Brewington v. Miller , 443 F. App'x 364 ( 2011 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    October 12, 2011
    TENTH CIRCUIT                 Elisabeth A. Shumaker
    Clerk of Court
    GEORGE ROBERT BREWINGTON,
    Petitioner-Appellant,
    No. 11-6168
    v.                                            (D.C. No. 5:11-CV-00111-HE)
    (W.D. of Okla.)
    DAVID MILLER, Warden,
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
    George Brewington, an Oklahoma state prisoner, seeks a certificate of
    appealability (COA) to enable him to appeal the district court’s denial of his 28
    U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction under 28
    U.S.C. §§ 1291 and 2253(a), and we construe Brewington’s filings liberally
    because he is proceeding pro se. See Hall v. Bellmon, 
    935 F.2d 1106
    , 1110 & n.3
    (10th Cir. 1991).
    *
    This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    **
    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(G). The cause is therefore ordered submitted without oral argument.
    We conclude the district court correctly disposed of Brewington’s petition,
    and therefore DENY the application for a COA and DISMISS the appeal.
    I. Background
    In September of 2007, in Guthrie, Oklahoma, a police officer went to the
    apartment of Sylvia Vasquez, Brewington’s niece, for a routine welfare check.
    The officer testified at trial that he knocked and announced his presence, and that
    Sylvia Vasquez answered the door after some delay. After ensuring the welfare
    of Vasquez and her children, the officer left without entering the apartment.
    As the officer left, a neighbor signaled for him to look at the ground
    outside Vasquez’s window. There, the officer found several items, including drug
    paraphernalia and a fanny pack containing an ID card with Brewington’s name.
    While the officer inspected these items, Vasquez approached him and identified
    the items as belonging to Brewington. The officer returned to Vasquez’s
    apartment, where he discovered Brewington and arrested him. As the officer led
    Brewington to his patrol car, Brewington told Vasquez not to allow the police to
    search her apartment. After additional officers arrived on the scene, Vasquez
    gave them permission to search the apartment. In Vasquez’s bathroom, the
    officers discovered a makeup bag containing the controlled substances
    methamphetamine and hydrocodone.
    At Brewington’s trial, he was convicted of the Oklahoma offense of
    possession of a controlled dangerous substance within 1,000 feet of a public park
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    and in the presence of a minor child under 12. On direct appeal, Brewington
    challenged his conviction on two grounds: (1) insufficient evidence, and (2)
    ineffective assistance of counsel. The Oklahoma Court of Criminal Appeals
    (OCCA) affirmed his conviction. Brewington then brought several claims for
    post-conviction relief in Oklahoma court. These were denied by the state court,
    and the OCCA declined to exercise jurisdiction on appeal because Brewington
    had not filed his appeal within thirty days of the district court judgment as
    required by OCCA rules.
    II. Analysis
    The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a
    petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of
    a COA. 28 U.S.C. § 2253(c)(1). A COA requires the applicant to demonstrate a
    “substantial showing of the denial of a constitutional right.” § 2253(c)(2).
    The district court broadly construed Brewington’s petition to contain the
    following four challenges to his conviction: (1) a conflict of interest between
    certain judicial officers and law enforcement officials during his trial
    proceedings; (2) his trial counsel was ineffective; (3) his trial counsel misled him
    and did not allow him to participate in jury selection; and (4) the evidence was
    not sufficient for a reasonable juror to find him guilty of drug possession.
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    The district court rejected the first three claims on procedural default
    grounds, and the fourth claim on the merits, employing the deferential standard
    required by AEDPA.
    A. Procedural Default
    Brewington initially brought his first three claims in state court in an
    application for post-conviction relief. The state court denied the application.
    Brewington appealed that decision to the OCCA, but the OCCA dismissed the
    appeal because it was not filed within thirty days of the state court’s denial order
    as required by OCCA Rule 5.2(C)(2). After Brewington filed his habeas petition
    in federal court, the district court found that his failure to comply with OCCA
    procedures constituted procedural default.
    We may not consider claims that have been defaulted in state court on
    adequate and independent state procedural grounds unless the petitioner can
    “demonstrate cause for the default and actual prejudice as a result of the alleged
    violation of federal law, or demonstrate that failure to consider the claims will
    result in a fundamental miscarriage of justice.” Byrd v. Workman, 
    645 F.3d 1159
    ,
    1167 (10th Cir. 2011) (quoting Matthews v. Workman, 
    577 F.3d 1175
    , 1195 (10th
    Cir. 2009)). “A state procedural default is ‘independent’ if it relies on state law,
    rather than federal law.” Smith v. Workman, 
    550 F.3d 1258
    , 1274 (10th Cir.
    2008). “A state procedural default is ‘adequate’ if it is firmly established and
    regularly followed.” 
    Id. As we
    have long recognized, OCCA Rule 5.2(C)(2) is
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    both an independent and an adequate state ground for default. See Duvall v.
    Reynolds, 
    139 F.3d 768
    , 797 (10th Cir. 1998). Thus, Brewington's first three
    claims must be dismissed unless he demonstrates either (1) cause and actual
    prejudice, or (2) a fundamental miscarriage of justice if relief is not granted.
    1. Cause and Prejudice
    Brewington’s filings do not allege any cause for his failure to comply with
    OCCA Rule 5.2(C)(2), despite the fact that his omission has been twice
    highlighted. See R., Vol. 1 at 65, Response to Petition for Habeas Corpus at 19,
    Brewington v. Miller, No. CIV-11-111-HE (W.D. Okla. Mar. 4, 2011), ECF No. 8
    (“Petitioner has not demonstrated cause as he asserts no reason for his failure to
    comply with proper state procedure.”); R., Vol. 1 at 193–94, Order Dismissing
    Post-Conviction Appeal at 1–2, Brewington v. Oklahoma, No. PC-2010-932
    (Okla. Crim. App. Jan. 18, 2011) (“If Petitioner feels he can prove he has been
    denied a post-conviction appeal through no fault of his own, he should follow the
    proper procedures outlined in the Rules of this Court.”). Because Brewington
    does not offer an explanation for his procedural default, we must find his first
    three claims procedurally defaulted unless he demonstrates a fundamental
    miscarriage of justice.
    2. Miscarriage of Justice
    The fundamental miscarriage of justice exception to procedural default is
    “a markedly narrow one, implicated only in ‘extraordinary case[s] where a
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    constitutional violation has probably resulted in the conviction of one who is
    actually innocent.’” Magar v. Parker, 
    490 F.3d 816
    , 820 (10th Cir. 2007)
    (quoting Phillips v. Ferguson, 
    182 F.3d 769
    , 774 (10th Cir. 1999)). The Supreme
    Court has instructed that “prisoners asserting innocence as a gateway to defaulted
    claims must establish that, in light of new evidence, ‘it is more likely than not
    that no reasonable juror would have found petitioner guilty beyond a reasonable
    doubt.’” House v. Bell, 
    547 U.S. 518
    , 536–37 (2006) (quoting Schlup v. Delo,
    
    513 U.S. 298
    , 327 (1995)).
    Brewington has not alleged any “new evidence.” The only evidence he
    presents is a letter from his niece, Sylvia Vasquez. The letter is addressed to
    Judge Worthington, who was Brewington’s trial judge. The letter says, “I feel
    that I am not being completely honest if I don’t state the fact that the co-
    defendant, George Brewington, had absolutely no knowledge of the items that
    were found the day of our arrest. He had merely stopped by my house at my
    request to take me to the grocery store.” The letter is not dated, but refers to a
    future court appearance on February 21, 2008, implying the letter was written
    before the date. The letter was actually attached to Brewington’s Motion to
    Dismiss filed before his trial in August 2008. Thus, this evidence is not new. It
    is also worth noting that Vasquez pleaded guilty to the same drug charges as
    Brewington.
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    But even if the evidence was new, it would not demonstrate that “it is more
    likely than not that no reasonable juror would have found petitioner guilty beyond
    a reasonable doubt.” 
    Id. A juror
    reasonably could have discounted Vasquez’s
    credibility and given no weight to her claim that Brewington was innocent.
    Because a reasonable juror could still have found Brewington guilty even in light
    of Vasquez’s letter, Brewington cannot demonstrate a fundamental miscarriage of
    justice.
    Thus, his first three claims remain procedurally barred.
    B. Sufficiency of the Evidence
    Brewington also argues his conviction for drug possession was based on
    insufficient evidence of guilt. Because the OCCA addressed the merits of this
    claim, “AEDPA’s deferential treatment of state court decisions must be
    incorporated into our consideration of [his] request for [a] COA.” Dockins v.
    Hines, 
    374 F.3d 935
    , 938 (10th Cir. 2004). Under AEDPA, we may grant a
    habeas petition on a claim that was adjudicated on the merits in state court only if
    the state court’s decision “was contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by the Supreme
    Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
    unreasonable determination of the facts in light of the evidence presented in the
    State court proceeding,” § 2254(d)(2). In reviewing a challenge to the
    sufficiency of the evidence in a habeas petition, “the relevant question is whether,
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    after viewing the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of the crime beyond
    a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). Our review
    under Jackson “is sharply limited, and a court faced with a record of historical
    facts that supports conflicting inferences must presume—even if it does not
    affirmatively appear in the record—that the trier of fact resolved any such
    conflicts in favor of the prosecution, and must defer to that resolution.” Brown v.
    Sirmons, 
    515 F.3d 1072
    , 1089 (10th Cir. 2008) (quotations and alterations
    omitted).
    Having reviewed the record on appeal, we cannot conclude that the OCCA
    unreasonably applied Jackson in concluding the jury’s verdict was based on
    sufficient evidence. The arresting officer discovered Brewington’s personal
    effects outside Vasquez’s window alongside drug paraphernalia. The officer
    testified that it took several minutes for either Vasquez or Brewington to answer
    the door after he knocked. As he was arrested, Brewington became agitated and
    shouted to Vasquez not to allow the police to search her apartment. Drug
    paraphernalia found with the property outside the window resembled similar items
    found with the drugs inside the apartment. It is undisputed that minor children
    under twelve were present in the apartment, and that the apartment was within
    1,000 feet of a public park. A juror could reasonably infer based on these facts
    that Brewington committed the offense with which he was charged.
    -8-
    III. Conclusion
    We GRANT Brewington’s request to proceed in forma pauperis. For the
    reasons stated above, we DENY Brewington’s request for a COA and DISMISS
    the appeal. We also DENY Brewington’s request to be provided with court-
    appointed counsel.
    ENTERED FOR THE COURT,
    Timothy M. Tymkovich
    Circuit Judge
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