Self v. Milyard

FILED
United States Court of Appeals
Tenth Circuit
April 8, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DANIEL G. SELF,
Petitioner - Appellant,
v.
No. 12-1072
(D.C. No. 1:11-CV-00502-REB)
KEVIN MILYARD, Warden, Sterling
(D. Colo.)
Correctional Facility; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Daniel G. Self, a prisoner in the custody of the State of Colorado
proceeding pro se, 1 seeks a certificate of appealability (“COA”) to appeal from
the district court’s denial of his 28 U.S.C. § 2254 petition. Additionally, he has
*
This order is not binding precedent except under the doctrines of law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
Tenth Circuit Rule 32.1.
1
Because Mr. Self is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010).
renewed his motion—that the district court previously denied—to proceed on
appeal in forma pauperis (“IFP”). Having thoroughly reviewed the relevant law
and the record, we deny Mr. Self’s request for a COA, grant Mr. Self’s request to
proceed IFP, and dismiss this matter.
I
Mr. Self was tried by a jury and convicted of first-degree murder in the
shooting death of L.G., who was seven months pregnant at the time of her murder.
On direct appeal and state post-conviction review, the Colorado Court of Appeals
(“CCA”) upheld his conviction.
Mr. Self then filed the instant habeas petition in federal district court,
seeking relief under 28 U.S.C. § 2254. Mr. Self’s petition alleged six claims for
relief:
(1) Ineffective assistance of trial counsel and prosecutorial
misconduct; (2) trial court error in allowing cumulative errors
and harmless errors to taint the trial process; (3) trial court error
in allowing prosecution’s comments on the death and delivery of
a fetus; (4) trial court error in admitting out-of-court statements
based on excited utterances and other act evidence; (5) trial court
error in admitting statements made in violation of Miranda; and
(6) CCA error in invoking exceptions to the warrant requirement.
Aplt. App. at 711 (Order to Dismiss in Part & for Answer, filed June 15, 2011).
After an initial analysis, the district court dismissed Mr. Self’s ineffective-
assistance-of-counsel claim as well as his cumulative-error claim and directed
Respondents to address the merits of the remaining claims. After reviewing
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Respondents’ subsequent response, all of Mr. Self’s filings, and the voluminous
record, the district court denied Mr. Self’s petition. The district court also denied
Mr. Self a COA and his motion to proceed IFP.
II
Mr. Self now seeks a COA from our court on all of the claims that he
presented to the district court, except his claim regarding the alleged ineffective
assistance of his trial counsel. In other words, Mr. Self seeks a COA regarding
whether the district court erred by: (1) dismissing his first prosecutorial
misconduct claim without first conducting an evidentiary hearing; (2) finding that
Stone v. Powell, 428 U.S. 465 (1976), precluded Mr. Self’s Fourth Amendment
claim, and dismissing this claim on the merits; (3) denying Mr. Self’s
prosecutorial misconduct claim regarding mentions of a fetus in violation of a
pre-trial order; (4) finding no merit to his claim regarding hearsay and other-acts
evidence; (5) finding no merit to Mr. Self’s claim regarding Miranda violations;
and (6) finding that his cumulative-harmless-error claim was unexhausted,
although he had allegedly “properly presented [it] to the state’s highest court.”
Mot. for COA at 1–2 (filed Mar. 5, 2012).
A
“[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, whenever
the detention complained of . . . arises out of process issued by a State court.”
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Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (quoting Montez v.
McKinna, 208 F.3d 862, 867 (10th Cir. 2000)) (internal quotation marks omitted);
see 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36
(2003). We will not issue a COA unless “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord
Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011). “To make such a
showing, an applicant must demonstrate ‘that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.’” Harris, 642 F.3d at 906 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Our determination “requires an overview
of the claims in the habeas petition and a general assessment of their merits.”
Miller-El, 537 U.S. at 336 (emphasis added). This overview, however, is
necessarily limited as our “threshold inquiry does not require full consideration of
the factual or legal bases adduced in support of the claims. In fact, the statute
forbids it.” Id.B
Pursuant to the framework set out by the Supreme Court, most notably in
Miller-El and Slack, we have carefully reviewed Mr. Self’s opening brief and
motion for a COA, as well as the district court’s decisions and the voluminous
record, including the trial testimony, the state trial court’s rulings, and the CCA’s
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decisions. Based upon this review, for reasons that are substantially the same or
similar to those that the district court articulated, we conclude that Mr. Self is not
entitled to a COA on any of his claims. 2 He has not made a substantial showing
of the denial of a constitutional right. Reasonable jurists could not debate
whether Mr. Self’s § 2254 motion should have been resolved in a different
manner, and the issues that he seeks to raise on appeal are not adequate to deserve
encouragement to proceed further.
III
Accordingly, we deny Mr. Self’s request for a COA, grant his motion to
2
We pause to note that, to the extent that we disagree with some of the
particulars of the district court’s analysis, such a disagreement does not perforce
require us to grant Mr. Self a COA, so long as we are confident in the correctness
of the district court’s ultimate resolution of his habeas claims—and we are. See
Whitmore v. Parker, 484 F. App’x 227, 236 (10th Cir. 2012) (“Although adopting
a different rationale, we agree with the district court’s ultimate rejection of this
claim.”); see also Brown v. Roberts, No. 11-3085, 2012 WL 5507236, at *4 (10th
Cir. Nov. 14, 2012) (“While we arrive at that conclusion through a somewhat
different path than that employed by the district court, we find that reasonable
jurists could not disagree with the district court’s ultimate resolution in
dismissing the petition.”). For example, with respect to Mr. Self’s request for an
evidentiary hearing in connection with his prosecutorial misconduct claim, this
request is easily resolved by reliance on Cullen v. Pinholster, 131 S. Ct. 1388(2011), where the Court explained that “Section 2254(e)(2) imposes a limitation
on the discretion of federal habeas courts to take new evidence in an evidentiary
hearing,” id. at 1400–01, and held that “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the
merits,” id. at 1398. The district court did not cite, nor refer to, Cullen. But
under both the district court’s analysis and under a more appropriate analysis
based on Cullen, Mr. Self’s claim of prosecutorial misconduct does not warrant an
evidentiary hearing, nor does his claim warrant a COA.
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proceed IFP, and dismiss this matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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