Parker v. Sirmons , 237 F. App'x 334 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 8, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
ALVIN PARKER,
No. 07-6021
Petitioner-Appellant,
v. Western District of Oklahoma
MARTY SIRMONS, Warden, (D.C. No. 05-CV-1252-T)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
Alvin Parker, a state prisoner proceeding pro se, seeks a certificate of appealability
(“COA”) that would allow him to appeal from the district court’s order denying his
habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because
we conclude that Mr. Parker has failed to make “a substantial showing of the denial of a
constitutional right,” we deny his request for a COA, and dismiss the appeal. 28 U.S.C. §
2253(c)(2).
BACKGROUND
An Oklahoma jury convicted Mr. Parker in 1990 of second-degree murder for
shooting an off-duty police officer. Mr. Parker filed an unsuccessful direct appeal based
* This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
in part upon a challenge to the testimony of the state’s forensic expert, followed by an
equally unsuccessful 28 U.S.C. § 2254 petition for habeas corpus. Mr. Parker then filed
seven applications in the state district court for post-conviction relief. The state court
denied all of these applications.
The current appeal involves Mr. Parker’s filing of a successive 28 U.S.C. § 2254habeas corpus petition, claiming that new DNA evidence from hair fragments left at the
murder scene requires reversal of his conviction and a new trial. The district court
denied the petition for failure to identify a constitutional violation, as required by 28
U.S.C. § 2244. Notwithstanding the cursory nature of Mr. Parker’s pleading, the district
court went on to conclude that Mr. Parker had further failed to satisfy the requirements of
§ 2244(b)(2)(B)(ii) for two reasons: the DNA test was not exculpatory, and a reasonable
jury could still find him guilty without the contested testimony concerning the hair
fragments. The district court also denied Mr. Parker’s request for a COA.
DISCUSSION
The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed only if
the district court or this Court first issues a COA. Id. § 2253(c)(1)(A). A COA will issue
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). In order to make such a showing, a petitioner must demonstrate
that “reasonable jurists could debate whether . . . the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve encouragement
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to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation
marks omitted). Mr. Parker has not made the requisite showing.
The district court correctly dismissed Mr. Parker’s petition under 28 U.S.C. § 2244(b)(2)(B)(ii). The petition contained only one reference to any underlying constitutional
error: namely, the unexplained and unsupported statement that the new DNA evidence
requires reversal under the Fourteenth Amendment. We agree with the district court that
this was not sufficient to state a constitutional error. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (“conclusory allegations without supporting factual averments are
insufficient to state a claim” (internal citations omitted)).
In his request for COA to this Court, Mr. Parker more thoroughly alleges that the
state deceived the jury by knowingly allowing false testimony in violation of his
Fourteenth Amendment due process rights under Giglio v. United States, 405 U.S. 150,
153–54 (1972). In particular, Mr. Parker claims that the state knowingly allowed state
forensic expert Joyce Gilchrist to testify falsely at this trial. Although we could treat this
claim as waived—because it appears for the first time on this appeal, see Anderson v.
Blake, 469 F.3d 910, 918 (10th Cir. 2006)—due to the unfortunate history of false
testimony of a similar nature in this jurisdiction, we exercise our discretion to examine on
the merits whether Mr. Parker’s claim warrants COA. We conclude that the claim fails
because the DNA evidence does not prove that Ms. Gilchrist’s testimony was false.
Mr. Parker alleges, as he has since his trial, that the real murderer was Glenn
Briggs, Mr. Parker’s maternal cousin and accomplice on the night of the murder. At trial,
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the state introduced hair fragments found on the murdered police officer’s body. Ms.
Gilchrist testified, based solely on physical comparison, that the hair could belong to Mr.
Parker, but not to Mr. Briggs. She also testified on cross-examination that her analysis
was subjective, that a person could not be positively identified by hair evidence, and that
other experts could reach a different conclusion. Mr. Parker’s forensic expert testified
that the hair fragments could not belong to either of the men. He also admitted that hair
was not a positive identifier and that his results were subject to a different interpretation.
While we are very much aware of Ms. Gilchrist’s history of abhorrent trial
practices, see Pierce v. Gilchrist, 359 F.3d 1279, 1282–84 (10th Cir. 2004), the DNA
evidence invoked by Mr. Parker does not suggest that her testimony at his trial
concerning the hair fragment analysis was false, and there is no other basis for the claim
of falsity. The DNA test showed that, because they are maternally related, Mr. Parker
and Mr. Briggs have the same mitochondrial DNA profile. Based on that evidence,
neither Mr. Parker nor Mr. Briggs can be excluded as the source of the hairs. To be sure,
that differs from Ms. Gilchrist’s testimony that Mr. Briggs could not have been the
source. It also differs from the defense expert’s testimony that neither man could be the
source. But neither Ms. Gilchrist nor the defense expert based their testimony on DNA
analysis, but on the basis of a comparison of the physical characteristics of the hair
samples. It is not logically inconsistent for one test to conclude that both men could be
the source of the hair and the other test to exclude one or both of the suspects. Moreover,
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Ms. Gilchrist appropriately acknowledged the subjective character of her testimony. We
cannot conclude that Mr. Parker has shown that she lied.
In addition, we conclude that Ms. Gilchrist’s testimony, even if false, falls far short
of the demanding standard of materiality under Giglio. See 405 U.S. at 154 (“A new trial
is required if ‘the false testimony could . . . in any reasonable likelihood have affected the
judgment of the jury . . . .’” (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)). The
jury heard conflicting expert testimony about the possible hair donors, with each expert
admitting the subjectivity of the analysis; the jury thus had an opportunity to weigh the
evidence with full knowledge of the possible inaccuracy of the hair identification. In
support of their verdict, the jurors heard eye witnesses link Mr. Parker to the scene and
identify Mr. Parker as having the same physical characteristics as the murderer; they
heard Mr. Briggs identify Mr. Parker as the murderer; they heard police testify to finding
Mr. Parker hiding in a crawl space next to a box that contained the murder weapon, and
they heard testimony that Mr. Parker’s fingerprints were found on that box. In light of
all the evidence, we conclude that Mr. Parker has not met the high standard of materiality
required to upset the conviction. See Giglio, 405 U.S. at 154. By the same logic, Mr.
Parker’s claim would fail under § 2244 because he cannot show by clear and convincing
evidence that but for the constitutional error, no reasonable jury would have found him
guilty of the murder. 28 U.S.C. § 2244(b)(2)(B)(ii).
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CONCLUSION
We GRANT Mr. Parker’s request to proceed in forma pauperis, DENY his
request for a COA, and DISMISS this appeal.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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