Deckard v. Ward ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 6 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
FRANKLIN DECKARD,
Petitioner-Appellant,
No. 04-5125
v. (Northern District of Oklahoma)
(D.C. No. 01-CV-85)
RON WARD,
Respondent-Appellee.
ORDER
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Proceeding pro se, Franklin Deckard seeks a certificate of appealability
(“COA”) from this court so he can appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Because Deckard has not “made a substantial
showing of the denial of a constitutional right,” this court denies his request for a
COA and dismisses this appeal. Id. § 2253(c)(2).
After an Oklahoma jury trial, Deckard was convicted of one count of First
Degree Murder and one count of Attempted First Degree Murder. He was
sentenced to life imprisonment without the possibility of parole on the First
Degree Murder conviction and life imprisonment with the possibility of parole on
the Attempted Murder conviction. Deckard appealed the convictions and his
sentence. Specifically he argued that (1) he was denied a fair trial because the
prosecutor misled the jury regarding the burden of proof on his defense of
insanity, (2) there was insufficient evidence to prove he was sane beyond a
reasonable doubt, (3) the trial court committed reversible error when it failed to
instruct upon second degree murder, (4) prosecutorial misconduct deprived him of
a fair trial, (5) his defense counsel was ineffective, and (6) his sentences were
excessive. The Oklahoma Court of Criminal Appeals (“OCCA”), however,
affirmed Deckard’s convictions and sentences.
Deckard filed the instant § 2254 habeas petition on February 5, 2001. In
his petition, Deckard raised three claims of error: (1) the trial court’s failure to
instruct on second degree murder deprived him of a fair trial, (2) defense counsel
rendered constitutionally ineffective assistance, and (3) prosecutorial misconduct
rendered his trial fundamentally unfair. The district court addressed each claim.
It first concluded that Deckard’s claim relating to the failure to give a second
degree murder instruction did not raise a federal constitutional question. Lujan
v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (“[A] petitioner in a non-capital case
is not entitled to habeas relief for the failure to give a lesser-included instruction
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even if in our view there was sufficient evidence to warrant the giving of an
instruction on a lesser included offense.” (quotation omitted)). Next, applying the
standard set forth in the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), the district court concluded that the OCCA’s adjudication of
Deckard’s two remaining claims was not contrary to, nor an unreasonable
application of clearly established federal law. 28 U.S.C. § 2254(d). Accordingly,
the district court denied Deckard relief on all three claims raised in the § 2254
petition. 1
This court cannot grant Deckard a COA unless he can 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether
Deckard has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El v. Cockrell, 123 S. Ct. 1029, 1040 (2003). Deckard is not
required to demonstrate that his appeal will succeed to be entitled to a COA. He
1
In his application for COA and supporting brief, Deckard raises additional
claims which were presented to the OCCA but which were not presented to the
district court. Because these claims were not raised before the federal district
court, we will not consider them. See Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992).
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must, however, “prove something more than the absence of frivolity or the
existence of mere good faith.” Id. (quotations omitted).
This court has reviewed Deckard’s application for a COA and appellate
brief, the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes that Deckard
is not entitled to a COA. The district court’s resolution of Deckard’s claims is
not reasonably subject to debate and the claims are not adequate to deserve
further proceedings. Accordingly, Deckard has not “made a substantial showing
of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §
2253(c)(2).
This court denies Deckard’s request for a COA and dismisses this appeal.
Entered for the Court
PATRICK FISHER, Clerk of Court
By
Deputy Clerk
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