Holbert v. Braggs ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 24, 2020
Christopher M. Wolpert
Clerk of Court
EZEKIEL HOLBERT,
Petitioner - Appellant, No. 19-6112
(D.C. No. 5:19-CV-00041-F)
v. (W.D. Oklahoma)
JEROLD BRAGGS,
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before BRISCOE, McHUGH and MORITZ, Circuit Judges.
Petitioner Ezekiel Holbert, a prisoner in Oklahoma state custody proceeding pro
se, 1 seeks a Certificate of Appealability (“COA”) to challenge the district court’s denial
of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. Holbert also moves to
proceed in forma pauperis. We deny Mr. Holbert’s motion to proceed in forma pauperis,
decline to grant a COA, and dismiss the matter.
*
This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
Because Mr. Holbert is proceeding pro se, “we liberally construe his filings, but
we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
BACKGROUND
On July 26, 2009, deputies from the Seminole County Sheriff’s Department
attempted to arrest Mr. Holbert at his mother’s home pursuant to a warrant. Moments
after they entered the residence, Mr. Holbert shot and killed two Sheriff’s deputies.
Mr. Holbert then exited his mother’s home, shot at two additional law enforcement
officers, and shot and struck Jenifer Bowen—a neighbor of Mr. Holbert’s mother.
On March 12, 2012, in exchange for the state’s promise to seek a sentence of life
without the possibility of parole rather than death, Mr. Holbert entered a guilty plea on
two counts of first-degree murder, two counts of shooting with intent to kill, and a single
count of feloniously pointing a firearm. Mr. Holbert further pleaded nolo contendere to a
single count of shooting with intent to kill.
Nearly seven months later, on October 8, 2012, Mr. Holbert commenced what
would become more than five years of litigation, culminating with the Oklahoma Court
of Criminal Appeals’ (“OCCA”) adjudication and rejection of Mr. Holbert’s claims of
constitutional error on their merits.
After the OCCA affirmed his conviction, Mr. Holbert filed the instant habeas
petition in federal district court on January 15, 2019. 2 Mr. Holbert’s petition was referred
2
Orders issued by the state courts in connection with Mr. Holbert’s conviction
characterized his appeals as proceeding variously via post-conviction and direct appeal.
Ultimately, Mr. Holbert was permitted to take an appeal out of time, which we have
found to be “part of the direct appeal process under Oklahoma law.” See Orange v.
Calbone, 318 F.3d 1167, 1170–71 (10th Cir. 2003). As a result, finality did not attach to
his conviction until the OCCA issued its order resolving Mr. Holbert’s appeal on
February 8, 2018. His habeas petition filed on January 15, 2019, is therefore timely. See
28 U.S.C. § 2244(d)(1).
2
to a Magistrate Judge, who issued a report and recommendation that Mr. Holbert’s
habeas petition be denied because “the OCCA’s [adjudication of Mr. Holbert’s claims]
was reasonable and not contrary to clearly established federal law.” ROA at 262; see
ROA at 274. On July 2, 2019, the district court adopted that report and recommendation
in full over Mr. Holbert’s objection. The district court further declined to grant Mr.
Holbert a COA.
ANALYSIS
A. Certificate of Appealability
Absent a COA, we are without jurisdiction to review a petition for a writ of habeas
corpus. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), a COA “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). When, as here, “a district court has rejected the constitutional claims
on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims.” Id. at 336.
Rather, to give effect to the statutory scheme, we undertake an abbreviated review of the
constitutional claims underlying the habeas petition when deciding whether to grant a
COA. And importantly, when, as here, the asserted grounds for habeas have been
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adjudicated on their merits by a state court, we must incorporate AEDPA deference into
our COA inquiry. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
Mr. Holbert asserts two related grounds in support of his habeas petition. First, he
contends he received ineffective assistance of counsel during the plea negotiation
process. Second, he argues that his guilty plea was involuntary because he was coerced,
by his attorneys and others, into entering such a plea. We review each ground in turn.
1. Ineffective Assistance of Counsel
Under Strickland v. Washington, 466 U.S. 668 (1984), an ineffective assistance of
counsel claim “will be sustained only when (1) ‘counsel made errors so serious that
counsel was not functioning as “counsel”’ and (2) ‘the deficient performance prejudiced
the defense.’” Johnson v. Carpenter, 918 F.3d 895, 900 (10th Cir. 2019) (quoting
Strickland, 466 U.S. at 687). Under the prejudice prong in the guilty plea context, “the
defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Before the state district court and the OCCA, Mr. Holbert asserted an array of
arguments in connection with his ineffective assistance of counsel claim, contending
generally that he would have proceeded to trial on counts carrying the death penalty but
for his defense team’s deficiency. On both factual and legal grounds, the OCCA rejected
each of his arguments, concluding that “[Mr.] Holbert has shown neither deficient
performance nor the necessary prejudice to prevail.” ROA at 214.
4
Mr. Holbert faces a decidedly uphill battle in establishing an ineffective assistance
of counsel claim on habeas review after a state court denied the same on its merits.
Indeed, in these circumstances, the claim must be rejected if “there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter,
562 U.S. 86, 105 (2011) (“The standards created by Strickland and § 2254(d) are both
‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” (citations
omitted)).
In seeking a COA, Mr. Holbert argues only that reasonable jurists could debate
whether he has established Strickland’s deficiency prong, asserting that (1) his defense
team “had an overwhelming caseload; (2) his case was not supervised; (3) proper
investigation was not conducted; (4) [his defense team] didn’t ensure the plea was
without coercion; [and] (5) [his defense team] allowed [him] to give untrue information
to the court.” Aplt. Br. at 4.
Mr. Holbert does not support these allegations with facts, and he makes no attempt
to show that the OCCA based its rejection of this claim on an unreasonable determination
of fact. Thus, Mr. Holbert has failed to make a sufficient threshold showing that (1) he
received inadequate representation during the plea negotiation process, and (2) the
OCCA’s rejection of his ineffective assistance of counsel claim “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” See § 2254(d)(2). And we perceive multiple reasonable arguments that
the performance of Mr. Holbert’s plea counsel was not deficient. For example, the
testimony of Mr. Holbert’s defense team—credited by the OCCA—illustrates that Mr.
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Holbert’s lawyers fully apprised him of all possible risks of proceeding to trial, but that
they were sufficiently prepared to try the case in the event Mr. Holbert rejected the plea
bargain and proceeded to trial without any viable “[guilt] stage defense.” App. at 250. As
a result, no reasonable jurist could debate that the combination of Strickland and
§ 2254(d) is fatal to Mr. Holbert’s ineffective assistance of counsel claim. 3 See
Harrington, 562 U.S. at 105 (“When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” (emphasis added)). Mr.
Holbert is not entitled to a COA on this claim.
2. The Voluntariness of Mr. Holbert’s Guilty Plea
Under the Fourteenth Amendment’s Due Process Clause, a defendant’s guilty plea
must be “voluntary,” which “can be determined only by considering all of the relevant
circumstances surrounding it.” Brady v. United States, 397 U.S. 742, 748–49 (1970). A
guilty plea will be found voluntary where the circumstances show that “the plea
represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.” Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S.
25, 31 (1970)).
3
Having rejected Mr. Holbert’s ineffective-assistance-of-counsel claim on the
deficiency prong, neither the OCCA nor the district court analyzed the prejudice prong,
which would have asked whether “going to trial would have been rational in light of the
objective circumstances of [Mr. Holbert’s] case.” Heard v. Addison, 728 F.3d 1170, 1184
(10th Cir. 2013). Mr. Holbert has made no attempt to show that it would have been
rational to reject a plea bargain sparing him the death penalty and proceed to trial on two
capital charges without anything resembling a viable defense.
6
Mr. Holbert alleges his plea was involuntary due to (1) a “threat” from his defense
team that his mother would be prosecuted if he proceeded to trial; 4 (2) intimidation from
members of his defense team; and (3) a threat from his sister that she would have him
killed if he went to trial. 5 The OCCA, on both factual and legal grounds, found Mr.
Holbert’s guilty plea to be voluntary:
Holbert’s attorneys and those affiliated with them engaged in frank
discussion concerning his choices and the consequences and risks of those
choices. Full disclosure of the possible ramifications of particular choices
does not equate to illegal coercion. Holbert understood his choices and
elected to enter a plea to avoid the death penalty.
App. at 213.
Mr. Holbert’s petition does little more than recite the standard from
§ 2254(d)(1)-(2) by asserting that the OCCA’s resolution of his claim was contrary to
clearly established federal law and was based on an unreasonable determination of the
facts. As to the unreasonable application of federal law, Mr. Holbert cites to Brady v.
United States, 397 U.S. 742 (1970), presumably for the proposition that guilty pleas “not
only must be voluntary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.” Id. at 748. And
4
The exposure of Mr. Holbert’s mother to criminal liability rests on the possibility
that, at the penalty phase of Mr. Holbert’s capital trial, his mother would be placed in the
position of choosing between providing information that would support application of the
death penalty or perjuring herself by contradicting police reports she had made about Mr.
Holbert’s violent behavior.
5
The alleged death threat from Mr. Holbert’s sister was predicated on the
hypothetical prosecution and conviction of his mother for perjury. Mr. Holbert asserts
that if his mother was convicted of perjury, the state would take custody of his niece and
nephew (his sister’s children) from his mother.
7
Mr. Holbert suggests the OCCA made an unreasonable determination of the facts because
“[t]he evidence shows that the Petitioner was threatened with the imprisonment of family,
the taking of custody of his niece and nephew, and the loss of his life”). ROA at 23.
Neither conclusory argument warrants a COA on this claim.
Mr. Holbert, with the assistance of counsel, presented each of his coercion
arguments to the OCCA on post-conviction review. But the OCCA concluded that the
totality of the circumstances showed that Mr. Holbert “understood his choices and elected
to enter a plea to avoid the death penalty.” ROA at 213. Because Mr. Holbert has not
shown how the OCCA’s mixed conclusion of fact and law was even minimally
erroneous, no reasonable jurist could debate that Mr. Holbert is not entitled to habeas
relief. See Owens v. Trammell, 792 F.3d 1234, 1242 (2015) (“The Supreme Court has
stressed that the relevant inquiry is not whether the state court’s application of federal law
was incorrect, but whether it was objectively unreasonable.” (internal quotation marks
omitted)). Mr. Holbert is therefore not entitled to a COA on his claim that his guilty plea
was not voluntary.
B. Motion to Proceed in Forma Pauperis
Mr. Holbert also filed a motion to proceed in forma pauperis. “In order to succeed
on his motion, an appellant must show a financial inability to pay the required filing fees
and the existence of a reasoned, nonfrivolous argument on the law and facts in support of
the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.
1991). Mr. Holbert has not met this burden; our review of the record reveals no
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nonfrivolous argument in support of his request for a COA. Accordingly, we also deny
Mr. Holbert’s motion to proceed in forma pauperis.
CONCLUSION
Because Mr. Holbert fails to establish that reasonable jurists could debate the
district court’s denial of his constitutional claims, we DENY his request for a COA and
DISMISS the matter. We also DENY Mr. Holbert’s motion to proceed in forma
pauperis.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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