Winbush v. Faulk , 510 F. App'x 746 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSFebruary 12, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MICHAEL GLENN WINBUSH,
Petitioner-Appellant,
v.
No. 12-1470
(D.C. No. 11-cv-03336-MSK-KMT)
FAULK, actually named as Warden
(D. Colo.)
Faulk, Warden of Sterling
Correctional Facility; JOHN W.
SUTHERS, The Attorney General of
the State of Colorado,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
After unsuccessfully appealing his conviction for sexual assault in state
court, Michael Winbush filed a motion seeking relief from his conviction under 28
U.S.C. § 2254. Adopting the magistrate judge’s recommendation, the district
court denied Mr. Winbush’s application for relief. In the same order, the district
court denied Mr. Winbush’s request for a certificate of appealability (“COA”). He
now seeks to appeal that order.
*
This order is not binding precedent except under the doctrines of law of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.
To appeal the district court’s order, Mr. Winbush must first obtain a COA.
We may grant a COA only if Mr. Winbush makes a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do this, he must
demonstrate 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).
Because Mr. Winbush proceeds in this court pro se, we review his pleadings with
special solicitude.
Bearing these standards in mind, we hold Mr. Winbush ineligible for a
COA. Mr. Winbush first contends that the victim’s testimony at trial — her single
statement that her husband was in the courtroom to support her — violates his
constitutional right to due process. To succeed, Mr. Winbush must show that the
admission of this testimony “was so grossly prejudicial that it fatally infected the
trial and denied the fundamental fairness that is the essence of due process.”
Williamson v. Ward, 110 F.3d 1508, 1522 (10th Cir. 1997), overruled on other
grounds by Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997). And we may not
afford relief unless the challenged testimony had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 638 (1993). As the magistrate judge observed, the prosecutor only
asked one question about the husband’s support for the victim. Mr. Winbush fails
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to show how this single question “fatally infected the trial.” And Mr. Winbush
doesn’t even attempt to show that this one-off remark had a “substantial and
injurious effect” on the jury’s verdict. Cf. United States v. Lauder, 409 F.3d 1254,
1261-62 (10th Cir. 2005) (one-off nature of comment suggests harmlessness).
Mr. Winbush separately contends that this testimony violates his Sixth
Amendment Confrontation Clause rights. But, as the magistrate judge noted, Mr.
Winbush failed to raise this contention in state court and accordingly failed to
exhaust state remedies for this claim. See 28 U.S.C. § 2254(b)(1).
Because Mr. Winbush cannot show the district court’s resolution of his
§ 2254 motion is debatable, his application for a COA is denied. We also deny
Mr. Winbush’s motion to proceed in forma pauperis. The the filing fee should be
paid immediately.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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