Horner v. Bryant ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 30, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DERRICK DEONDRAY HORNER,
Petitioner - Appellant,
v. No. 16-5088
(D.C. No. 4:13-CV-00383-GKF-PJC)
JASON BRYANT, Warden, (N.D. Okla.)
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HOLMES, and MORITZ, Circuit Judges.
Petitioner-Appellant Derrick Horner, a state inmate appearing pro se, seeks
a certificate of appealability (COA) to appeal from the district court’s denial of
his habeas corpus petition made pursuant to 28 U.S.C. § 2254. Horner v. Bryant,
No. 13-CV-0383-GKF-PJC, 2016 WL 3190229 (N.D. Okla. June 7, 2016). We
deny his request for a COA, deny his motion to proceed in forma pauperis (IFP),
and dismiss the appeal.
Mr. Horner was convicted of first-degree manslaughter and sentenced to 25
years’ imprisonment. The Oklahoma Court of Criminal Appeals (OCCA)
affirmed his judgment and sentence in a summary opinion on direct appeal.
Horner v. State, No. F-2011-611 (Okla. Crim. App. Dec. 11, 2012); see also 1 Rawle
128–32. To appeal from the district court’s denial of his federal habeas petition,
Mr. Horner must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). To do so, he must
make a “substantial showing of the denial of a constitutional right,” id.
§ 2253(c)(2), by “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 and citation omitted). Because the OCCA addressed the merits of Mr.
Horner’s arguments, he must demonstrate that its decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court . . . or resulted in a decision that 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). And when it comes to
ineffective assistance of counsel claims, our review has two layers of deference
— one to counsel’s reasonable strategic choices, and the other to the state court’s
resolution of the ineffective assistance claim. Woods v. Etherton, 136 S. Ct.
1149, 1151 (2016).
On appeal, 1 Mr. Horner argues that a lack of his DNA evidence in the
victim’s home indicates that he is innocent. This claim does not appear to have
1
We have considered all of the claims raised in Mr. Horner’s petition and
decided by the district court and conclude that they do not merit a COA for
substantially the same reasons given by the district court in rejecting them.
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been raised in his habeas petition, let alone exhausted, and we do not consider it
on appeal. See Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir. 2013).
Mr. Horner next argues that his Fifth Amendment right to have counsel
present during a custodial interrogation was violated because he was interrogated
after he invoked his right to counsel. When a suspect has “expressed his desire to
deal with the police only through counsel, [he] is not subject to further
interrogation by the authorities until counsel has been made available,” unless he
initiates the contact. Edwards v. Arizona, 451 U.S. 477, 484 (1981). A suspect’s
request for counsel must be unambiguous. Davis v. United States, 512 U.S. 452,
459 (1994). Mr. Horner claims he invoked his right to counsel when he asked the
detective whether he could “talk to a lawyer before [he] talk[ed] to [the
detective].” Horner, 2016 WL 3190229, at *6. The detective said “he could have
a lawyer,” but would “probably . . . not be talking” to the detective afterwards.
Id. Mr. Horner said “Mister, I’m so confused,” so the detective told him to think
it over and left the room, and a different officer continued the interrogation about
four minutes later. Id. The federal district court deferred to the OCCA’s
resolution: Mr. Horner’s statements are too ambiguous and equivocal to amount
to an invocation of his right to counsel; he asked whether it was possible for him
to speak to a lawyer, but never requested to do so even after the detective told
him he could. See Davis, 512 U.S. at 459. The federal district court’s deference
to the OCCA’s resolution of this claim is not reasonably debatable.
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Finally, Mr. Horner argues that the officer who transported him to jail
forced him to confess. A due process violation exists if a defendant’s conviction
is based in part on an involuntary confession. Jackson v. Denno, 378 U.S. 368,
376 (1964). Rather, a confession must be the result of “an essentially free and
unconstrained choice by its maker.” Culombe v. Connecticut, 367 U.S. 568, 602
(1961). After the interrogation, an officer drove Mr. Horner to the Tulsa County
Jail. On the way, Mr. Horner, without provocation, asked the officer whether he
should take the manslaughter plea. The officer told him that he should tell the
truth, but that his Miranda rights gave him the “freedom to do whatever he’d like
to do.” Horner, 2016 WL 3190229, at *7. As they pulled up to the jail, Mr.
Horner said that he wanted to talk to the detective again, so they drove back to
the Detective Division. Id. At no point during the drive did the officer ask any
questions. Id. When they arrived, the detective reminded Mr. Horner that he had
been read his Miranda rights, after which Mr. Horner admitted to shooting the
victim. Id. Again, the federal district court’s deference to the OCCA’s
determination that Mr. Horner’s confession was voluntary is not reasonably
debatable.
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We DENY Mr. Horner’s request for a COA, DENY his motion to proceed
IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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