Archer v. Ray

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M ICHAEL LYNN ARCHER,
Petitioner-A ppellant, No. 06-6083
v. (W . D. Oklahoma)
CHARLES RAY, W arden; DAVIS (05-CV-536-M )
C ORREC TIO N A L FA CILITY ;
STA TE OF O K LA H O MA ; R ON
W A RD ,
Respondents-Appellees.
OR DER
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
M ichael Lynn Archer, an Oklahoma state prisoner proceeding pro se, seeks
a certificate of appealability (“COA”) to appeal the district court’s order
dismissing his 28 U.S.C. § 2254 petition for a w rit of habeas corpus. M r.
Archer’s petition raised twelve claims. The magistrate judge’s report and
recommendation suggested dismissal of nine of the claims because they were
procedurally defaulted when M r. Archer failed to timely perfect his state appeal;
it recommended dismissal of two claims based upon the reasonableness of the
state court’s findings; it recommended dismissal of the final claim, in w hich M r.
Archer requested an evidentiary hearing on the grounds that M r. Archer did not
meet the statutory requirements for granting such hearings. The district court
adopted the report and recommendation, denied the petition, and granted M r.
Archer’s request to proceed in form a pauperis (“IFP”) to file this COA. For
substantially the same reasons as outlined in the report and recommendation, w e
deny M r. Archer’s application for a COA and dismiss this matter.
B ACKGROUND
In 2002, a jury in the district court of Grady County, Oklahoma convicted
M r. Archer of two counts of lewd molestation, in violation of Okla. Stat. tit. 21 §
1123(a)(2), and one count of indecent exposure, in violation of Okla. Stat. tit. 21
§ 1021(a)(1), all committed after five previous felony convictions. The jury
recommended sentences of twenty years on each count, and the judge imposed
those counts consecutively. After the Oklahoma Court of Criminal Appeals
(“OCCA”) affirmed his conviction and the United States Supreme Court denied
his petition for certiorari, M r. Archer sought post-conviction relief in the district
court of Grady County. After that court denied the petition, M r. Archer filed an
appeal with the OCCA. This appeal was dismissed as untimely, and M r. Archer
sought relief in federal court.
In federal court, M r. Archer raised twelve grounds for relief: (1) the
“religious atmosphere” (a carving reflecting the Biblical lex talionis rule) of the
courtroom violated the Establishment Clause, (2) the judge had personal interest
in his case, (3) his sentences were excessive, (4) prosecutorial misconduct, (5)
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portions of his charges had been previously dismissed, (6) he was incompetent,
(7) his due process rights were violated by evidentiary admissions, (8) he was
denied the right to be present at all stages of his trial, (9) the state was not
required to properly prove every element of the alleged crimes, (10) and (11)
ineffective assistance of trial and appellate counsel, respectively, and (12)
entitlement to an evidentiary hearing.
DISCUSSION
Issuance of a CO A is jurisdictional and may be granted “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). M r. Archer may make this showing by demonstrating
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong, or if the ruling was procedural, that
jurists of reason would find it debatable w hether 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. See
M iller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
The magistrate judge recommended that grounds one, two, and five
through eleven should be dismissed due to procedural default. On habeas review ,
a federal court does not review any claims that a petitioner has defaulted in state
court absent a showing that: (1) a cause outside the control of the petitioner
caused the default, and the petitioner has suffered prejudice, or (2) a fundamental
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miscarriage of justice would occur absent review. Bousley v. United States, 523
U.S. 614, 622 (1998). This circuit has held that noncompliance with the O CCA’s
post-conviction filing requirements procedurally bars federal habeas review.
Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998).
M r. Archer argues particularly vigorously that he presented sufficient cause
to overcome this procedural bar because the delay in filing the post-conviction
petition with the OCCA was not his fault. He contends that only an IFP affidavit,
which may be filed separately from the post-conviction notice of appeal, was
untimely filed. The IFP affidavit requires information that prison officials must
generate, and M r. Archer includes with his application letters from prison
officials assuming the blame for the late IFP affidavit filing.
W e are not persuaded by M r. Archer’s argument. In particular, he fails to
show any cause regarding his failure to timely file the notice of appeal to the
OCCA. Our independent review of the record in this case reveals that M r. Archer
mistakenly mailed the notice of appeal to the Grady County district court, rather
than to the OCCA, and did not realize his error until after the period for filing
with the OCCA had passed. See State Ct. Rec., vol. II (note from Grady County
Deputy Court Clerk, written on June 2, 2004 letter from M r. Archer, explaining,
in response to M r. Archer’s request for a file-stamped copy of the Notice of Intent
to Appeal, that M r. Archer “need[ed] to file [his] appeal with the Court of
Criminal Appeals – not the D istrict Court. You are appealing the D istrict Court
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ruling.”). Thus, even if the prison officials had not delayed M r. Archer’s IFP
application, M r. Archer’s notice of appeal would have been filed after the
OCCA’s filing deadline expired.
W ith respect to grounds three and four, which raised an Eighth Amendment
challenge to the length of his sentence and a due process challenge to the
prosecutor’s conduct during trial respectively, the magistrate judge found that
aspects of these claims had not been procedurally defaulted. Applying the
deference required by § 2254 when a petition raises issues that have been
previously adjudicated by a state court, the magistrate judge recommended
dismissal of these claims on the merits.
W e agree with the magistrate judge. M r. Archer’s Eighth Amendment
claim that the state court should not have imposed his sentences consecutively is
clearly foreclosed by our precedent. Hawkins v. Hargett, 200 F.3d 1279, 1285 n.5
(10th Cir. 1999) (“The Eighth Amendment analysis focuses on the sentence
imposed for each specific crime, not on the cumulative sentence for multiple
crimes.”). Additionally, as explained in the magistrate judge’s thorough review
of M r. Archer’s claim of prosecutorial misconduct, M r. Archer has not shown that
the OCCA’s determinations with respect to this claim were contrary to or an
unreasonable application of Supreme Court precedent. Finally, with respect to
M r. Archer’s final claim, a request for an evidentiary hearing, we note that 28
U.S.C. § 2254(e)(2) governs this request, and that M r. Archer has failed to show
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that his claim to a hearing “relies on a new rule of constitutional law . . . [or] a
factual predicate that could not have been previously discovered through the
exercise of due diligence.”
W e have reviewed M r. Archer’s request for a COA, the magistrate judge’s
report and recommendation, the district court’s orders, and the record on appeal.
For substantially the same reasons set forth by the magistrate judge, we conclude
that M r. Archer is not entitled to a COA. The magistrate judge's recommendation
reflects a careful analysis of the record and is supported by the applicable law.
W e have also review ed M r. Archer’s request for injunctive relief, filed July
5, 2006, asking us to direct the Department of Corrections to permit him
additional storage space in his cell for legal materials. “A party must ordinarily
move [for injunctive relief] first in the district court.” F ED . R. A PP . P. 8(a)(1). A
motion may be made directly to this court, but the movant must “show that
moving first in the district court would be impracticable.” Id. 8(a)(2)(A)(I).
Because M r. Archer has not shown (or even argued) that moving first in the
district court would be impracticable, we deny his request.
Because jurists of reason would not find the conclusions made below
debatable, we DENY M r. Archer’s application for a COA, DENY his request for
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injunctive relief, and DISM ISS this matter.
Entered for the Court,
Robert H. Henry
Circuit Judge
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