Cleveland v. Havanek ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 3, 2014
Elisabeth A. Shumaker
Clerk of Court
CHRISTOPHER CLEVELAND,
Petitioner-Appellant,
v. No. 14-6062
(D.C. No. 5:12-CV-00086-F)
KAMERRON HAVANEK, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DENYING AUTHORIZATION TO FILE
SECOND OR SUCCESSIVE HABEAS APPLICATION*
Before GORSUCH, EBEL, and MATHESON, Circuit Judges.
Christopher Cleveland is a state prisoner proceeding pro se. He pled nolo
contendere in 2007 in Oklahoma state court to two counts of child abuse involving
girls who were five and six years old at the time of the offenses in 2003. After an
unsuccessful direct appeal and denials of state post-conviction and habeas relief,
Cleveland filed a federal habeas application under 28 U.S.C. § 2254. The district
court denied the application, and this court denied a certificate of appealability
(COA). Cleveland now seeks to appeal the district court’s denial in part and
*
This order is not binding precedent except under the doctrines of law of the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.
dismissal in part of his motion filed under Fed. R. Civ. P. 60(b). Alternatively,
Cleveland seeks this court’s authorization to file a second or successive habeas
application under 28 U.S.C. § 2254.
We deny a COA and dismiss this appeal. We also deny Cleveland’s motion
for authorization to file a second or successive § 2254 habeas application.
I. Certificate of Appealability
Cleveland must obtain a COA to pursue an appeal. See Montez v. McKinna,
208 F.3d 862, 866-67 (10th Cir. 2000) (holding state prisoner must obtain COA to
appeal final order in habeas corpus proceeding); Spitznas v. Boone, 464 F.3d 1213,
1218 (10th Cir. 2006) (holding COA is required to appeal from denial of Rule 60(b)
motion in habeas case); cf. United States v. Harper, 545 F.3d 1230, 1233 (10th Cir.
2008) (holding federal prisoner must obtain COA to appeal district court’s dismissal
of unauthorized second or successive motion under 28 U.S.C. § 2255 for lack of
jurisdiction). Because the district court’s rulings rested on procedural grounds,
Cleveland must show both “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We liberally construe
Cleveland’s pro se application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266
(10th Cir. 2002).
-2-
A. Denial of Rule 60(b) Claims
The district court construed Cleveland’s motion as bringing two claims under
Rule 60(b). Finding these claims had no merit, it denied the motion. Cleveland
argues error in only one of the district court’s rulings.
In his § 2254 application, Cleveland had argued that his trial counsel provided
ineffective assistance due to a conflict of interest in representing both Cleveland and
his wife, who was his co-defendant. The district court first held this claim was
subject to anticipatory procedural bar, see, generally, Frost v. Pryor, __ F.3d __,
2014 WL 1647013, at *16-17 (10th Cir. 2014) (discussing anticipatory procedural
bar and exceptions thereto). It then rejected Cleveland’s claim that he satisfied an
exception to the anticipatory procedural bar, which allows a district court to consider
a claim “if denying review would result in a fundamental miscarriage of justice
because the petitioner has made a ‘credible’ showing of actual innocence,” id. at 17.
To make a credible showing of actual innocence, a petitioner must
support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial. This new evidence must be sufficient to show that it
is more likely than not that no reasonable juror would have convicted
the petitioner in the light of the new evidence. This standard is
demanding and permits review only in the extraordinary case.
Id. (citations and internal quotation marks omitted).
Cleveland based his claim of actual innocence on two unsworn statements by
the two children. One said in her statement that she was told if she lied about what
Cleveland did, she would be rewarded. She claimed that everything said in court was
-3-
a lie. The other child stated that Cleveland would never hurt her and that she had
been told what to say in court.
In evaluating this claim, the district court noted that one of the children had
testified at the preliminary hearing that Cleveland had whipped her with a belt,
leaving bruises. The evidence also included photographs of contusions on the other
child’s face, arm, and back. And a forensic interviewer testified that both children
told her that Cleveland had whipped them with a belt. Against this backdrop, the
district court held that the statements did not make it more likely than not that no
reasonable juror would have convicted Cleveland. It reasoned that, even if the
children had retracted their earlier testimony and statements, a reasonable juror could
still have legitimately believed their prior accounts. Nor did the affidavits account
for the incriminating statements to the forensic examiner or the contusions found on
one of the children.
Cleveland challenged this ruling in his Rule 60(b) motion. He submitted
affidavits from the children that provided more detail about their claims that state
officials told them to lie and had promised them rewards for doing so. The district
court properly treated this contention as a Rule 60(b) claim. See Spitznas, 464 F.3d
at 1216 (stating motion asserting error in habeas court’s application of procedural bar
could be brought under Rule 60(b)). The court denied Cleveland’s claim, holding
that he had not met the high standard for a claim of actual innocence based on the
evidence he presented in his Rule 60(b) motion.
-4-
Cleveland seeks a COA to appeal the district court’s ruling on this Rule 60(b)
claim. He asserts that, in denying his § 2254 habeas application, the district court
erred by speculating about the meaning of the children’s statements, rather than
ordering an evidentiary hearing to obtain clarification. But when Cleveland
submitted the statements to the district court, he did not request an evidentiary
hearing. Nor did he request a hearing in his objections to the magistrate judge’s
Report and Recommendation on his § 2254 application. See Fairchild v. Workman,
579 F.3d 1134, 1144 (10th Cir. 2009) (holding prisoner must properly request an
evidentiary hearing in the district court); Davis v. Workman, 695 F.3d 1060, 1077
(10th Cir. 2012) (holding defendant forfeited claim of error in district court’s failure
to hold an evidentiary hearing by not seeking a hearing on a specific issue in his §
2254 proceeding).1
Cleveland also argues the district court erred by characterizing the victims’
statements as “suspicious” and amounting to a recantation of their prior testimony
and statements. He claims that the “children don’t seem to be withdrawing or
renouncing their allegation whatsoever,” but instead state “what is far closer to the
truth of the case.” Aplt. Br. at 6. The only basis, however, for Cleveland to argue actual
innocence is to rely on the alleged victims' statements as recanting their previous
1
Cleveland did argue in his Rule 60(b) motion that a hearing on his actual
innocence claim was mandated, but he does not argue any error in the district court’s
failure to hold a hearing at that time.
-5-
testimony. We conclude that jurists of reason would not find the correctness of the
district court’s procedural ruling debatable.
B. Dismissal of Unauthorized Second or Successive § 2254 Claims
The district court construed the remaining claims in Cleveland’s motion as
asserting ineffective assistance based on his trial counsel’s failure to investigate his
case; identify the acts and omissions of state actors; be knowledgeable about child
witnesses; hire an expert in child witness credibility issues; and object to certain
questioning of the children by the attorney appointed to represent them. Because
these claims attempted to assert or reassert federal bases for relief from Cleveland’s
underlying conviction, the court treated them as an unauthorized second or
successive § 2254 habeas application and dismissed them for lack of jurisdiction.
See Spitznas, 464 F.3d at 1215-16; In Re Cline, 531 F.3d 1249, 1252 (10th Cir.
2008).
Cleveland also argues the district court erred in holding that one of his claims
could not be brought under Rule 60(b). He points to his contention that the
children’s testimony was tainted, coerced, and coached by state actors, resulting in
fabricated allegations against him. Cleveland maintains this is not a second or
successive habeas claim because he is asserting fraud and misconduct.
We have said that an allegation of “fraud or other defect in the integrity of the
federal habeas proceeding” may be addressable in a Rule 60(b) motion. Spitznas,
464 F.3d at 1216 (emphasis added). But whether Cleveland is asserting fraud or
-6-
misconduct on the part of state officials, or is instead claiming ineffective assistance
based on his counsel’s failure to uncover the fraud or misconduct, he is not alleging
any fraud or other defect in the integrity of his § 2254 proceeding. Rather,
Cleveland’s claims are a merits-based attack on his state conviction. See Berryhill v.
Evans, 466 F.3d 934, 937 (10th Cir. 2006) (holding claims of fraud in sentencing
court and on direct appeal necessarily attacked the state court judgment and were
second or successive). Reasonable jurists would not debate the correctness of the
district court’s dismissal of these claims as an unauthorized second or successive
§ 2254 habeas application.
II. Motion For Authorization to File Second or Successive § 2254 Application
Cleveland also moves for authorization to file a second or successive § 2254
habeas application. His habeas application cannot proceed in the district court
without first being authorized by this court. See 28 U.S.C. § 2244(b)(3). We may
authorize a claim only if the prisoner has not raised it in a previous § 2254 habeas
application. See id. § 2244(b)(1). We may not authorize a new claim unless it
satisfies one or both of the requirements specified in § 2244(b)(2). A new claim must
rely (1) “on a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable,” or (2) on facts that
“could not have been discovered previously through the exercise of due diligence”
and that “would be sufficient to establish by clear and convincing evidence that, but
-7-
for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” Id. § 2244(b)(2)(A)-(B).
Cleveland does not assert that his claims rely on a new rule of constitutional
law. He maintains that he has new evidence that he is actually innocent of the child
abuse charges and that his trial counsel provided ineffective assistance. Cleveland
argues that fraud and misconduct by state actors, including employees of the
Department of Human Services, investigators, police, judges, and the attorney
representing the alleged victims, produced false allegations against him. He also
asserts that his defense attorney was ineffective (1) based upon his conflict of interest
in representing both Cleveland and his wife; (2) in failing to investigate the state
actors’ conduct, allowing a flawed investigation and prosecution; and (3) in allowing
Cleveland to plead guilty to the false accusations.
First, we may not authorize Cleveland’s ineffective assistance claim based on
his counsel’s conflict of interest because he raised that claim in his first § 2254
application. Cleveland says his other two claims rely on new, updated and detailed
affidavits by the alleged child victims and his wife regarding the misconduct of state
actors at the time of the offenses. Citing numerous books and articles published in
the 1980s and 1990s, he also claims he has new evidence of research and studies
related to child testimony. To the extent he is presenting “facts,” Cleveland does not
explain why they “could not have been discovered previously through the exercise of
due diligence.” 28 U.S.C. § 2244(b)(2)(B). He therefore fails to demonstrate a basis
-8-
for this court to authorize the filing of a second or successive § 2254 habeas
application.
III. Conclusion
Accordingly, we deny Cleveland’s motion for authorization. This denial of
authorization “shall not be appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.” Id. § 2244(b)(3)(E). We also deny a COA and
dismiss Cleveland’s appeal. We grant Cleveland’s motion to proceed on appeal
without prepayment of costs and fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-9-