Maixner v. Rudek , 492 F. App'x 920 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 6, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RAYMOND DAVID MAIXNER,
Petitioner-Appellant, No. 12-6043
v. (W.D. of Okla.)
JAMES RUDEK, Warden, (D.C. No. 5:10-CV-01027-W)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Raymond Maixner, an Oklahoma state prisoner, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his habeas petition
pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a), and we construe Maixner’s filings liberally because he is proceeding pro
se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Because the district court correctly disposed of Maixner’s petition, we
DENY the application for a COA and DISMISS the appeal.
I. Background
An Oklahoma jury convicted Maixner of unauthorized use of a motor
vehicle, attempted aggravated eluding a police officer, possession of a firearm
after former conviction of a felony, and resisting arrest. He was sentenced to a
total of 33 years imprisonment. Maixner unsuccessfully appealed his convictions
to the Oklahoma Court of Criminal Appeals (OCCA).
Maixner then filed a petition for writ of habeas corpus raising three
grounds for relief: (1) the trial court failed to require the state to provide a race-
neutral explanation for the exercise of its peremptory challenges against minority
jurors in violation of Maixner’s due process rights, as determined by the United
States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986) and Powers v.
Ohio, 499 U.S. 400 (1991); (2) the state presented insufficient evidence to
support Maixner’s conviction in violation of his right to due process; and (3) the
court allowed Maixner’s involuntary statements to police to be admitted into
evidence in violation of his constitutional right to remain silent.
The matter was referred to a magistrate judge, who recommended that the
petition be denied. The district court adopted the recommendation, and this
appeal followed.
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II. Discussion
The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a
petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of
a COA. 28 U.S.C. § 2253(c)(1). To receive a COA, the petitioner must
make a “substantial showing of the denial of a constitutional right.” Id. at
§ 2253(c)(2). When, as here, a state court has adjudicated a claim on the merits, a
federal court may grant habeas relief only if the state court’s adjudication “(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court,” or (2) “resulted in a decision that was based on an unreasonable
determination of facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 404–05
(2000). A state court’s factual findings are presumed to be correct, absent clear
and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
Maixner renews on appeal three issues he raised below.
A. Batson Challenge
Maixner first argues the prosecution applied impermissible racial factors in
using peremptory challenges to strike minority jurors.
Under Batson, a defendant challenging the use of peremptory strikes during
jury selection must make a prima facie showing that the prosecutor exercised a
peremptory challenge for purposeful discrimination. Id. at 93–94. Only then
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does the burden shift to the prosecution to articulate a race-neutral reason for
striking the juror in question. Id. After reviewing the record, the OCCA found
that Maixner failed to make the requisite prima facie showing of invidious intent
at the time of his objection, and the trial court properly overruled the objections
without requiring the state to articulate a race-neutral reason for the peremptory
strikes. 1
In each of the challenged instances, it is apparent from the record that the
State struck the prospective juror for race-neutral reasons. One of the prospective
minority jurors was only 18 years old; another prospective juror described an
unsatisfactory experience with a district attorney and an untruthful police officer,
and had a cousin who had been convicted of murder. A third prospective juror
had a friend who was convicted of murder.
Maixner has not demonstrated that the OCCA’s decision was an objectively
unreasonable application of Batson. See Saiz v. Ortiz, 392 F.3d 1166, 1178 (10th
Cir. 2004) (“We may infer from the trial court’s decision not to go on to step two
of the Batson analysis (asking the prosecution to explain its peremptory strike)
that it concluded that Saiz had failed to establish a prima facie case of
discrimination . . . .”).
1
At trial, after defense counsel objected under Batson arguing that the
exclusion “appears” to be racially motivated, the “Court stated, ‘okay’ and
overruled” the objection. R., Vol. 1, at 8.
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B. Sufficiency of the Evidence
The OCCA also rejected Maixner’s claim that the evidence presented at
trial was not sufficient to support his convictions for attempted aggravated
eluding a police officer and possession of a firearm after a prior felony
conviction.
Due process protects a criminal defendant from conviction unless every
element of the crime charged is proven beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 364 (1970). Review of a jury verdict for sufficiency of
the evidence under Jackson v. Virginia, 443 U.S. 307, 319 (1979) requires that,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
Maixner alleges that the state failed to prove two elements—that he (1)
“endangered another person” (an aggravating element of attempt to elude a police
officer under Okla. Stat. tit. 21, § 540(A)(B)), and (2) failed to show, for purposes
of the charge pertaining to firearm possession, that the “weapon in this case was
capable of discharging a projectile.” R., Vol. 1, at 10.
The OCCA determined that, under Jackson, the essential elements of the
charged offenses were satisfied by sufficient evidence. First, the state presented
evidence that the officers themselves were in danger due to the high rate of speed
involved in Maixner’s attempt to elude officers. Second, under state law, whether
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or not the firearm in the suspect’s possession was capable of firing is not an
element that must be proven to sustain a conviction of possession of a firearm by
a felon. See Sims v. State, 762 P.2d 270, 272 (Okla. Crim. App. 1988)
(interpreting Okla. Stat. tit. 21, § 1283).
Both of Maixner’s challenges to the sufficiency of the evidence are
grounded in state law, and the OCCA’s interpretation of state law is binding on
this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Accordingly, the
OCCA’s decision is neither contrary to, nor an unreasonable application of
Supreme Court law.
C. Admission of Maixner’s Statements to Police
Maixner’s final challenge to his convictions is based on his claim that his
statements to police officers were inadmissible because the statements were not
knowingly or voluntarily made.
The totality of the circumstances must be considered when reviewing a
confession for voluntariness. See Withrow v. Williams, 507 U.S. 680, 689 (1993).
In response to an officer’s question, Maixner said that he was scared, had a gun,
and was a felon. Maixner asserts that he made the statements while in the
hospital “with probes still stuck in his chest from being tazed [sic] by Police, and
he had just eaten a large quantity of ice cocaine, and was beaten by police several
times . . . .” R., Vol. 1, at 12.
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The trial court held a pre-trial hearing pursuant to Jackson v. Denno, 378
U.S. 368 (1964), to determine the voluntariness of Maixner’s statements to police.
The officer who took the statements testified that Maixner was alert and did not
seem to be under the influence of alcohol or drugs. The officer also testified that
he read Maixner his Miranda rights and that Maixner waived his right to an
attorney and agreed to speak with him. Based on this testimony, the trial court
overruled Maixner’s motion to suppress the statements, finding they were
voluntary and thus admissible. After considering the totality of the
circumstances, the OCCA affirmed the trial court’s decision.
We find no fault with the OCCA’s application of Supreme Court law.
Based on our own review of the record, the OCCA adequately identified the
correct legal standard and applied it reasonably.
III. Conclusion
For all of these reasons, we DENY Maixner’s application for a COA, and
DISMISS the petition. We DENY Maixner’s motion to proceed in forma
pauperis.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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