O'Neal v. Sirmons , 288 F. App'x 535 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 6, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TRAVIS L. O’NEAL,
Petitioner - Appellant,
v. No. 08-6033
(W. D. Oklahoma)
MARTY SIRMONS, Warden; DREW (D.C. No. 5:07-CV-01090-C)
EDMONDSON, Attorney General,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Travis L. O’Neal was convicted on November 16, 2005, by an Oklahoma
state-court jury of first-degree felony murder and sentenced to life in prison. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction on
March 15, 2007. On September 27 Mr. O’Neal filed in the United States District
Court for the Western District of Oklahoma a pro se application for relief under
28 U.S.C. § 2254. The application raised the following claims for relief: (1) that
the evidence was insufficient to support a guilty verdict; (2) that trial counsel was
ineffective in not finding and utilizing a codefendant’s statement that would have
exculpated him; (3) that he was denied a fundamentally fair trial when the
prosecutor read to the jury the information, which charged a conspiracy offense
that was barred by the statute of limitations (and was dismissed on that ground
later during the trial); and (4) that the prosecutor’s reference to his street name,
“Rampage,” constituted prosecutorial misconduct and his attorney’s failure to
object to this misconduct was ineffective assistance of counsel. The district court
denied relief, adopting the magistrate judge’s Report and Recommendation. It
also denied Mr. O’Neal’s application for a certificate of appealability (COA). See
id. § 2253(c) (requiring COA to appeal denial of application). He now seeks a
COA from this court. He asserts in his application for a COA that he is
challenging the district court’s denial of all four claims in his § 2254 application.
His brief in this court, however, addresses only claims 1 and 2. Because he failed
to address the remaining claims in his brief, we do not consider them. See United
States v. Smith, No. 07–3061, 2008 WL 2814809, at *3 (10th Cir. July 23, 2008)
(“we decline to address . . . issues that were only raised summarily.”). We deny
the request for a COA and dismiss this appeal.
“A certificate of appealability may 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
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determining whether to issue a COA, a “full consideration of the factual or legal
bases adduced in support of the claims” is not required. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). Instead, the decision must be based on “an overview
of the claims in the habeas petition and a general assessment of their merits.” Id.The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes deferential standards of review for state-court factual findings and
legal conclusions. “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)). And legal conclusions are afforded substantial
deference. If the federal claim was adjudicated on the merits in the state court,
we may only grant federal habeas relief if the habeas petitioner can
establish 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.”
Id. (quoting 28 U.S.C. 2254(d)(1) and (2)). As we have stated:
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 of law or if the state court decides a case differently
than the [Supreme] Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, relief is provided
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. Thus we may not issue a
habeas writ simply because we conclude in our independent judgment
that the relevant state-court decision applied clearly established
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federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and
internal quotation marks omitted).
Mr. O’Neal’s first claim is that “the evidence to sustain a Murder 1
conviction was insufficient.” Aplt. Br. at 6. “Evidence of guilt is sufficient if
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.” Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007)
(internal quotation marks omitted). After reviewing the evidence, the magistrate
judge concluded that “the OCCA made a reasonable determination when it found
that Mr. O’Neal’s own admission to being a willing participant of the crime, by
acting as a lookout, was sufficient (with other corroborative evidence) to support
a conviction for felony murder.” O’Neal v. Sirmons, No. CIV-07-1090-C, Report
& Recommendation at 8 (W.D. Okla. Feb. 14, 2008) (brackets and internal
quotation marks omitted). In light of the deference owed under AEDPA to the
OCCA’s ruling, no reasonable jurist could debate that the district court’s decision
on this issue was incorrect.
Mr. O’Neal also contends that trial counsel’s failure to discover and
introduce at trial a tape-recorded statement of a codefendant constituted
ineffective assistance of counsel. According to Mr. O’Neal’s § 2254 application,
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the statement “exculpates [him] or in the Alternative minimizes his participation
in the event to negate guilt . . . .” R. Vol. II, Pet. for Writ of Habeas Corpus at 4.
The OCCA, however, had stated:
[E]ven taking [Mr. O’Neal’s] representations about the evidence as
true, we find nothing exculpatory in them. According to [Mr.
O’Neal’s] representations, his co-defendant’s hearsay statement
corroborated [Mr. O’Neal’s] own admissions to being a “lookout”
during the crime.
O’Neal v. State, No. F-2005-1256, slip op. at 2 n.1 (Okla. Crim. App. March 15,
2007). The magistrate judge, after reviewing the evidence, concluded that the
OCCA’s decision was reasonable and rejected the ineffectiveness claim. Again,
in light of AEDPA deference, no reasonable jurist could debate that the district
court’s rejection of this claim was incorrect.
Next, Mr. O’Neal challenges the district court’s refusal to entertain several
claims not raised in his original § 2254 application. The application stated,
“There’s other issues I wish to raise, but at this time I’m being prevented from
obtaining my trial transcripts. Issue’s like tainted and falsified evidence, I was
under the influence of drugs prescribed to me by Mental Health Officials in
Oklahoma County Jail during my trial, which allowed for me to improperly make
and not make some important decisions during my trial.” R. Vol. II, Pet. for Writ
of Habeas Corpus at 14. By letter dated October 22, 2007, he informed the court
that he had obtained evidence that he wished to present to the court. He
explained that he wanted this evidence to be “included . . . in regards to my
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ineffective assistance of counsel claim, prosecution misconduct claim, and even
more so, the Insufficient Evidence Claim.” R. Vol. II, Doc 10. On October 24
the magistrate judge entered an order permitting him to file the supporting
evidence by November 5. But Mr. O’Neal never submitted the evidence and did
not amend his § 2254 application to include the claims. Instead, in his reply to
the State’s response to his application, Mr. O’Neal raised a new ground of
ineffective assistance of counsel for failure to call as a witness the State’s
ballistics expert. Because Mr. O’Neal failed to submit the promised evidence, the
district court refused to consider any new claims. In any event, these claims were
not exhausted in state court. See 28 U.S.C. § 2254(b)(1)(A) (requiring
exhaustion). We therefore affirm the district court’s refusal to consider them.
We DENY a COA and DISMISS the appeal. We GRANT Mr. O’Neal’s
motion to proceed in forma pauperis on appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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