Ochoa v. Jordan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 5, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
V IN CEN T TO D D O CH O A ,
Petitioner-A ppellant,
v. No. 06-6189
(D.C. No. CIV-05-154-R)
LEN O RA JO RD A N , (W .D. Okla.)
Respondent-Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, Chief Judge, KELLY and O’BRIEN, Circuit Judges.
An Oklahoma jury convicted Vincent Todd Ochoa of first degree murder
and he was sentenced to life without parole. After exhausting his state remedies
on direct appeal and through post-conviction proceedings, he brought this
28 U .S.C . § 2254 petition for a writ of habeas corpus in federal district court. H e
now appeals the district court’s denial of his petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
In order to proceed on appeal, M r. Ochoa requires a certificate of
appealability (COA). Id. § 2253(c). In support of his application for a COA, he
raises the follow ing issues:
(1) the trial court admitted and/or failed to redact a videotaped police
interrogation in violation of Petitioner’s Fifth and Fourteenth
Amendment rights.
(2) the trial court admitted prejudicial and inflammatory photographs
in violation of Petitioner’s Sixth, Eighth, and Fourteenth Amendment
rights.
(3) the admission of other crimes evidence violated Petitioner’s Sixth
and Fourteenth Amendment rights.
(4) the admission of improper opinion testimony violated Petitioner’s
Fourteenth Amendment rights;
(5) appellate counsel was ineffective for failing to raise on direct
appeal issues of ineffective assistance of trial counsel and failing to
request an evidentiary hearing; and
(6) cumulative error by trial counsel denied him the right to effective
assistance of counsel and deprived him of a fundamentally fair trial.
Application for Cert. of Appealability, at 1A.
W e may grant M r. Ochoa a COA only if he “has made a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing 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.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
Upon careful consideration of M r. Ochoa’s application for COA, his brief
on appeal, the record, and the applicable law, we conclude, for substantially the
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same reasons stated in the district court’s order of M ay 24, 2006, and the
magistrate judge’s report and recommendation of M arch 31, 2006, that M r. Ochoa
has failed to demonstrate his entitlement to a COA under the applicable standards.
W e therefore DENY his application for a COA and DISM ISS this appeal.
M r. Ochoa’s motion to proceed in forma pauperis on appeal is granted. All other
pending motions are denied.
Entered for the Court
ELISABETH A. SHUM AKER, Clerk
By:
Deputy Clerk
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