Hamburger v. Allbaugh , 679 F. App'x 665 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2017
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Elisabeth A. Shumaker
Clerk of Court
ISAIAH C. HAMBURGER,
Petitioner - Appellant,
v. No. 16-6281
(D.C. No. 5:13-CV-00921-F)
JOE M. ALLBAUGH, Director, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Isaiah Hamburger seeks a certificate of appealability (“COA”) to challenge the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and
dismiss the appeal.
Hamburger was convicted in Oklahoma state court of lewd acts with a child
under twelve. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his
conviction on direct appeal. Hamburger filed a § 2254 petition in the district court
raising several grounds for relief. The district court denied the petition and declined
to grant a COA. Hamburger now seeks a COA from this court.
*
This order is not binding precedent, except under the doctrines of law of the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.
A petitioner may not appeal the denial of habeas relief under § 2254 without a
COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy
this standard, Hamburger must show “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) (quotations omitted).
To obtain relief under § 2254, a petitioner must show that state court adjudication
either “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented” or was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1), (2).
Hamburger argues that the trial court improperly admitted a recording of a
forensic interview of the victim. To the extent that this argument is based on an
alleged violation of Okla. Stat. tit. 12, § 2803.1, which requires a finding of
reliability of child victim statements prior to admission, such a claim is not
cognizable under § 2254. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal
habeas corpus relief does not lie for errors of state law.”). Instead, we look only to
whether a claimed evidentiary error was “so grossly prejudicial that it fatally infected
the trial and denied the fundamental fairness that is the essence of due process.”
Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (quotation and alteration
omitted).
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The Supreme Court has identified several factors relevant in determining
whether a child victim’s interview is sufficiently reliable. Idaho v. Wright, 497 U.S.
805, 821-22 (1990) (identifying “spontaneity and consistent repetition,” “mental state
of the declarant,” “use of terminology unexpected of a child of similar age,” and
“lack of motive to fabricate”) abrogated on other grounds by Crawford v.
Washington, 541 U.S. 36, 68-69 (2004). The OCCA reasonably weighed these
factors in concluding the interview was admissible. Hamburger complains that the
interviewer did not specifically discuss the difference between truth and lies with the
victim. The interviewer testified that although some jurisdictions prefer such a
discussion, it is not required by protocol. Hamburger does not direct us to any
clearly established federal law indicating that this factor alone renders a statement
unreliable. Accordingly, his claim fails.
Hamburger also argues that admission of the interview violated his rights
under the Confrontation Clause. But Hamburger was afforded his right to confront
the victim and cross-examine her. See Delaware v. Van Arsdall, 475 U.S. 673, 678-
79 (1986). The victim testified at trial in a manner generally consistent with the
interview. Defense counsel cross-examined both the victim and the interviewer,
identifying several minor inconsistencies in the victim’s accounts. Hamburger
contends that the victim was not truly available for cross-examination because she
should have been deemed incompetent to testify. But he does not identify any
authority for the proposition that the Confrontation Clause is offended when a
witness is reasonably determined competent to testify under state law and is actually
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subject to cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
(“[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.”).
Lastly, Hamburger contends that he should have been charged with the lesser
offense of oral sodomy. Under Oklahoma law, a prosecutor must charge a more
specific crime only if “charges brought under a more general statute thwart the
legislative intent.” State v. Franks, 140 P.3d 557, 559 (Okla. Crim. App. 2006)
(quotation omitted). As noted above, however, § 2254 relief is not available for
violations of state law. McGuire, 502 U.S. at 67. Under federal law, “so long as the
prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file
or bring before a grand jury, generally rests entirely in his discretion.”
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also United States v. Parsons,
967 F.2d 452, 456 (10th Cir. 1992) (“Prosecutors are not required to prosecute under
another statute perhaps covering the same wrongful acts merely because the other
statute imposes a lesser penalty.”).
Because reasonable jurists could not debate the district court’s denial of
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habeas relief, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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