Sanchez v. Trammell

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 8, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANTHONY CASTILLO SANCHEZ,
Petitioner - Appellant,
v. No. 15-6043
(D.C. No. 5:10-CV-01171-HE)
MAURICE WARRIOR,* Interim Warden, (W.D. Okla.)
Oklahoma State Penitentiary,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY**
_________________________________
Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
_________________________________
I. BACKGROUND
Anthony Sanchez was convicted in Oklahoma state district court of first degree
murder, first degree rape, and forcible sodomy. App. at 44. His respective sentences for
those convictions were death, 40 years in prison, and 20 years in prison. App. at 45. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions and sentences on
*
Under Fed. R. App. P. 43(c)(2), Deputy Maurice Warrior is substituted for Anita
Trammell as Interim Warden of the Oklahoma State Penitentiary, effective October 28,
2015.
**
This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
direct appeal and denied his application for post-conviction relief. App. at 362. The
OCCA set forth the relevant underlying facts in its published opinion on direct appeal and
we do not repeat them here. See Sanchez v. State, 223 P.3d 980, 987-90 (Okla. Crim.
App. 2009).
The federal district court denied Mr. Sanchez’s application for habeas relief under
28 U.S.C. § 2254 and denied a certificate of appealability (“COA”). App. at 418, 421.
He moved for a COA in this court on six issues. Doc. 10283244 (June 30, 2015).
Following a case management conference, Judge Murphy issued an order stating that no
COA “had been issued by the district court or this court.” Doc. 10297889, at 1 (Aug. 26,
2015). The order said that Mr. Sanchez may file a renewed request for a COA for
consideration by the merits panel. Id. He has done so, the state has responded, and he
has replied. Doc. 10302778 (Sept. 15, 2015); Doc. 10304244 (Sept. 22, 2015); Doc.
10306461 (Sept. 29, 2015).
Having considered Mr. Sanchez’s renewed request for a COA and the arguments
presented, we concur with the judges who have previously considered this matter and do
not grant a COA.
II. DISCUSSION
A. Legal Standards
Mr. Sanchez may not appeal the district court’s denial of his § 2254 application
without a COA. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 335-
36 (2003). To obtain a COA, he must make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists could debate
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whether . . . 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) (quotations omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs
federal habeas review of state court decisions. See 28 U.S.C. § 2254. If state court
proceedings adjudicated the merits of a claim, a federal court may grant habeas relief
only if the state court 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 of the
facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2);
see also Harrington v. Richter, 131 S. Ct. 770, 785 (2011). In addition, the state courts’
factual determinations “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).
In deciding whether to grant a COA, we are required to “look to the District
Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that
resolution was debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.
Because the district court denied one of Mr. Sanchez’s issues for which he seeks a
COA on procedural grounds “without reaching the prisoner’s underlying constitutional
claim,” we cannot grant a COA on that issue unless he shows both (1) “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right” and (2) “that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484; accord
Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007).
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A state prisoner may not obtain federal habeas relief unless the petitioner “has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
“Generally, a federal court should dismiss unexhausted claims without prejudice so that
the petitioner can pursue available state-court remedies. However, if the court to which
Petitioner must present his claims in order to meet the exhaustion requirement would now
find those claims procedurally barred, there is a procedural default for the purposes of
federal habeas review.” Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006) (citation
and quotations omitted). “[W]e do not address issues that have been defaulted in state
court on an independent and adequate state procedural ground, unless the petitioner can
demonstrate cause and prejudice or a fundamental miscarriage of justice.” Cummings v.
Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007) (quotations omitted). The fundamental
miscarriage of justice exception to the procedural default rule “is a markedly narrow one,
implicated only in extraordinary cases where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d
816, 820 (10th Cir. 2007) (quotations omitted).
B. Analysis
Mr. Sanchez seeks a COA on six issues.
1. Sufficiency of the evidence (Petition Ground I)
In his habeas petition, Mr. Sanchez challenged the sufficiency of the evidence as
to all three convictions, arguing he was convicted in violation of due process under
Jackson v. Virginia, 443 U.S. 307 (1979). App. at 51-68. Reasonable jurists could not
debate the district court’s denial of this claim.
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As to Mr. Sanchez’s first-degree murder and first-degree rape charges, the OCCA
did not unreasonably apply federal law in concluding the prosecution presented sufficient
evidence to support the convictions. Throughout this case, including now, Mr. Sanchez
cannot overcome the DNA evidence from sperm found on the victim’s clothing linking
him to the crimes. He has not impeached that evidence, including the expert’s testimony
that his DNA would have common alleles with his father, the only person Mr. Sanchez
points to as a possible alternative perpetrator in the case, but that their DNA would not be
the same. The corroborating evidence of Mr. Sanchez’s shoeprints at the murder scene
and the call from the victim’s cell phone to Mr. Sanchez’s ex-girlfriend the day following
the crimes undermines any suggestion, which is implausible in the first place, that his
DNA was planted on the victim. The OCCA’s determination that Mr. Sanchez has not
shown that no reasonable jury could have found him guilty of the crimes, see Sanchez,
223 P.3d at 1002-03, is subject to AEDPA deference. The district court concluded the
OCCA’s decision was reasonable. App. at 376. Mr. Sanchez has not shown otherwise.
Reasonable jurists could not debate the district court’s denial of this claim.
As to Mr. Sanchez’s forcible sodomy claim, the district court found the challenge
to be unexhausted and procedurally barred. App. at 377-78. It also denied the claim on
the merits, as it may under 28 U.S.C. § 2254(b)(2). App. at 378. We will do the same.
When reviewing an unexhausted claim that was not decided on the merits by the state
courts, “we review the district court’s legal conclusions de novo and its factual findings,
if any, for clear error.” Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir. 2003). Mr.
Sanchez argues the evidence was insufficient to convict him of forcible sodomy for the
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same reasons he argued the evidence was insufficient to convict him of first-degree
murder and first-degree rape. App. at 33, 51-68. As described above, Mr. Sanchez has
failed to impeach the DNA evidence and circumstantial evidence used to obtain this
conviction. Reasonable jurists could not debate whether the district court correctly
denied Mr. Sanchez’s claim as to the forcible sodomy conviction.
We therefore deny a COA on this claim as to all three convictions.
2. Examination of jurors regarding death penalty views (Petition Ground II)
Mr. Sanchez raised this issue on direct appeal, and the OCCA decided it on the
merits. Sanchez, 223 P.3d at 995-97. He objected to questions drawn from the state
pattern jury instructions and argued the trial court did not take adequate steps to ensure
the jurors would not automatically impose the death penalty. See id. at 995, 997. The
OCCA determined that the jurors empaneled in this case indicated they could consider
the three possible punishments for first degree murder—life, life without the possibility
of parole, and death—and would not automatically sentence Mr. Sanchez to death. See
id. at 995, 997. It recognized the trial court conducted extensive voir dire to determine
the jurors understood the questions. Id. at 995. Mr. Sanchez also had the opportunity to
ask prospective jurors—including each of the jurors eventually empaneled—about their
death penalty views. Id. at 997. The OCCA concluded the court had thereby “cleared up
any of the confusion.” Id. Mr. Sanchez has not shown otherwise.
The district court, applying AEDPA deference, concluded that the OCCA’s
decision was reasonable and not contrary to or an unreasonable application of Morgan v.
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Illinois, 504 U.S. 719, 729 (1992), and Wainwright v. Witt, 469 U.S. 412, 485 (1985), the
governing Supreme Court law. App. at 382-84.
In light of the district court’s and counsel’s careful and extensive inquiries into the
jurors’ views on the death penalty, we conclude reasonable jurists could not debate the
district court’s conclusion. We therefore deny a COA.
3. Ineffective assistance of trial counsel (Petition Ground V)
Mr. Sanchez seeks a COA on whether his trial counsel was ineffective in failing to
investigate and present evidence that another person—his father—committed the crimes.
Doc. 10302778, at 20-21. Mr. Sanchez raised this issue for the first time in his federal
habeas petition. The district court found he had not exhausted the claim in state court, it
was subject to anticipatory procedural bar, and Mr. Sanchez had not made an actual
innocence showing to excuse the procedural default. App. at 397-401.
Mr. Sanchez has attempted to demonstrate actual innocence by theorizing that the
evidence might have shown his father committed the crimes. Doc. 10302778, at 20-21.
As addressed above, Mr. Sanchez’s argument fails because DNA evidence linked Mr.
Sanchez to the crime scene and although his DNA shares common alleles with his
father’s, their DNA is not the same. Mr. Sanchez has provided no basis on which
reasonable jurists could debate either the district court’s procedural ruling or whether Mr.
Sanchez has made a substantial showing of a constitutional violation. We therefore deny
a COA.
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4. Ineffective assistance of appellate counsel regarding absence from first day of
voir dire (Petition Ground VI)
Mr. Sanchez claimed in his state post-conviction proceeding that his appellate
counsel was ineffective for failing to complain on appeal that he was absent from a
portion of the first day of jury selection. See App. at 401-02, 405-07.
The OCCA concluded there was no prejudicial error arising from his absence and
denied the claim. App. at 406. In the state trial court, Mr. Sanchez had declined to attend
the beginning of voir dire proceedings because he objected to wearing a shock sleeve for
security reasons. App. at 405; Sanchez, 223 P.3d at 995. During his absence, the court
provided a brief orientation to the jury pool about such matters such as punctuality,
logistics, courthouse personnel, and the basics of voir dire. App. at 405.
The district court denied relief, concluding the OCCA had not unreasonably
applied Snyder v. Massachusetts, 291 U.S. 97 (1934), overruled in part on other grounds
by Malloy v. Hogan, 378 U.S. 1 (1964), and Strickland v. Washington, 466 U.S. 668
(1984). App. at 405-07.
Mr. Sanchez’s presence during the orientation would not have contributed in any
substantial way to his opportunity to defend himself. See Snyder, 291 U.S. at 105-06.
Mr. Sanchez’s counsel’s failure to complain on this ground would consequently fail both
prongs of the Strickland standard. Reasonable jurists could not debate the district court’s
decision to deny relief on this issue, and a COA is not warranted.
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5. Trial while in restraints (Petition Ground III)
Mr. Sanchez wore leg irons around his ankles during trial. Sanchez, 223 P.3d at
991. On direct appeal, the OCCA held the trial court erred by using leg irons without
making findings that Mr. Sanchez was a threat. Id. at 994. But the court concluded the
error did not have a substantial influence on the trial because no juror actually viewed
him in restrains. Id. at 994-95.
The district court concluded that the OCCA’s resolution of this issue was not an
unreasonable application of Deck v. Missouri, 544 U.S. 622 (2005), which holds that the
Constitution forbids the use of visible shackles. App. at 386. The court noted that
evidence on juror perceptions had been received at an evidentiary hearing during his
direct appeal proceedings supporting the OCCA’s determination that the jurors never saw
Mr. Sanchez’s leg irons. App. at 386.
Mr. Sanchez has not rebutted the presumption by clear and convincing evidence,
see 28 U.S.C. § 2254(e)(1), that the OCCA correctly found that the shackles were not
visible. Indeed, his brief states, “No jurors, according to testimony at [the] evidentiary
hearing, saw the shackles.” Doc. 10302778, at 24. Mr. Sanchez requests a COA because
one juror “said she assumed Mr. Sanchez was ‘somehow restrained.’” Id. at 23 (quoting
Evid. Hearing Tr. at 35-37). He does not show how the OCCA unreasonably applied
Deck, nor does he show any clearly established Supreme Court law holding that the use
of shackles that are not visible is a constitutional violation. Reasonable jurists could not
debate whether the district court correctly denied relief on this basis. We therefore deny
a COA.
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6. Federal district court’s denial of motions for investigator, discovery, and an
evidentiary hearing
These motions are inextricably linked to the sufficiency of the evidence, trial
counsel effectiveness, and shackling issues. Because we deny a COA on those issues,
and because Mr. Sanchez otherwise provides no more than speculative reasons for these
requests, we deny a COA to review the district court’s denial of these motions. See 28
U.S.C. § 2254(e)(2); Leske v. Brill, 236 F. App’x 391, 394 (10th Cir. 2007)
(unpublished).1
III. CONCLUSION
We deny a COA on each issue and dismiss this matter.
ENTERED FOR THE COURT
ELISABETH A. SHUMAKER, Clerk
1
Although not precedential, we find this unpublished opinion instructive. See
10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”); see also Fed. R. App. P. 32.1.
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