Pruitt v. Parker , 388 F. App'x 841 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
July 23, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN PRUITT,
Petitioner-Appellant,
No. 10-7016
(E.D. Okla.)
v.
(D.C. No. 6:09-CV-00341-FHS-KEW)
DAVID PARKER,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
John Pruitt, an Oklahoma state inmate proceeding pro se, 1 seeks a
Certificate of Appealability (“COA”) so that he may challenge the district court’s
denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
*
This Order is not binding precedent, except under the doctrines of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.
After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case therefore is ordered submitted without oral argument.
1
Because Mr. Pruitt is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we conclude that
Mr. Pruitt has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, we DENY his request for a COA and
DISMISS this matter.
I. Background
After a jury trial, Mr. Pruitt was convicted in Oklahoma state court of child
sexual abuse based on the abuse of his minor daughter. He was sentenced to life
imprisonment and ordered to pay a $5000 fine. The Oklahoma Court of Criminal
Appeals (“OCCA”) affirmed Mr. Pruitt’s conviction on direct appeal; he did not
seek state post-conviction relief. On July 15, 2009, Mr. Pruitt filed a federal
habeas petition. 2 Although some of Mr. Pruitt’s claims had not been exhausted in
state court, the district court nevertheless addressed them and denied the petition
on its merits pursuant to 28 U.S.C. § 2254(b)(2). After Mr. Pruitt filed a Notice
of Appeal, the district court denied Mr. Pruitt a COA, “conclud[ing] [that]
petitioner has failed to make a substantial showing of the denial of a
constitutional right as required by 28 U.S.C. § 2253(c)(2)” and “find[ing] that
petitioner has not demonstrated that reasonable jurists would find [this] court’s
assessment of the constitutional claims debatable or wrong.” R., Vol. I, at 261
(Order & Op. Denying Certificate of Appealability, dated Apr. 5, 2010) (internal
2
Mr. Pruitt filed his petition in the United States District Court for the
Western District of Oklahoma, but it was thereafter transferred to the United
States District Court for the Eastern District of Oklahoma.
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quotation marks omitted) (third alteration in original). The district court
thereafter granted Mr. Pruitt permission to proceed on appeal in forma pauperis.
II. Discussion
Reading Mr. Pruitt’s application for a COA liberally in light of his pro se
status, he appears to seek a COA for the following issues: (1) the alleged
ineffectiveness of trial counsel in failing to investigate and object to the
testimony of Carolyn Ridling, a Sexual Assault Nurse Examiner (“SANE”), who
later was found to have a suspended nursing license at the time she examined the
victim and testified at trial; (2) the OCCA’s failure to grant him a new trial based
on that newly discovered evidence relating to Ms. Ridling’s lack of licensure,
which Mr. Pruitt claims violated his due process right to a fair trial; (3) the
alleged ineffectiveness of trial counsel in failing to challenge the length of his
sentence; (4) the erroneous admission of the victim’s grandmother’s allegedly
biased testimony; (5) the alleged ineffectiveness of appellate counsel concerning
the motion for a new trial; and (6) the alleged misconduct by prosecutors in using
perjurious testimony in closing argument—presumably that of Ms. Ridling.
Mr. Pruitt must seek a COA to proceed further because, without a COA, we
lack jurisdiction to consider the merits of a habeas appeal. 28 U.S.C. §
2253(c)(1)(A). We may issue a COA only if “the applicant has made a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To
make such a showing, Mr. Pruitt must demonstrate “that jurists of reason could
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disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); accord
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000); Allen v. Zavaras, 568 F.3d
1197, 1199 (10th Cir. 2009). In determining whether to grant a COA, we do not
engage in a “full consideration of the factual or legal bases adduced in support of
the claims.” Miller-El, 537 U.S. at 336. Rather, we undertake “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
claim. Id. at 338. Although an applicant is not required to demonstrate that his
appeal will succeed, he must “prove something more than the absence of frivolity
or the existence of mere good faith.” Id. (internal quotation marks omitted).
Moreover, because the OCCA addressed the merits of one of Mr. Pruitt’s
claims, “AEDPA’s deferential treatment of state court decisions must be
incorporated into our consideration of [his] request for [a] COA.” Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may grant an
application for a writ of habeas corpus on behalf of a person in state custody on a
claim that was adjudicated on the merits in state court only if the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination
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of the facts in light of the evidence presented in the State court proceeding,” id.§ 2254(d)(2).
Having thoroughly reviewed the record on appeal, we conclude that Mr.
Pruitt is not entitled to a COA on any of the issues that he seeks to pursue on
appeal. As a threshold matter, four of Mr. Pruitt’s claims are raised for the first
time on appeal—viz., the alleged ineffectiveness of trial counsel in failing to
challenge the length of his sentence; the erroneous admission of the victim’s
grandmother’s allegedly biased testimony; the alleged ineffectiveness of appellate
counsel concerning the motion for a new trial; and alleged prosecutorial
misconduct in using perjurious testimony in closing argument. We will not
consider issues raised on appeal that were not raised before the district court as
part of the habeas petition, 3 see Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.
1999), and so will turn instead to Mr. Pruitt’s remaining claims that were included
in his habeas petition.
Mr. Pruitt first seeks a COA to challenge the alleged ineffectiveness of trial
counsel in failing to investigate and object to the testimony of Carolyn Ridling.
As the OCCA found,
3
Additionally, to the extent that Mr. Pruitt’s challenge to the victim’s
grandmother’s testimony may be characterized as a challenge to the state court’s
evidentiary ruling, we will not provide habeas relief on that basis unless that
evidentiary ruling rendered the trial so fundamentally unfair that it resulted in a
denial of his constitutional rights. See Duckett v. Mullin, 306 F.3d 982, 999 (10th
Cir. 2002). Mr. Pruitt has not claimed that the state court’s admission of her
testimony deprived him of any constitutional rights.
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Ridling was called to testify that the absence of physical
evidence in a forensic exam is not unusual in child sexual
abuse cases, particularly under the circumstances of this case.
Ridling testified that she was a registered and licensed SANE
nurse in Texas and Oklahoma. After the trial, appellate
counsel discovered that Ridling’s nursing licenses in Texas
and Oklahoma had lapsed in 2004, before the time of either the
exam or her trial testimony. Ridling also testified that she was
in fact working as a SANE nurse (licensed or not) and
performing routine examinations at the time she did the exam
in this case, and Pruitt does not challenge this evidence.
R., Vol. I, at 53. Mr. Pruitt contends that Ms. Ridling should not have testified as
an expert witness because she was not properly licensed. He contends that her
testimony was prejudicial to him because expert testimony is “highly influential
and containing [sic] great weight with juries.” Aplt. Opening Br. at 6. He further
argues that “[a] strategic attack on Ridling could of [sic] mounted an attack on
other corroborating witnesses.” Id. Finally, Mr. Pruitt challenges Ms. Ridling’s
ability to examine the victim without a current license—he states that Ms.
Ridling’s examination of the victim without a license “[wa]s just plain WRONG!”
Aplt. Appl. for Certificate of Appealability at 6.
Mr. Pruitt’s ineffective-assistance-of-counsel claim is unexhausted because
it was not raised before the OCCA on direct appeal and Mr. Pruitt did not seek
state post-conviction relief. However, in addressing Mr. Pruitt’s ineffective-
assistance argument, the district court recognized that “[a]n application for a writ
of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C.
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§ 2254(b)(2); accord Hoxsie v. Kerby, 108 F.3d 1239, 1242–43 (10th Cir. 1997).
Therefore, the court announced its intention to “address the claim on the merits”
and denied it. 4 R., Vol. I, at 256. We believe that reasonable jurists could not
debate the correctness of the district court’s conclusion.
Under Strickland v. Washington, counsel provides ineffective assistance
when his representation does not meet “an objective standard of reasonableness,”
466 U.S. 668, 688 (1984), and “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Even if we assume arguendo that
trial counsel’s failure to investigate Ms. Ridling or to object to her testimony was
objectively unreasonable, we conclude that Mr. Pruitt has failed to demonstrate
that the alleged “deficient performance prejudiced the defense, depriving him of a
4
The district court’s analysis of this claim is far from pellucid. In its
order, the court does not reference the controlling ineffective-assistance standard
of Strickland v. Washington, 466 U.S. 668 (1984). Further, in the section of its
order—which, based upon the heading, should be devoted to the discussion of Mr.
Pruitt’s ineffective-assistance claim—the court discusses, in virtually the same
breath, not only Mr. Pruitt’s ineffective-assistance claim, but also his entirely
distinct claim that he was entitled to a new trial based upon the newly discovered
evidence related to Ms. Ridling’s lack of licensure (a claim that we address infra).
We need not dwell on these analytic deficiencies of the district court’s order,
however. The district court purported to reach the merits of Mr. Pruitt’s
ineffective-assistance claim (and, in effect, did so), rather than dismissing it on
exhaustion grounds. And, as explicated infra, we are confident that reasonable
jurists could not debate the correctness of the court’s ultimate resolution of this
claim—that is, its decision to deny it.
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fair proceeding with a reliable result.” Gonzales v. Tafoya, 515 F.3d 1097, 1122
(10th Cir. 2008). The district court rejected Mr. Pruitt’s contention that there was
not sufficient evidence to support his conviction, a claim for which he has not
sought a COA. Viewing the evidence in the light most favorable to the
prosecution, the district court held that the OCCA’s determination that there was
sufficient evidence to support Mr. Pruitt’s conviction was consistent with federal
law. Our review of the record leads us to a similar conclusion. The evidence
against Mr. Pruitt—which included the victim’s own testimony and that of her
mother—was of such strength that he has failed to demonstrate a sufficient
probability that the outcome of his trial would have been different but for
counsel’s alleged errors relating to Ms. Ridling’s testimony. We therefore deny a
COA on this claim.
Mr. Pruitt also seeks a COA to challenge the district court’s rejection of his
claim that he was entitled to a new trial based on newly discovered evidence. He
argues that the OCCA’s denial of his motion for a new trial violated his due
process rights. Under Oklahoma law, the OCCA will not grant relief on a motion
for a new trial based on newly discovered evidence unless, inter alia, a defendant
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was prejudiced by its omission and consequently deprived of a fair trial. 5 The
OCCA denied Mr. Pruitt’s motion for a new trial, holding that
[t]he issue is not whether Ridling’s evidence at trial was
material, but whether her lapsed licenses were material to the
issues before the jury. . . . In any case, had these facts
[regarding her lapsed license] been presented to the jury they
would have gone to the weight of Ridling’s testimony, not its
admissibility. . . . While Ridling’s testimony helped the
State’s case, the State relied for the conviction on the victim’s
testimony that Pruitt sexually abused her over a period of time.
This testimony would have been unaffected by the new
evidence about Ridling’s qualifications. Pruitt cannot show
that the newly discovered evidence is either material or would
have changed the trial’s outcome, and the motion should be
denied.
R., Vol. I, at 54.
The district court held that the OCCA’s determination was not contrary to
or an unreasonable application of federal law. We agree. Even if we were to
disregard Ms. Ridling’s testimony entirely, there was sufficient evidence to
support Mr. Pruitt’s conviction. In particular, there is no indication that the
newly discovered Ridling evidence created a reasonable probability that the
outcome of the trial would have been different had that evidence been introduced.
Cf. United States v. Redcorn, 528 F.3d 727, 745 (10th Cir. 2008) (in the context
5
See Sellers v. State, 973 P.2d 894, 895 n.12 (Okla. Crim. App. 1999)
(in denying motion for a new trial due to newly discovered evidence, stating that
“[a] defendant must show that the evidence is (1) material, (2) could not with due
diligence have been discovered before trial, (3) is not cumulative, and (4) creates
a reasonable probability that the outcome of the trial would have been different
had it been introduced.”).
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of a federal trial, holding that “the district court was not unreasonable to
conclude” that the newly discovered evidence “could [not] possibly be considered
so significant as to probably produce an acquittal” (internal quotation marks
omitted)). Reasonable jurists would not debate whether the district court
appropriately resolved this claim, and Mr. Pruitt has cited to no federal law
supposedly contrary to the OCCA’s determination. Accordingly, he is not
entitled to a COA on this claim.
For the reasons discussed above, Mr. Pruitt has failed to make a substantial
showing of the denial of a constitutional right. We therefore DENY his
application for a COA and DISMISS this matter.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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