Hilliard v. Kaiser ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID L. HILLIARD,
Petitioner-Appellant,
No. 97-6163
v.
(W. District of Oklahoma)
(D.C. No. 96-CV-1779)
STEVE KAISER; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral
argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner David L. Hilliard, appearing pro se, petitioned the district court
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court
dismissed the petition and denied Hilliard a certificate of appealability for leave
to proceed on appeal. Id. § 2253(c). This matter is before the court on Hilliard’s
application for a certificate of appealability.
Hilliard was convicted by a jury of conspiracy to commit robbery, robbery
with a dangerous weapon, larceny of a motor vehicle, and assault and battery with
intent to kill. On direct appeal, the Oklahoma Court of Criminal Appeals
affirmed Hilliard’s convictions for conspiracy, robbery, and larceny, but vacated
his conviction for assault and battery on the grounds that conviction for both
robbery and assault and battery violated the constitutional prohibition against
double jeopardy. Hilliard failed in an attempt to have his remaining convictions
overturned in a subsequent state petition for post-conviction relief. Hilliard then
filed the instant petition pursuant to § 2254, claiming that (1) his convictions for
conspiracy, robbery and larceny violate the Double Jeopardy Clause; (2)
discriminatory peremptory strikes and improper comments by the prosecutor
deprived him of his constitutional right to a fair trial; and (3) his trial and
appellate counsel were ineffective for failure to raise the issues at trial and on
appeal.
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In an exceptionally thorough Report and Recommendation, a magistrate
judge recommended that Hilliard’s petition be denied. The magistrate noted that
although Hilliard’s double jeopardy and Batson claims were procedurally barred
because they were not raised on direct appeal to the Oklahoma Court of Criminal
Appeals, those claims had to be considered on the merits in order to decide the
merits of Hilliard’s ineffective assistance of counsel claims. As to Hilliard’s
double jeopardy claims, the magistrate judge noted that larceny, robbery and
conspiracy were separate crimes under both Oklahoma law and the Supreme
Court’s decision in Blockburger v. United States, 284 U.S. 299 (1932). The
magistrate judge concluded that Hilliard’s Batson claim was meritless because it
amounted to nothing more than a set of conclusory allegations. 1 In light of the
fact that Hilliard’s claims of error failed on the merits, 2 his claims of ineffective
1
The magistrate also concluded that Hilliard’s appellate counsel was not
ineffective in failing to raise the Batson claim on appeal. According to the
magistrate judge, the claim would not have been apparent to appellate counsel
because the voir dire portion of Hilliard’s trial had not been transcribed. We
conclude that the magistrate was correct to conclude that Hilliard’s claims are far
too conclusory to state a proper Batson claim and do not, therefore, rely on the
cumulative justification that jury voir dire was not transcribed.
2
We note that although the magistrate judge concluded the issue was
procedurally barred, it never reached the merits, for the purpose of evaluating the
ineffective assistance of counsel claim, of Hilliard’s contention that the
prosecutor violated Hilliard’s constitutional rights by repeatedly referring to
Hilliard’s race during opening and closing arguments. Nevertheless, this court
has scoured the transcripts of the prosecutor’s opening and closing arguments and
has not found a single reference on the part of the prosecutor to Hilliard’s race.
Accordingly, Hilliard’s contentions of prosecutorial misconduct and his related
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assistance of counsel also necessarily failed. After conducting a de novo review,
the district court adopted the magistrate judge’s Report and Recommendation in
its entirety.
A habeas petitioner is entitled to a certificate of appealability only upon a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This court has held that the standard for granting a certificate of
appealability under the § 2253(c) is the same standard set out by the Supreme
Court in Barefoot v. Estelle, 463 U.S. 880 (1983). Lennox v. Evans, 87 F.3d 431,
434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part on
other grounds by, Lindh v. Murphy, 117 S. Ct. 2059 (1997). Under the Barefoot
standard, a certificate of appealability will issue only where the petitioner has
demonstrated the issues raised are (1) debatable among jurists of reason, (2) a
court could resolve the issues differently, or (3) the questions presented are
deserving of further proceedings. 463 U.S. at 893 n.4.
This court has conducted a de novo review of Hilliard’s brief and
application for a certificate of appealability, the magistrate’s Report and
Recommendation and district court’s Order, and the entire record on appeal. In
light of that review, we conclude that Hilliard has failed to make a “substantial
claims of ineffective assistance of trial and appellate counsel are utterly without
merit.
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showing of the denial of a constitutional right” for substantially the reasons set
for in the magistrate judge’s excellent Report and Recommendation dated January
16, 1997, and the district court’s order dated April 30, 1997. Accordingly, this
court DENIES Hilliard a certificate of appealability and DISMISSES the appeal.
ENTERED FOR THE COURT,
Michael R. Murphy
Circuit Judge
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