Meeker v. Saffle , 45 F. App'x 871 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 17 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN MEEKER,
Petitioner - Appellant,
v. No. 01-6394
(D.C. No. CIV-01-233-W)
RON WARD, Warden, (W.D. Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HENRY and HOLLOWAY , Circuit Judges, and BRORBY , Senior
Circuit Judge.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Petitioner-appellant Steven Dale Meeker appeals the order of the district
court denying his petition for a writ of habeas corpus brought pursuant to
28 U.S.C. § 2254. He also reapplies in this court for a certificate of appealability
(COA). In order to merit the grant of COA, petitioner must make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires “a demonstration that . . . includes 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 omitted). Because petitioner has failed to make this
showing, we deny the application for COA and dismiss the appeal.
Petitioner was convicted in Oklahoma state court of one count of
committing a lewd or indecent act with a child under sixteen and one count of
rape in the first degree by instrumentation. Petitioner was sentenced to twelve
years’ imprisonment. After petitioner’s conviction and sentence were affirmed on
direct appeal, he brought two unsuccessful actions for state post-conviction relief.
In his federal habeas petition, petitioner raises fifteen claims, eight of
which were adjudicated on the merits by the state court, either on direct appeal or
in his first post-conviction proceeding. Federal habeas relief will be forthcoming
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based on those claims, therefore, only if petitioner can demonstrate that the
decision of the Oklahoma court
“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.” Id. § 2254(d)(2). Thus, we
may grant the writ if we find the state court arrived at a conclusion
opposite to that reached by the Supreme Court on a question of law;
decided the case differently than the Supreme Court has on a set of
materially indistinguishable facts; or unreasonably applied the
governing legal principle to the facts of the prisoner’s case.
Hain v. Gibson , 287 F.3d 1224, 1229 (10th Cir. 2002) (quotation omitted).
The federal magistrate judge, in a thorough and well-reasoned report and
recommendation, recommended the petition be denied. With regard to the claims
adjudicated by the state court, the magistrate judge determined that the Oklahoma
court’s rejection of petitioner’s claims in each instance was not contrary to, or an
unreasonable application of, clearly established Supreme Court jurisprudence, and
that the appellate court’s decision was not based on an unreasonable
determination of the facts in light of the evidence presented at trial.
As for the claims presented for the first time in petitioner’s second state
post-conviction proceeding, the magistrate judge found that these claims had been
defaulted in state court on an adequate and independent state procedural ground
and that petitioner had failed to demonstrate cause and prejudice for this default,
or that failure to address the claims in federal court would amount to
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a fundamental miscarriage of justice. 1
The district court adopted the report and
recommendation and denied the petition for habeas corpus.
We have reviewed the report and recommendation adopted by the district
court and substantially agree with its analysis. 2
Petitioner has, therefore, failed to
show 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.”
1
The fundamental miscarriage of justice exception is rare and is “implicated
only in an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Phillips v. Ferguson ,
182 F.3d 769, 774 (10th Cir. 1999) (quotations omitted). Petitioner did not
specifically allege actual innocence in his § 2254 petition, but makes that claim
for the first time on appeal. We thus will not address this argument. See Rojem
v. Gibson , 245 F.3d 1130, 1141 (10th Cir. 2001). Even if it were not barred,
petitioner has failed to bring forth evidence of actual innocence such that “it is
more likely than not that no reasonable juror would have convicted him . . . .”
Phillips , 182 F.3d at 774 (quotation omitted). Petitioner’s personal assertion of
his innocence, by itself, cannot satisfy the fundamental miscarriage of justice
exception. See Schlup v. Delo , 513 U.S. 298, 329 (1995) (“The meaning of actual
innocence . . . does not merely require a showing that a reasonable doubt exists in
the light of the new evidence, but rather than no reasonable juror would have
found the defendant guilty.”).
2
Since the date of the magistrate judge’s report and recommendation, this
court has disavowed the use of the “dead-bang winner” language in ineffective
assistance of appellate counsel claims. See Neill v. Gibson , 278 F.3d 1044, 1057
n.5 (10th Cir. 2001), petition for cert. filed (U.S. May 6, 2002) (No. 01-10121)
(disavowing language in Walker v. Gibson , 228 F.3d 1217, 1237 (10th Cir. 2000),
cert. denied , 533 U.S. 933 (2001), and other cases which required “a showing
more onerous than a reasonable probability that the omitted claim would have
resulted in a reversal on appeal”).
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Slack , 529 U.S. at 484 (quotation omitted). Petitioner has thus failed to make
“a substantial showing of the denial of a constitutional right” as required before
COA may issue. See § 2253(c)(2).
Petitioner’s motion to submit addendum to opening brief to comply
with 10th Cir. R. 28.2 is granted. Petitioner’s remaining outstanding motions
are denied.
The application for COA is DENIED, and this appeal is DISMISSED.
Entered for the Court
Robert H. Henry
Circuit Judge
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