Dunford v. Hargett ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
RONNIE J. DUNFORD,
Petitioner-Appellant,
v. No. 97-6365
(D.C. No. 97-CV-455)
STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Ronnie Dunford, a state inmate appearing pro se, seeks a certificate of
appealability to appeal the district court’s dismissal of his motion to vacate, set
*
This order and judgment is not binding precedent, except under the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.
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2254. Because
Dunford has failed to make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a certificate
of appealability and dismiss the appeal.
Dunford’s conviction of first degree murder and his sentence of life
imprisonment were affirmed on appeal. Dunford v. State , 702 P.2d 1051 (Okl.
Crim. App. 1985). In his § 2254 petition, he alleged the trial court erred by
failing to submit a self-defense instruction to the jury and he received ineffective
assistance of trial counsel. The district court adopted the magistrate’s
recommendation that the petition be denied.
Self-defense instruction
As a general rule, errors in jury instructions in a state criminal trial are not
reviewable in a federal habeas proceeding, unless they are so fundamentally
unfair as to deprive the petitioner of a fair trial and due process of law. Nguyen
v. Reynolds , 131 F.3d 1340, 1357 (10th Cir. 1997). The burden of demonstrating
the failure to give a self-defense instruction was so prejudicial that it will support
a collateral attack on the constitutional validity of a state court’s judgment is even
greater than the showing required to establish plain error on direct appeal. See id.
The question is whether the failure to give such instruction so infected the trial
that the resulting conviction violates due process. See id.
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The magistrate addressed the merits of Dunford’s claim and concluded he
had failed to present sufficient evidence of self-defense and that he was not
entitled to such an instruction under Oklahoma law. 1
We have reviewed the entire
record on appeal and agree with the magistrate’s conclusion. Accordingly,
Dunford has not met his high burden of establishing the court’s failure to give a
self-defense instruction “so infected the trial that the resulting conviction violates
due process.” Dunford is not entitled to habeas relief on this claim.
Ineffective assistance of trial counsel
Dunford contends his trial counsel (1) failed to investigate the law and
facts that would have supported self defense; (2) presented testimony that
supported an alibi defense after initially arguing self defense; and (3) failed to
request or offer a self-defense instruction.
To obtain post-conviction relief for ineffective assistance of counsel, a
petitioner must demonstrate counsel’s performance was constitutionally deficient,
i.e., it fell below an objective standard of reasonableness, Strickland v.
Washington , 466 U.S. 668, 688 (1984), and there is a reasonable probability that,
but for counsel’s errors, the outcome of the proceedings would have been
1
The magistrate held the defense of self defense “is not available to one
who was at fault in provoking an affray or to one who voluntarily enters into one.
This is true even if during the course of the affray, the initial aggressor finds
himself or herself in imminent danger.” Ruth v. State , 581 P.2d 919, 922 (Okla.
Crim. App. 1978). Record I, Doc. 279 at 3.
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different, Kimmelman v. Morrison , 477 U.S. 365, 375 (1986); Williamson v.
Ward , 110 F.3d 1508, 1514 (10th Cir. 1997). In determining whether a petitioner
received effective assistance of counsel, we “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland , 466 U.S. at 689.
It is clear from testimony presented during Dunford’s case that his counsel
investigated self defense. Counsel elicited testimony that the victim had
instigated a confrontation with Dunford on the night prior to the incident and that
the victim was armed at the time he was shot. Unfortunately for Dunford, this
testimony did not establish Dunford acted in self defense under Oklahoma law.
Dunford’s claim that trial counsel erroneously elicited alibi testimony was
also addressed by the magistrate:
The record shows that counsel for the Petitioner called Mrs. Butler, the
Petitioner’s mother-in-law, as his final witness. Each of the prior
witnesses, both for the prosecution and the defense, had placed the
Petitioner at the scene of the crime. Mrs. Butler, however, stated that the
Petitioner was at home with her at the time of the crime. During closing
argument, the prosecution made a concerted effort to establish that her
testimony in this respect was unbelievable. In responding to this argument,
counsel for the Petitioner admitted that he too found Mrs. Butler’s
testimony unbelievable. He went on to state that he had not intended to
elicit alibi testimony from her, but had sought other information. It thus
appears that Mrs. Butler’s response to counsel’s questioning was not
intended. However, even assuming this constituted error on the part of
counsel, the undersigned finds that the Petitioner was not prejudiced by the
error, in light of the overwhelming weight of the evidence against him.
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Record I, Doc. 279 at 9. After reviewing the record, we agree with the
magistrate’s conclusion that, in light of the overwhelming weight of evidence,
Dunford was not prejudiced by his counsel’s apparently unintended presentation
of an alibi witness.
Dunford also argues his counsel was ineffective for failing to request a
self-defense instruction. The record does not reflect whether Dunford’s counsel
requested or offered a self-defense instruction but, as noted above, counsel did
attempt to present a theory of self defense. However, as we have stated, Dunford
was not entitled to a self-defense instruction under Oklahoma law. Therefore,
counsel did not err in failing to request such an instruction.
The request for a certificate of appealability is DENIED and this appeal is
DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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