Meyer v. Herman ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 25 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KENNETH RAY MEYER,
Petitioner-Appellant,
v. No. 99-6389
(D.C. No. 98-CV-434)
GEORGE HERMAN, Warden, (W.D. Okla.)
Arizona State Penitentiary;
DREW EDMONDSON,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.
Petitioner appeals the district court’s denial of his petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. 1
Petitioner was convicted by
a jury of second degree murder and his conviction and sentence were affirmed on
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
direct appeal. Petitioner contends that his conviction was unlawful on three
grounds. First, he contends that there was insufficient evidence to convict him
of second degree murder. Second, he argues that his trial counsel provided
constitutionally ineffective assistance by failing to object to the jury instruction
on second degree murder and by failing to adequately investigate and present
certain evidence at trial. Finally, petitioner contends that a combination of errors
made his trial fundamentally unfair. The district court addressed each of
petitioner’s claims on the merits and denied habeas relief.
Before petitioner can proceed on appeal, he must obtain a certificate of
appealability from this court, which requires “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Unfortunately, we cannot
review any of petitioner’s claims because petitioner, who is represented by
retained counsel, has failed to provide us with an adequate record. “This Court
will decline to consider a claim in the absence of the appropriate documents in the
record on appeal, since any discussion of such a claim would be speculation.”
United States v. Vasquez , 985 F.2d 491, 494 (10th Cir. 1993).
Petitioner’s counsel is responsible for filing an appendix “sufficient
for considering and deciding the issues on appeal.” 10th Cir. R. 30.1(A)(1).
In particular, Tenth Circuit Rule 10.1(A)(1) requires that the appendix contain
“all portions of the transcript necessary to give the court a complete and accurate
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record of the proceedings related to the issues on appeal,” and “[w]hen
sufficiency of the evidence is raised, the entire relevant transcript must be
provided,” id. 10.1(A)(1)(a). It is counsel’s responsibility to provide us with
an adequate record for our review, and we are under no obligation to remedy
counsel’s failure to do so. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979
(10th Cir. 1992).
The appendix filed by petitioner’s counsel does not contain a copy of
the trial transcript. 2
“[T]he failure to file a trial transcript precludes review of
a conviction for sufficiency of the evidence. By failing to file a copy of the trial
transcript as part of the record on appeal, the appellant waives any claims
concerning the sufficiency of the evidence at trial.” Vasquez , 985 F.2d at 495.
Likewise, we cannot review petitioner’s claim for ineffective assistance of
trial counsel without a trial transcript. To establish a claim of ineffective
assistance, petitioner must show both that his counsel’s conduct fell below an
objective standard of reasonableness and that this deficient conduct prejudiced
petitioner. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To establish
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
2
The record reflects that the district court had a copy of the trial transcript,
which it relied on in its ruling.
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been different.” Id. at 694. In the absence of a transcript, we cannot judge
whether trial counsel’s failure to object to the second degree murder jury
instruction was either erroneous or prejudicial. See King v. Unocal Corp. ,
58 F.3d 586, 587-88 (10th Cir. 1995) (ruling that court could not consider
challenge to jury instruction without complete trial transcript). Nor can we
ascertain whether petitioner was prejudiced by trial counsel’s failure to
investigate and present certain evidence at trial.
Finally, in the absence of a trial transcript, we cannot determine whether
a cumulation of alleged errors affected petitioner’s substantial rights so as to
make his trial fundamentally unfair. Cf. Allen v. Minnstar, Inc. , 97 F.3d 1365,
1372-73 (10th Cir. 1996) (concluding that even if trial court committed error,
appellate court could not determine that error affected plaintiff’s substantial
rights in absence of trial transcript).
In light of petitioner’s failure to provide an adequate record for our review,
he has not made a substantial showing of the denial of a constitutional right.
Therefore, we DENY petitioner a certificate of appealability and DISMISS the
appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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