Graham v. Addison , 304 F. App'x 670 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
December 19, 2008
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NEAL THOMAS GRAHAM,
Petitioner - Appellant,
v. No. 08-7071
(D. Ct. No. 6:05-CV-00322-RAW-KEW)
MIKE ADDISON, Warden, (E.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and MCCONNELL, Circuit Judges.
Neal Thomas Graham, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal from the district court’s denial of his
habeas corpus petition brought under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A).
We take jurisdiction under 28 U.S.C. § 1291, DENY Mr. Graham’s request for a COA,
and DISMISS this appeal.
I. BACKGROUND
An Oklahoma jury convicted Mr. Graham of five counts of indecent exposure and
two counts of lewd molestation of a child under sixteen years old. He was sentenced to
ten years’ imprisonment on each of the first five counts and twenty years’ imprisonment
on the last two counts, with the sentences ordered to run consecutively—a total of ninety
years. Following his direct appeal, the Oklahoma Court of Criminal Appeals affirmed his
conviction and later affirmed the denial of his state application for post-conviction relief.
Mr. Graham then filed a petition for writ of habeas corpus in federal district court,
asserting he was denied his Sixth Amendment right to effective assistance of counsel at
trial and on appeal. The district court adopted a magistrate judge’s recommendation to
dismiss Mr. Graham’s petition. Mr. Graham now seeks a COA from this court.
II. DISCUSSION
A prisoner who wishes to appeal a district court’s denial of his § 2254 petition
must first obtain a COA from a circuit court. See Miller-El v. Cockrell, 537 U.S. 322,
326–27 (2003). 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
Mr. Graham to demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in 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) (quotations omitted). Where, as here, “a district
court has rejected [a habeas petitioner’s] constitutional claims on the merits . . . [t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.To prevail on an ineffective assistance of counsel claim, a habeas petitioner must
show that his counsel’s conduct “fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that such deficient performance
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resulted in prejudice to the defense. Id. at 694. In other words, Mr. Graham must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. Mr. Graham fails to meet that
standard.1
Mr. Graham first argues that his counsel should have objected to the trial judge’s
decision to place a blackboard between Mr. Graham and the child witnesses at trial—a
decision the judge made to try to keep the young children from feeling embarrassed or
intimidated. Mr. Graham contends that because his counsel failed to insist on a hearing to
establish the need for the blackboard, Mr. Graham was denied his Sixth Amendment
1
Because several of Mr. Graham’s arguments are best characterized as
“generalized assertion[s] of error” or “mere conclusory allegations,” “we cannot fill the
void by crafting arguments and performing the necessary legal research” for him. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (quotations
omitted). These assertions and allegations are therefore waived because they are
inadequately briefed. Id. at 840 (“Although [a] pro se litigant’s pleadings are to be
construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers, [t]his court has repeatedly insisted that pro se parties follow the same rules of
procedure that govern other litigants . . . [and] the court cannot take on the responsibility
of serving as the litigant’s attorney in constructing arguments and searching the record.”)
(quotations and citations omitted).
For example, Mr. Graham asserts that his counsel was ineffective for failing to
move for DNA testing to impeach witnesses, and he asserts that his counsel failed to
consult with him about concurrent versus consecutive sentencing. But Mr. Graham
provides little more than the assertions themselves.
Mr. Graham also provides scant support for his assertion that his counsel should
have moved before trial to challenge a letter attributed to him by the prosecution. The
record shows that Mr. Graham’s counsel objected to several questions regarding the
contents of the letter, that the judge did not submit the letter to the jury, and that Mr.
Graham’s counsel moved for a mistrial based on the portions of the letter that were heard
in court. Mr. Graham’s assertion on this matter is thus unsubstantiated.
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right2 to confront witnesses testifying against him. He asserts that his counsel was
therefore constitutionally ineffective. We disagree.
As the magistrate judge noted, the district court did err by placing the blackboard
between Mr. Graham and the witnesses as a matter of policy without first making a
particularized finding as to each child that his presence would cause the child trauma that
would impair her ability to communicate. See Thomas v. Gunter, 962 F.2d 1477,
1481–82 (10th Cir. 1992) (citing Maryland v. Craig, 497 U.S. 836 (1990)). Although Mr.
Graham’s counsel did not object to this policy, Mr. Graham fails to articulate—as is his
burden—how the decision not to object “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 668. Indeed, the Respondent urges that counsel
reasonably believed an objection would have been unsuccessful or would have cast the
defense in a negative light in the eyes of the jurors.3
But even if we assume his counsel’s decision not to object was unreasonable, Mr.
Graham does not explain how that failure would have affected the outcome of his trial.
His sole assertion is that had the blackboard not been present, the young witnesses would
have been happy to see him. He does not demonstrate there is “a reasonable probability
2
The Confrontation Clause of the Sixth Amendment “guarantees the defendant a
face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487
U.S. 1012, 1016 (1988).
3
The Respondent asserts that counsel’s decision not to object constituted sound
trial strategy. We “indulg[e] in a strong presumption [that] counsel acted reasonably.
Thus, counsel’s performance will not be deemed deficient if it might be considered sound
trial strategy.” Snow v. Sirmons, 474 F.3d 693, 719 (10th Cir. 2007) (quotations omitted).
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that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Accordingly, his ineffective assistance of counsel
claim fails.
In addition, Mr. Graham’s rights under the Confrontation Clause were not violated
because his counsel cross examined the child witnesses. “The Confrontation Clause’s
functional purpose i[s] ensuring a defendant an opportunity for cross-examination.”
Kentucky v. Stincer, 482 U.S. 730, 739 (1987). Mr. Graham’s counsel did not deny him
that opportunity. The record demonstrates that his counsel competently cross-examined
the child witnesses at both a pretrial hearing and at trial. It thus cannot be said that his
conduct was constitutionally ineffective with regard to safeguarding Mr. Graham’s right
to confront the witnesses against him.
Mr. Graham also argues that his counsel was constitutionally ineffective for failing
to challenge a search warrant that derived from the testimony of an eleven-year-old child
whom Mr. Graham claims was unreliable. Mr. Graham asserts that, in light of this
witness’s alleged unreliability, there was insufficient probable cause to justify the
warrant, and the police had inadequate probable cause for arresting him. He argues that
his counsel should have filed a motion for a Franks hearing4 and a motion to suppress all
4
The Supreme Court has held that “[w]here the defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s request.” Franks v.
Delaware, 438 U.S. 154, 155–56 (1978).
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the evidence discovered at his apartment. We disagree.
We have frequently held that “[p]robable cause exists where attending
circumstances would lead a prudent person to believe there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” United States v.
Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008) (quotations omitted); see also United
States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005). Here, such attending
circumstances included not only the eleven-year-old child’s testimony but also the
corroborating testimony of a social worker with personal knowledge of Mr. Graham’s
apartment. The attending circumstances also included the opinion of the law enforcement
officer who interviewed the eleven-year-old before requesting the warrant and who had
extensive experience and training in investigating crimes against children. Mr. Graham
has made no showing that the eleven-year-old’s statements were false, or that any false
statement was used knowingly, intentionally, or with reckless disregard for the truth to
secure a warrant. Because Mr. Graham has failed to demonstrate that a motion for a
Franks hearing or a motion to suppress evidence would have been successful, he has
failed to convince us that his counsel’s conduct “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
III. CONCLUSION
Reasonable jurists could not debate that Mr. Graham has failed to present a claim
he was denied his Sixth Amendment right to the effective assistance of counsel. We
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therefore DENY his application for a COA on this issue
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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