Fabela v. Ward , 196 F. App'x 644 ( 2006 )


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  •                                                                        F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    August 22, 2006
    TENTH CIRCUIT                       Elisabeth A. Shumaker
    Clerk of Court
    C ECILIO P. FA BELA ,
    Petitioner-A ppellant,                    No. 06-6117
    v.                                             (W .D. Oklahoma)
    (D.C. No. CIV-05-799-L)
    RON W ARD, W arden,
    Respondent-Appellee.
    OR DER
    Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
    Cecilio Fabela, an Oklahoma state prisoner proceeding pro se, seeks a
    certificate of appealability (“COA”) to appeal the district court’s decision
    dismissing his 
    28 U.S.C. § 2254
     petition for a writ of habeas corpus. M r. Fabela
    also seeks to proceed in forma pauperis (“IFP”). In his § 2254 petition, M r.
    Fabela raised seven claims regarding denial of due process, ineffective assistance
    of counsel, and the prosecution’s failure to disclose a toxicology report favorable
    to his defense. For substantially the same reasons set forth by the district court in
    its well-reasoned order, we deny M r. Fabela’s application for a COA, deny his
    request to proceed IFP, and dismiss this matter.
    I. BACKGROUND
    M r. Fabela was charged in Oklahoma state court with first degree murder
    for the death of his wife, and was sentenced to life imprisonment without the
    possibility of parole. His conviction and sentence were affirmed on direct review.
    M r. Fabela also sought postconviction relief before the O klahoma state courts,
    which was denied.
    In his § 2254 petition, and before us, M r. Fabela raises seven propositions
    of error. He contends: (1) he was denied an impartial jury because the State
    exercised its peremptory challenges to exclude potential jurors on the basis of
    race in violation of Batson v. Kentucky, 
    476 U.S. 79
     (1986); (2) the trial court’s
    refusal to give M r. Fabela’s requested jury instructions on issues related to
    sentencing violated his Fourteenth Amendments due process rights; (3) the
    cumulative effect of various trial errors and prosecutorial misconduct denied him
    a fundamentally fair trial; (4) M r. Fabela’s sentence of life without parole is
    excessive and violates the Eighth Amendment; (5) M r. Fabela received ineffective
    assistance of trial and (6) appellate counsel; and (7) the State failed to disclose a
    toxicology report in violation of Brady v. M aryland, 
    373 U.S. 83
     (1963). M r.
    Fabela did not raise the ineffective assistance claims or the Brady claim until he
    filed his post-conviction proceedings in state court.
    The magistrate judge recommended dismissal of each of the above claims
    and recommended the denial of habeas relief. The district court adopted the
    2
    magistrate judge’s report and recommendation, and denied M r. Fabela’s
    application for a certificate of appealability. For substantially the same reasons
    provided in the magistrate judge’s thorough and well-reasoned report and
    recommendation, we reject M r. Fabela’s arguments.
    II. DISCUSSION
    A COA can issue only “if the applicant has made a substantial showing of
    the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). “A petitioner
    satisfies this standard by demonstrating 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 to deserve encouragement to proceed
    further.” M iller-El v. Cockrell, 
    537 U.S. 322
    , 327 (2003). A petitioner is entitled
    to federal habeas relief only if 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).
    W e hold that the Oklahoma Court of Criminal Appeals’ application of the
    Batson burden-framew ork was not contrary to nor an unreasonable application of
    clearly established law. See Rice v. Collins, 126 S. Ct 969, 976 (2006)
    (“Reasonable minds reviewing the record might disagree about the prosecutor's
    credibility, but on habeas review that does not suffice to supersede the trial
    3
    court’s credibility determination.”). As to the jury instructions claim, we agree
    that the Oklahoma Court of Criminal Appeals’ adjudication of this issue was not
    an unreasonable application of Supreme Court precedent. As to the cumulative
    error claim, the Oklahoma Court of Criminal Appeals’ resolution of this issue is
    subject to deference, and we agree that any trial errors did not render M r.
    Fabela’s trial fundamentally unfair, given the weight of the evidence against him.
    W e agree that the Eighth Amendment claim based on an excessive sentence
    should also be denied.
    As to the ineffective assistance of trial counsel claim, we agree with the
    magistrate judge and district court that M r. Fabela cannot show cause for his
    procedural default of this claim, not can he demonstrate that failure to consider
    the claim will result in a fundamental miscarriage of justice. See Coleman v.
    Thom pson, 
    501 U.S. 722
    , 750 (1991); English v. Cody, 
    146 F.3d 1257
    , 1259 (10th
    Cir. 1998).
    As to the ineffective assistance of appellate counsel, we agree with the
    detailed analysis of the magistrate judge that the omitted issues are meritless. See
    Rec. doc. 15 at 27-35 (M ag. Rep. and Recommendation, filed Jan. 30, 2006).
    Finally, with respect to the Brady claim, M r. Fabela alleged ineffective assistance
    of appellate counsel as cause to overcome the procedural bar. W e agree with the
    magistrate judge’s examination of the merits of this claim. M r. Fabela failed to
    demonstrate that there existed a toxicology report not disclosed by the State.
    4
    W e have carefully reviewed M r. Fabela’s brief, the magistrate judge’s
    report and recommendation, district court’s disposition, and the record on appeal.
    Nothing in the facts, the record on appeal, or M r. Fabela’s filings raises an issue
    which meets our standards for the grant of a COA. For substantially the same
    reasons set forth by the district court, we are not persuaded that jurists of reason
    would disagree with the district court’s disposition of M r. Fabela’s § 2254
    petition.
    III. CONCLUSION
    W e DENY M r. Fabela’s request for a certificate of appealability, deny his
    motion to proceed IFP, and DISM ISS the matter.
    Entered for the Court,
    Robert H. Henry
    Circuit Judge
    5
    

Document Info

Docket Number: 06-6117

Citation Numbers: 196 F. App'x 644

Judges: Briscoe, Henry, O'Brien

Filed Date: 8/22/2006

Precedential Status: Precedential

Modified Date: 8/3/2023