Patrick v. Patton , 634 F. App'x 220 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 17, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RONALD J. PATRICK,
Petitioner - Appellant,
v. No. 15-5093
(D.C. No. 4:12-CV-00486-CVE-TLW)
ROBERT PATTON, Director, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Proceeding pro se, Oklahoma state prisoner Ronald J. Patrick seeks a
certificate of appealability (COA) to appeal the district court’s denial of his petition
for habeas corpus.1 We deny his request for a COA and dismiss this matter.
An Oklahoma jury convicted Patrick of multiple counts arising out of an
incident in which he impersonated a police officer, kidnapped two people under the
guise of a drug sting, and sexually assaulted one of them. The trial court sentenced
him to a term of 55 years’ imprisonment. The Oklahoma Court of Criminal Appeals
*
This order is not binding precedent, except under the doctrines of law of the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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
Because Patrick is appearing pro se, we liberally construe his filings.
Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). But it’s not our role to
act as his advocate. Id.(OCCA) affirmed Patrick’s convictions and sentence on direct appeal and denied his
subsequent application for postconviction relief.
Patrick then filed a habeas petition under 28 U.S.C. § 2254 raising four
grounds for relief. The district court denied the petition and declined to issue a COA.
Patrick filed a motion for reconsideration, but the district court ultimately treated the
motion as a second or successive habeas petition filed without prior authorization
from this court and thus dismissed for lack of jurisdiction.
Patrick now seeks to appeal the district court’s denial of his petition, but he
must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA “only if
[he] has made a substantial showing of the denial of a constitutional right.” Id.§ 2253(c)(2). To make this showing, Patrick 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.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (citation and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act (AEDPA) further requires
federal courts grant much deference to state court decisions when, as here, the
petitioner’s federal habeas claims were adjudicated on the merits in state court. See
28 U.S.C. § 2254(d); Dockins v. Hines, 374 F.3d 935, 936-37 (10th Cir. 2004).
Specifically, a federal court may grant habeas relief only when the state court
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court” or was “based on an
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unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). We incorporate this AEDPA deference into
our consideration of Patrick’s application for a COA. See Dockins, 374 F.3d at 938.
Patrick first asserts his sentence is excessive because the state court ordered
the sentences for counts one, two, four, and five2 to run consecutively. He argues it is
cruel and unusual to make him serve consecutive sentences because he will be elderly
after serving only a portion of his sentence.3 To establish his sentence violates the
Eighth Amendment, Patrick must show this his case is “an ‘extraordinary’ case in
which the sentences at issue are ‘grossly disproportionate’ to the crimes for which
they were imposed.” United States v. Angelos, 433 F.3d 738, 751 (10th Cir. 2006)
(quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Patrick doesn’t argue that any individual sentence is excessive. Instead, he
contends serving his terms consecutively makes his sentence excessive. But “[t]he
Eighth Amendment analysis focuses on the sentence imposed for each specific crime,
not on the cumulative sentence for multiple crimes.” Hawkins v. Hargett, 200 F.3d
1279, 1285 n.5 (10th Cir. 1999). And no reasonable jurist would conclude that any of
2
In his petition Patrick argued his sentence is excessive because the state trial
court ordered counts one, two, four, and five to be served consecutively, but Patrick
doesn’t mention count five in his application for a COA. We assume this omission
was inadvertent.
3
In his petition Patrick also suggested the state trial court violated his due
process rights when it failed to provide adequate reasoning for ordering his sentences
to run consecutively. Because Patrick doesn’t raise the alleged due process violation
in his application for a COA, we won’t address it here. See Fed. R. App. P.
28(a)(8)(A); Howell v. Trammell, 728 F.3d 1202, 1229 (10th Cir. 2013).
3
Patrick’s sentences were grossly disproportionate to the seriousness of his charged
offenses, which include first degree robbery, kidnapping, and rape by
instrumentation, among others. We thus deny Patrick a COA on this claim.
Patrick next asserts his trial counsel was ineffective for failing to investigate
and follow up on leads, and his appellate counsel was in turn ineffective for not
raising trial counsel’s ineffectiveness on appeal.4 To establish ineffective assistance
of counsel, Patrick must show “that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”
and “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984).
Because it’s “all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence,” however, “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. And, again, federal
courts review a state court’s adjudication of claims on the merits through AEDPA’s
deferential lens. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); Dockins, 374 F.3d
at 936-37. The district court’s review of Patrick’s ineffective assistance of counsel
claims is thus “doubly deferential.” See Yarborough, 540 U.S. at 6.
4
Patrick also asserts his appellate counsel was ineffective because “the method
and manner of the appeal” was substandard and because counsel allegedly failed to
investigate and obtain exculpatory evidence at the appeal stage. Aplt. Br. 4. But these
issues were not presented in his petition, and thus we won’t consider them here. See
United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).
4
We find no basis to conclude that a reasonable jurist could debate the district
court’s denial of Patrick’s ineffective assistance of counsel claims, particularly in
view of its doubly deferential review of the state court’s decision. The district court
found the OCCA provided a well-reasoned opinion establishing that Patrick’s
arguments regarding his trial and appellate counsel’s ineffectiveness were mere
speculation. And even if reasonable jurists could debate whether counsel’s
performance was somehow deficient, Patrick doesn’t argue he was prejudiced by any
deficiencies—that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. We thus deny a COA on his ineffective assistance of
counsel claims as well.
Finally, Patrick asserts the prosecution engaged in misconduct by misleading
the defense. But Patrick’s allegation differs from his allegation before the district
court. Specifically, although Patrick labeled “Ground IV” of his petition “Prosecutor
Mislead [sic] the Defense,” R. vol. 1, at 21, the district court interpreted the facts
supporting this ground as directed solely to a newly discovered evidence claim. See
Patrick v. Patton, No. 12-CV-0486-CVE-TLW, 2015 WL 4545933, at *9 n.6 (July
28, 2015); see also Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999)
(explaining that we normally don’t interfere with district court’s interpretation of a
pro se pleading). Now, in his COA application Patrick alleges prosecutorial
misconduct arising from “[t]he failure to secure the video tape of the interrogation,”
Aplt. Br. 4, an argument not related to the newly discovered evidence claim raised
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below. We decline to consider this new allegation in the first instance here. See
Viera, 674 F.3d at 1220.
Because we conclude no reasonable jurist would find the denial of Patrick’s
habeas petition debatable, we deny a COA on all claims and dismiss this matter.
Entered for the Court
Nancy L. Moritz
Circuit Judge
6