No. 6:16-CV-00103-RAW-KEW, E.D. Okla.
HARTZ, PHILLIPS, and EID, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge
Tommy James Millsap was convicted by an Oklahoma jury of
first-degree manslaughter, possession of a firearm after
former felony conviction, and unlawful possession of
methamphetamine. The Oklahoma Court of Criminal Appeals
(OCCA) denied him relief on direct appeal, and he
unsuccessfully pursued state postconviction remedies. Then
the United States District Court for the Eastern District of
Oklahoma denied his application for relief under 28 U.S.C.
§ 2254. After being denied a certificate of
appealability (COA), he now requests a COA from this court.
See 28 U.S.C. §2253(c)(1)(A) (requiring COA to
appeal denial of relief under § 2254). We deny his
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 wrong." Id.
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). As we
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 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 grant relief simply because it
concludes in its "independent judgment that the relevant
state- court decision applied clearly established federal law
erroneously or incorrectly." Id. (internal
quotation marks omitted). Rather, "[i]n order for a
state court's decision to be an unreasonable application
of this Court's case law, the ruling must be objectively
unreasonable, not merely wrong; even clear error will not
suffice." Virginia v. LeBlanc, 137 S.Ct. 1726,
1728 (2017) (per curiam) (internal quotation marks omitted).
To prevail, "a litigant must show that the state
court's ruling was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Id. (ellipsis and internal quotation marks omitted).
addition, AEDPA establishes a deferential standard of review
for state-court factual findings. "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)).
Further, the Supreme Court has held that review under §
2254(d)(1), just as under § 2254(d)(2), "is limited
to the record that was before the state court that
adjudicated the claim on the merits." Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); see id.
at 185 n.7. "AEDPA's deferential treatment of state
court decisions must be incorporated into our consideration
of a habeas petitioner's request for [a] COA."
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.
has not challenged the description of his offenses by the
OCCA. The OCCA described the evidence on the methamphetamine
charge in a single paragraph:
On February 27, 2012, members of the Carter County
Sheriff's Office and Ardmore Police Department executed a
search warrant on [Applicant's] home at 86 Clover Lane.
[Applicant] was not present at the time. The structure was a
two bedroom residence; one bedroom contained adult male
clothing and the other contained small children's
clothes. In the closet of the children's bedroom,
officers found a lockbox containing prescription pill bottles
bearing [Applicant's] name. Also in the lockbox were
crystalline flakes that were tested to be methamphetamine. In
the master bedroom, an OG&E bill dated January 2012 and
bearing [Applicant's] name for 86 Clover Lane was found
on the dresser.
R., Vol. 3 at 286. Its description of the manslaughter
evidence can be summarized as follows: On March 28, 2012,
Applicant and the victim partied with some friends at
Applicant's home, where the victim spent the night. The
next morning, Applicant took the victim's iPhone and
traded it in at a store. When he returned home, the victim
was upset that his phone, money, and drugs were missing.
Applicant and the victim had a discussion on the matter,
during which they moved in and out of the house. The
conversation became heated at times but then calmed down. The
victim demanded that Applicant go with him to confront a man
who had partied the previous night and whom the victim
suspected of being the thief. The killing occurred after
Applicant invited the victim into his home, where Applicant
sat down and propped a shotgun on his leg. Upon entering, the
victim accused Applicant of stealing his property and
Applicant promptly shot him. Applicant told the police the
next day that although it would have been illegal to shoot
the victim outside the home, he had thought that his shooting
the victim inside his home was legal under Oklahoma's
"Make My Day" law. See 21 Okla. Stat.
§ 1289.25 (2011). Applicant admitted that he had not
seen the victim with a gun or anything else in his hands.
acting pro se, presents eight grounds for relief, all of
which were rejected by the district court: (1) immunity from
prosecution because the victim was an unlawful intruder
against whom he had the right to use lethal force under
§ 1289.25; (2) insufficient evidence of manslaughter;
(3) insufficient evidence of methamphetamine possession; (4)
his possession of a firearm after former felony convictions
was excused because he needed the shotgun for self-defense;
(5) improper joinder of the charges of manslaughter and
methamphetamine possession; (6) improper admission of
evidence of Applicant's committing other crimes
(specifically, evidence that he used illegal drugs the day of
the victim's death and that a police scanner was found in
his home); (7) inadequate record on appeal; and (8)
ineffective assistance of trial counsel.
district court held that the OCCA had not unreasonably
applied Supreme Court law in rejecting the first four claims.
The OCCA held that Applicant was an invitee, not an intruder,
and posed no threat to Applicant when he was shot; that there
was sufficient evidence to convict Applicant of manslaughter
and possession of methamphetamine; and that Applicant had
waived a claim of justification on the firearms charge by
admitting guilt ...