F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 22 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
DONNIE E. RUSSELL,
Petitioner - Appellant,
v. No. 04-1144
(D. Ct. No. 02-WM-529 (BNB))
GARY WATKINS; ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER
Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.
Petitioner-Appellant Donnie E. Russell was convicted in state court of
attempted murder, sexual assault, kidnapping, robbery, burglary, arson, and
commission of a crime of violence. Mr. Russell filed a 28 U.S.C. § 2254 petition
(“habeas petition”) in the District Court, which was denied. The District Court
also denied Mr. Russell’s request for a certificate of appealability (“COA”) in its
order dated April 22, 2004. He filed a renewed application for a COA with this
Court pursuant to 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1)–(2). After
examining the record in this case, Mr. Russell’s motion is DENIED.
A COA can only issue “if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this
standard, a petitioner must demonstrate “that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
In the District Court and on appeal, Mr. Russell alleges four constitutional
violations. He claims: (1) his Fourteenth Amendment right to due process was
violated by the state’s bad faith destruction or suppression of evidence relating to
latent finger prints, palm prints, a hammer, and a fifteen-year-old witness; (2) his
Fourth and Fifth Amendment rights were violated when the trial court denied his
motion to suppress statements made to the arresting officer and to the Oklahoma
City police; (3) his Sixth Amendment right to effective assistance of counsel was
violated when his attorney failed to present adequately Mr. Russell’s theory of the
case, to investigate an alibi defense, and to present a closing argument to the
jury; 1 and (4) his Sixth Amendment right to effective assistance of counsel was
violated on direct appeal and on post-conviction review.
The Magistrate Judge found that the state appellate court’s determination of
claims one and two were not contrary to, or an unreasonable application of,
1
Mr. Russell separated these issues into two different claims. Since he, as
well as the Magistrate and District Court, treated them as overlapping, we treat
the claims as one claim for purposes of this appeal.
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federal law; nor was it an unreasonable determination of the facts in light of the
evidence presented at trial. He found that some parts of claim three were
procedurally barred and that Mr. Russell failed to show cause and prejudice or a
fundamental miscarriage of justice. With respect to the other parts of claim three,
the Magistrate Judge found that the state appellate court’s determination of the
claim was not contrary to, or an unreasonable application of, federal law; nor was
it an unreasonable determination of the facts in light of the evidence presented at
trial. The Magistrate Judge found that parts of claim four were procedurally
barred and that Mr. Russell failed to show cause and prejudice or fundamental
miscarriage of justice, and that other parts of claim four failed to present a federal
claim. Upon de novo review, the District Court accepted the Magistrate Judge’s
report and recommendations and denied Mr. Russell’s request for a COA. Mr.
Russell then requested that this Court issue a COA. We deny this request as to
each of Mr. Russell’s four claims because no reasonable jurist could disagree with
the District Court’s resolution. See id. at 327.
With respect to Mr. Russell’s due process claim, we reach the same result
as the District Court but with slightly different reasoning. A state violates a
defendant’s due process rights when it fails to disclose evidence that is material
to the defendant’s guilt. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence is
considered material to the defendant’s guilt when it “possess[es] an exculpatory
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value that was apparent before the evidence was destroyed and [is] of such a
nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984)
(citations omitted). If the evidence does not possess apparent exculpatory value
before its destruction, however, it may be considered only “potentially useful”
evidence; and in that case, due process will not be implicated unless the defendant
shows that the police acted in bad faith in failing to preserve it. Arizona v.
Youngblood, 488 U.S. 51, 58 (1988).
Mr. Russell alleges that the evidence relating to latent finger prints, palm
prints, and a hammer was material to his guilt and should have been presented to
the state court. This evidence, however, does not possess the exculpatory value
required by Brady. Instead, the evidence is more properly categorized as
“potentially useful.” See id. at 57 (“potentially useful evidence” is evidence “of
which no more can be said than that it could have been subjected to tests, the
result of which might have exonerated the defendant”). Because the exculpatory
value of this evidence was not apparent before it was destroyed, establishing a
due process claim requires showing bad faith on the part of the police in their
failure to preserve such evidence. Id. at 58. Mr. Russell, however, does not
allege any instances of bad faith with respect to the police’s failure to collect
fingerprints or palm prints at the crime scene or from instrumentalities of the
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crime or in its failure to preserve the hammer for evidence. Therefore, the police
did not violate Mr. Russell’s due process rights in failing to preserve that
evidence.
Mr. Russell also alleges that a fifteen-year-old witness’s statement was
material and should not have been suppressed. For the suppression of this
statement to create a due process violation, the statement must be both
exculpatory and the evidence not obtainable by other reasonable means. Id. at 57.
We need not determine whether the statement was exculpatory because the state
trial court made a finding of fact that the witness and information were available
to the defendant. We presume the correctness of the state court’s finding of fact
unless Mr. Russell rebuts this presumption by clear and convincing evidence,
which he fails to do. See 28 U.S.C. § 2254(e)(1). Mr. Russell, therefore, fails to
show that the statement meets the constitutional level of materiality mandated by
Brady; as such, its suppression did not violate his due process rights.
With respect to Mr. Russell’s three remaining claims, we deny a COA for
substantially the reasons given by both the District Court and the Magistrate
Judge.
Mr. Russell also argues that the District Court abused its discretion by
failing to grant his motion for partial summary judgment, to grant him an
evidentiary hearing, to rule on his motion for discovery and expansion of the
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record, and to rule on his motion for appointment of counsel. We review the
District Court’s order and the Magistrate Judge’s recommendations, which were
adopted by the District Court, and find no abuse of discretion in the District
Court’s refusal to grant Mr. Russell’s motions for summary judgment, an
evidentiary hearing, expansion of the record or discovery. Finally, we grant Mr.
Russell’s motion to proceed in forma pauperis on appeal and deny his motion for
appointment of counsel.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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