Brown v. Department of Corrections Oklahoma State Penitentiary, Warden

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 24, 2014
Elisabeth A. Shumaker
Clerk of Court
BRANDON WAYNE BROWN,
Petitioner-Appellant,
v. No. 14-6178
(D.C. No. 5:13-CV-00520-R)
(W.D. Oklahoma)
DEPARTMENT OF
CORRECTIONS OKLAHOMA
STATE PENITENTIARY, Warden,
Respondent-Appellee.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
AND DISMISSING THE APPEAL
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
Mr. Brandon Brown is an Oklahoma inmate who applied for a
writ of habeas corpus. In the application, he asserted claims related
to prosecutorial misconduct, invalidity of a guilty plea, and
disproportionality of the sentences. The federal district court denied
relief.
Mr. Brown requests a certificate of appealability to appeal the
denial of habeas relief. We conclude that Mr. Brown’s claims are not
reasonably debatable. Accordingly, we decline a certificate of
appealability and dismiss the appeal.
Standard for a Certificate of Appealability
To appeal, Mr. Brown needs a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A) (2012). For the certificate, Mr. Brown must
make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). This showing exists only if
reasonable jurists could find the district court’s rulings debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Prosecutorial Misconduct
Mr. Brown claims the prosecutor engaged in prosecutorial
misconduct in the sentencing hearing by urging the court to impose a
harsh sentence based on uncharged acts. In Mr. Brown’s view, the
court should not have considered uncharged acts because there was
not any evidence of them.
The state appeals court rejected this claim on the merits. Thus,
if we were to entertain the appeal, Mr. Brown would have to justify
habeas relief under the Antiterrorism and Effective Death Penalty
Act of 1996. Under this statute, the federal district court could grant
habeas relief only if Mr. Brown showed an unreasonable
determination of the facts or a decision that contradicted or failed to
2
reasonably apply clearly established federal law. See 28 U.S.C.
§ 2254(d)(1)-(2) (2012).
The Oklahoma Court of Criminal Appeals rejected the claim
based on a presumption that the trial court confined its analysis to
admissible evidence. R., vol. 1 at 100. No jurist could legitimately
regard this as an unreasonable determination of the facts or clearly
established federal law.
When the trial judge imposed the sentence, he did not refer to
any of the uncharged acts. Instead, the judge stated that Mr. Brown
had violated court orders and equivocated in his testimony about (1)
whether he had touched his daughter’s vagina with his tongue, and
(2) whether he had perjury charges. Sent. Tr. at 121-22. Any
habeas court would regard the sentencing judge’s analysis of the
evidence as reasonable.
The sentencing judge referred in part to Mr. Brown’s violation
of court orders. Id. at 121. This reference was supported by the
record. On direct examination, Mr. Brown admitted that he had
continued to see all of his children “against the Court’s permission.”
Id. at 32-33. And, on cross-examination, Mr. Brown admitted
violating court orders in a juvenile case. Id. at 93.
The judge also referred to equivocation by Mr. Brown. This
equivocation included whether he had touched the girl’s vagina with
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his tongue. On direct examination, Mr. Brown admitted that he had
done so. 1 But, on cross-examination, Mr. Brown testified that his
tongue had never touched any part of H.J.’s genital area. Id. at 78-
79. The inconsistency led the sentencing judge to comment that Mr.
Brown had “equivocated about touching [H.J.’s] vagina with [his]
tongue.” Id. at 122.
Finally, the sentencing judge remarked that Mr. Brown had
equivocated over perjury charges. Id. at 122. Before trial, Mr.
Brown pleaded no contest to two counts involving subornation of
perjury. Plea Hr’g Tr. at 4-6. He later explained that he wanted to
plead guilty, rather than no-contest, but disagreed with the date range
that had been alleged. Sentencing Tr. at 18. Nonetheless, Mr. Brown
resisted when asked whether he had pleaded guilty to subornation of
perjury:
Q. And [T.] was yet another witness in this case
that you have pled guilty to subornation of
perjury?
A. When Judge Ring made that order, he was not a
witness in the case, no.
1
Mr. Brown’s attorney asked on direct examination: “She [H.J.,
the victim] also testified at the preliminary hearing that you [Mr.
Brown] touched her vaginal area with your tongue, again, on the
outside. Did that happen?” Sentencing Tr. at 19. Mr. Brown
answered: “Yes.” Id.4
Q. But my question was: [T.] is yet another witness
in this case that you have pled guilty to
subornation of perjury?
A. I pled no contest, but . . .
Q. Another child that you asked to lie to cover
up what you did to [H.]?
A. We never asked the children to lie.
Sentencing Tr. at 95-96.
Based on this exchange, the sentencing judge remarked that Mr.
Brown had “equivocated about the perjury charges.” Id. at 122. Any
jurist would have to consider this remark a reasonable interpretation
of the evidence.
In an appeal, Mr. Brown could argue that the prosecutor
referred to matters without evidence. But, the state appeals court
determined that Mr. Brown had failed to overcome a presumption that
the sentencing judge relied solely on the evidence. This
determination involved a reasonable interpretation of the evidence,
for the judge explained the sentence based on matters supported by
Mr. Brown’s testimony. And, the judge later clarified that he had
relied solely on the testimony. 2 In light of this explanation and
2
The trial judge also stated during Mr. Brown’s motion to
withdraw the plea “that there was nothing at sentencing that was
adduced by either side, neither in mitigation, nor in exacerbation, . . .
that bore on [the court’s] decision more than what the defendant’s
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clarification, no jurist could regard the state appeals court’s decision
as an unreasonable determination of the facts or clearly established
federal law.
Voluntariness of the Underlying Plea
The same is true of Mr. Brown’s argument on the invalidity of
his plea. Mr. Brown testified that he understood that the maximum
sentence for child sexual abuse was life imprisonment and
acknowledged ineligibility for parole until he had served 85 percent
of his sentences. And, in his written plea, he acknowledged the
maximum was ten years for subornation of perjury. Plea Hr’g Tr. at
7-12. See 21 Okla. Stat. §§ 500(2), 505 (2001) (subornation of
perjury); 10 Okla. Stat. § 7115(E) (2001) (child sexual abuse). Thus,
he had a full understanding of the consequences of his plea.
Mr. Brown argues that he did not know the sentencing
proceeding would be unfair. But, as discussed above, the sentencing
judge relied solely on the evidence. In these circumstances, no
reasonable jurist could credit Mr. Brown’s challenge to the validity
of his plea.
own testimony was, and the record in this case.” Motion to
Withdraw Tr. at 57.
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Disproportionate Sentences
Mr. Brown claims his three concurrent sentences of 30 years
for child sexual abuse are disproportionate to his crimes. Again, no
reasonable jurist could credit this argument.
In an appeal, the threshold issue would be whether the Supreme
Court has clearly established a constitutional right. See House v.
Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). The Supreme Court
has done so, recognizing a constitutional right to proportionality
between the sentence and the crime. Lockyer v. Andrade, 538 U.S.
63, 72 (2003).
In light of this recognition of a constitutional right, the issue in
a habeas appeal would be whether the state appeals court reached a
decision that contradicted or unreasonably applied Supreme Court
precedent. 28 U.S.C. § 2254(d)(1) (2012). Under the “contrary to”
clause, the federal district court may grant the writ “if the state court
decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). Under the “unreasonable application clause,” the
federal district court may grant the writ only if “the state court’s
application of clearly established federal law was objectively
unreasonable.” Id., 529 U.S. at 409.
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The state appeals court’s decision was consistent with Supreme
Court precedents. In Harmelin v. Michigan, the Supreme Court held
that a sentence of life imprisonment without a possibility of parole
was constitutional for someone convicted of a serious drug crime.
501 U.S. 957, 961, 996 (1991). And, in Rummel v. Estelle, the
Supreme Court upheld a sentence of life imprisonment for a repeat
offender convicted of relatively minor felonies. Rummel v. Estelle,
445 U.S. 263, 265-66, 284-85 (1980).
In light of these decisions, the state appeals court could
reasonably have determined that Mr. Brown’s sentence was
proportionate to the crime. The crime was serious, 3 and the court
could have sentenced Mr. Brown to life imprisonment. 4 In giving
Mr. Brown a lesser sentence of 30 years, the trial court did not
contradict or fail to reasonably apply Supreme Court precedents on
proportionality. See United States v. Dowell, 771 F.3d 162, 169 (4th
Cir. 2014) (holding that an 80-year sentence for production of child
pornography was not disproportionate to the crime because of the
devastating consequences of sexual abuse of children). Thus, no
reasonable jurist could credit Mr. Brown’s challenge to the sentence.
3
See Cacoperdo v. Demosthenes, 37 F.3d 504, 508 (9th Cir.
1994) (“Sexual molestation of a child is a very serious offense.”).
4
Okla. Stat. tit. 10, § 7115(E) (2001).
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Breach of the Plea Agreement
In the course of discussing the appeal point on prosecutorial
misconduct, Mr. Brown alleges breach of the plea agreement. But,
this allegation did not appear in the habeas petition. No reasonable
jurist could credit an appeal point on a claim that had been omitted
from the habeas petition. See United States v. Flood, 713 F.3d 1281,
1291 (10th Cir.) (declining to grant a certificate of appealability on a
claim that had not been adequately presented in district court), cert.
denied, __ U.S. __, 134 S. Ct. 341 (2013).
In Forma Pauperis
Mr. Brown seeks not only a certificate of appealability, but
also leave to proceed in forma pauperis. Because we have dismissed
the appeal, the application for pauper status is dismissed on the
ground of mootness. Johnson v. Keith, 726 F.3d 1134, 1136 (10th
Cir. 2013) (denying leave to proceed in forma pauperis on the ground
of mootness upon denial of a certificate of appealability).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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