Spradling v. Addison , 367 F. App'x 938 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
March 1, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TROY L. SPRADLING,
Petitioner - Appellant,
No. 09-6195
v. (D.C. No. 08-CV-00793-D)
(W.D. Okla.)
MIKE ADDISON,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Defendant-Appellant Troy L. Spradling, a state inmate represented by
counsel, seeks a certificate of appealability (COA) to appeal the district court’s
denial of his 28 U.S.C. § 2254 habeas petition. To obtain a COA, Mr. Spradling
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Mr.
Spradling has not made the requisite showing, and therefore we deny a COA and
dismiss the appeal.
Background
Following a jury trial, Mr. Spradling was convicted of one count of lewd
acts with a child under 16 (count two), one count of sexual battery (count ten),
and two counts of rape by instrumentation (counts eleven and nineteen), and was
acquitted of the remaining thirty-six counts. Aplt. App. 78. He was sentenced to
five years’ imprisonment for each of the convictions to be served consecutively.
Aplt. App. 78. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the
convictions and sentences on direct appeal. Aplt. App. 78. Mr. Spradling then
sought post-conviction relief in the state district court with new counsel. Aplt.
App. 44-66. He argued, inter alia, that (1) the trial court erred in failing to
require the prosecution to elect the acts upon which each of the charges was
based, and his trial/appellate counsel was ineffective in failing to raise this claim;
and (2) his convictions for counts two and eleven violated his constitutional right
to be protected from double jeopardy, and his trial/appellate counsel was
ineffective in failing to raise this claim. Aplt. App. 57-65. The state district
court denied post-conviction relief, and the OCCA affirmed. Aplt. App. 78-81,
110-16.
Mr. Spradling’s federal habeas petition was limited to these two claims of
ineffective assistance of counsel. The magistrate judge considered his petition on
the merits and recommended that it be denied. Aplt. App. 117-28. After
addressing Mr. Spradling’s objections to the magistrate judge’s report and
recommendation, the federal district court adopted the report and recommendation
and denied the petition. Aplt. App. 138-40.
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Discussion
Before reaching the merits of Mr. Spradling’s claims, we must determine
whether he is entitled to a COA. Pursuant to 28 U.S.C. § 2253(c)(2), an inmate
seeking a COA must make “a substantial showing of the denial of a constitutional
right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). He may do so by
“showing 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 to proceed further.” Slack, 529 U.S. at 484(internal quotation marks omitted). To prevail on an ineffective assistance claim,
Mr. Spradling must show (1) deficient performance by counsel and (2) prejudice
from counsel’s error or omission. See Strickland v. Washington, 466 U.S. 668,
687 (1984).
When a state court has considered a claim on the merits, we must defer to
its resolution unless 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,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1) & (2). Further, state court findings are
presumed to be correct unless the petitioner rebuts this presumption by clear and
convincing evidence. Id. § 2254(e)(1).
On appeal, Mr. Spradling argues that the factual determinations underlying
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the OCCA’s rejection of his claims are unreasonable. Aplt. Br. 23, 30. In his
first ground, he relies on Oklahoma’s common law election rule which, subject to
certain exceptions, requires the prosecution to elect the acts upon which rape
charges were based. See Crawford v. State, 688 P.2d 347, 348 (Okla. Crim. App.
1984) (election generally required for a rape charge); Ives v. Boone, 101 F. App’x
274, 293-294 (2004) (election not required in cases involving child abuse). Mr.
Spradling contends that his counsel should have requested that the prosecutor
elect the acts on which the charges were based. Aplt. Br. 10-25. In considering
and rejecting the underlying claims of trial court error, the OCCA explained,
“While the abuse in this case constituted a continuous offense, the State
specifically elected to charge Petitioner with 40 separate and distinct offenses
which it alleged took place during the relevant time period. By so doing, the
State elected to specifically charge Petitioner[] with separate counts for each
alleged offense.” Aplt. App. 115; see Gregg v. State, 844 P.2d 867, 878 (Okla.
Crim. App. 1992) (relying upon same rationale). We are bound by the OCCA’s
interpretation of state law. Johnson v. Mullin, 505 F.3d 1128, 1141-1142 (10th
Cir. 2007) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) (“‘[I]t is not
the province of a federal habeas court to reexamine state court determinations on
state-law questions’”). Although Mr. Spradling argues that the OCCA failed to
apply its election rule based upon its unreasonable determination of the facts
(given the prosecution’s reliance on more acts than it chose to charge), this is
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plainly a state-law issue on which we must defer. * Because the OCCA held that
election was not required, it is not reasonably debatable that counsel’s failure to
raise this issue during trial or on appeal was either deficient performance or
prejudicial under Strickland.
The district court’s resolution of counsel’s failure to pursue the double
jeopardy issue is likewise not reasonably debatable. To the extent Mr. Spradling
argues that his conviction violates the prohibition on multiple punishments found
at Okla. Stat. tit. 21, § 11, the state court’s interpretation of its own laws is not a
cognizable claim for federal habeas relief. Estelle, 502 U.S. at 67-68. Instead,
we are limited to deciding whether his conviction violated the Constitution or
laws of the United States. 28 U.S.C. § 2254(a).
Count two charged Defendant with touching the victim in a lewd manner
whereas count eleven charged penetration. Mr. Spradling argues that the jury
instructions and the prosecutor’s arguments allowed the jury to convict on both
counts based on a single act. Aplt. Br. 25-26. The OCCA addressed this
argument, stating:
Petitioner was charged with committing numerous offenses
against each of the victims over an extended period of time.
*
We note that even if this were a factual issue to which § 2254(d)(2)
somehow applied, Mr. Spradling would have to prove that the determination was
unreasonable, which means more than merely debatable. See Wood v. Allen, —S.
Ct. — , 2010 WL 173369 at *6 (2010). At a minimum, this would involve
discussing the uncharged acts in relation to the counts of conviction with citations
to a transcript.
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Testimony received from the victims included descriptions of
numerous types of abuse, which included numerous acts of . . .
penetration, and other acts which consisted [of] touching the
victims’ private body parts. . . . [T]estimony was voluminous,
and was elicited to support each of the charges. . . . While it is
possible that the charge of Lewd Acts could be a lesser
included offense of Rape by Instrumentation, we find there
was sufficient evidence presented to support convictions for
both counts.
Aplt. App. 115.
We review a habeas petition alleging multiple punishment double jeopardy
only to determine whether the state trial court imposed a sentence greater than the
legislature intended. Missouri v. Hunter, 459 U.S. 359, 368 (1983). “‘[W]e are
bound by a state court’s determination of the legislature’s intent.’” Cummings v.
Evans, 161 F.3d 610, 615 (10th Cir. 1998) (quoting Birr v. Shillinger, 894 F.2d
1160, 1161 (10th Cir. 1990)). Thus, “if the highest state court determines that the
legislature intended to punish separate offenses cumulatively, a federal habeas
court must defer to that conclusion.” Id. at 615. The magistrate judge concluded
that the OCCA rejected Mr. Spradling’s double jeopardy claim “based on the
court’s conclusion that multiple punishments were permitted by the Oklahoma
legislature because sufficient evidence existed in the trial record to support the
separate convictions for both counts.” Aplt. App. 126.
Mr. Spradling argues that the OCCA merely passed on sufficiency of the
evidence to support the convictions rather than performing an adequate analysis
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of the double jeopardy claim. We defer to the OCCA’s implicit determination
that the legislature intended to punish the charged offenses as separate and
distinct acts. Given such an interpretation of the Oklahoma legislature’s intent, it
is not reasonably debatable that counsel’s failure to raise double jeopardy during
trial or on appeal was objectively unreasonable assistance under Strickland.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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