2253 have
been satisfied. . . . [Section] 2253(c) permits the issuance of a COA only where a
petitioner has made a substantial showing of the denial of a constitutional right.
Miller-El , 537 U.S. at 336 (quotation omitted). To make this showing, petitioner
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must demonstrate 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 omitted). Accordingly,
[w]e look to the District Courts application of AEDPA
[2]
to petitioners
constitutional claims and ask whether that resolution was debatable amongst
jurists of reason.
The district court determined that petitioner procedurally defaulted the first
three of the five claims listed above by failing to properly appeal them to the
OCCA. Petitioner raised these claims for the first time in his state application for
post-conviction relief. When the trial court denied the application, petitioner
attempted to appeal it to the OCCA, but he failed to follow Rule 5.2(C) of the
Rules of the Court of Criminal Appeals, which required him to attach to his brief
a certified copy of the district court order being appealed. Because of this failure,
the OCCA declined to accept jurisdiction over the merits of his appeal.
See
Duvall v. State , 869 P.2d 332, 333 (Okla. Crim. App. 1994) (The rule is clear
and applicable. An Appellant must affirmatively attach with his brief a copy of
the order of the district court. The district court order is the equivalent of the
288 F.3d 1215, 1227 n.3 (10th Cir. 2002) (holding OCCAs declination of
jurisdiction over appeal from denial of post-conviction relief based on petitioners
failure to comply with OCCA Rule 5.2 was adequate and independent state
ground). Petitioner did not attempt to excuse the procedural default through a
showing of cause and prejudice, and the district court concluded that his showing
of actual innocence was not sufficient.
750 (1991) (holding that federal court cannot review claim procedurally defaulted
in state court absent showing of either cause and prejudice or a fundamental
miscarriage of justice);
incarceration and loss of her children if she did not testify against petitioner, and
she states that she lied on the stand. In the second affidavit, she states that
petitioner has never tried to hurt her and she expresses her belief that the wrong
person was convicted. The district court concluded that these affidavits were not
sufficient to make a threshold showing of actual innocence, for which petitioner
had to show that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence,
with others about the case before the case is submitted to them for deliberation.
See Okla. Stat. tit. 22, 854. The record shows that the trial court may not have
instructed the jury at each adjournment. On habeas review, however, we have no
power to correct errors of state law. Rather, this court may grant habeas relief
only if the state court error deprived the defendant of fundamental rights
guaranteed by the Constitution.
Cir. 2002).
The district court determined that petitioner could not establish a
constitutional violation resulting from the trial courts failure to admonish the
jury at each adjournment, absent a showing of prejudice. The only prejudice
petitioner alleged was that the jury sentenced him to the maximum prison term
available. The district court concluded that this allegation was insufficient to
establish the denial of a constitutional right. We conclude that this resolution of
petitioners claim is not debatable among reasonable jurists and that the issues are
not deserving of further proceedings. Therefore, we decline to issue petitioner a
COA on this claim.
The OCCA also rejected on the merits petitioners claim that the trial court
erred in admitting into evidence pictures of the battered victim that were highly
prejudicial. This claim also raises an issue of state law that is not ordinarily
remediable on habeas review. When, as in this case, no particular constitutional
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1021 (2002). The district court concluded that petitioner did not show that the
admission of the photographs made his trial fundamentally unfair. Because
reasonable jurists would not find this determination debatable and the issues
raised do not deserve further proceedings, we decline to issue petitioner a COA
on this issue as well.
Petitioners final claim, on which we previously granted a COA, concerns
comments the prosecutor made in his opening remarks about statements petitioner
made to the police in three different interviews. Petitioner claims that the
prosecutors comments impermissibly infringed his Fifth Amendment right to
counsel.
The evidence showed that at about 1:30 a.m. on July 9, 1996, petitioner and
Lori Davis went to a party in an apartment complex in Oklahoma City. They had
been arguing on and off throughout the day, and during the party, they went
outside to talk privately. Neither returned. Hours later, petitioner called the
police and told them he and Lori had been attacked by gang members and he had
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managed to escape; Lori had not. Petitioner said he did not know what happened
to Lori, and he asked the police for assistance in locating her. Petitioner met the
police officers at his sisters house and accompanied them to the apartment
complex to look for Lori. After searching several locations in the complex
suggested by petitioner, the officers found Lori, stabbed and badly beaten, lying
under some plywood boards that had been propped against an abandoned guard
shack. Emergency personnel rushed Lori to the hospital and the police took
petitioner to the station for questioning.
Petitioner was questioned three times by police while at the station and jail.
The first interview, which was conducted and videotaped by Detective Hull,
terminated when petitioner asked to speak to a lawyer. The second interview was
initiated by Officer Sanders, though conducted largely by Detective Hull. It, too,
was videotaped. It terminated when petitioner again stated his desire to speak to
a lawyer. The third interview, which took place in the jail, was initiated by
Detective Hull after he was told by another officer that petitioners sister had
called and said petitioner wanted to speak to him. This interview was terminated
by Detective Hull because he had other appointments. When Detective Hull
returned the next day to continue the interview, petitioner told him that his sister
had retained a lawyer for him and the lawyer had said not to speak to police
without him. Petitioner was not questioned thereafter.
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[A]n accused has a Fifth and Fourteenth Amendment right to have counsel
present during custodial interrogation.
U.S. 436, 474 (1966). Once the accused invokes his right to counsel, a valid
waiver of that right cannot be established by showing only that he responded to
further police-initiated custodial interrogation even if he has been advised of his
rights. Edwards , 451 U.S. at 484. Only if counsel is made available to the
accused or the accused himself initiates further communications, exchanges, or
conversations with the police can authorities continue to interrogate an accused
once he has invoked his right to counsel.
continue the interrogation without counsel or a valid waiver, any statements the
accused makes will be inadmissible.
Id. at 487.
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Specifically, the prosecutor said that petitioner told Detective Hull in the
first interview that he and Lori were attacked by thirteen gang members. One of
the gang members pulled out a switchblade and whispered something in Loris
ear. She then screamed at petitioner to run away because they had a gun.
Petitioner ran to the local 7-11 store, where he called 911 to report the attack. He
then called a cab and went to his sisters house, where he again called the police
hoping to find Lori.
The prosecutor told the jury that the police investigated a number of the
things that petitioner told them in the first interview, but none of them checked
out. Detective Hull then interviewed petitioner a second time and confronted him
with the inconsistencies in his story.
So [Detective Hull] interviews the Defendant and again it gets
intense and youre going to see it on the video tape. And this time he
tells him, he confronts him with the evidence that hes tried to
corroborate his story with that just doesnt match up.
And at this point, another story is brought out. And he says
that yeah, there was several people there. They were the people at
the party. And they came out and they held me and they gave her a
knife to stab me with. And I was defending myself and thats how
these injuries, thats how Lori was injured. It explains it to some
extent, but it doesnt explain the stab wounds to her back, doesnt
explain the signs of rape that were present when they got there,
doesnt explain why her body was away from the scene.
At this point Detective Hull terminates the interview and he
goes to check on the victim. Its not good, shes non-responsive.
There had been signs of rape, but they do not think that there was a
rape at this particular point. And he goes and interviews the
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outside the presence of the jury and concluded that all petitioners statements in
the second and third interviews, and any other evidence derived from those
interviews, should be suppressed because both interviews violated petitioners
Fifth Amendment right to counsel. The court precluded any further mention of
the second and third interviews, but it made no ruling on defense counsels
motion for a mistrial based on the prosecutors opening comments. The trial
proceeded, and the jury was shown the videotape of the first interview. No
evidence of petitioners statements during the second and third interviews was
introduced at trial, and the prosecutors did not mention those interviews in their
closing arguments.
On direct appeal to the OCCA, petitioner argued that the officers
solicitation of inculpatory statements from him after he had invoked his right to
counsel violated his Fifth and Fourteenth Amendment rights. Petitioner
contended that the trial court should not have allowed the prosecutor to comment
on petitioners statements, because that was a further violation of his rights, and
that the court should have granted the motion for mistrial based on those
comments.
In its brief on direct appeal, the State argued that an improper comment in
an opening statement cannot constitute reversible error under Oklahoma law
unless it was made in bad faith and was prejudicial to the defendant. The State
contended that the comments here were not made in bad faith and that, in light of
the other evidence against petitioner, they were not prejudicial. In its summary
decision on appeal, the OCCA ruled on petitioners claim as follows:
With regard to Proposition II, we find the States reference during
opening statements to the police interviews was not made in bad faith
and did not result in prejudice.
See Ledbetter v. State , 1997 OK CR
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misconduct based on the prosecutor having made statements in his opening that he
failed to prove at trial. 811 P.2d at 1328. The OCCA rejected the claim, holding
that [f]ailure to prove all remarks in opening statement in the absence of a
showing [of] bad faith and prejudice, is not grounds for reversal.
Id.
Based on the OCCAs statement that there was no evidence of bad faith and
no prejudice to petitioner here and on its citation to
appears that the OCCA treated petitioners claim as one that challenged the
prosecutors comments only because they described evidence the prosecutor later
failed to establish. In analyzing this claim, the OCCA applied a standard that
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required petitioner to show both bad faith on the part of the prosecutor and
prejudice to the outcome of the trial.
Under AEDPA, we cannot grant habeas relief on a claim that the state court
adjudicated on the merits unless we conclude that the state court adjudication
either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; 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.
28 U.S.C. 2254(d). This limitation on our review is often referred to as
AEDPA deference.
Here, we are primarily concerned with the provisions of 2254(d)(1). The
Supreme Court has held that the sections contrary to and unreasonable
application of clauses have independent meaning.
694 (2002). The Court also has explained that [a] state-court decision is
contrary to our clearly established precedents if it applies a rule that contradicts
the governing law set forth in our cases or if it confronts a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless arrives
at a result different from our precedent.
(per curiam) (quotations omitted). The state court need not cite Supreme Court
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cases nor even be aware of them, so long as neither the reasoning nor the result
of the state-court decision contradicts them.
The focus of [this] inquiry is on whether the state courts application of clearly
established federal law is objectively reasonable[;] . . . an unreasonable
application is different than an incorrect one.
Id.
The magistrate judge, whose analysis of this claim the district court
adopted, concluded that the OCCAs analysis of petitioners claim was neither
contrary to, nor an unreasonable application of, Supreme Court precedent. In
reaching this conclusion, the magistrate judge analyzed petitioners claim under
the following federal constitutional standard: whether there was a violation of
the criminal defendants constitutional rights which so infected the trial with
unfairness as to make the resulting conviction a denial of due process. Dct.
Rec., Doc. 23 at 9 (quoting
643 (1974); see also Darden v. Wainwright , 477 U.S. 168, 181-82 (1986)
(applying fundamental unfairness standard because prosecutors comment did not
implicate other specific rights of the accused such as the right to counsel or the
right to remain silent). [W]hen the [prosecutorial] impropriety complained of
effectively deprived the defendant of a specific constitutional right, a habeas
claim may be established without requiring proof that the entire trial was thereby
rendered fundamentally unfair.
U.S. at 181-82).
The proper constitutional standard under which petitioners claim should be
analyzed is whether his Fifth Amendment right to have counsel present during
custodial interrogation was impermissibly infringed when the prosecutor
described to the jury what petitioner told the police in two custodial interviews
that were initiated by police after petitioner had invoked his right to counsel.
Application of this standard requires determining whether the prosecutors
comments prejudiced petitioners Fifth Amendment right to counsel, not his right
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to a fair trial.
Cf. Torres v. Mullin , 317 F.3d 1145, 1158 (10th Cir. 2003)
reasons. First, petitioner argues that the prejudice analysis the OCCA performed
applied a standard different from that enunciated in
argues that, even if the standard the OCCA applied was akin to that of
Brecht , we
owe its determination no deference because the OCCA should have applied the
more stringent harmless error standard enunciated in
U.S. 18 (1967). Because we agree with petitioners second point, we need not
consider his first.
Under clearly established federal law, the OCCA on direct review should
have applied the Chapman harmless error standard, which requires the State to
establish that the error was harmless beyond a reasonable doubt.
also Brecht , 507 U.S. at 630. The State does not contend that the OCCA applied
this standard, and it is clear from the OCCAs opinion and the cases cited therein
that it did not. The OCCAs failure to assess the harmlessness of the
constitutional error using the
When, as here, no proper harmless error analysis took place in state court
because that court did not apply the
Court[,] . . . the habeas court is to apply the harmless error standard set out in
Brecht . Id. at 1200.
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Under the Brecht standard, a constitutional error will not warrant habeas
relief unless we conclude that it had substantial and injurious effect or influence
in determining the jurys verdict. 507 U.S. at 637 (quotation omitted). If the
evidence is so evenly balanced that we are in grave doubt about whether the error
meets this standard, we must hold that the error is not harmless.
McAninch , 513 U.S. 432, 436-37 (1995).
ONeal v.
Herrera ,
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second and third police interviews did not have a substantial or injurious effect in
determining the jurys verdict. Accordingly, petitioner is not entitled to habeas
relief on his claim that the prosecutors comments violated his Fifth Amendment
right to counsel.
Petitioners request for a COA on the five additional claims is DENIED,
and the appeal is DISMISSED as to all but petitioners claim for violation of his
Fifth Amendment right to counsel. On petitioners claim for violation of his Fifth
Amendment right to counsel, the judgment of the United States District Court for
the Western District of Oklahoma is AFFIRMED.
Michael R. Murphy
Circuit Judge
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