No. 5:16-CV-00557-HE (W.D. Okla.)
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge.
Cody W. Mayfield seeks a certificate of appealability (COA)
to appeal the denial by the United States District Court for
the Western District of Oklahoma of his application for
relief under 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (requiring COA to appeal final order in
a habeas proceeding in which the detention complained of
arises out of process issued by a state court). We deny a COA
and dismiss the appeal.
Oklahoma state-court jury convicted Applicant of two counts
of possessing a controlled substance after having two or more
felony convictions. On appeal the Oklahoma Court of Criminal
Appeals (OCCA) reversed one possession count, but otherwise
affirmed. Applicant then filed his § 2254 application.
will 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, the applicant must
show that the district court's resolution of the
constitutional claim was either “debatable or
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits
in a state court, a federal court can grant habeas relief
only if the applicant establishes 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 determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
have explained, “Under the ‘contrary to'
clause, we grant relief only if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Court has on a set of materially
indistinguishable facts.” Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and some
internal quotation marks omitted). Relief is provided under
the “unreasonable application” clause “only
if the state court identifies the correct governing legal
principle from the Supreme Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case.” Id. (brackets and
internal quotation marks omitted). Thus, a federal court may
not issue a habeas writ simply because it concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. See id. Rather, that application must
have been unreasonable. See id. Therefore, for those
of Applicant's claims that the OCCA adjudicated on the
merits, “AEDPA's deferential treatment of state
court decisions must be incorporated into our consideration
of [his] request for [a] COA.” Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004).
court Applicant asserts four grounds for relief. He first
argues that the prosecution submitted “false
evidence” at his trial-a picture of a cellophane
fragment found in his car that was allegedly tied to a bag
containing a controlled substance. The OCCA deemed the
photograph relevant and admissible, and the district court
concluded that Applicant failed to show that the OCCA
unreasonably applied federal law. No reasonable jurist could
debate the district court's conclusion.
next argues that at sentencing the trial court admitted a
“pen packet” containing prejudicial materials. On
direct appeal the OCCA determined that the error “did
not seriously affect the fairness, integrity, or public
reputation of the proceedings, ” given other admissible
evidence of Applicant's criminal past and the
prosecution's failure to emphasize the problematic
material in its closing argument. R., Vol. I at 255. The
district court concluded that Applicant had not shown that
the OCCA unreasonably applied federal law. No reasonable
jurist could debate the district court's conclusion.
Applicant argues that his sentence was improperly enhanced by
consideration of a prior felony conviction that was too old
to be applicable under the state enhancement statute. But
Applicant did not raise this issue in his § 2254
application. It is therefore not properly before this court.
See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir.
2005) (claims not raised in § 2254 application to
district court are waived).
fourth ground for relief is that he received ineffective
assistance of counsel at trial. To establish ineffective
assistance, Applicant first has the burden of overcoming
“a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance,
” Strickland v. Washington, 466 U.S. 668, 689
(1984), by demonstrating that his counsel's performance
fell below “an objective standard of reasonableness,
” id. at 688. Second, Applicant must
demonstrate “that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. We can consider the performance and
prejudice prongs in either order; if Applicant fails to meet
his burden on one prong, we need not consider the other.
See id. at 697.
contends that his trial counsel (1) failed to object to the
prosecution's mention of a 1993 conviction; (2) failed to
object to that conviction's introduction into evidence as
part of the pen packet; (3) failed to object to the pen
packet's admission; and (4)told the jury at sentencing
that Applicant was a drug addict. The first two claims fail
because they were not presented in his § 2254
application. See Parker, 394 F.3d at 1307. As for
claims 3 and 4, the OCCA denied relief on both, stating that
“under the deficient performance/prejudice test of
Strickland . . ., no relief is warranted”
because these “alleged deficiencies create no
reasonable probability of a different outcome.” R. at
256- 57. The district court held that the OCCA reasonably
applied Strickland. No reasonable jurist could
debate the district court's ruling.
DENY a COA and DISMISS the appeal. We GRANT