Wright v. Franklin , 438 F. App'x 728 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    September 27, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    LARRY EUGENE WRIGHT,
    Petitioner-Appellant,
    v.                                                     No. 11-5086
    (D.C. No. 4:08-CV-00028-TCK-FHM)
    ERIC FRANKLIN, Warden                                  (N.D. Okla.)
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
    Larry Wright filed a federal petition pursuant to 
    28 U.S.C. § 2254
     seeking
    relief from his Oklahoma convictions and sentences for armed robbery and
    unlawful possession of a firearm. In response, the district court issued a detailed
    opinion explaining its reasons for declining to award relief. Mr. Wright now asks
    for a certificate of appealability (“COA”) to allow him to contest the district
    court’s decision.
    *
    This order is not binding precedent except under the doctrines of law of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.
    We may grant a COA only if Mr. Wright makes a “substantial showing of
    the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). Under this standard,
    an applicant must 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.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (internal quotation
    omitted). Because Mr. Wright proceeds in this court pro se, we review his
    pleadings with special solicitude.
    Even so, we conclude that we cannot issue a COA. In this court, as in the
    district court, Mr. Wright has sought to pursue three claims. None, however,
    involves a situation where reasonable jurists could debate the decision to deny
    relief.
    First, Mr. Wright claims that the prosecutors’ misconduct at his trial denied
    him his federal constitutional right to a fair trial. Noting that state courts had
    already provided him with some but not all the relief he had requested on this
    claim, the district court concluded, after extensive discussion, that the state court
    decision not to provide further relief was neither contrary to nor an unreasonable
    application of federal law. Mr. Wright’s COA application affords us no basis on
    which we might disagree with that considered conclusion. See Wright v.
    Franklin, No. 08-CV-028-TCK-FHM, 
    2011 WL 1990035
    , at *3–*6 (N.D. Okla.
    May 23, 2011).
    -2-
    Second, Mr. Wright argues that his federal equal protection rights were
    offended by the state court’s jury instructions. We agree with the district court,
    however, that this claim was not preserved for federal review. To be sure, Mr.
    Wright pursued a related claim of error in his direct appeal, taking the question
    whether the trial court’s jury instructions comported with state law to the state’s
    highest court, the Oklahoma Court of Criminal Appeals (OCCA). See ROA 162
    et seq. (raising state law claim on direct appeal); 
    id. at 65
     (OCCA ruling). But he
    raised his federal equal protection claim involving the jury instructions used at his
    trial only for the first time in his state collateral challenge. And he failed to
    pursue that collateral challenge on appeal to the OCCA. His failure to do so, to
    avail himself of all avenues available to him for relief under state law,
    procedurally defaults the claim. See Johnson v. Champion, 
    288 F.3d 1215
    ,
    1226–27 (10th Cir. 2002). Neither has he shown that there was adequate cause
    for his delay, or that a “fundamental miscarriage of justice” would result from the
    default, such that we might potentially excuse his default. Coleman v. Thompson,
    
    501 U.S. 722
    , 750 (1991).
    Third, Mr. Wright contends that his trial counsel’s ineffective assistance
    violated his Sixth and Fourteenth Amendment rights. The district court found this
    claim procedurally defaulted because it was included in his state collateral
    challenge, a challenge that he (again) failed to pursue through appeal to the
    OCCA. Wright, 
    2011 WL 1990035
    , at *7–*8. Mr. Wright, however, also pursued
    -3-
    his ineffective assistance claim in his direct appeal — and the issue was
    entertained and adjudicated by the OCCA. See ROA at 159 et seq. The OCCA
    concluded that trial counsel had performed deficiently, but that there was
    insufficient proof that counsel’s errors had prejudiced Mr. Wright. See 
    id.
     at
    62–64. On collateral review the state trial court declined to consider Mr.
    Wright’s renewed ineffective assistance claim precisely because, in its view, the
    claim had already been addressed and resolved on direct appeal. See 
    id. at 73
    .
    But whether or not the claim is procedurally defaulted, there is no way we
    might issue a COA. To make out a claim of ineffective assistance of counsel, a
    petitioner must show that he was prejudiced by his lawyer’s deficient
    performance. Strickland v. Washington, 
    466 U.S. 688
    , 694 (1984). What’s more,
    because this case arises on collateral review and the OCCA ruled on the merits of
    the claim, a federal court may intercede to afford Mr. Wright relief only if the
    OCCA’s Strickland analysis — concluding that Mr. Wright suffered no prejudice
    from his lawyer’s performance — 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). And it is plain that Mr.
    Wright cannot clear this doubly deferential hurdle. As the OCCA noted, the state
    presented significant evidence of Mr. Wright’s guilt, and the jury was instructed
    in a manner designed to cure any defect arising out of the mistakes made by Mr.
    Wright’s defense counsel. See ROA at 61, 64. We see no basis on which a
    -4-
    reasonable jurist could think the OCCA’s Strickland prejudice assessment was
    contrary to or an unreasonable application of federal law.
    The application for a COA is denied and this appeal is dismissed.
    ENTERED FOR THE COURT
    Neil M. Gorsuch
    Circuit Judge
    -5-
    

Document Info

Docket Number: 11-5086

Citation Numbers: 438 F. App'x 728

Judges: Lucero, Anderson, Gorsuch

Filed Date: 9/27/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024