Allen v. Turley , 466 F. App'x 692 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    May 26, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    PAUL C. ALLEN,
    Petitioner - Appellant,                    No. 10-4212
    v.                                           (D.C. No. 2:08-CV-00858-DAK)
    (D. Utah)
    STEVEN TURLEY, Warden; STATE
    OF UTAH,
    Respondents - Appellees.
    ORDER DENYING CERTIFICATE OF APPEALABILITY
    Before KELLY, HARTZ, and HOLMES, Circuit Judges.
    Defendant Paul C. Allen, appearing pro se, requests a certificate of
    appealability (COA) to appeal the district court’s denial of his application for
    relief under 
    28 U.S.C. § 2254
    . See 
    28 U.S.C. § 2253
    (c) (requiring COA to appeal
    denial of application). Because Defendant has failed to make a substantial
    showing of the denial of a constitutional right, we deny his request for a COA and
    dismiss this appeal.
    I.    BACKGROUND
    Defendant was accused of committing aggravated murder of his wife Jill
    Allen, conspiracy to commit aggravated murder, and criminal solicitation. A jury
    found him guilty of aggravated murder on February 23, 2000. The jury was
    instructed that if it found Defendant guilty of aggravated murder, it should not
    render a verdict on the other two charges.
    On February 11, 2005, the Utah Supreme Court affirmed Defendant’s
    conviction on appeal. He then petitioned in Utah state district court for
    postconviction relief, which was denied on March 14, 2007. The denial was
    affirmed by the Utah Supreme Court on August 19, 2008. On April 2, 2009,
    Defendant filed an amended petition for postconviction relief in state district
    court. It was denied on April 9, 2009, and the denial was affirmed by the Utah
    Court of Appeals on July 30, 2009.
    On November 7, 2008, Defendant filed his application for relief under
    28 U.S.C § 2254 in the United State District Court for the District of Utah. His
    brief in support of the application claimed that (1) he received ineffective
    assistance of counsel; (2) he was deprived of an impartial tribunal in violation of
    his First and Fourteenth Amendment rights; (3) the jury instructions were
    confusing and coercive; (4) the jury received a constitutionally flawed burden-
    shifting instruction; (5) the special-verdict form mandated a verdict of guilty on
    the aggravated murder charge; (6) the court violated his constitutional rights by
    not allowing him to be present at various hearings and conferences, by allowing
    multiplicitous overlapping counts, by admitting evidence of fraudulent credit card
    purchases, by not allowing the jury to deliberate on all the charges, and by not
    allowing him to cross-examine state witnesses; (7) his right to a jury trial was
    -2-
    violated because no verdict was reached on the conspiracy and solicitation
    charges; (8) there was juror and prosecutorial misconduct; (9) the jury was
    wrongly informed that one of the prosecution’s witnesses did not receive a written
    immunity agreement and was wrongly denied trial-testimony transcripts; and (10)
    a minute entry wrongly stated that he was found guilty of all three counts. On
    November 1, 2010, the district court denied Defendant’s § 2254 application as
    procedurally barred.
    II.   DISCUSSION
    “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 other
    words, an applicant must show that the district court’s resolution of the
    constitutional claim was either “debatable or wrong.” 
    Id.
    Because Defendant has proceeded pro se, we construe his pleadings
    liberally. See Straley v. Utah Bd. of Pardons, 
    582 F.3d 1208
    , 1210 n.1 (10th Cir.
    2009). We need consider only the arguments raised by Defendant in this court.
    As best we understand his appellate brief, he raises the following seven
    -3-
    contentions: (1) his Sixth Amendment rights were violated because no verdict
    was required for the conspiracy and solicitation counts; (2) the district court
    incorrectly told the jury that one of the witnesses did not have a written immunity
    agreement; (3) a minute entry for his jury trial erroneously stated that he had been
    found guilty on all three counts; (4) the district court erred by improperly
    admitting evidence of his fraudulent use of a credit card; (5) the jury instructions
    on the solicitation charge were erroneous; (6) the special verdict form directed a
    verdict for the state on the murder charge; and (7) he was not afforded effective
    assistance of counsel. Although the district court rejected all Defendant’s claims
    as procedurally barred, we base our denial of a COA on the patent lack of merit of
    the claims.
    Defendant’s first claim is that he was deprived of the right to a jury trial
    because the jury was instructed not to render a verdict on the conspiracy or
    solicitation charges once it found him guilty of murder. He suggests that because
    he was not present at the scene of the murder, he could be found guilty of
    aggravated murder only if he was guilty of the conspiracy or solicitation charges.
    But he does not challenge the adequacy of the aggravated-murder instructions;
    and so long as the jury found the elements of that offense, it was hardly necessary
    for it to find that the same evidence would also establish another of the charged
    offenses. The failure of the jury to render a verdict on the conspiracy or
    solicitation charges does not in any way indicate that the jury did not find all the
    -4-
    elements necessary for the murder conviction. In short, he received the jury trial
    to which he was entitled on the murder charge.
    Defendant’s second claim fails for lack of prejudice. Even if the trial judge
    erroneously told the jury that the immunity agreement was not in writing, we
    cannot see what difference it could have made to the jury whether the agreement
    was written or oral. Defendant asserts that the jury did not know that there was
    an oral immunity agreement. But the record, including excerpts quoted in
    Defendant’s own brief, establishes otherwise.
    Defendant’s third claim is deficient for the same reason. He does not
    suggest that any harm befell him because of the incorrect minute entry that he had
    been convicted of solicitation and conspiracy.
    As for the fourth claim, Defendant has not argued that it implicates federal
    law. Perhaps the admission of the credit-card evidence was contrary to Utah’s
    rules; but it is well-settled that errors of state law do not merit federal habeas
    relief. See Estelle v. McGuire, 
    502 U.S. 62
    , 67 (1991). Likewise, Defendant’s
    fifth claim—a challenge to the instructions on the solicitation charge—is a matter
    of Utah law, not cognizable under § 2254. See Rael v. Sullivan, 
    918 F.2d 874
    ,
    876–77 (10th Cir. 1990).
    Defendant’s sixth claim is equally meritless. The court instructed the jury
    that it could consider the three charges in any sequence it desired, but that if it
    found Defendant guilty of aggravated murder, it should not render a verdict on the
    -5-
    two other charges. We fail to see how the instructions or the verdict form in any
    way coerced the jury into finding Defendant guilty of murder.
    Finally, insofar as Defendant is arguing that he was denied effective
    assistance of counsel, he is asserting only that his attorneys should have raised the
    other issues he is now raising in this court. But because those issues lack merit,
    his ineffective-assistance claim fails. See Upchurch v. Bruce, 
    333 F.3d 1158
    1163–64 (10th Cir. 2003).
    III.   CONCLUSION
    Because no reasonable jurist could debate the merits of Defendant’s claims,
    we DENY a COA and DISMISS the appeal. We GRANT Defendant’s motion to
    proceed in forma pauperis.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -6-
    

Document Info

Docket Number: 10-4212

Citation Numbers: 466 F. App'x 692

Judges: Hartz, Holmes, Kelly

Filed Date: 5/26/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023