Ward v. Allbaugh ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
REGINALD WARD,
Petitioner - Appellant,
No. 19-5060
v. (D.C. No. 4:16-CV-00602-JHP-PJC)
(N.D. Okla.)
JOE ALLBAUGH, Director,
Respondent - Appellee.
_________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Applicant Reginald Ward, an Oklahoma prisoner proceeding pro se, was sentenced to
life imprisonment for first-degree murder. The victim was shot between seven and
eleven times in both his front and back. At trial Applicant argued that he shot the victim
in self-defense and that he at most committed manslaughter. After being instructed on
first-degree murder, the lesser charge of manslaughter by heat of passion, and self-
defense, the jury found him guilty of first-degree murder. The Oklahoma Court of
Criminal Appeals (OCCA) affirmed on direct appeal and denied postconviction relief.
Applicant then filed in the United States District Court for the Northern District of
Oklahoma an application for relief under 28 U.S.C. § 2254, which the district court
denied. See Ward v. Allbaugh, No. 16-cv-00602, 2019 WL 2422487, at *1, 9 (N.D. Okla.
June 10, 2019). Applicant now requests a certificate of appealability (COA) from this
court to enable him to appeal on the following grounds: (1) insufficient evidence to
convict him of first-degree murder, (2) failure to properly instruct the jury, (3) ineffective
assistance of counsel, and (4) error in responding to the jury during deliberations. See 28
U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under § 2254). We
deny a COA and dismiss the appeal.
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 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 court’s 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 a 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
2
of law or if the state court decides a case differently than the [Supreme] 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 Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case. Id.(internal quotation marks omitted). Thus, a federal court may not issue a habeas writ
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, “[i]n order for a state court’s decision to be an unreasonable application of this
Court’s case law, the ruling must be objectively unreasonable, not merely wrong; even
clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per
curiam) (internal quotation marks omitted). To prevail, “a litigant must show that the
state court’s ruling was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.”
Id. (ellipsis and internal quotation marks omitted).
In addition, AEDPA establishes a deferential standard of review for state-court
factual findings. “AEDPA . . . mandates that state court factual findings are
presumptively correct and may be rebutted only by ‘clear and convincing evidence.’”
Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).
Further, the Supreme Court has held that review under § 2254(d)(1), just as under
§ 2254(d)(2), “is limited to the record that was before the state court that adjudicated the
3
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n.7.
“AEDPA’s deferential treatment of state court decisions must be incorporated into our
consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d
935, 938 (10th Cir. 2004).
Two eyewitnesses testified at trial about the murder. The victim’s sister gave the
following account: Applicant and the victim were arguing on the street outside the home
of victim’s mother. The victim never threatened to shoot Applicant, nor was he armed.
Applicant and the victim eventually ceased their conversation, and the victim turned to
walk away from Applicant. She also turned to walk away but within a second heard two
pops. Applicant had shot the victim in the back. After the victim fell backward onto the
ground, Applicant crossed the street and shot him three more times before fleeing in a
vehicle driven by another man. The driver, a friend of Applicant since grade school, also
testified that the two men had been arguing but said that the victim kept his right hand in
his pocket and threatened to kill Applicant before Applicant shot him. The friend agreed
with the sister that after the victim fell to the ground, Applicant walked up to him and
shot him at least two more times. Shortly after the shooting the friend had told a
detective that Applicant shot the victim after the victim was trying to walk back and was
calming down. The friend thought the victim had a gun but did not see one.
Applicant first argues that his due-process rights were violated because the State
presented insufficient evidence to support a conviction for first-degree murder.
According to Applicant, the evidence established that he acted in self-defense or that he
was guilty of at most first-degree manslaughter under a heat-of-passion theory or
4
imperfect self-defense theory. The OCCA rejected these arguments, concluding that a
“rational trier of fact could have found [Applicant] was not acting in self defense and
further found each of the elements of Murder in the First Degree beyond a reasonable
doubt.” Ward v. State, No. F-2014-127, slip op. at 2 (Okla. Crim. App. Jan. 6, 2015).
“[O]n habeas review, a federal court may not overturn a state court decision rejecting
a sufficiency of the evidence challenge simply because the federal court disagrees with
the state court. The federal court instead may do so only if the state court decision was
objectively unreasonable.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam)
(internal quotation marks omitted). The district court’s order thoroughly explains how
sufficient evidence existed to support Applicant’s conviction. See Ward, 2019 WL
2422487, at *4–5. For essentially the same reasons articulated by the district court, we
cannot say that the state-court decision was objectively unreasonable. We add one
comment in response to Applicant’s argument that the testimony from the medical
examiner was inconsistent with the victim’s being shot initially in the back (which would
negate a claim of self-defense). The medical examiner testified that his examination was
inconclusive as to whether the victim was initially shot in the back or front. He also
testified that some bullet wounds indicated that the bullet entered the victim’s body and
ricocheted into the backside of his right arm, which would be consistent with the victim’s
being shot in the front after falling to the ground. Thus, the physical evidence did not
conclusively negate the eyewitness testimony against Applicant. No reasonable jurist
could challenge the district court’s disposition of this claim.
5
Next, Applicant argues that the state court violated his due-process rights by failing
to provide certain jury instructions: (1) under 21 Okla. Stat. § 1289.25 (2011), commonly
referred to as the “Stand Your Ground” law, and (2) on manslaughter by resisting
criminal attempt.
On the first instruction, Applicant argues that an instruction based on Oklahoma’s
“Stand Your Ground” statute was required because it is different from the self-defense
instruction that the jury received. But Applicant did not argue this proposition to the
district court in his § 2254 application. We decline to consider claims for relief not
presented to the district court. See Goode v. Carpenter, 922 F.3d 1136, 1149 (10th Cir.
2019). Therefore, we deny a COA on this ground.
As for an instruction on manslaughter by resisting criminal attempt, this court has
held that “a petitioner in a non-capital case is not entitled to habeas relief for the failure to
give a lesser-included offense instruction ‘even if in our view there was sufficient
evidence to warrant the giving of an instruction on a lesser included offense.’” Lujan v.
Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (quoting Chavez v. Kerby, 848 F.2d 1101,
1103 (10th Cir. 1988)). Accordingly, no reasonable jurist could challenge the district
court’s disposition of this claim.
Applicant next argues ineffective assistance of counsel for failing to request the jury
instructions discussed above. To prevail on claims of ineffective assistance of counsel, a
defendant must show both that his counsel’s performance was deficient—“that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment”—and that “the deficient performance prejudiced
6
[his] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “Failure to make
the required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.” Id. at 700 (emphasis added). We need not consider Applicant’s
claim of ineffective assistance of counsel for failure to request a “Stand Your Ground”
instruction, because that claim was not raised in district court. See Goode, 922 F.3d at
1149. As for ineffective assistance of counsel based on failure to request a jury
instruction on manslaughter by resisting criminal attempt, the OCCA rejected this claim
on Strickland’s prejudice prong, since “the evidence presented at trial would not permit a
rational jury to acquit [Applicant] of Murder in the First Degree in favor of finding him
guilty of the lesser offense.” Ward v. State, No. F-2014-127, slip op. at 3 (Okla. Crim.
App. Jan. 6, 2015); see Tryon v. State, 423 P.3d 617, 639 (Okla. Crim. App. 2018)
(“Mere words alone, or threats, menaces, or gestures alone . . . do not constitute adequate
provocation.” (internal quotation marks omitted)). No reasonable jurist could challenge
the district court’s disposition of this claim.
Finally, Applicant argues that his due-process rights were violated when the trial
court (1) did not allow the jury to review videotaped police interviews, and (2) merely
referred the jury to the jury instructions in response to a question about the minimum and
maximum sentence for manslaughter. The OCCA upheld both actions as within the trial
court’s discretion. We agree with the district court that there is no Supreme Court
precedent requiring juries to have unfettered access to video evidence during
deliberations, and courts commonly refer the jury back to their instructions. See Ward,
2019 WL 2422487, at *7–8. Because no Supreme Court precedent shows that the state-
7
court decisions were contrary to or an unreasonable application of clearly established
federal law, no reasonable jurist could challenge the district court’s disposition of this
claim.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
8