Davis v. Gibson ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 4 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JERRY LEE DAVIS,
Petitioner - Appellant,
v. No. 01-7152
D.C. No. 00-CV-54-S
MIKE MULLIN, * Warden, Oklahoma (E.D. Oklahoma)
State Penitentiary,
Respondent - Appellee.
ORDER AND JUDGMENT **
Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , *** Senior District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
*
Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002.
**
This order and judgment is not binding precedent, except under the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.
***
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
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.
Petitioner seeks a certificate of appealability (COA) to obtain review of the
district court’s order denying his petition for a writ of habeas corpus. His petition
raised six issues, all of which were considered on the merits by the Oklahoma
Court of Criminal Appeals and decided against him. Davis v. State , 993 P.2d 124(Okla. Crim. App. 1999) The district court reviewed the state court’s decision
under the appropriate standard and also concluded petitioner’s claims lacked
merit. Because he has not made a substantial showing of the denial of a
constitutional right, we deny his application and dismiss the appeal.
In both state and district court, petitioner argued that (1) his convictions for
three separate offenses violated the principles of double jeopardy and double
punishment; (2) his second trial was barred by the double jeopardy clause; (3) the
evidence was insufficient to support his conviction for larceny from a house;
(4) his confession was involuntary because he did not waive his right to counsel
and because he was not brought before a magistrate until a month after his arrest;
(5) the trial court erroneously rejected requested jury instructions on the
reliability of eyewitness identification testimony and the voluntariness of the
confession; and (6) he was denied the right to a speedy trial.
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Petitioner is not entitled to a writ of habeas corpus on any claim
adjudicated on the merits by a state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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); see also Williams v. Taylor , 529 U.S. 362, 412-13 (2000).
Here, because the district court also rejected petitioner’s constitutional claims on
the merits, petitioner must demonstrate that reasonable jurists would find that
decision debatable or wrong. See Dennis v. Poppel , 222 F.3d 1245, 1249
(10th Cir. 2000).
The Oklahoma Court of Criminal Appeals correctly considered the three
offenses of which petitioner was convicted under the double jeopardy test of
Blockburger v. United States , 284 U.S. 299, 304 (1932), and determined that each
of the offenses charged contained elements the others did not. Davis , 993 P.2d
at 125. The state court also determined that petitioner’s retrial did not raise a
double jeopardy issue because petitioner had moved for the mistrial based on
witness testimony (in violation of a motion in limine) that was not caused by any
actions of the state. Thus, the principles of Oregon v. Kennedy , 456 U.S. 667,
676 (1982) (only where governmental conduct was intended to goad defendant
into moving for mistrial may defendant raise double jeopardy bar to second trial),
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were not violated. Davis , 993 P.2d at 127. The state court further determined,
based on a review of the record, that there was sufficient evidence to support the
conviction for larceny from a house conviction. Id. The district court likewise
reviewed the state court record and concluded the evidence was sufficient under
the standards of Jackson v. Virginia , 443 U.S. 307 (1979). Our own review
supports the conclusions of the state and district courts.
Petitioner next contends that his confession was involuntary because he
asked to speak with an attorney before being questioned and did not waive his
rights under Miranda v. Arizona , 384 U.S. 436 (1966). He further states the
confession should have been suppressed because he was not taken before a
magistrate until a month after his arrest. The record contains sufficient evidence
to support the state court’s determination that petitioner had knowingly and
voluntarily waived his Miranda rights and that he had not asked to speak with an
attorney. Under the totality of the circumstances, it is clear that the confession
was voluntarily obtained. See Miller v. Fenton , 474 U.S. 104, 112 (1985). With
regard to his claim that was not taken before a magistrate in a timely manner, the
state court did not address this as a separate issue apart from a general
determination that the confession was voluntary. The district court did address
the matter, however, and we concur with that court’s evaluation. Petitioner has
failed to establish how the voluntariness of his confession, which occurred on the
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day of his arrest, was affected by not appearing before a magistrate for a month.
See Castro v. Ward , 138 F.3d 810, 821 (10th Cir. 1998).
Next, petitioner claims he was entitled to jury instructions on the issues of
eyewitness testimony and the voluntariness of his confession. The Court of
Criminal Appeals found no error as to the eyewitness testimony instruction and
held that the lack of an instruction on the voluntariness of petitioner’s confession
was harmless in view of the entire record. Davis , 993 P.2d at 127. The district
court reviewed this issue under the appropriate standard requiring that a state
court conviction be set aside in a habeas proceeding only “when the errors had the
effect of rendering a trial so fundamentally unfair as to cause a denial of a fair
trial.” Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995).
Finally, petitioner claims he was denied his right to a speedy trial. The
district court properly considered the factors enumerated in Barker v. Wingo ,
407 U.S. 514, 530 (1972): length of the delay, reasons for the delay, petitioner’s
assertion of his right to a speedy trial, and prejudice. The record reflects that the
delay was attributable at least in part to petitioner, who at least once offered to
plead guilty but changed his mind, changed attorneys, and waited nearly thirteen
months to assert his speedy trial right. Petitioner has also failed to demonstrate
any prejudice occasioned by the delay. He is therefore not entitled to habeas
relief on this ground.
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For these and the reasons set forth by the district court in its order of
October 31, 2001, the application for a certificate of appealability is DENIED, the
motion for relief from paying costs or fees is DENIED, and the appeal is
DISMISSED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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