Ware v. Parker , 298 F. App'x 727 ( 2008 )


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  •                                                                             FILED
    United States Court of Appeals
    Tenth Circuit
    October 29, 2008
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                          Clerk of Court
    JAMES EARL WARE,
    Petitioner - Appellant,                      No. 08-6098
    v.                                               (W.D. Oklahoma)
    DAVID PARKER, Warden,                           (D.C. No. 5:07-CV-01328-M)
    Respondent - Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY
    Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
    James Earl Ware was convicted of first-degree rape following a bench trial
    in Oklahoma state court and sentenced to 20 years’ imprisonment. On direct
    appeal the Oklahoma Court of Criminal Appeals (OCCA) rejected his challenge to
    the sufficiency of the evidence and affirmed his conviction. Mr. Ware then
    sought postconviction relief in state court, claiming ineffectiveness of his trial
    and appellate counsel. After the state trial court denied relief, he failed to file a
    timely appeal. He unsuccessfully requested the postconviction trial court to
    recommend granting him leave to file his appeal out of time. The OCCA then
    refused to permit an untimely appeal.
    Mr. Ware next filed an application under 
    28 U.S.C. § 2254
     in the United
    States District Court for the Western District of Oklahoma. He challenged the
    sufficiency of the evidence to convict him and claimed that he had been denied
    effective assistance of counsel at trial and on direct appeal. Adopting the report
    and recommendation of the magistrate judge, the district court denied the
    application. It rejected the sufficiency-of-the-evidence challenge because the
    OCCA’s decision neither contravened nor unreasonably applied Jackson v.
    Virginia, 
    443 U.S. 307
    , 319 (1979); nor did it turn on an unreasonable
    determination of facts in light of the evidence. As to Mr. Ware’s ineffective-
    assistance claims, the district court held that they were procedurally defaulted
    because he had failed to raise them on direct appeal and had failed to file a timely
    appeal of the postconviction trial court’s decision. The district court further
    determined that Mr. Ware had not shown that a fundamental miscarriage of justice
    would result from denial of habeas relief.
    Mr. Ware then filed a document styled “notice of intent to appeal,” which
    the district court construed as an application for a certificate of appealability
    (COA). The court denied the application. Mr. Ware now seeks a COA from this
    court. We deny a COA and dismiss this appeal.
    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). “Where a district court has rejected the constitutional claims on the
    merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find
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    the district court’s assessment of the constitutional claims debatable or wrong.”
    Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). On the other hand, “[w]hen the
    district court denies a habeas petition on procedural grounds without reaching the
    prisoner’s underlying constitutional claim, a COA should issue when the prisoner
    shows, at least, that jurists of reason would find it debatable whether the petition
    states a valid claim of the denial of a constitutional right and that jurists of reason
    would find it debatable whether the district court was correct in its procedural
    ruling.” 
    Id.
     “Where a plain procedural bar is present and the district court is
    correct to invoke it to dispose of the case, a reasonable jurist could not conclude
    either that the district court erred in dismissing the petition or that the petitioner
    should be allowed to proceed further.” 
    Id.
    In addition, the Antiterrorism and Effective Death Penalty Act (AEDPA)
    establishes deferential standards of review for state-court factual findings and
    legal conclusions. “AEDPA . . . mandates that state court factual findings are
    presumptively correct and may be rebutted only by ‘clear and convincing
    evidence.’” Saiz v. Ortiz, 
    392 F.3d 1166
    , 1175 (10th Cir. 2004) (quoting
    
    28 U.S.C. § 2254
    (e)(1)). And if the federal claim was adjudicated on the merits
    in the state court, “we may only grant federal habeas relief if the habeas petitioner
    can establish that the state court decision ‘was contrary to, or involved an
    unreasonable application of, clearly established Federal law, as determined by the
    Supreme Court of the United States,’ or ‘was based on an unreasonable
    -3-
    determination of the facts in light of the evidence presented in the State court
    proceeding.’” 
    Id.
     (quoting 28 U.S.C. 2254(d)(1) and (2)). Our concern is only
    whether the state court’s result, not its rationale, is clearly contrary to or
    unreasonable under federal law. 
    Id. at 1176
    . When claims are adjudicated on the
    merits in state court, “ADEPA’s deferential treatment of state court decisions
    must be incorporated into our consideration of a habeas petitioner’s request for
    COA.” Dockins v. Hines, 
    374 F.3d 935
    , 938 (10th Cir. 2004).
    No jurist of reason could find debatable the district court’s denial of
    Mr. Ware’s sufficiency-of-the-evidence challenge. The court properly concluded
    that the OCCA’s determination of the issue was neither contrary to nor an
    unreasonable application of clearly established federal law. See 
    28 U.S.C. § 2254
    (d)(1). The court properly rejected Mr. Ware’s contention that “physical”
    evidence—such as DNA test results—was necessary to establish guilt.
    Likewise, no jurist of reason could find debatable the district court’s
    determination that Mr. Ware’s untimely appeal in his state postconviction
    proceeding presents a clear procedural bar to federal habeas review of the claims
    raised in the postconviction proceeding. See Duvall v. Reynolds, 
    139 F.3d 768
    ,
    797 (10th Cir. 1998)
    The sole argument that Mr. Ware makes in his submission to this court is
    that the district court “should [have] recognized [his] habeas claims were not
    developed properly” and that it should have allowed him to withdraw these claims
    -4-
    for reformulation. Appl. for COA at 2. But there is no indication in the record
    that Mr. Ware raised this matter in the district court, or that he sought leave to
    amend his § 2254 application. In any event, the basis of his contention that his
    habeas claims were not developed properly is that he was assisted by an
    incompetent prison law clerk who has, Mr. Ware says, since been removed from
    that duty because of misconduct. We construe this as an ineffective-assistance
    claim. But Mr. Ware has no right to the assistance of counsel on habeas, and thus
    cannot invoke ineffective assistance as a basis for relief at this stage. See
    Pennsylvania v. Finley, 
    481 U.S. 551
    , 555-556 (1987).
    We therefore DENY the application for a COA and DISMISS the appeal.
    We GRANT Mr. Ware’s motion to proceed in forma pauperis on appeal.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -5-
    

Document Info

Docket Number: 08-6098

Citation Numbers: 298 F. App'x 727

Judges: Briscoe, Hartz, Murphy

Filed Date: 10/29/2008

Precedential Status: Precedential

Modified Date: 8/3/2023