Brewington v. Miller, 10th Cir. (2011)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS
October 12, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
GEORGE ROBERT BREWINGTON,

Petitioner-Appellant,
No. 11-6168
(D.C. No. 5:11-CV-00111-HE)
(W.D. of Okla.)
v.
DAVID MILLER, Warden,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before OBRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
George Brewington, an Oklahoma state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district courts denial of his 28
U.S.C. 2254 petition for a writ of habeas corpus. We have jurisdiction under 28
U.S.C. 1291 and 2253(a), and we construe Brewingtons filings liberally
because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3
(10th Cir. 1991).
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
We conclude the district court correctly disposed of Brewingtons petition,

and therefore DENY the application for a COA and DISMISS the appeal.
I. Background
In September of 2007, in Guthrie, Oklahoma, a police officer went to the
apartment of Sylvia Vasquez, Brewingtons niece, for a routine welfare check.
The officer testified at trial that he knocked and announced his presence, and that
Sylvia Vasquez answered the door after some delay. After ensuring the welfare
of Vasquez and her children, the officer left without entering the apartment.
As the officer left, a neighbor signaled for him to look at the ground
outside Vasquezs window. There, the officer found several items, including drug
paraphernalia and a fanny pack containing an ID card with Brewingtons name.
While the officer inspected these items, Vasquez approached him and identified
the items as belonging to Brewington. The officer returned to Vasquezs
apartment, where he discovered Brewington and arrested him. As the officer led
Brewington to his patrol car, Brewington told Vasquez not to allow the police to
search her apartment. After additional officers arrived on the scene, Vasquez
gave them permission to search the apartment. In Vasquezs bathroom, the
officers discovered a makeup bag containing the controlled substances
methamphetamine and hydrocodone.
At Brewingtons trial, he was convicted of the Oklahoma offense of
possession of a controlled dangerous substance within 1,000 feet of a public park
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and in the presence of a minor child under 12. On direct appeal, Brewington
challenged his conviction on two grounds: (1) insufficient evidence, and (2)
ineffective assistance of counsel. The Oklahoma Court of Criminal Appeals
(OCCA) affirmed his conviction. Brewington then brought several claims for
post-conviction relief in Oklahoma court. These were denied by the state court,
and the OCCA declined to exercise jurisdiction on appeal because Brewington
had not filed his appeal within thirty days of the district court judgment as
required by OCCA rules.
II. Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a
petitioners right to appeal a denial of habeas relief under 2254 upon a grant of
a COA. 28 U.S.C. 2253(c)(1). A COA requires the applicant to demonstrate a
substantial showing of the denial of a constitutional right. 2253(c)(2).
The district court broadly construed Brewingtons petition to contain the
following four challenges to his conviction: (1) a conflict of interest between
certain judicial officers and law enforcement officials during his trial
proceedings; (2) his trial counsel was ineffective; (3) his trial counsel misled him
and did not allow him to participate in jury selection; and (4) the evidence was
not sufficient for a reasonable juror to find him guilty of drug possession.
-3-
The district court rejected the first three claims on procedural default
grounds, and the fourth claim on the merits, employing the deferential standard
required by AEDPA.
A. Procedural Default
Brewington initially brought his first three claims in state court in an
application for post-conviction relief. The state court denied the application.
Brewington appealed that decision to the OCCA, but the OCCA dismissed the
appeal because it was not filed within thirty days of the state courts denial order
as required by OCCA Rule 5.2(C)(2). After Brewington filed his habeas petition
in federal court, the district court found that his failure to comply with OCCA
procedures constituted procedural default.
We may not consider claims that have been defaulted in state court on
adequate and independent state procedural grounds unless the 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. Byrd v. Workman, 645 F.3d 1159,
1167 (10th Cir. 2011) (quoting Matthews v. Workman, 577 F.3d 1175, 1195 (10th
Cir. 2009)). A state procedural default is independent if it relies on state law,
rather than federal law. Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.
2008). A state procedural default is adequate if it is firmly established and
regularly followed. Id. As we have long recognized, OCCA Rule 5.2(C)(2) is
-4-
both an independent and an adequate state ground for default. See Duvall v.
Reynolds, 139 F.3d 768, 797 (10th Cir. 1998). Thus, Brewington's first three
claims must be dismissed unless he demonstrates either (1) cause and actual
prejudice, or (2) a fundamental miscarriage of justice if relief is not granted.
1. Cause and Prejudice
Brewingtons filings do not allege any cause for his failure to comply with
OCCA Rule 5.2(C)(2), despite the fact that his omission has been twice
highlighted. See R., Vol. 1 at 65, Response to Petition for Habeas Corpus at 19,
Brewington v. Miller, No. CIV-11-111-HE (W.D. Okla. Mar. 4, 2011), ECF No. 8
(Petitioner has not demonstrated cause as he asserts no reason for his failure to
comply with proper state procedure.); R., Vol. 1 at 19394, Order Dismissing
Post-Conviction Appeal at 12, Brewington v. Oklahoma, No. PC-2010-932
(Okla. Crim. App. Jan. 18, 2011) (If Petitioner feels he can prove he has been
denied a post-conviction appeal through no fault of his own, he should follow the
proper procedures outlined in the Rules of this Court.). Because Brewington
does not offer an explanation for his procedural default, we must find his first
three claims procedurally defaulted unless he demonstrates a fundamental
miscarriage of justice.
2. Miscarriage of Justice
The fundamental miscarriage of justice exception to procedural default is
a markedly narrow one, implicated only in extraordinary case[s] where a
-5-
constitutional violation has probably resulted in the conviction of one who is

actually innocent. Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007)
(quoting Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999)). The Supreme
Court has instructed that prisoners asserting innocence as a gateway to defaulted
claims must establish that, in light of new evidence, it is more likely than not
that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt. House v. Bell, 547 U.S. 518, 53637 (2006) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)).
Brewington has not alleged any new evidence. The only evidence he
presents is a letter from his niece, Sylvia Vasquez. The letter is addressed to
Judge Worthington, who was Brewingtons trial judge. The letter says, I feel
that I am not being completely honest if I dont state the fact that the codefendant, George Brewington, had absolutely no knowledge of the items that
were found the day of our arrest. He had merely stopped by my house at my
request to take me to the grocery store. The letter is not dated, but refers to a
future court appearance on February 21, 2008, implying the letter was written
before the date. The letter was actually attached to Brewingtons Motion to
Dismiss filed before his trial in August 2008. Thus, this evidence is not new. It
is also worth noting that Vasquez pleaded guilty to the same drug charges as
Brewington.
-6-
But even if the evidence was new, it would not demonstrate that it is more
likely than not that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt. Id. A juror reasonably could have discounted Vasquezs
credibility and given no weight to her claim that Brewington was innocent.
Because a reasonable juror could still have found Brewington guilty even in light
of Vasquezs letter, Brewington cannot demonstrate a fundamental miscarriage of
justice.
Thus, his first three claims remain procedurally barred.
B. Sufficiency of the Evidence
Brewington also argues his conviction for drug possession was based on
insufficient evidence of guilt. Because the OCCA addressed the merits of this
claim, AEDPAs deferential treatment of state court decisions must be
incorporated into our consideration of [his] request for [a] COA. Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may grant a
habeas petition on a claim that was adjudicated on the merits in state court only if
the state courts decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States, 28 U.S.C. 2254(d)(1), or was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding, 2254(d)(2). In reviewing a challenge to the
sufficiency of the evidence in a habeas petition, the relevant question is whether,
-7-
after viewing the evidence in the light most favorable to the prosecution, 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). Our review
under Jackson is sharply limited, and a court faced with a record of historical
facts that supports conflicting inferences must presumeeven if it does not
affirmatively appear in the recordthat the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution. Brown v.
Sirmons, 515 F.3d 1072, 1089 (10th Cir. 2008) (quotations and alterations
omitted).
Having reviewed the record on appeal, we cannot conclude that the OCCA
unreasonably applied Jackson in concluding the jurys verdict was based on
sufficient evidence. The arresting officer discovered Brewingtons personal
effects outside Vasquezs window alongside drug paraphernalia. The officer
testified that it took several minutes for either Vasquez or Brewington to answer
the door after he knocked. As he was arrested, Brewington became agitated and
shouted to Vasquez not to allow the police to search her apartment. Drug
paraphernalia found with the property outside the window resembled similar items
found with the drugs inside the apartment. It is undisputed that minor children
under twelve were present in the apartment, and that the apartment was within
1,000 feet of a public park. A juror could reasonably infer based on these facts
that Brewington committed the offense with which he was charged.
-8-
III. Conclusion
We GRANT Brewingtons request to proceed in forma pauperis. For the
reasons stated above, we DENY Brewingtons request for a COA and DISMISS
the appeal. We also DENY Brewingtons request to be provided with courtappointed counsel.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

October 12, 2011

GEORGE ROBERT BREWINGTON,

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before OBRIEN, McKAY, and TYMKOVICH, Circuit Judges. **

George Brewington, an Oklahoma state prisoner, seeks a certificate of

We conclude the district court correctly disposed of Brewingtons petition,

constitutional violation has probably resulted in the conviction of one who is

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