Okyere v. Rudek

FILED
United States Court of Appeals
Tenth Circuit
March 21, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JAUMON MONDELL OKYERE, SR.,
Petitioner - Appellant, No. 12-5214
v. (D.C. No. 4:09-CV-00335-TCK-TLW)
JAMES RUDEK, Warden, (N.D. Oklahoma)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Applicant Jaumon Mondell Okyere, an Oklahoma state prisoner, filed a pro
se application for relief under 28 U.S.C. § 2254 in the United States District
Court for the Northern District of Oklahoma. The district court denied his
application. Proceeding pro se and in forma pauperis, Applicant now seeks a
certificate of appealability (COA) from this court to allow him to appeal the
district court’s decision. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal
denial of § 2254 relief). We deny the application for a COA and dismiss the
appeal.
I. BACKGROUND
After a jury convicted Applicant of first-degree murder and child neglect,
he was sentenced to life imprisonment without parole on the murder count and to
25 years’ imprisonment on the child-neglect count. On direct appeal the
Oklahoma Court of Criminal Appeals (OCCA) affirmed the murder conviction but
reversed the child-neglect conviction. Applicant unsuccessfully sought
postconviction relief in Oklahoma court.
Applicant then filed his § 2254 application, raising seven claims that had
been rejected by the OCCA on direct appeal: (1) ineffective assistance of
counsel; (2) improper denial of the public defender’s motion to withdraw based
on a conflict of interest arising because another attorney in the public defender’s
office had earlier represented Applicant’s codefendant; (3) improper testimony of
a representative of U.S. Cellular beyond his field of expertise; (4) cumulative
error; (5) improper excusal of jurors for cause without inquiring why they felt that
they could not be fair; (6) improper jury instruction that Applicant’s trial
witnesses had given prior inconsistent statements; and (7) repeated improper
grants of the state’s motions to continue over Applicant’s objection. Applicant
raises the first four claims in this court.
Applicant also raises two new claims: (1) insufficient evidence to
corroborate his accomplice’s testimony and therefore insufficient evidence of
guilt; and (2) interference by state officials or prison authorities with inmate mail,
thereby denying him his right to appeal the trial court’s rejection of his collateral
attack. But those claims have been waived by Applicant’s failure to raise them in
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district court. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (grounds
for relief not raised in the district court are waived).
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the [application] 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) (internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in a state court, a
federal court can grant habeas relief only if the applicant establishes that 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,” or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). “AEDPA’s deferential treatment of state court decisions must
be incorporated into our consideration of [Applicant’s] request for [a] COA.”
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
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The district court carefully considered the four claims properly raised in
this court. First, the district court concluded that Applicant was not denied
effective assistance of counsel because Applicant had failed to show “that the
result of his trial would have been different but for trial counsel’s alleged
deficient performance.” R., Vol. II at 489 (Op. & Order at 21, Okyere v. Rudek,
No. 4:09-CV-00335-TCK-TLW (N.D. Okla. Dec. 7, 2012), ECF No. 68). See
Strickland v. Washington, 466 U.S. 668, 691–92 (1984). Second, the court ruled
that the trial court adequately inquired into the alleged conflict of interest and
properly concluded, based on assurances from the public defender, that there
would be no actual conflict of interest. Third, the court held that the OCCA did
not unreasonably apply federal constitutional law in holding that the challenged
witness, an engineer with six years’ experience at U.S. Cellular, was qualified to
testify about cell-tower routing. And fourth, the court ruled that there was no
cumulative error because there were not multiple errors. Reasonable jurists
would not debate the district court’s dismissal of these claims.
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III. CONCLUSION
We DENY Applicant’s Motion of January 28, 2013, and his application for
a COA, and we DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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