Parker v. Sirmons

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 28, 2010
Elisabeth A. Shumaker
Clerk of Court
JULIUS JORDAN PARKER,
Petitioner–Appellant
v.
No. 10-5024
MARTY SIRMONS, WARDEN; (D.C. No. 4:06-CV-00603-TCK-PJC)
ATTORNEY GENERAL OF THE (N.D. Okla.)
STATE OF OKLAHOMA,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Julius Jordan Parker seeks a certificate of appealability (“COA”) to appeal the
denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.
Parker was convicted in Oklahoma state court of robbery with a firearm,
knowingly concealing stolen property, possession of a stolen vehicle, and possession of a
firearm after a prior felony conviction. The Oklahoma Court of Criminal Appeals
(“OCCA”) affirmed his conviction on direct appeal. Parker then filed a § 2254 petition in
*
This order is not binding precedent except under the doctrines of law of the case,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.
federal district court. The district court denied Parker’s petition and his request for a
COA. Parker timely appealed.
Parker may not proceed on appeal absent a grant of a COA by this court.
§ 2253(c)(1)(A). To obtain a COA, Parker must show “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) (quotation omitted). We
may grant federal habeas relief only if the OCCA’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law” or was “based
on an unreasonable determination of the facts in light of the evidence presented.”
§ 2254(d)(1), (2).
Parker contends that he was denied his right to effective assistance of counsel at
both the trial and appellate levels. To prevail on a claim of ineffective assistance, Parker
must demonstrate: (1) he was deprived of “reasonably effective assistance” of counsel;
and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S.
668, 687, 694 (1984). Parker advances four particular claims of ineffectiveness.
First, he contends that his trial counsel was ineffective for failing to introduce his
booking photograph into evidence. But Parker fails to demonstrate prejudice: His
counsel thoroughly questioned a witness who identified Parker as the man who robbed
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her, and the witness admitted that Parker’s physical appearance in the booking
photograph differed from her initial description to police. Nonetheless, she remained
certain in her identification. Introducing the photograph would not have undermined her
credibility to any significantly greater degree.
Parker also claims trial counsel was ineffective for failing to challenge a prior
felony conviction that satisfied an element of his firearm conviction. But because Parker
presents no argument or evidence showing that his prior conviction could have been
challenged successfully, he has failed to establish prejudice. In his third ineffective
assistance of trial counsel claim, Parker argues that counsel should have objected when
the prosecutor asked jurors to imagine themselves in the “victim’s shoes” in considering
whether her identification of Parker was reliable. But Parker does not address the district
court’s conclusion that the prosecutor was merely commenting on evidence in the record
in response to defense attempts to discredit the witness. As with his first two claims,
Parker fails to show prejudice. Finally, Parker makes a bare assertion that appellate
counsel was ineffective, but provides no facts or legal arguments to support this claim.
We will not review an asserted error in the absence of supporting argument. See Am.
Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992).
In addition to his ineffectiveness claims, Parker argues that the district court
violated his due process rights by failing to instruct the jury on Oklahoma’s “85 percent
rule,” which requires certain convicts to serve eighty-five percent of their sentences
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before becoming eligible for parole. See Okla. Stat. tit. 21, § 13.1. Although the OCCA
has held that trial courts are required to instruct jurors on the 85 percent rule before
sentencing as a matter of state law, Anderson v. State, 130 P.3d 273, 282-83 (Okla. Crim.
App. 2006), the federal courts have not so held.1 “A habeas petitioner is only entitled to
relief . . . for alleged violations of federal rights, not for errors of state law.” Bullock v.
Carver, 297 F.3d 1036, 1055 (10th Cir. 2002) (citation omitted). The OCCA’s
affirmance of Parker’s conviction therefore did not violate clearly established federal law.
For the foregoing reasons, we DENY the request for a COA and DISMISS the
appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
The United States Supreme Court has held that trial courts are constitutionally
required to inform the jury as to parole eligibility in certain capital cases. See, e.g.,
Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (plurality opinion). However, this
rule applies “only when, assuming the jury fixes the sentence at life, the defendant is
ineligible for parole under state law.” Ramdass v. Angelone, 530 U.S. 156, 166 (2000)
(quotation omitted).
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