Puckett v. Allbaugh

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DOUGLAS ARLIE PUCKETT,
Petitioner - Appellant,
v. No. 16-6349
(D.C. No. 5:14-CV-00301-W)
JOE M. ALLBAUGH, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
_________________________________
Douglas Arlie Puckett was convicted under Oklahoma law on numerous counts
of child sexual abuse. He was sentenced to thirty years’ imprisonment and fined.
After his convictions and sentence were affirmed on direct appeal, he filed a
28 U.S.C. § 2254 petition for habeas corpus in federal district court. The district
court denied his petition and denied a certificate of appealability (COA). We granted
a COA on the sole issue he sought to appeal: whether the Oklahoma Court of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Criminal Appeals (OCCA) reasonably applied federal law in finding harmless error
where the trial court had excluded an allegedly inconsistent and exculpatory letter
written by one of the victims.
Exercising jurisdiction under 28 U.S.C. § 2253(a), we affirm the district
court’s denial of the petition.
I. BACKGROUND
A. Trial court proceedings
The victim of the conduct underlying the convictions at issue in this appeal
(two counts of forcible oral sodomy and two counts of attempted forcible oral
sodomy) was J.N., the minor son of Puckett’s live-in girlfriend, Michelle Novotny.
When Puckett was charged in this case, J.N. was suffering from a malignant brain
tumor. To preserve his testimony in the event he passed away before the case went to
trial, J.N. testified at a preliminary hearing in mid-2009. J.N. died later in 2009, and
a video recording of his testimony was played to the jury at Puckett’s trial in 2011.
Some factual background helps put the certified issue in context.
J.N. was born in 1998. When he was four, he began living in Puckett’s house
with Novotny, his sister, and Puckett. Between 2006 and 2008, three different
investigators from the Oklahoma Department of Human Services (DHS) investigated
reports of physical abuse in J.N.’s home. None of the investigators had received any
allegations that J.N. had been sexually abused, and J.N. reported no sexual abuse to
any of them.
2
In January 2009, J.N.’s father picked J.N. up for visitation and observed a
bruise around his eye. J.N.’s father took him to the police station, where J.N. told the
police that Puckett had physically abused him. Again, he did not mention sexual
abuse. Based on J.N.’s report, the police took him into protective custody.
The police then took J.N. to a children’s shelter, where J.N. told DHS child
welfare specialist James Williamson that Puckett had physically abused him. He did
not mention sexual abuse. J.N. also said he wanted to live with his father because
Puckett was unkind, and he was eventually allowed to do so, at his paternal
grandmother’s house. He never again lived with his mother or Puckett.
J.N. testified that later that day at the children’s shelter, he informed another
DHS worker that Puckett had put his penis in J.N.’s mouth on two occasions and had
touched J.N.’s penis on five occasions, and that the two instances of oral sodomy
occurred when J.N. was five and six years old.
Ten days later, J.N. told Larry McAllister, a forensic interviewer at the Child
Advocacy Center, that on five occasions Puckett had touched his penis on the skin,
called it “playing,” and would “wiggle it around.” State’s Trial Ex. 18 at 9:47:24 to
9:49:44.1 The first two of those touchings occurred when J.N. was five and six years
old; and the last occurred when he was nine. McAllister testified he would not be
surprised if J.N. had not told his father about the sexual abuse.
1
State’s Trial Exhibit 18 is a video recording of J.N.’s interview with
McAllister, which was played for the jury. Our citations to Exhibit 18 are to the time
stamps that appear on the recording.
3
At the preliminary hearing, in addition to the statements referenced in the
preceding paragraphs, J.N. testified Puckett would put his hands down J.N.’s pants
and “directly touch[] [J.N.’s] penis.” Prelim. Hr’g Tr. at 82–83. He also said Puckett
asked J.N. “to suck [Puckett’s] penis,” id. at 86, at least twice “put his [stiff] penis in
[J.N.’s] mouth,” id. at 87–88, and attempted to put his penis in J.N.’s mouth on about
five other occasions, id. at 87. J.N. said these acts began when he was five (which
would have been in 2003) and ended when he was eight (which would have been in
2006). He at first denied telling any of the DHS investigators about sexual abuse.
But near the end of his testimony, J.N. said he had told one of the DHS investigators
in 2007 that Puckett had touched his penis and had orally sodomized him. He added
that he “told them [i.e., all the visiting DHS workers] every time what happened.” Id.
at 171; see also id. at 162 (“Actually I remember now that I did tell them [i.e., all of
the DHS workers that came out to the house] about [Puckett] touching my penis.”).
Puckett testified at trial, denying the allegations and expressing his belief that
J.N.’s father and paternal grandparents had instigated the DHS visits by encouraging
J.N. to make false reports. Novotny also testified that J.N. “was coerced” by his
father into making accusations of physical abuse against Puckett and her. Id. at 1220,
1223. She sought to introduce a three-page, undated letter J.N. had purportedly
written. Its exclusion is the focus of this appeal. The first page stated that J.N. did
not want to live with his father. The second page read:
Why I don’t want to live with my dad[:] because I wouldn’t get help with
my homework and would always have scrapes and bruzes [sic] and
wouldn’t be helthy [sic].
4
I turned you and doug [i.e., Puckett] into dhs because I sometimes want to
live with my dad, and I would like to see my aunt Linda, cousins, and, nana
and papa.
You will not have to deal with dhs or me or my dad or nobody else because
I will not have dhs come out anymore.
Aplt. Br., Ex. F at 2. And the third page listed reasons why he liked living with his
mother and Puckett. The State objected that the letter was hearsay and that to the
extent it could have been used to impeach J.N.’s credibility, it should have been
raised at the preliminary hearing given that the defendants were in possession of it at
that time. The trial court declined to admit the letter because it was not
authenticated.
As noted, the jury convicted Puckett on numerous counts, including two counts
of forcible oral sodomy of J.N. and two counts of attempted forcible oral sodomy of
J.N. There were no charges of physical abuse against Puckett.
B. Direct appeal
On direct appeal, Puckett argued that Novotny could have authenticated the
letter and that its exclusion violated his right to due process and a fair trial. The
OCCA agreed Novotny could have authenticated the letter but affirmed the exclusion
on other grounds. The OCCA first stated the letter “could potentially have been used
to impeach J.N.’s testimony, since it suggests [he] had ‘second thoughts’ about one
of his reports to DHS.” App. 5. The OCCA determined the letter should have been
brought up for impeachment purposes during J.N.’s preliminary hearing, given that
the parties did not expect him to live until trial and intended to rely on the
video-recorded testimony. The court noted that the record suggested “that the letter
5
may possibly have been withheld for strategic reasons until the time of trial (perhaps
by the defendants, without knowledge of their attorneys).” Id.
The OCCA then ruled the letter was not improperly excluded because its
relevance to the charges on which Puckett was tried “was quite limited.” Id. at 6.
The court observed that during a bench conference about the letter, the prosecution
stated that Novotny received the letter after the first DHS investigation, while J.N.
was living with his mother and Puckett, and well before J.N. first aired allegations of
sexual abuse in 2009 and stopped living with them. The OCCA noted the
prosecution’s statement was “never countered.” Id. Accordingly, the OCCA
concluded that the letter could not be viewed as evidence J.N. was recanting his
allegations of sexual abuse because it “could not have been written after J.N. had
accused Puckett of the sexual abuse crimes upon which Puckett was tried,” and “the
only allegations involved in the early DHS investigations regarding J.N. were
allegations of possible physical abuse.” Id.
The court further explained “that although the letter may have had some
relevance to suggest that J.N. had previously contacted DHS for reasons other than
actual abuse (and then regretted doing so), the letter does not actually ‘recant’
anything that J.N. may have reported to DHS” or “state that anything J.N. reported to
DHS was false or untrue, but rather that J.N. may have been motivated to contact
DHS and ‘turn in’ Novotny and Puckett because he sometimes wanted to live with
his dad and see other relatives (whom Novotny was apparently not allowing him to
see).” Id. at 6–7. Hence, the court concluded that “exclusion of the letter did
6
not amount to a denial of Puckett’s right to present a meaningful defense at trial,”
id. at 7, and rejected the notion that the letter was “highly relevant to a critical issue
in the case” that might allow its admission despite hearsay or authentication
concerns, id. at 7–8 (internal quotation marks omitted).
Significant to the issue certified for this appeal, the OCCA further held in the
alternative “that any possible error in excluding this letter was harmless beyond a
reasonable doubt, especially because the letter was not written after J.N. had accused
Puckett of sexually abusing him—and certainly did not amount to any kind of
‘recantation’ of these allegations.” Id. at 8. The OCCA observed the defense had
presented the testimony of Dr. McNall-Knapp, who was J.N.’s oncologist from 2004
up until his death in 2009. Dr. McNall-Knapp testified that she examined J.N. in
January 2009, soon after J.N. was no longer living with his mother and Puckett, and
asked him what had happened, although at the time she was unaware of the
sexual-abuse allegations. J.N. told her he had “‘messed up.’” Trial Tr., Vol. VII
at 1300. She said: “[H]oney, if somebody hit you or hurt you and you told, you did
not mess up. That is what you’re supposed to do. And he said, no, I wanted to live
with my daddy and instead I have to live with my grandma.” Id. The OCCA
considered this testimony “much more relevant and supportive of Puckett’s defense
at trial, i.e., that J.N. had made up the allegations of sexual abuse in order to be
placed with his dad, than the letter that was excluded.” App. 9. The court also
pointed out that Puckett had “never offered any persuasive reason why the letter from
J.N. was not raised and used to impeach him at the time of his preliminary hearing.”
7
Id. The OCCA reiterated “that any possible error in excluding the letter was
harmless beyond a reasonable doubt.” Id.
Puckett filed a petition for rehearing, arguing the OCCA overlooked evidence
that he was unaware of the existence of the letter until the eve of trial. This evidence,
Puckett claimed, undermined both the OCCA’s rationale that the letter should have
been introduced at the preliminary hearing and its conclusion that any error in
excluding it was harmless. The OCCA disagreed, explaining that in its direct-appeal
opinion, it had held that “any possible error in [excluding the letter] was harmless
beyond a reasonable doubt, because the letter had little relevancy to the issues at trial.
When the letter may have been discovered has no bearing on that conclusion.”
Id. at 94.
C. Federal habeas proceedings
Puckett raised one claim in his habeas petition, that the exclusion of the letter
violated his right to present a defense and was not harmless error under Chapman v.
California, 386 U.S. 18 (1967). He contended that in denying his petition for
rehearing, the OCCA had unreasonably interpreted the facts when it determined that
the letter had little relevance to the trial issue. In reaching that conclusion, he
argued, the OCCA had contradicted the rationale of its prior decision, which Puckett
interpreted to be that the letter was relevant to impeaching J.N.’s testimony but its
exclusion was harmless because Puckett had waived his right to present it by failing
to do so at the preliminary hearing. He also faulted the OCCA for making a factual
8
finding in the first instance, namely, when the letter was written, and for failing to
direct an evidentiary hearing on the issue.
A magistrate judge issued a thorough report and recommendation, concluding
that the OCCA had not unreasonably applied Chapman. The district court summarily
adopted the report and recommendation over Puckett’s objections.
II. DISCUSSION
A. AEDPA Standards
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
this appeal because Puckett filed his § 2254 petition after AEDPA’s effective date.
See Hammon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006). Under AEDPA, when a
state court adjudicates a claim on the merits, AEDPA prohibits federal courts from
granting habeas relief unless the state court’s “adjudication of the claim”
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that 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). The OCCA’s harmlessness determination in this case
constitutes an adjudication on the merits. See Davis v. Ayala, 135 S. Ct. 2187, 2198
(2015) (holding that a state court’s harmlessness decision “undoubtedly constitutes
an adjudication on the merits” (internal quotation marks omitted)). Hence, to obtain
habeas relief, Puckett must overcome AEDPA deference. This court, however,
granted a COA only on whether the OCCA unreasonably applied the Chapman
harmless-error standard, and Puckett has not asked us to expand the COA. Our
9
review is therefore limited to the unreasonable-application clause of § 2254(d)(1).
See Ross v. Ward, 165 F.3d 793, 797 (10th Cir. 1999) (reviewing only issues
included in COA and declining to expand it).
“A state court decision unreasonably applies federal law if the state court
identifies the correct governing legal principle from Supreme Court decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Hanson v.
Sherrod, 797 F.3d 810, 824–25 (10th Cir. 2015) (brackets and internal quotation
marks omitted). We presume the OCCA’s factual determinations are correct, but
Puckett may rebut that presumption with clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1). In reviewing a state court decision under § 2254(d)(1),
our inquiry “is limited to the record that was before the state court that adjudicated
the claim on the merits,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “we
review the district court’s legal analysis of the state court decision de novo and its
factual findings, if any, for clear error,” Frost v. Pryor, 749 F.3d 1212, 1223
(10th Cir. 2014) (internal quotation marks omitted).
B. Harmless Error Standards
“The test for whether a federal constitutional error was harmless depends on
the procedural posture of the case.” Ayala, 135 S. Ct. at 2197. On direct appeal, the
Chapman harmless-error standard applies. Id. That standard requires the reviewing
court to “‘be able to declare a belief that [the error] was harmless beyond a
reasonable doubt.’” Id. (quoting Chapman, 386 U.S. at 24). But in federal habeas
proceedings, the Brecht test applies, which requires a petitioner to establish that the
10
constitutional error “resulted in ‘actual prejudice.’” Id. (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). Under Brecht, “relief is proper only if the
federal court has grave doubt about whether a trial error of federal law had
substantial and injurious effect or influence in determining the jury’s verdict.” Id.
at 2197–98 (internal quotation marks omitted).
The Brecht standard differs from the Chapman standard, “but that does not
mean . . . that a state court’s harmlessness determination has no significance under
Brecht.” Id. at 2198. Instead, “the Brecht standard subsumes the requirements that
§ 2254(d) imposes when a federal habeas petitioner contests a state court’s
determination that a constitutional error was harmless under Chapman.” Id. (internal
quotation marks omitted). Hence, although “a federal habeas court need not formally
apply both Brecht and AEDPA/Chapman, AEDPA nevertheless sets forth a
precondition to the grant of habeas relief.” Id. (brackets and internal quotation marks
omitted).
Under AEDPA, “we may not overturn the [OCCA’s] decision unless that court
applied Chapman in an objectively unreasonable manner.” Id. (internal quotation
marks omitted). “When a Chapman decision is reviewed under AEDPA, a federal
court may not award habeas relief under § 2254 unless the harmlessness
determination itself was unreasonable.” Id. at 2199 (internal quotation marks
omitted). “And a state-court decision is not unreasonable if fairminded jurists could
disagree on its correctness.” Id. (brackets and internal quotation marks omitted).
Puckett must therefore show that the OCCA’s determination that exclusion of the
11
letter was harmless “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. (internal quotation marks omitted).
C. Application of Brecht/AEDPA/Chapman
In his first attack on the OCCA’s decision, Puckett claims there is an
inconsistency between that court’s opinion deciding his direct appeal and its order
denying his petition for rehearing, and appears to argue that the OCCA’s first
opinion—which he again characterizes as one based on the notion that the trial court
did not abuse its discretion in excluding the letter because Puckett could have
introduced it during J.N.’s preliminary hearing—should control. Like the magistrate
judge, we see no inconsistency in the two rulings, and Puckett has plainly misread the
first. In that ruling, the OCCA observed that the letter could have been introduced at
the preliminary hearing for impeachment purposes, but it analyzed the exclusion of
the letter, including the harmlessness of any constitutional error, under relevance
principles. It reiterated its relevance rationale in the order denying rehearing. We
therefore reject Puckett’s arguments on this front.
Ostensibly turning to whether the OCCA reasonably applied Chapman,
Puckett contends that exclusion of the letter would be “palatable” but for “[t]he lack
of credible testimonial evidence, complete lack of forensic evidence, and the
12
testimony from adults to whom the children[2] admitted lying about their allegations
(or gave a different account of the story).” Aplt. Br. at 13–14. He argues these
alleged shortcomings “give rise to the argument that a fundamental miscarriage of
justice will occur unless this Court grants the Writ” because he is actually innocent.
Id. at 14. This line of argument misstates the standard of review under AEDPA,
which we set forth above and which is not whether denying relief would result in a
miscarriage of justice because Puckett is actually innocent.3
Furthermore, this line of argument is unpersuasive. Puckett points to
arguments and record citations set forth in the brief he filed in the district court in
support of his habeas petition, which we have reviewed.4 Most of that evidence is
testimony that J.N. did not report sexual abuse before the forensic interview with
McAllister, which tends to support the OCCA’s view that the letter had little to do
with the sexual-abuse allegations. The only portion of the cited evidence that might
support Puckett’s argument is McAllister’s testimony that J.N. said Puckett never
exposed himself to J.N. Puckett contended that was important because J.N. later
2
Puckett was also tried and convicted on sexual-abuse charges relating to
J.N.’s sister.
3
Miscarriage of justice and actual innocence are relevant to excusing a habeas
petitioner’s procedural default. Frost, 749 F.3d at 1231. Procedural default is not an
issue here.
4
Our general rule is that incorporation of district court filings is not
“acceptable argument,” and “arguments not set forth fully in the opening brief are
waived.” Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623–24 (10th Cir.
1998). But given that Puckett’s liberty is at stake, we have examined the record
citations in Puckett’s habeas brief.
13
alleged that Puckett had indeed exposed himself when he allegedly attempted to and
did orally sodomize J.N., and J.N. had testified that he in fact told McAllister that
Puckett had orally sodomized him. But McAllister testified that sometimes a child
might disclose more sexual abuse, or more severe sexual abuse, after the initial
forensic interview, and that J.N.’s “comfort level” during McAllister’s interview
might not have been sufficient for him to disclose that Puckett had orally sodomized
him. Trial Tr., Vol. IV at 755–57. Moreover, the letter simply has no relevance as to
the inconsistency between J.N.’s testimony and McAllister’s. We are therefore
unpersuaded by Puckett’s argument.
Puckett next argues that because the trial court never determined when the
letter was written, the OCCA lacked “jurisdiction to consider such facts, much less
make a determination as to when the child wrote the letter and to which allegations
the letter applied.” Aplt. Br. at 19. Those determinations, Puckett argues, are jury
questions. But he has offered no support for this theory, let alone identified what
clearly established Supreme Court determination of federal law might apply, which is
his burden under AEDPA. See Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir.
2015).
Even so, in determining when the letter was written, the OCCA analyzed the
bench conference at which the prosecutor informed the trial judge, in the presence of
opposing counsel, that “defense counsel” had told him Novotny had received the
letter “after the first DHS investigation” and that counsel could “correct [him] if [he]
was wrong.” Trial Tr., Vol. VI at 1204. Shortly after, the prosecutor stated more
14
specifically that Puckett’s attorney (Novotny had separate counsel) had told him the
letter was written “after the first DHS investigation.” Id. at 1207. Neither Puckett’s
attorney nor Novotny’s corrected the prosecutor’s statements. In our view, therefore,
even if the OCCA’s determination about the timing of the letter could be
characterized as a factual finding (a proposition we doubt), it was based on a tacit
admission by Puckett’s trial counsel that the letter was in fact authored after the first
DHS investigation. We therefore see no basis to conclude that the OCCA exceeded
its authority in analyzing the record and determining that the letter was written long
before J.N. first aired allegations of sexual abuse in January 2009. Further, Puckett
has not challenged the substance of the OCCA’s determination, but only, as just
explained, its authority to make that determination. Accordingly, we discern no basis
to deem the OCCA’s timing determination unreasonable.
The OCCA’s related conclusion that the letter had little relevance to the
allegations of sexual abuse flows naturally from the fact that when J.N. wrote the
letter, he had not yet made those allegations. As discussed above, J.N. gave some
equivocal testimony on that point, but the three DHS workers who investigated
between 2006 and 2008 all testified J.N. made no allegations of sexual abuse, and
part of Puckett’s theory of the case was that J.N. never made such allegations until
January 2009. Further, the OCCA reasonably concluded that in the letter, J.N. did
not actually recant anything, and even if the letter could be interpreted as a
recantation, it would at most concern the allegations of physical abuse J.N. had
15
conveyed to DHS. Puckett has not shown that the OCCA was unreasonable in
concluding that the letter did not relate to the allegations of sexual abuse.
The final line of relevant argument we discern in Puckett’s opening brief is
that because “jurors react more strongly than judges to certain evidence,” the letter
had to be shown to the jury. Aplt. Br. at 21. Puckett contends that “[n]o reasonable
juror would ignore the fact that [J.N.’s] 1) frame of mind, 2) level of maturity, 3)
simplistic writing style, 4) unfamiliarity with the topic of sex and, 5) embarrassment
that he lied were reasons that would prevent [him] from articulating each allegation
he made and then specifically recanting them.” Id. at 20. But even assuming the
letter could be construed as a recantation, J.N. could not have recanted allegations he
had not yet made.
Additional trial testimony supports our conclusion that the OCCA’s
harmlessness determination was not “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Ayala, 135 S. Ct. at 2199 (internal quotation marks
omitted). First, the OCCA concluded Dr. McNall-Knapp’s testimony was more
probative of J.N.’s credibility regarding the sexual-abuse allegations. We cannot say
that conclusion was unreasonable given that the statement J.N. made to her—that he
had “messed up” and had to live with his grandmother instead of his father, Trial Tr.,
Vol. VII at 1300—occurred after he had reported the sexual abuse. Second, when
J.N. went to the children’s shelter on January 11, 2009, he told DHS specialist
Williamson that he wanted to live with his dad. Third, and perhaps most importantly,
16
the jury heard J.N. himself twice state that he wanted to live with his father. He first
said so during a line of cross examination designed to uncover whether anyone had
coached him on what he might have to do to move to his father’s house, which was a
critical part of Puckett’s theory of the case. And he also testified he told one of the
DHS investigators (in May 2008) about the physical abuse because he wanted to live
with his father. That statement is materially indistinguishable from the statement in
the excluded letter that J.N. had reported Puckett and his mother to DHS because he
wanted to live with his father. Hence, the jury had a great deal of significantly
probative evidence supporting Puckett’s theory of the case, and this additional
evidence buttresses our conclusion that the OCCA’s harmlessness analysis must
stand under the deferential standard AEDPA imposes.5
III. CONCLUSION
The judgment of the district court is affirmed. Appellee asks us to strike
Exhibit G to Puckett’s opening appellate brief, which is a copy of the National
Register of Exonerees, because our review is limited to the record that was before the
5
In his reply brief, Puckett broaches several issues that he never raised before
the OCCA, in the district court, or in his opening appellate brief. See Aplt. Reply Br.
at 4 (abuse of prosecutorial power rising to plain error), 5 (double jeopardy,
ineffective assistance of counsel), 9 (Confrontation Clause). He has provided no
reason for us to overlook the multiple impediments to our consideration of such
belatedly-made arguments. See 28 U.S.C. § 2254(b)(1) (requiring a § 2254 petitioner
to first exhaust available state court remedies); Hicks v. Gates Rubber Co., 928 F.2d
966, 970 (10th Cir. 1991) (stating “the general rule that an appellate court will not
consider an issue raised for the first time on appeal”); United States v. Murray,
82 F.3d 361, 363 n.3 (10th Cir. 1996) (“We decline to consider arguments raised for
the first time in a reply brief.”).
17
OCCA when it issued the decisions under review. We have not considered that
exhibit and therefore deny the State’s request as moot.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
18