Gibbs v. Dinwiddie

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 7, 2010
Elisabeth A. Shumaker
Clerk of Court
FRANKLIN L. GIBBS,
Petitioner - Appellant,
No. 10-7055
v. (E.D. Okla.)
(D.C. No. 6:09-CV-00427-FHS-KEW)
WALTER DINWIDDIE,
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.
Franklin L. Gibbs, an Oklahoma state prisoner appearing pro se1 and in forma
pauperis, wants to appeal from the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition. Because he has not “made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a Certificate of
Appealability (COA).
I. BACKGROUND
After fatally shooting his girlfriend, Gibbs was convicted in Oklahoma state court
1
We liberally construe Gibbs’ pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
of first degree murder (Count I) and felon in possession of a firearm after two or more
prior felony convictions (Count II). He was sentenced to life imprisonment without
parole on Count I and life imprisonment with the possibility of parole on Count II. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed on direct appeal. Gibbs filed a
petition for state post-conviction relief. The trial court denied the petition and the OCCA
affirmed.
Gibbs filed a § 2254 habeas corpus petition in federal court alleging the evidence
was insufficient to support his convictions, there is newly discovered evidence that was
withheld by the State and the state courts improperly failed to adjudicate the merits of his
claims. The district court denied relief. It determined the evidence was sufficient to
support his convictions under Jackson v. Virginia, 443 U.S. 307 (1979),2 and therefore
the OCCA’s rejection of his insufficiency of the evidence claim on direct appeal was not
contrary to nor an unreasonable application of clearly established law under 28 U.S.C. §
2254(d). It also concluded the OCCA had correctly determined there was no newly
discovered evidence and even if there was, Gibbs failed to establish “cause or prejudice”
for failing to bring this claim on direct appeal or that failure to review this claim would
result in a fundamental miscarriage of justice.3 The district court denied Gibbs’
2
Sufficient evidence exists to support a conviction if, “after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S. at
319.
3
“On habeas review, this court does 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.” English v.
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subsequent request for a COA.
II. DISCUSSION
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). 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.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quotations omitted).
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.
Id. “Where a plain procedural bar is present and the district court is correct to invoke it
to dispose of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed
further.” Id.We have carefully reviewed the record, the district court’s order and Gibbs’
application for a COA and proposed opening brief. Because we conclude no jurist of
reason could debate the correctness of the district court’s decision, we DENY Gibbs’
Cody, 146 F.3d 1257, 1259 (10th Cir.1998).
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request for a COA and DISMISS this nascent appeal.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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