Thompson v. State of Oklahoma , 78 F. App'x 39 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 22 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TERRY D. THOMPSON,
Petitioner - Appellant,
No. 02-5164
v. (D.C. No. 00-CV-472-C)
(N.D. Oklahoma)
STATE OF OKLAHOMA; MIKE
MULLIN, * Warden; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT **
Before MURPHY and PORFILIO , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002. Fed. R. App. P. 43(b)(2).
**
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Terry D. Thompson appeals from the district court’s denial of his habeas
corpus petition, filed pursuant to 28 U.S.C. § 2254. He sought to raise four issues
on appeal; we granted a certificate of appealability pursuant to the requirement of
the Antiterrorism and Effective Death Penalty Act as to one. See 28 U.S.C.
§ 2253(c). On appeal, Mr. Thompson presents arguments on that issue: whether
his waiver of his right to counsel before trial was voluntary, knowing, and
intelligent. He renews his request for a certificate of appealability on the
remaining issues. We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291.
Mr. Thompson raised his waiver of counsel issue before the state court on
direct appeal from his conviction. The Oklahoma Court of Criminal Appeals
(OCCA) concluded that his waiver was voluntary, knowing, and intelligent,
relying on two state cases, Braun v. State , 909 P.2d 783 (Okla. Crim. App. 1995),
and Coleman v. State , 617 P.2d 243, 246 (Okla. Crim. App. 1980). The district
court ruled that this conclusion did not meet the deferential standards of AEDPA
and denied habeas relief on that claim. We agree, and affirm the district court’s
ruling on the issue.
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Under AEDPA, we review the OCCA’s decision to determine whether it
was contrary to, or an unreasonable application of, federal law as set out by the
Supreme Court. See Upchurch v. Bruce , 333 F.3d 1158, 1162 (10th Cir. 2003);
28 U.S.C. § 2254(d). Petitioner argues that the OCCA’s decision was an
unreasonable application of federal law. He further asserts that this court should
consider its own precedent in making this determination under AEDPA because
our cases “merely discuss[]” how Supreme Court authority on point should be
interpreted. Aplt. Supp. Br. at 10 (quotation omitted). But a review of applicable
Tenth Circuit authority demonstrates that these cases go beyond the general
pronouncements of the Supreme Court, setting out specific requirements which
must appear on the record before waiver of counsel will be considered valid.
We conclude that the OCCA’s decision, as well as the cases on which it
relies, Braun and Coleman , applies the standards for voluntary, knowing, and
intelligent waiver of counsel set out by the Supreme Court in Faretta v.
California , 422 U.S. 806 (1975) and Von Moltke v. Gillies , 332 U.S. 708 (1948).
And, following our careful review of the state court record, we cannot say that the
OCCA’s application of that law was unreasonable under the facts of this case.
See Upchurch , 333 F.3d at 1163 (“[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
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incorrectly. Rather, that application must also be unreasonable.”) (quotation
omitted).
We have reviewed the remaining issues raised before the district court,
together with petitioner’s complaint on appeal that the district court violated his
double jeopardy rights by allowing the state to respond to his habeas petition after
an earlier motion to dismiss was denied. We conclude that petitioner has not
“made a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), and deny his renewed request for a certificate of appealability on
these points. Therefore, petitioner’s “Motion to Hear Totality of Appellant’s
Opening Brief” is denied. Petitioner’s “Motion to Recuse” is also denied as moot
because the Tenth Circuit judges he seeks to recuse are not on this panel.
In sum, we AFFIRM the district court’s denial of habeas relief on the
waiver of counsel issue which was formerly granted a certificate of appealability.
We DENY a certificate of appealability on the remaining issues petitioner would
raise and DISMISS that part of the appeal. We DENY petitioner’s pending
motions.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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