Fields v. Miller , 483 F. App'x 509 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
June 6, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CHARLES A. FIELDS,
Petitioner-Appellant,
No. 12-5006
v. (D.C. No. 4:09-CV-00553-CVE-PJC)
(N.D. Okla.)
DAVID C. MILLER, Warden,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, MCKAY and HOLMES, Circuit Judges.
Charles Fields, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate
of appealability (“COA”) to challenge the district court’s denial of his application for a
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Having thoroughly considered
*
This Order is not binding precedent, except under the doctrines of law of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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule
32.1.
After examining the appellate record, this three-judge panel 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(G). The case is therefore
ordered submitted without oral argument.
1
Because Mr. Fields is proceeding pro se, we construe his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis, 596 F.3d
1198, 1201 n.2 (10th Cir. 2010).
the relevant law and the record, we deny Mr. Fields’s application for a COA and dismiss
this matter.
I. BACKGROUND
We take the relevant facts from the district court’s opinion and order. See R., Vol.
1, at 262–65 (Op. & Order, filed Dec. 29, 2011). In December 2003, Tulsa police officers
Jason White, Justin Demaree, and Jason Wheeler were conducting an undercover
prostitution investigation at the Western Inn Motel, an establishment on Tulsa’s east side
known for prostitution and drug trafficking. During the course of the investigation, Mr.
Fields approached Officer White and asked if he had jumper cables. Officer White
responded by asking if Mr. Fields knew where to find some “work” or “hard,” street
terms for crack cocaine. Mr. Fields replied, “I might know where I can get something
along those lines,” and he led Officers White and Demaree into room 121. Present in the
room were two other individuals, Earl Carter and Acamie Lawrence.
Mr. Fields sold Officer White $60 worth of crack cocaine and $10 worth of Xanax.
He also gave the officers additional Xanax, saying they were “good customers.” After the
exchange, the officers identified themselves and took Mr. Fields into custody. A pat-
down search of Mr. Fields uncovered a cell phone and several hundred dollars in cash.
Additional crack cocaine was recovered from the motel-room bathroom.
Mr. Fields was charged in Tulsa County District Court with Unlawful Delivery of
a Controlled Drug (Count 1), and Unlawful Possession of a Controlled Drug With Intent
to Distribute (Count 2), both After Former Conviction of Two or More Felonies
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(“AFCF”). Before trial, Mr. Fields successfully moved to merge Counts 1 and 2, and the
trial court dismissed Count 2. Mr. Fields, appearing pro se, was tried before a jury in
September 2005; found guilty of Unlawful Delivery of a Controlled Drug, AFCF; and
sentenced to a term of imprisonment of fifteen years to life. On appeal, however, his
conviction and sentence were reversed. The Oklahoma Court of Criminal Appeals
(“OCCA”) found that Mr. Fields had not knowingly and intelligently waived his right to
counsel, and it remanded the case for a new trial.
Upon remand and prior to the new trial, the prosecution offered Mr. Fields ten
years’ imprisonment in exchange for a guilty plea. He rejected the plea offer, and trial
was held in September 2007. Mr. Fields again appeared pro se but was aided by standby
counsel Marny Hill. A jury again found him guilty of Unlawful Delivery of a Controlled
Drug, AFCF, and he was sentenced to a term of life imprisonment.
On appeal to the OCCA, Mr. Fields raised four propositions of error: (1) he was
deprived of his federal and state constitutional rights to counsel when he represented
himself at trial without being warned of the dangers of self-representation; (2) his life
sentence was excessive; (3) the trial court erred by failing to instruct the jury on
entrapment; and (4) the evidence against him was secured by an illegal search and should
have been suppressed. In an unpublished opinion, the OCCA rejected the claims and
affirmed the conviction and sentence.
Mr. Fields sought postconviction relief in state court. After being denied relief in
the state district court, he appealed. The OCCA dismissed the appeal for lack of
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jurisdiction because Mr. Fields did not provide a certified copy of the district court’s
order, as required by the OCCA’s rules. Mr. Fields filed a subsequent application for
postconviction relief. It, too, was denied by the state district court, and the OCCA
affirmed, holding that the application was procedurally barred under Okla. Stat. tit. 22,
§ 1086 (“All grounds for relief available to an applicant . . . must be raised in his original,
supplemental or amended application.”).
In August 2009, Mr. Fields filed a habeas application in the United States District
Court for the Northern District of Oklahoma. He also filed three “supplements” to his
application. He sought relief on four grounds: (1) his waiver of counsel was not
voluntary and he was compelled to self-representation due to a “conflict of interest” on
the part of appointed counsel, Ms. Hill; (2) his life sentence was excessive; (3) the trial
court erred by failing to instruct the jury on entrapment; and (4) the evidence against him
was secured by an illegal search and should have been suppressed. The district court
proceeded to the merits of these claims after finding that Mr. Fields properly exhausted
them before the OCCA on direct appeal from his second trial. The district court denied
habeas relief on all claims and also denied a COA. Mr. Fields timely filed a notice of
appeal, which we construe as an application for a COA. See Saiz v. Ortiz, 392 F.3d 1166,
1171 n.3 (10th Cir. 2004).
II. DISCUSSION
“Before an appeal may be entertained, a prisoner who was denied habeas relief in
the district court must first seek and obtain a COA . . . .” Miller-El v. Cockrell, 537 U.S.
4
322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). We will issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” Harris
v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting 28 U.S.C. § 2253(c)(2))
(internal quotation marks omitted). To satisfy this standard, the applicant must
demonstrate “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.” Id. (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted). When, as here,
the district court denies an application on the merits, the applicant carries his burden by
showing that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Warnick v. Booher, 425 F.3d 842, 846 (10th
Cir. 2005) (quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
circumscribes our review of federal habeas claims that were adjudicated on the merits in
state-court proceedings. See Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011).
An applicant is entitled to relief if, but only if, the state court’s resolution of his claims
“was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Id. (quoting 28 U.S.C. § 2254(d)) (internal quotation marks omitted).
This is a “highly deferential standard,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
5
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)) (internal quotation marks
omitted), and was meant to be “difficult to meet,” Harrington v. Richter, 131 S. Ct. 770,
786 (2011).
We review de novo the district court’s legal analysis of the state-court decision.
Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011). But we incorporate AEDPA’s
deferential treatment of that decision into our consideration of a COA application.
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Thus, to grant a COA, we must
find that reasonable jurists could debate the district court’s determination that, under
AEDPA, the applicant is not entitled to habeas relief. See id. at 937.
In his opening brief, Mr. Fields seeks a COA on three grounds: (1) his waiver of
counsel was not voluntary and he was “coerced to self-representation” because he was
forced to choose between “appointed counsel that was incompetent or no counsel at all”;
(2) he was denied his right to put on expert witness testimony at trial; and (3) he was
denied the effective assistance of appellate counsel in his second direct appeal. Aplt.
Opening Br. & Appl. for COA at 6 [hereinafter “Appl. for COA”]. We review these
claims in turn, ultimately denying a COA.
A. Waiver of Counsel
Under the Sixth Amendment, an accused enjoys the right personally to make his
defense, without the assistance of counsel. Faretta v. California, 422 U.S. 806, 819
(1975). But, because the assistance of counsel is often crucial to the assurance of a fair
trial, waiver of one’s right to counsel must be “knowing, intelligent, and voluntary.”
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Maynard v. Boone, 468 F.3d 665, 676 (10th Cir. 2006). The purpose of this requirement
“is to determine whether the defendant actually does understand the significance and
consequences of a particular decision and whether the decision is uncoerced.” Id. at 677(quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)) (internal quotation marks
omitted). It is the trial court’s responsibility to “ensure the defendant is ‘aware of the
dangers and disadvantages of self-representation, so that the record will establish that he
knows what he is doing and his choice is made with eyes open.’” Id. at 676 (quoting
Faretta, 422 U.S. at 835). The colloquy between the court and the accused must
“demonstrate that the defendant is aware of the nature of the charges, the range of
allowable punishments and possible defenses, and is fully informed of the risks of
proceeding pro se.” United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000)
(quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991)) (internal quotation
marks omitted).
Mr. Fields claims that his waiver of counsel was not voluntary. We note that this
claim has morphed throughout this litigation. On direct appeal to the OCCA after his
second trial, Mr. Fields complained that the trial court did not adequately warn him of the
dangers of self-representation. The OCCA denied the claim, finding that “the record
clearly shows the trial court thoroughly explained to Appellant the dangers and
disadvantages of self-representation.” R., Vol. 1, at 135 (Fields v. State, No. F-2007-986
(Okla. Crim. App. Sept. 23, 2008)). In his federal habeas application, Mr. Fields claimed
that he was forced to proceed pro se because his appointed counsel, Ms. Hill, was under a
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“conflict of interest”—specifically, arising in his view, because she disagreed with Mr.
Fields’s defense strategy—and the trial court refused to appoint substitute counsel. See
R., Vol. 1, at 268–69. In his COA application, Mr. Fields now claims that Ms. Hill was
constitutionally ineffective, which makes his waiver of counsel involuntary because, as he
puts it, he was forced to choose between “incompetent” counsel “or no counsel at all.”
Appl. for COA at 6.
We need not decide whether and to what extent Mr. Fields has failed to exhaust or
waived his present involuntary-waiver claim. We refuse to grant a COA because we do
not think reasonable jurists could debate the district court’s denial of habeas relief.
The district court, acknowledging that it owed AEDPA deference to the OCCA’s
conclusion that Mr. Fields knowingly and voluntarily waived his right to counsel,
reasoned as follows:
The record confirms that, on August 22, 2007, the trial court
held a status conference to resolve the issue of Petitioner’s stated
dissatisfaction with his appointed counsel. Petitioner’s court-appointed
counsel, Marny Hill, requested and was granted an opportunity to
explain to the trial judge, outside the presence of Petitioner and the
prosecutor, the disagreements she had with Petitioner’s defense
strategy. After returning to the courtroom, the trial judge noted on the
record that during the course of his criminal case, Petitioner had been
represented by six (6) different attorneys. She advised Petitioner that
while he had a right to effective representation of counsel, he did not
have a right to “attorney shop.” She also advised him that he had the
right to represent himself. The trial judge insured that Petitioner
understood the charge against him, that he understood the plea
agreement offered by the state, and that he understood the range of
punishment he faced if he proceeded to trial. She went on to explain
the advantages of having an experienced attorney, like Ms. Hill,
represent him during trial. She further stated that Ms. Hill had filed
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motions requested by Petitioner and they had been overruled, and that
if Petitioner chose to represent himself and filed the motions again, she
would overrule them again. The trial judge urged Petitioner to keep
Ms. Hill as his attorney because she had worked hard for him, and she
wished to continue representing him. She also stated that no one was
forcing him to represent himself. The choice he faced was whether he
wanted to be represented by an attorney or to proceed with
self-representation. Petitioner expressed his concern that Ms. Hill was
“scared” of the police officers. Ms. Hill made a record that she was not
afraid of the police officers and that she had not been threatened in any
way. Despite those assurances from Ms. Hill and the admonishments
by the trial judge, Petitioner decided to proceed with
self-representation. The trial judge specifically found that “he
knowingly and has voluntarily made an intelligent decision to represent
himself.” Ms. Hill agreed to serve as standby counsel.
....
. . . [U]pon careful review of the record, the Court finds nothing
to suggest that the OCCA’s finding that Petitioner voluntarily waived
his right to counsel under these circumstances fell afoul of AEDPA’s
“unreasonableness” standard. Furthermore, Petitioner’s factual
allegations that he was forced to waive his right to counsel do not
constitute clear and convincing evidence sufficient to undermine the
state courts’ contrary factual determination that he voluntarily waived
his right to counsel. Petitioner is not entitled to habeas corpus relief on
this claim.
R., Vol. 1, at 269–72 (citations omitted) (quoting transcript of state trial court status
hearing).
We are unable to add anything to the district court’s thorough analysis. We agree
that the OCCA’s decision finding Mr. Fields’s waiver of counsel knowing and voluntary
was not contrary to or an unreasonable application of clearly established federal law.
And we see no basis on which reasonable jurists could disagree. We therefore deny a
COA.
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B. Other Claims
The other two claims put forward in Mr. Fields’s COA application have a common
factual basis, so we consider them together. Mr. Fields asserts that he was erroneously
denied the opportunity at trial to present the testimony of a handwriting expert, who
allegedly would have testified that certain police reports filed by the arresting officers in
this case were forged. Mr. Fields also contends that appellate counsel in his second direct
appeal to the OCCA was ineffective for failing to raise this issue.
In her in camera meeting with the trial court, Ms. Hill (standby counsel for Mr.
Fields) explained that although Mr. Fields wished to hire a handwriting expert, she had
advised him that doing so would be unhelpful because the police reports were not
admissible at trial. See R., Vol. 1, at 271. The trial court later denied Mr. Fields’s motion
for a handwriting expert because the police officers themselves could be questioned about
the handwriting on their reports. See id. Following his conviction, Mr. Fields hired a
handwriting expert, Brenda Petty, who opined that on one of the police reports, the
printed name of “J. Wheeler” had been “forge[d].” Id. at 211 (Aff. of Brenda Petty, dated
Jan. 11, 2008). Ms. Petty’s affidavit was available to Thomas Purcell, Mr. Fields’s
appellate counsel, but Mr. Purcell did not present the issue to the OCCA.
It is not totally clear whether Mr. Fields included these claims in his federal habeas
application. He alerted the district court to the forgery issue (and appellate counsel’s
failure to raise it) in a reply brief in January 2010, see id. at 203–09 (Reply to Resp’t’s
Resp. in Opp., filed Jan. 4, 2010), and in a supplemental filing in November 2010, see id.
10
at 251–53 (Letter from Mr. Fields to the Hon. Claire V. Eagan, dated Nov. 10, 2010)—in
each case several months after his habeas application was filed. The district court
construed the forgery issue as part of Mr. Fields’s involuntary-waiver claim, concluding
that “[t]he record does not demonstrate that Petitioner was forced to waive his right to
counsel based on the trial court’s refusal to allocate funds to pay for a handwriting
expert.” Id. at 272. Mr. Fields apparently did present these claims in his subsequent
postconviction application in state court, to which the OCCA applied a procedural bar.
See id. at 8–9 (Pet. for Writ of Habeas Corpus, filed Aug. 26, 2009) (stating that these
claims were presented to the OCCA). We invoke our discretion to consider these claims
on the merits because we can comfortably reject them. See Revilla v. Gibson, 283 F.3d
1203, 1211 (10th Cir. 2002) (“We therefore invoke our discretion to bypass complex
issues of exhaustion and procedural bar to reject the claim on the merits . . . .” (citations
omitted)).
The trial court’s refusal to appoint a handwriting expert for Mr. Fields raises, at
most, the prospect of an error under state law. And of course, “[f]ederal habeas review is
not available to correct state law evidentiary errors.” Ochoa v. Workman, 669 F.3d 1130,
1144 (10th Cir. 2012) (quoting Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.
1999)) (internal quotation marks omitted). Because our task in habeas cases is to
vindicate an applicant’s constitutional rights, Mr. Fields is entitled to relief only if the
error he alleges was “so grossly prejudicial that it fatally infected the trial and denied the
fundamental fairness that is the essence of due process.” Revilla, 283 F.3d at 1212
11
(alteration omitted) (quoting Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000)) (internal
quotation marks omitted). Mr. Fields simply cannot make that showing.
Indeed, we doubt the trial court erred at all. In this case, the police reports were
not admissible—and were not admitted—as substantive evidence at trial, so whether or
not they revealed signs of forgery was irrelevant. The arresting officers who filed the
reports testified at trial, and the record reveals extensive questioning about their reports.2
To the extent that Mr. Fields sought to use the reports as extrinsic evidence of forgery for
impeachment purposes, the Oklahoma Rules of Evidence prohibited him from doing so.
See Douglas v. State, 951 P.2d 651, 667 (Okla. Crim. App. 1997) (“[Okla. Stat. tit. 12,
§ 2608(B)] prohibits the use of extrinsic evidence to impeach a witness with specific
instances of conduct to attack or support the credibility of the witness.”). Finally, Mr.
2
As the district court found:
Officer White testified that in preparing Mr. Carter’s witness statement,
he wrote down what Mr. Carter said and that Officer Wheeler signed
the statement as the interviewing officer. He readily admitted that he
failed to check the box on the form indicating that he had prepared the
statement and characterized the failure as an “oversight.” Officer
Wheeler testified that he believed the handwriting on Mr. Carter’s
statement was Officer White’s and that he, Officer Wheeler, had
written, not signed, his name at the bottom of the statement. Officer
Wheeler also testified that although they do not “sign” documents for
other officers, it is common for officers to “list” other officers’ names
on reports.
R., Vol. 1, at 271–72 n.3 (citations omitted). We note that even if Mr. Fields’s forgery
claim were relevant, this last bit of testimony from Officer Wheeler casts considerable
doubt on it. The “J. Wheeler” on the police report that Ms. Petty alleges was “forge[d]”
was not a signature; rather, it appeared in “printed handwriting,” which in Ms. Petty’s
opinion was attributable to Officer Wheeler. Id. at 253.
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Fields does not contend that he was unable to cross-examine the officers. We thus see no
error, much less “grossly prejudicial” error, in the trial court’s refusal to appoint a
handwriting expert, and we reject Mr. Fields’s claim. Revilla, 283 F.3d at 1212 (quoting
Fox, 200 F.3d at 1296) (internal quotation marks omitted). Furthermore, because
appellate counsel “need not raise meritless issues,” Mr. Purcell was not ineffective in
failing to present the claim on appeal. Smith v. Workman, 550 F.3d 1258, 1268 (10th Cir.
2008). We do not think reasonable jurists could debate these conclusions, so we deny a
COA as to both claims.
III. CONCLUSION
For the reasons stated, we DENY Mr. Fields a COA and DISMISS this matter.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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