Tucker v. Wyoming Department, 10th Cir. (2013)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS May 30, 2013

TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
RICHARD ALLEN TUCKER,

Petitioner - Appellant,
No. 13-8013
(D.C. No. 2:12-CV-00250-ABJ)
(D. Wyoming)
v.
EDDIE WILSON, Wyoming
Department of Corrections State
Penitentiary Warden; GREGORY A.
PHILLIPS, Wyoming Attorney
General,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, OBRIEN, and GORSUCH, Circuit Judges.
Applicant Richard Allen Tucker, a Wyoming state prisoner proceeding pro

se, seeks a certificate of appealability (COA) to appeal the denial by the United
States District Court for the District of Wyoming of his application for relief
under 28 U.S.C. 2254. See 28 U.S.C. 2253(c)(1)(B) (requiring COA to appeal
denial of 2254 application). We deny a COA and dismiss the appeal.
I.
BACKGROUND
On the night of December 20, 2008, Applicant, his girlfriend, and his
girlfriends son left a bar, got into Applicants truck, and drove away. Less than
10 minutes later, the truck veered off the road, flipped over, and crashed into a
tree, killing Applicants girlfriend and her son. The state charged Applicant with
two counts of aggravated homicide by vehicle. At trial the state argued that
Applicant, who was drunk, was driving the truck when it crashed. Applicant
maintained that he was asleep in the backseat. The jury found Applicant guilty on
both counts.
On direct appeal Applicant argued that (1) the trial court improperly
admitted expert testimony by a law-enforcement officer who had not been
qualified as an expert, (2) there was insufficient evidence of guilt, and (3) the
trial court violated his constitutional rights by sentencing him to consecutive,
instead of concurrent, sentences for each count of aggravated homicide. The
Wyoming Supreme Court affirmed the conviction, see Tucker v. Wyoming, 245
P.3d 301 (Wyo. 2010), and Applicant unsuccessfully sought postconviction relief
in state court.
Applicant then filed a 2254 application in federal district court, raising
the following arguments: (1) the prosecution presented an inaccurate time-line
at trial to support its theory that Applicant was driving the vehicle at the time of
the accident, R., Vol. 1 at 46; (2) the prosecution untimely disclosed DNA
evidence, the evidence was inaccurate, and defense counsel did not conduct an
independent DNA test; (3) the prosecution made false statements to the jury and
presented false testimony, id. at 62; (4) defense counsel failed to conduct a
-2-
proper investigation and call expert or lay witnesses to testify on his behalf; (5)
the state trooper who investigated the crash provided expert testimony even
though he was not qualified as an expert; (6) the trial court admitted into evidence
inflammatory, gruesome photographs of the accident and irrelevant testimony
about the location of the victims bodies; (7) the trial court unconstitutionally
imposed consecutive rather than concurrent sentences; and (8) trial and appellate
counsel were ineffective in failing to raise his issues at trial and on appeal.
Ruling that Applicants claims were procedurally barred, the district court
dismissed the petition and denied a COA.
Applicant appeals, raising the same arguments. We examine them in turn,
addressing them on the merits because the procedural questions are problematic
and the substantive claims can be disposed of readily. Cannon v. Mullin, 383
F.3d 1152, 1159 (10th Cir. 2004).
II.
DISCUSSION
A.
Standard of Review
We construe Applicants pleadings liberally because he proceeds pro se.

See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A COA will issue
only if the applicant has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. 2253(c)(2). This standard requires a
demonstration that . . . includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
-3-
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)
(internal quotation marks omitted). In other words, the applicant must show that
the district courts resolution of the constitutional claim was either debatable or
wrong. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
provides that when a claim has been adjudicated on the merits in state court, a
federal court can grant habeas relief only if the applicant establishes that the
state-court 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. 28 U.S.C.
2254(d)(1), (2). As we have explained:
Under the contrary to clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal
quotation marks omitted). Relief is provided under the unreasonable
application clause only if the state court identifies the correct governing legal
principle from the Supreme Courts decisions but unreasonably applies that
principle to the facts of the prisoners case. Id. (brackets and internal quotation
-4-
marks omitted). Thus, a federal court may not grant habeas relief simply because
it concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. See id. Rather,
that application must have been unreasonable. Moreover, 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).
B.
The Merits
1.
Inaccurate Timeline, DNA Evidence, and False Statements

and Testimony
Reasonable jurists would not debate the denial of Defendants first three
claims because he makes no showing of how he was prejudiced or what specific
errors occurred. First, although he asserts that discrepancies in the time line
presented by the state undermined its theory that he was the driver, Aplt. Br. at 8,
he does not articulate what the inaccuracies were. Second, he has not explained
how the timing of the states disclosure of DNA evidence prejudiced his defense,
how that evidence was misleading or inaccurate, or why a second DNA test
(unlike the first) would have exculpated him. And third, he has not identified any
specific false statements or testimony.
2.
Failure to Call Defense Experts and Other Witnesses
Applicant asserts that his counsel was ineffective because he failed to call
an accident-reconstruction specialist and a blood-splatter expert to testify in
-5-
support of his defense that he was not driving the truck when it crashed. And he
argues that defense counsel should have called other lay witnessesthe doctors
who measured his blood-alcohol level, the emergency workers at the accident
scene, and the owner of the bar where he had been drinkingwho would have
testified that Applicant was not the driver.
To establish a claim of ineffective assistance of counsel, Applicant first had
the burden of overcoming a strong presumption that counsels conduct falls
within the wide range of reasonable professional assistance, Strickland v.
Washington, 466 U.S. 668, 689 (1984), by demonstrating that his counsels
performance fell below an objective standard of reasonableness, id. at 688.
Second, Applicant had to demonstrate that there is a reasonable probability that,
but for counsels unprofessional errors, the result of the proceeding would have
been different. Id. at 694. We may consider the performance and prejudice
prongs in either order; and if Applicant fails to meet his burden on one prong, we
need not consider the other. See id. at 697.
Defendant clearly fails on the prejudice prong because he has made no
showing (only bald assertions) that the testimony of any of these witnesses would
have assisted him.
3.
Admission of Expert Testimony by Lay Witness
Applicant challenges the admission of testimony by the state trooper who

investigated the accident that Applicants girlfriend and her son were in the
-6-
trucks passenger seats when it crashed. But the Wyoming Supreme Court ruled
that admission of the testimony was harmless error. See Tucker, 245 P.3d at 309.
No reasonable jurist would debate that the state courts ruling was contrary to or
an unreasonable application of federal law.
4.
Inflammatory Photographs and Testimony
Applicant challenges the admission of gruesome, inflammatory and

confusing photographs depicting the accident and the victims bodies, which had
been ejected from the truck by the force of the crash. Aplt. Br. at 25. He also
challenges as irrelevant the state troopers testimony about the location of the
bodies.
Rejecting Applicants petition for postconviction relief, the state trial court
wrote:
[T]he photographs in this case were relevant: to prove who was
driving that night; to corroborate the testimony of witnesses who saw
where the victims were located that night when Petitioner drove away
from the bar; to corroborate the testimony of the witness who was the
first person on the scene with that of law enforcement officers as to
where the victims were located at the scene; to compare the victims
injuries to Petitioners injuries as to prove who was driving; and, to
assist the jury with understanding the coroners testimony regarding
the identity of the victims and their causes of death. Petitioner
provides no evidence suggesting that the photographs were admitted
for any improper or prejudicial purpose. Petitioners counsel used
the photographs to cross-examine witnesses regarding who was
driving that night.
This Court finds that the photographs offered during trial were
relevant and they: did not arouse the jurys emotions, hostility, or
sympathy; did not create a side issue that unduly distracted the jury
-7-
from the main issues; did not consume an undue amount of time; and,
Petitioner was not unfairly surprised and unprepared to meet the
admission of the photographs. Therefore, not only were the
photographs relevant, but their probative value was not substantially
outweighed by the danger of unfair prejudice.
R., Vol. 1 at 2425 (citation omitted). The Wyoming Supreme Court denied
review. No reasonable jurist would debate that the state courts ruling was
contrary to or an unreasonable application of federal law. Nor can we perceive
any possible impropriety in the testimony about the location of the bodies.
5.
Consecutive Sentences
Applicant challenges the state courts imposition of consecutive sentences

as subjecting him to double jeopardy and cruel and unusual punishment because
the sentences were based on two deaths from a single accident. But he cites no
authority supporting his claim that the sentence was unconstitutionally harsh.
And no reasonable jurist would dispute the Wyoming Supreme Courts holding
that the consecutive sentences did not subject Applicant to double jeopardy
because the aggravated vehicular homicide statute includes as many separate
offenses as there are individuals affected by the defendants conduct. Tucker,
245 P.3d at 313.
6.
Ineffective Assistance of Trial and Appellate Counsel
Applicant argues that ineffective assistance by his trial and appellate

counsel prevented him from raising various meritorious claims on appeal. But
this argument clearly lacks merit because we have held that the underlying issues
-8-
are meritless. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) ([I]n
analyzing an appellate ineffectiveness claim based upon the failure to raise an
issue on appeal, we look to the merits of the omitted issue . . . . [I]f the issue is
meritless, its omission will not constitute deficient performance. (internal
quotation marks omitted)). Applicant contends that appellate counsel should have
filed a motion to remand for an evidentiary hearing or moved for a continuance
after replacing previous counsel late in the appellate proceedings. But he does
not explain what new facts should have been developed or how the late
replacement rendered appellate counsels representation defective.
III.
CONCLUSION
We DENY a COA and DISMISS the appeal. We DENY Applicants
motion to proceed in forma pauperis (IFP) as moot because the district court has
already granted him IFP relief.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-9-

Tucker v. Wyoming Department, 10th Cir. (2013)

Uploaded by

Copyright:

Available Formats

Tucker v. Wyoming Department, 10th Cir. (2013)

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tucker v. Wyoming Department, 10th Cir. (2013)

Uploaded by

Copyright:

Available Formats

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS May 30, 2013

RICHARD ALLEN TUCKER,

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, OBRIEN, and GORSUCH, Circuit Judges.

Applicant Richard Allen Tucker, a Wyoming state prisoner proceeding pro

We construe Applicants pleadings liberally because he proceeds pro se.

a different manner or that the issues presented were adequate to deserve

Inaccurate Timeline, DNA Evidence, and False Statements

Failure to Call Defense Experts and Other Witnesses

Admission of Expert Testimony by Lay Witness

Applicant challenges the admission of testimony by the state trooper who

Inflammatory Photographs and Testimony

Applicant challenges the admission of gruesome, inflammatory and

Applicant challenges the state courts imposition of consecutive sentences

Ineffective Assistance of Trial and Appellate Counsel

Applicant argues that ineffective assistance by his trial and appellate

You might also like