Phillips, Jr. v. State of Oklahoma , 384 F. App'x 826 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 30, 2010
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
WILLIAM DEAN PHILLIPS, JR.,
Petitioner - Appellant,
No. 10-6032
v.
(W.D. Oklahoma)
(D.C. No. 5:08-CV-01248-M)
STATE OF OKLAHOMA; GREG
WILLIAMS,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Proceeding pro se, William Dean Phillips, Jr., 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 Phillips 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).
 Phillips was convicted by an Oklahoma jury of first degree murder and
sentenced to life imprisonment without the possibility of parole. Phillips
appealed the conviction and sentence, raising (1) numerous challenges to the jury
instructions, (2) a claim that victim impact evidence was improperly admitted, (3)
an allegation of prosecutorial misconduct, and (4) a cumulative error argument.
The Oklahoma Court of Criminal Appeals (“OCCA”) considered Phillips’s
arguments, but affirmed his conviction and sentence.
Proceeding pro se, Phillips filed an application for post-conviction relief in
Oklahoma state court. In the post-conviction application, Phillips claimed he was
denied the effective assistance of both trial and appellate counsel. The state
district court denied Phillips’s application, concluding the ineffective assistance
of trial counsel claims were waived because they were not raised on direct appeal
and further concluding Phillips failed to show deficient performance on the part
of his appellate attorney. See Strickland v. Washington, 466 U.S. 668, 677-78
(1984); Boyd v. State, 915 P.2d 922, 924 (Okla. Crim. App. 1996). The OCCA
summarily affirmed the denial of post-conviction relief in an unpublished order.
Phillips filed the instant § 2254 habeas application on November 19, 2008,
and an amended application on March 31, 2009. In his amended application,
Phillips raised the following eight claims of error: (1) the jury instructions were
contradictory, confusing, and lowered the state’s burden of proof, (2) the trial
court refused to give a lesser-included instruction on manslaughter, (3) the trial
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court omitted part of the model jury instruction on the issue of flight, (4) the trial
court violated his right to due process by failing to instruct the jury on the
cautionary use of eyewitness identification, (5) the trial court erroneously allowed
impermissible victim impact evidence and inflammatory prosecutorial comments,
(6) the jury was not instructed that he would be required to serve 85% of his
sentence before becoming eligible for parole, (7) cumulative errors resulted in the
denial of due process, and (8) appellate counsel was ineffective for failing to
assert a claim of ineffective assistance of trial counsel on direct appeal. A federal
magistrate judge addressed each of Phillips’s claims in a comprehensive report
and recommendation. The district court adopted the magistrate judge’s
recommendation and dismissed Phillips’s § 2254 application.
The court began by noting that Phillips’s first seven claims were raised on
direct appeal. Thus the standard for reviewing those claims was governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C.
§ 2254(d)(1). As the court recognized, Phillips’s claim that he was entitled to a
lesser-included instruction, however, is not cognizable in a federal habeas corpus
proceeding. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (“The
Supreme Court has never recognized a federal constitutional right to a lesser
included offense instruction in non-capital cases and neither has this court.”
(citation omitted)). The court next concluded that Phillips’s claims of error based
on the jury instructions involved, in part, only allegations of state law error and,
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thus, were not cognizable in a federal habeas corpus proceeding. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). However, to the extent those claims also
implicated Phillips’s federal constitutional rights, the court concluded Phillips
failed to demonstrate his trial was rendered fundamentally unfair and, thus, he
was not entitled to relief even assuming error. See Maes v. Thomas, 46 F.3d 979,
984 (10th Cir. 1995) (“A state conviction may only be set aside in a habeas
proceeding on the basis of erroneous jury instructions when the errors had the
effect of rendering the trial so fundamentally unfair as to cause a denial of a fair
trial.”).
The district court then reviewed Phillips’s claims related to the admission
of victim impact evidence, including comments made by the prosecution, and
Phillips’s other allegations of prosecutorial misconduct. The court concluded
Phillips failed to show how any of the challenged comments or evidence rendered
his trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637,
642-48 (1974); Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002); Cummings
v. Evans, 161 F.3d 610, 618 (10th Cir. 1998). In sum, the district court concluded
the state courts’ adjudication of Phillips’s first seven claims was not contrary to,
nor an unreasonable application of clearly established federal law. 28 U.S.C.
§ 2254(d). Finally, the district court considered Phillips’s claims of ineffective
assistance of appellate counsel on the merits, concluding Phillips was unable to
meet his burden under Strickland. See 466 U.S. at 677-78.
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To be entitled to a COA, Phillips must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he 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). In evaluating whether Phillips has satisfied his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Id. at 338. Although Phillips need
not demonstrate his appeal will succeed to be entitled to a COA, he must “prove
something more than the absence of frivolity or the existence of mere good faith.”
Id. (quotations omitted).
This court has reviewed Phillips’s appellate brief and application for COA,
the Report and Recommendation, 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 Phillips is not entitled to a COA. The district court’s resolution of
Phillips’s habeas application is not reasonably subject to debate and his claims are
not adequate to deserve further proceedings. Accordingly, Phillips 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).
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This court denies Phillips’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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