Leyja v. Parker , 404 F. App'x 291 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
December 9, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHRISTOPHER LEYJA,
Petitioner-Appellant, Nos. 10-6121 and 10-6140
v. (W.D. of Okla.)
DAVID PARKER, Warden, (D.C. No. 5:09-CV-00265-W)
Respondent-Appellee.
ORDER
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
This matter is before the court on appellant’s Request for En Banc Hearing.
The request for panel rehearing is granted in part. The court’s opinion is
amended to add pages 5 through 7. The amended order shall issue nunc pro tunc
to the original filing date November 2, 2010. A copy of the amended decision is
attached to this order. The request for panel rehearing is otherwise denied.
The petition with en banc request was also transmitted to all of the judges
of the court who are in regular active service. As no member of the panel and no
judge in regular active service on the court requested that the court be polled, the
en banc request is denied.
Entered for the Court,
ELISABETH A. SHUMAKER
Clerk of Court
2
FILED
United States Court of Appeals
Tenth Circuit
November 2, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHRISTOPHER LEYJA,
Petitioner-Appellant, Nos. 10-6121 and 10-6140
v. (W.D. of Okla.)
DAVID PARKER, Warden, (D.C. No.5:09-CV-00265-W)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Petitioner Christopher Leyja, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. Exercising
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) , we deny his request for a COA,
deny his request to proceed on appeal in forma pauperis, and dismiss this appeal.
*
This order is not binding precedent except under the doctrines of law of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.
I. Background
Following a jury trial in Oklahoma state court, Leyja was convicted of
three charges involving his former girlfriend, Donna Thompson: first-degree rape
(Count I), first-degree burglary (Count II), and forcible oral sodomy (Count III).
He was sentenced to forty years on Count I, twenty years on Count II, and twenty
years on Count III, each to be served consecutively. The Oklahoma Court of
Criminal Appeals (OCCA) affirmed Leyja’s conviction on direct appeal. Leyja’s
pursuit of state post-conviction relief was also unsuccessful.
Leyja subsequently filed a habeas petition in federal district court. The
district court referred the matter to a magistrate judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). In a carefully reasoned and
thorough report and recommendation, the magistrate judge recommended Leyja’s
petition be denied. The district court adopted the magistrate judge’s
recommendation and denied the petition. The court then denied Leyja’s
application for a COA, stating,
Because the Court has rejected Leyja’s claims on their merits . . . the
Court finds that to be entitled to a COA Leyja ‘must demonstrate that
reasonable jurists would find th[is] . . . [C]ourt’s assessment of the
constitutional claims debatable or wrong.’ Upon review of the
record, the Court finds that Leyja would be unable to make the
requisite showing . . . .
May 20, 2010 Order at 1 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The district court also denied Leyja leave to appeal in forma pauperis because
2
“upon review of the record [] Leyja would not be able to present a reasoned,
nonfrivolous argument on the law and facts in support of the issues to be raised
on appeal. Leyja’s appeal therefore is not taken in good faith.” June 2, 2010
Order at 1. Leyja sought a second COA to appeal the district court’s denial of his
application to proceed in forma pauperis, which the district court also denied.
Leyja now seeks a COA from this court to enable him to appeal the denial
of his habeas petition and his application to proceed in forma pauperis. He raises
the following issues: (1) insufficient evidence of guilt, (2) actual innocence, (3)
ineffective assistance of trial counsel, (4) ineffective assistance of appellate
counsel, (5) the erroneous admission of expert testimony, (6) the erroneous
admission of a portion of a medical report in violation of Leyja’s Sixth
Amendment right to confrontation, (7) an alleged Brady violation by prosecutors
in misrepresenting that a witness could not be located, and (8) an alleged Brady
violation by prosecutors in failing to disclose a study on which expert testimony
was based.
We interpret Leyja’s request for a COA regarding the district court’s denial
of his application to proceed in forma pauperis as a renewed application for this
status.
II. Discussion
Without a COA, we lack jurisdiction to consider the merits of a habeas
appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only if “the applicant
3
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make the requisite showing, Leyja 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.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).
Because the OCCA addressed the merits of several of Leyja’s claims,
“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,” id. § 2254(d)(2).
Leyja is a pro se litigant and we construe his pleadings and other papers
generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Having thoroughly reviewed the record, we conclude Leyja is not entitled
to a COA on any of the issues that he seeks to pursue on appeal. As a threshold
matter, three of Leyja’s claims were not raised with the district court and are
waived. As a general rule, we will not consider issues on appeal that were not
4
raised before the district court as part of the habeas petition. See Rhine v. Boone,
182 F.3d 1153, 1154 (10th Cir. 1999); see also Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 721–22 (10th Cir. 1993). However, even if Leyja had properly
preserved these issues for appeal, they would have failed on the merits.
First, Leyja claims the admission at trial of a diagram from a medical report
violated his Sixth Amendment right to confrontation, as the author of the report
was not available for cross-examination. Because the OCCA addressed this
question on direct appeal, habeas is only appropriate if the OCCA’s conclusions
were “contrary to, or involved an unreasonable application of clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). To determine whether the law was clearly
established, we look to Supreme Court precedent as it existed when the state court
reached its decision. Valdez v. Ward, 219 F.3d 1222, 1229 (10th Cir. 2000).
In Melendez-Diaz v. Massachusetts, the Supreme Court held a laboratory
drug analysis prepared for trial was testimonial evidence. 129 S. Ct. 2527,
2532–33 (2009) (citing Crawford v. Washington, 541 U.S. 36 (2004)). The
defendant’s right to confrontation was therefore violated when the trial court
admitted the analysis without providing the defendant with the opportunity to
cross-examine the analyst. Leyja argues this case clarifies the admission of the
medical diagram violated his Sixth Amendment right to confrontation. He is
arguably correct. However, this decision was not issued until 2009; the OCCA
resolved Leyja’s claim on direct appeal in 2007. In 2007, the question of whether
5
such scientific analyses constitute testimonial evidence under Crawford was still
unsettled. In fact, several courts had held analogous documents did not implicate
the Sixth Amendment, reading dictum in Crawford to suggest business records are
not testimonial. Com. v. Verde, 444 Mass. 279, 283 (Mass. 2005) (holding drug
analyses were not testimonial under Crawford), abrogated by Melendez-Diaz 129
S. Ct. 2527; Perkins v. State, 897 So. 2d 457, 464 (Ala. Crim. App. 2004)
(finding an autopsy report not to be testimonial, as it had been made in the
ordinary course of business); People v. Johnson, 121 Cal. App. 4th 1409, 1412
(Cal. Ct. App. 2004) (finding a laboratory report was not testimonial under
Crawford).
Because the Supreme Court had not resolved the question of whether a
scientific report is testimonial when the OCCA issued its decision, and because
multiple courts had found such reports are not testimonial, the OCCA’s
conclusion was not contrary to or an unreasonable application of clearly
established federal law.
In his second claim, Leyja argues the prosecutors committed a Brady
violation in failing to disclose the 1966 study on which an expert witness relied.
In Brady v. Maryland, the Supreme Court held the state’s suppression of
“evidence favorable to an accused . . . violates due process where the evidence is
material either to guilt or to punishment.” 373 U.S. 83, 87 (1963). Thus, to
establish a Brady violation, Leyja must show: “1) that the prosecution suppressed
6
evidence; 2) that the evidence was favorable to the accused; and 3) that the
evidence was material.” Smith v. Sec'y of N.M. Dep’t of Corr., 50 F.3d 801, 824
(10th Cir. 1995). Generally, evidence is material if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. United States v. Young, 45 F.3d 1405,
1408 (10th Cir.1995).
Leyja claims the opportunity to review the contents and history of the 1966
study might have allowed his attorney to impeach the expert on cross-
examination. “Impeachment evidence as well as exculpatory evidence falls
within the Brady rule.” Id. However, Leyja has not shown the study could have
been used to impeach the expert. The only information he offers on this point is
that the study was published in 1966, and not 1956 as the expert testified. It is
unlikely such a minor error would have undermined the expert’s credibility with
the jury. Because Leyja does not show this study could have furthered his
defense, his claim of a Brady violation must fail. See Sandoval v. Ulibarri, 548
F.3d 902, 915 (10th Cir. 2008) (rejecting a Brady claim where appellant’s
argument that a medical report would have been exculpatory was merely
speculative).
Leyja also asserts a second Brady violation in the prosecutors’
representation to the trial court, echoed by Leyja’s attorney, that a witness could
not be located. Even if Leyja is correct that the prosecutors deliberately
7
suppressed evidence of the witness’s whereabouts, this act does not constitute a
Brady violation. An affidavit from this witness shows he could have testified that
Leyja and Thompson emerged from her building together, that Leyja was not
holding a weapon, and that Thompson unlocked her car door for Leyja. This is
consistent with Thompson’s own testimony at trial. Because the witness’s
testimony would not have contradicted Thompson’s or added significant
additional information, there is not a reasonable probability the testimony would
have altered the result of the trial.
As to Leyja’s remaining claims, we agree with the findings of the
magistrate judge that were subsequently adopted by the district court. For
substantially the reasons stated in the report and recommendation, we affirm the
district court’s decision.
Leyja argues his conviction for first-degree rape was based on insufficient
evidence of guilt. In support, Leyja cites the “911” tape in which Thompson
stated that she agreed to have sexual intercourse. Leyja also points to a letter
written by Leyja’s trial counsel asserting Thompson did not want to prosecute
because she had consented. However, Thompson’s complete statement on the
tape was that Leyja “terrorized me at knife point and hammer and said he was
gonna kill me . . . and so I had sex with him so that he wouldn’t kill me.” R. 911
Tape, Trial Exhibit 56. At trial, Thompson also testified she had intercourse with
Leyja only because he threatened her with force and she feared for her life. We
8
agree with the magistrate judge that a rational trier of fact could have found Leyja
forced Thompson to have sexual intercourse using a threat of violence. This
claim therefore fails.
Leyja also seeks a COA on the ground that he is actually innocent of the
crimes for which he was convicted. But a claim of actual innocence does not
support federal habeas relief, absent an independent constitutional violation
occurring in the underlying criminal proceeding. Herrera v. Collins, 506 U.S.
390, 400 (1993) (“This rule is grounded in the principle that federal habeas courts
sit to ensure that individuals are not imprisoned in violation of the
Constitution—not to correct errors of fact.”). And as noted above, a rational jury
could have concluded that Leyja committed the crime.
Next, Leyja contends his trial counsel was ineffective for failure to call two
additional fact witnesses. Under Strickland v. Washington, counsel provides
ineffective assistance when the representation does not meet “an objective
standard of reasonableness,” and “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. 668, 688, 694 (1984). The OCCA found that failure to call
the first witness did not prejudice the outcome of the trial. We agree with the
magistrate judge this conclusion was not contrary to or an unreasonable
application of federal law. We also find that trial counsel’s decision not to call
the second witness was reasonable, given the possibility that his medical history
9
would undermine his credibility and that similar evidence could be presented
through other witnesses. We therefore deny a COA on this claim.
In his petition, Leyja also alleges his appellate counsel was ineffective, but
does not explain the basis for his claim. We assume he intends to raise the same
claim he made below, that his appellate attorney filed a defective appeal brief
depriving the OCCA of jurisdiction over the appeal, and that his appellate
attorney should have made additional arguments for ineffective assistance of trial
counsel. We agree with the magistrate judge’s finding Leyja’s appellate brief was
not defective and that, in any case, Leyja suffered no prejudice from any such
error as the OCCA reached the merits of his claims. We also agree Leyja’s
claims of ineffective trial assistance are without merit, and therefore appellate
counsel did not err in failing to raise these claims.
Finally, Leyja contends the trial court erred in admitting the testimony of
the prosecution’s expert. The OCCA affirmed the expert was qualified to testify
on human sexual response under the test established by Daubert v. Merrell Dow
Pharms., 509 U.S. 579 (1993). Noting the qualification of an expert is a factual
issue for purposes of federal habeas review, the magistrate judge held this was not
an unreasonable determination in light of the facts presented at trial. Given the
expert’s testimony as to her training and experience in sexual assault nursing, we
agree.
10
III. Conclusion
We GRANT Leyja’s motion to consolidate both applications for COA. For
the reasons stated above, we DENY Leyja’s request for a COA and DISMISS the
matter. We also DENY his request for leave to proceed on appeal in forma
pauperis.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
11