Christian v. Farris , 701 F. App'x 717 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 7, 2017
FOR THE TENTH CIRCUIT
_________________________________ Elisabeth A. Shumaker
Clerk of Court
GEORGE A. CHRISTIAN,
Petitioner - Appellant,
No. 17-6069
v. (D.C. No. 5:13-CV-01325-C)
(W.D. Okla.)
JIM FARRIS, Warden,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
George Christian, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas
application. He also seeks leave to proceed on appeal in forma pauperis (IFP). See
28 U.S.C. § 1915(a). We deny his COA application, deny his request for IFP status, and
dismiss this matter.
I
An Oklahoma jury convicted Christian of first-degree manslaughter, pointing a
firearm at another, and possessing a firearm after former conviction of a felony. On the
*
This order isn’t binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. But it may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
We liberally construe pro se pleadings. But we do not act as an advocate for pro
se litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
jury’s recommendation, the trial court imposed concurrent prison sentences of 36, 25, and
20 years. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Christian’s
convictions and sentences on direct appeal. The OCCA also affirmed the state district
court’s denial of Christian’s subsequent application for post-conviction relief.
Christian then filed the underlying § 2254 habeas application, alleging eight
grounds for relief: (1) the trial court erred in failing to instruct the jury on voluntary
intoxication; (2) the trial court imposed an excessive sentence; (3) his trial counsel was
ineffective for failing to investigate and present a self-defense strategy; (4) the trial court
erred in denying his request for new trial counsel; (5) the trial court erred “in denying
[his] motion for [a] (Stand Your Ground) defense,” R. 24; (6) cumulative error deprived
him of a fair trial; (7) irrelevant jury instructions and the prosecutor’s misleading
argument erroneously informed the jury that he lacked a legal self-defense theory; and
(8) he was legally authorized to use deadly force and therefore was immune from
prosecution. Additionally, in what appears to be a ninth ground for relief, Christian
alleges that his appellate counsel rendered ineffective assistance during his direct appeal
by failing to raise the issues he identified in Grounds Three through Eight of his habeas
application.
In a thorough report and recommendation, the magistrate judge considered the
merits of each asserted ground for relief. Before doing so, the magistrate judge noted that
Christian exhausted Grounds One and Two through his direct appeal and Grounds Three
through Eight—including the ineffective-assistance-of-counsel claim asserted in
conjunction with each of those grounds—through his application for state post-conviction
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relief.2 Ultimately, the magistrate judge recommended denying Christian’s request for an
evidentiary hearing and denying his habeas application.
The district court adopted the magistrate judge’s report and recommendation over
Christian’s objections and denied his habeas application. The court subsequently denied
Christian’s request for a COA and his motion to proceed on appeal IFP.
II
Christian now asks us to grant a COA. To obtain a COA, Christian must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Because the district court considered the merits of each of Christian’s claims, Christian
must make this showing by “demonstrat[ing] that reasonable jurists would find the
district court’s assessment of [his] constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). But it isn’t clear whether Christian seeks review of
the district court’s assessment of all, or only some, of his claims.
In one section of his combined brief and COA application, Christian suggests that
the district court denied his habeas application on procedural grounds. He then cites three
cases from the United States Court of Appeals for the Ninth Circuit involving the denial
of habeas relief on procedural grounds and asserts that because “all eight of [his] claims
2
As the magistrate judge noted, the state courts concluded that “portions of
Grounds Three through Eight were procedurally barred.” R. 777. Specifically, the OCCA
didn’t reach the merits of Christian’s claims that the trial court violated his constitutional
rights by (1) refusing to appoint new trial counsel (Ground Four), and (2) refusing to
instruct the jury on a stand-your-ground defense (Ground Five). Nonetheless, the
magistrate judge determined that it would be appropriate to bypass the procedural bar,
review those claims de novo, and reject those claims on the merits. See Smith v.
Duckworth, 824 F.3d 1233, 1242 (10th Cir. 2016) (explaining that habeas court “retains
discretion to bypass the procedural bar and reject the claim on the merits” when court can
easily dispose of claim on substantive grounds).
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clearly and expressly allege on their face a violation of [his] federal constitutional rights,”
Aplt. Br. 17, “a COA must issue on all eight of the claims contained in the petition.” Id.
at 18.
But in two other sections of his combined brief and COA application, Christian
seems to identify only two issues for which he seeks a COA. Specifically, he contends
that reasonable jurists could debate (1) the district court’s assessment of his ineffective-
assistance-of-appellate-counsel claim, and (2) its refusal to grant an evidentiary hearing
on one aspect of that claim. And at one point, Christian appears to further narrow his
COA request to only the latter issue, “namely[,] that the district court erred by failing to
grant [him] an [e]videntiary [h]earing on his sub-claims that related to the constitutionally
ineffective assistance of appellate counsel to trial counsel’s deficient investigation.” Aplt.
Br. 20.
Thus, broadly construed, Christian appears to identify both a broad and a narrow
COA request. We address both here.
A
First, to the extent Christian broadly requests a COA on all of his claims, we deny
that request because it rests on his misunderstanding that the district court denied his
habeas application on procedural grounds. Christian relies on a trio of cases from the
Ninth Circuit—Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000), Petrocelli v.
Angelone, 248 F.3d 877 (9th Cir. 2001), and Valerio v. Crawford, 306 F.3d 742 (9th Cir.
2002) (en banc)—to argue that we should grant a COA on each of his claims. He asserts
he has made the requisite showing for a COA because a “quick look” at his petition
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reveals that “all eight of [his] claims clearly and expressly allege on their face a violation
of [his] federal constitutional rights.” Aplt. Br. at 17; see, e.g., Petrocelli, 248 F.3d at 885
(noting that when district court dismisses habeas petition on procedural grounds, court of
appeals, in deciding whether to grant COA, “will simply take a ‘quick look’ at the face of
the complaint to determine whether the petitioner has ‘facially allege[d] the denial of a
constitutional right’” (quoting Lambright, 220 F.3d at 1026)). We apply this same
analysis. But—like the Ninth Circuit—we do so only when the district court dismisses a
habeas application on procedural grounds. See Gibson v. Klinger, 232 F.3d 799, 802-03
(10th Cir. 2000).
Here, the district court didn’t deny habeas relief on procedural grounds; it
addressed and rejected each of Christian’s claims on the merits. Contrary to Christian’s
argument, this means that he must do more than “facially allege[]” a constitutional
violation to obtain a COA on each claim. Aplt. Br. 17. Rather, he must show that
reasonable jurists could debate the correctness of the district court’s assessment of each
of his constitutional claims. Slack, 529 U.S. at 484. Because Christian fails to
demonstrate, or even argue, that he satisfies this standard for issuance of a COA on each
claim, we deny his broad request for a COA on Grounds One through Eight.
B
Next, Christian asserts that reasonable jurists would debate the correctness of the
district court’s ruling with respect to two issues: (1) the district court’s assessment of his
ineffective-assistance-of-appellate-counsel claim and (2) its refusal to grant an
evidentiary hearing on one aspect of that claim.
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In his habeas petition, Christian alleged that his appellate counsel was ineffective
for failing to argue on direct appeal that (1) his trial counsel was ineffective for failing to
investigate and present his self-defense theory; (2) the trial court erred in denying his
request for substitute trial counsel; (3) the trial court erred in denying his motion for a
jury instruction on the stand-your-ground defense; (4) cumulative error deprived him of a
fair trial; (5) irrelevant jury instructions and the prosecutor’s misleading arguments
erroneously conveyed to the jury that he wasn’t legally entitled to act in self-defense; and
(6) his “absolute right to use lethal force” made him “immune from [p]rosecution,” Aplt.
Br. 32.
As the district court noted, the OCCA adjudicated Christian’s ineffective-
assistance-of-appellate-counsel claim on the merits. In doing so, the OCCA applied
Strickland v. Washington, 466 U.S. 668 (1984), and determined that Christian failed to
demonstrate either (1) that appellate counsel’s performance was deficient or (2) that “the
result of his . . . appeal would have been different but for appellate counsel’s alleged
failure to raise [his asserted claims] on direct appeal.” R. 513; see Strickland, 466 U.S.
at 687 (stating that two-prong test for ineffective-assistance-of-counsel claim requires
prisoner to demonstrate deficient performance and prejudice); see also Cargle v. Mullin,
317 F.3d 1196, 1202 (10th Cir. 2003) (“The proper standard for assessing a claim of
ineffectiveness of appellate counsel is that set forth in Strickland . . . .”).
Thus, the district court’s task was to determine whether the OCCA’s adjudication
of his ineffective-assistance-of-appellate-counsel claim “resulted in a decision that was
contrary to, or involved an unreasonable application of” Strickland, 28 U.S.C.
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§ 2254(d)(1), or “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,”
§ 2254(d)(2).
Christian asserts that reasonable jurists could debate the district court’s
determination that the OCCA’s adjudication of his ineffective-assistance-of-appellate-
counsel claim was neither contrary to, nor involved an unreasonable application of,
Strickland. But he fails to support this assertion with any argument. He doesn’t discuss
Strickland, the OCCA’s application of it, or the district court’s assessment of his Sixth
Amendment claim. Instead, he simply asserts appellate counsel was ineffective and lists
his “sub-claims,” i.e., Grounds Three through Eight from his habeas petition. Despite the
more forgiving standards that apply to pro se litigants, his briefing on this point is
deficient and we could deem the argument waived. See Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 841 (10th Cir. 2005) (finding pro se plaintiff waived appellate
review through inadequate briefing).
But even if we exercise our discretion to overlook his deficient briefing, see
United States v. Montgomery, 550 F.3d 1229, 1231 n.1 (10th Cir. 2008), we find no basis
on which to grant a COA. We’ve reviewed the state record, the OCCA’s decision, and the
district court’s decision. Based on that review, we conclude that reasonable jurists
wouldn’t debate the district court’s assessment of Christian’s ineffective-assistance-of-
appellate-counsel claim. Thus, we deny his request for a COA on that claim.
Finally, Christian asserts that reasonable jurists could debate the correctness of the
district court’s denial of his request for an evidentiary hearing. Specifically, he argues
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that the district court should have held an evidentiary hearing because he “has alleged
facts which[,] if true, establish a basis for relief on [his] claim that his appellate counsel
was ineffective in failing to raise the omitted issue that trial counsel failed to conduct a
reasonable pre-trial investigation on direct appeal.” Aplt. Br. 22.
But as we’ve discussed, the OCCA adjudicated Christian’s ineffective-assistance-
of-appellate-counsel claim on the merits. Thus, before the district court could consider
granting an evidentiary hearing on that claim, or any particular aspect of that claim, it had
to decide whether Christian could “overcome the limitation of § 2254(d)(1) on the record
that was before that state court.” Cullen v. Pinholster, 563 U.S. 170, 185 (2011). Because
we agree with the district court’s conclusion that Christian failed to overcome that
limitation, we further conclude that the district court didn’t err in denying his request for
an evidentiary hearing. See id. at 184 (holding “that evidence later introduced in federal
court is irrelevant to § 2254(d)(1) review”). Thus, to the extent Christian requests a COA
on this issue, we deny his request.
* * *
Because Christian hasn’t made the requisite showing to obtain a COA, we deny
his COA application and dismiss this matter. As a final matter, we deny as moot his
motion for IFP status.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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