F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 7 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JIMMIE OLEN STALLCUP,
Petitioner-Appellant,
v. No. 99-6390
(D.C. No. CIV-97-511-C)
H. N. SCOTT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.
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.
Jimmie Olen Stallcup appeals from an order of the district court denying his
application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Because Mr. Stallcup filed his federal habeas petition after the effective date of
the Antiterrorism and Effective Death Penalty Act (AEDPA), that Act applies to
this appeal. See Slack v. McDaniel , 120 S. Ct. 1595, 1602 (2000). In a habeas
corpus proceeding in which the detention complained of arises out of process
issued by a state court, an appeal by the applicant for the writ may not proceed
unless a district or a circuit judge issues a certificate of appealability [COA]
pursuant to § 2253(c). See id. at 1600; Fed. R. App. P. 22(b)(1). “If no express
request for a certificate is filed, the notice of appeal constitutes a request
addressed to the judges of the court of appeals.” Rule 22(b)(2). We treat this
appeal as an application for COA. We deny the application and dismiss the
appeal.
Mr. Stallcup was sentenced by an Oklahoma state district court to a total of
260 years 1 after conviction on two counts of indecent or lewd acts with a child
under sixteen, three counts of first-degree rape by instrumentation, and two
counts of forcible oral sodomy, all after former conviction of two felonies. His
victims were his daughters, ages six and nine. In his application for a federal writ
of habeas corpus Mr. Stallcup claimed that his constitutional rights were violated
at trial by twenty occurrences of ineffective assistance by his counsel and by
1
The sentences on five of the counts were to run concurrently after serving
the sentence for one count of first-degree rape by instrumentation. See
Appellant’s App. at 11-12.
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improper remarks made by the state district court judge while instructing the jury
in regard to inadmissible videotaped interviews of his victims. After a thorough
discussion of Mr. Stallcup’s claims, the federal magistrate judge recommended
that the application be denied, and the district court agreed, adopting the
magistrate judge’s report and recommendations and denying the application.
Although not raised in his brief to this court, when analyzing Mr. Stallcup’s
claims, the magistrate judge applied a standard which authorizes habeas relief
“‘only when the state courts have decided the question by interpreting or applying
the relevant precedent in a manner that reasonable jurists would all agree is
unreasonable.’” Appellant’s App. at 14 (magistrate judge’s Report and
Recommendation at 4), quoting Roberts v. Ward , No. 98-6066, 1999 WL 162751,
at *7 (10th Cir. Mar. 25, 1999) (unpublished), cert. denied , 120 S. Ct. 589 (1999),
second petition for cert. filed , (U.S. Feb. 4, 2000) (No. 99-8054). The Supreme
Court, however, rejected that standard in Williams v. Taylor , stating that it was an
erroneous “additional overlay.” 120 S. Ct. 1495, 1521 (2000). Instead, an
“objectively unreasonable” standard must be employed that distinguishes an
“unreasonable” application of law from an “incorrect” application of law; i.e., in
order to issue a writ of habeas corpus in regard to a state appellate court’s
application of the correct law to the facts, a federal court must find the state
appellate court’s application of law was not only erroneous or incorrect in its
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independent judgment, but also that the state court’s application of law was
unreasonable. See id. at 1521-22. Application of the Williams standard instead of
the one applied by the magistrate judge does not affect the outcome of this
application for a certificate of appealability, however. To determine whether
Mr. Stallcup has made a “substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we must examine his application for a certificate
of appealability in light of the decision rendered by the state appellate court.
The Oklahoma Court of Criminal Appeals (OCCA) applied Strickland v.
Washington , 466 U.S. 668 (1984), to Mr. Stallcup’s ineffective assistance of
counsel claims. See Appellant’s App. at 6-8. Other than arguing in a general
manner that the court’s conclusion was simply wrong as demonstrated by
the number of alleged errors of counsel and the number of years to which
Mr. Stallcup was sentenced, Mr. Stallcup has not given any reason why the
court’s application of Strickland to the facts of his case was unreasonable.
Likewise, he fails to explain why the OCCA’s conclusion that the trial court’s
allegedly prejudicial remarks were not improper because they (1) were valid
“explanatory remarks regarding evidentiary rulings”; (2) “did not comment upon
the guilt or innocence of appellant”; and, even if they could be viewed as
improper, (3) were rendered harmless by appropriate jury instructions,
see Appellant’s App. at 9, is either incorrect or unreasonable. We thus conclude
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that Mr. Stallcup has failed to make a “substantial showing of the denial of
a constitutional right.” § 2253(c)(2). We decline to issue a COA and dismiss
the appeal.
Entered for the Court
Michael R. Murphy
Circuit Judge
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