Ciancio v. Patton , 617 F. App'x 895 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 17, 2015
Elisabeth A. Shumaker
Clerk of Court
GARY PATRICK CIANCIO, JR.,
Petitioner - Appellant,
v. No. 15-7016
(D.C. No. 6:13-CV-00478-JHP-KEW)
ROBERT PATTON, (E.D. Oklahoma)
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, LUCERO and McHUGH, Circuit Judges.
Gary Ciancio, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas
petition. For the reasons explained below, we deny Mr. Ciancio a COA and dismiss the
matter.
*
This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
Because Mr. Ciancio appears pro se, we liberally construe his filings. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008); Hall v. Scott, 292 F.3d 1264, 1266
(10th Cir. 2002).
I. BACKGROUND
Mr. Ciancio is currently incarcerated in Oklahoma pursuant to a state conviction
for child abuse stemming from two specific acts of abuse toward a three-year-old child.
At Mr. Ciancio’s trial, the prosecution introduced evidence unrelated to these specific
acts of abuse, including evidence of violence and other abusive conduct towards Mr.
Ciancio’s girlfriend, the victim, and another child. Counsel for Mr. Ciancio did not object
to the admission of any of this evidence. In addition, without objection from defense
counsel, a witness was permitted to testify about her concerns that the victim may have
been sexually abused, despite the fact that there was no evidence, or even an allegation,
that Mr. Ciancio had engaged in such conduct. Similarly, both the prosecution and
defense counsel developed evidence that the victim may have been sexually abused by
another individual.
At the close of trial, the jury convicted Mr. Ciancio of one count of child abuse in
violation of 21 O.S. Supp. 2010, § 843.5(A), and recommended a sentence of
imprisonment for 25 years and a fine of $5,000. The trial court accepted the verdict and
entered judgment accordingly. See Luker v. State, 552 P.2d 715 (Okla. Crim. App. 1976)
(holding that where the jury declares a punishment in its verdict that is within the
limitations fixed by law, the district court must impose a sentence in accordance with the
verdict). Mr. Ciancio appealed his conviction to the Oklahoma Court of Criminal Appeals
(OCCA), claiming the admission of improper character and bad acts evidence deprived
him of the right to a fair trial and that trial counsel was ineffective for failing to object to
the introduction of this evidence. According to Mr. Ciancio, he was prejudiced by trial
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counsel’s defective performance both in terms of the jury’s finding of guilt and with
respect to its recommended sentence.
On direct appeal, the OCCA agreed with Mr. Ciancio that a large amount of
improper evidence was admitted at trial, was not objected to, and was sometimes further
developed by Mr. Ciancio’s own counsel. Thus, employing the framework of Strickland
v. Washington, 466 U.S. 668, 687–88 (1984), the OCCA held that Mr. Ciancio’s
counsel’s performance was deficient. But given the overwhelming evidence to support
the jury’s finding of guilt, the OCCA determined that counsel’s deficiencies only affected
the jury’s determination of the appropriate sentence and did not impact the conviction.
See id. at 694 (requiring that “there [be] a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”). As a
result, the OCCA affirmed Mr. Ciancio’s conviction for child abuse but modified his
sentence from twenty-five years to fifteen years in prison.
Mr. Ciancio then filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the United States District Court for the Eastern District of Oklahoma,
challenging the OCCA’s resolution of his direct appeal and claiming that counsel’s
deficient performance entitled him to a new trial rather than resentencing by the appellate
court. The district court denied Mr. Ciancio’s petition, concluding that the OCCA’s
resolution of his claims was not “contrary to” and did not “involve an unreasonable
application of . . . clearly established Federal law, as determined by the Supreme Court,”
nor was it “based on an unreasonable determination of the facts in the light of the
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evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(1), (2).
Mr. Ciancio now seeks permission to appeal this decision.
II. ANALYSIS
To appeal the district court’s denial of habeas relief, Mr. Ciancio must first obtain
a COA, which requires he make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(recognizing that issuance of a COA is a jurisdictional prerequisite); Montez v. McKinna,
208 F.3d 862, 867 (10th Cir. 2000) (holding “that a state prisoner must obtain a COA to
appeal the denial of a habeas petition, whether such petition was filed pursuant to § 2254
or § 2241”). Because the district court rejected Mr. Ciancio’s constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: Mr. Ciancio must
demonstrate that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Mr. Ciancio has not made this showing.
The OCCA’s conclusion that the erroneous admission of evidence did not affect
the jury’s guilt determination was not contrary to clearly established law or an
unreasonable determination of the facts. Indeed, there was strong evidence supporting
Mr. Ciancio’s conviction for child abuse. Likewise, the OCCA’s decision to remedy the
prejudicial impact of this evidence at sentencing by decreasing Mr. Ciancio’s sentence of
imprisonment from twenty-five to fifteen years in prison is not contrary to clearly
established federal law.
4
The Oklahoma Legislature has provided the OCCA statutory authority to modify a
sentence on appeal. Okla. Stat. tit. 22, § 1066 (“The appellate court may reverse, affirm
or modify the judgment or sentence appealed from, and may, if necessary or proper, order
a new trial or resentencing.”). The Supreme Court has held, in an analogous context, that
there is no due process violation where a state appellate court exercises its discretion to
modify a jury sentence in order to remedy a constitutional violation. See, e.g., Clemons v.
Mississippi, 494 U.S. 738, 746 (1990) (recognizing that it was constitutionally
permissible for the Mississippi Supreme Court to reweigh aggravating and mitigating
factors to uphold a death sentence originally imposed by an improperly-instructed jury
because “appellate sentencing, if properly conducted, would not violate due process”);
see also, e.g., Carbray v. Champion, 905 F.2d 314, 318–19 (10th Cir. 1990) (recognizing
that “where a state court has the authority to exercise its own discretion . . . to modify a
jury sentence on appeal[,] . . . no due process violation occurs” and affirming the
OCCA’s modification of a defendant’s sentence from 199 years’ imprisonment to 75
years’ imprisonment to remedy the prejudicial impact at sentencing of remarks made by
the prosecutor); Shaw v. Johnson, 786 F.2d 993, 998 (10th Cir. 1986) (holding there was
no constitutional violation where the OCCA exercised its authority to reduce a
defendant’s sentence from life in prison to twenty years’ imprisonment to correct an
erroneous jury instruction regarding the minimum sentence). Thus, contrary to
Mr. Ciancio’s position, there is no clearly established constitutional right that the errors
affecting his sentence be remedied by a new sentence imposed by a jury, rather than by
the OCCA.
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Nevertheless, Mr. Ciancio claims his due process rights were violated because the
OCCA’s decision to modify his sentence, rather than remanding for resentencing by a
jury, is not “narrowly tailored” to the constitutional injury here: the right to effective
assistance of counsel at sentencing. See United States v. Morrison, 449 U.S. 361, 364
(1981) (holding that “[c]ases involving Sixth Amendment deprivations are subject to the
general rule that remedies should be tailored to the injury suffered from the constitutional
violation”). In support of this argument, Mr. Ciancio relies on Williams v. Jones, 571
F.3d 1086 (10th Cir. 2009) (per curiam).
In Williams, defense counsel used threats and intimidation to convince the
defendant to reject a plea offer that would have limited the defendant’s potential
imprisonment to ten years. Id. at 1088. The defendant rejected the plea agreement, the
case went to trial, and the jury found him guilty and imposed a sentence of life without
the possibility of parole. The defendant appealed, claiming ineffective assistance of
counsel during the plea negotiations. The OCCA held that defense counsel had acted
deficiently and that the defendant had suffered prejudice as a result. It therefore reduced
the defendant’s sentence to life with the possibility of parole, which was the lowest
possible sentence for the crime of conviction. The defendant then sought habeas relief
from this court. We reversed and remanded because the OCCA had failed to fashion a
constitutionally permissible remedy for the ineffective assistance rendered during the plea
negotiation process. Although we acknowledged that “no remedy may restore completely
the parties’ original positions,” we remanded to the district court with instructions to
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impose a remedy that “comes as close as possible to remedying the constitutional
violation.” Id. at 1093.
Our decision in Williams is not controlling here. There, defense counsel’s
ineffectiveness deprived the defendant of the benefit of a favorable plea bargain, and the
OCCA’s modification of the jury’s sentence after conviction could not fairly remedy the
resulting harm. See Lafler v. Cooper, 132 S. Ct. 1376, 1389 (2012) (recognizing that “if a
mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing
based on the conviction at trial may not suffice. In these circumstances, the proper
exercise of discretion to remedy the constitutional injury may be to require the
prosecution to reoffer the plea proposal.” (internal citations omitted)). Unlike the
defendant in Williams, however, the ineffective assistance prejudiced the jury’s initial
imposition of Mr. Ciancio’s sentence and, therefore, resentencing is the appropriate
remedy. See Titsworth v. Mullin, 415 F. App’x 28, 34 (10th Cir. 2011) (unpublished)
(holding that the OCCA’s sentence modification corrected the prejudice from ineffective
assistance at sentencing); United States v. Sims, 218 F. App’x 751, 753 (10th Cir. 2007)
(unpublished) (remanding for resentencing to cure defense counsel’s deficient
performance in failing to object to district court’s erroneous calculations under the
sentencing guidelines).2 As explained, Mr. Ciancio has no clearly established federal
right to be resentenced by a jury as opposed to the OCCA. Thus, the OCCA’s
2
Although not binding, we find unpublished decisions from this court to be
persuasive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”).
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modification of Mr. Ciancio’s sentence was sufficiently tailored to address the injury
here.
For these reasons, reasonable jurists could not debate the correctness of the district
court’s determination that the OCCA’s resolution of Mr. Ciancio’s claims was not
contrary to or an unreasonable application of federal law or based on an unreasonable
determination of the facts presented at trial.
III. CONCLUSION
We deny Mr. Ciancio’s application for a COA and dismiss the matter.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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