F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 22, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
GAVIN LEE HAWKINS,
Petitioner-Appellant, No. 04-6398
v. (W.D. Oklahoma)
(D.C. No. CV-03-1079-R)
STATE OF OKLAHOMA,
Respondent-Appellee.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.
Gavin Lee Hawkins, a state prisoner proceeding pro se, seeks a certificate
of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 petition for
habeas corpus based on ineffective assistance of trial counsel. We deny his
request for a COA and dismiss this matter.
I. BACKGROUND
In 1999, Mr. Hawkins was convicted by a state-court jury in Grady County,
Oklahoma, of two counts of lewd molestation of a child. On direct appeal to the
Oklahoma Court of Criminal Appeals (OCCA), Mr. Hawkins claimed that he
received ineffective assistance of counsel. His claim was based on the fact that
his lawyer failed to timely include the proper name of a defense witness on the
witness list and the court subsequently refused to allow the witness to testify.
According to Mr. Hawkins, the witness would have testified that the alleged
victim of the lewd molestation charges, who was Mr. Hawkins’s stepdaughter,
“had plotted with her two brothers to ‘get rid of Mr. Hawkins,’ and that [the
alleged victim] said that ‘she would do anything to get rid of [Mr. Hawkins].”
Relevant State Court Records, doc. 13, at 11. Mr. Hawkins argued that the
testimony of this witness would have established the child’s motive and intention
to lie. Id. Mr. Hawkins contends that he was prejudiced because counsel’s faulty
performance deprived him of a “critical witness.” Id. at 15.
The OCCA considered Mr. Hawkins’s ineffective assistance claim and
denied relief in a summary opinion. Although the OCCA held that Mr. Hawkins’s
trial counsel did indeed perform below the objective standard of reasonableness
required by Strickland v. Washington, 466 U.S. 668 (1984), it concluded Mr.
Hawkins suffered no prejudice as a result. See OCCA Op. at 2.
Mr. Hawkins subsequently requested a COA and filed a 28 U.S.C. § 2254
motion for habeas corpus relief. A magistrate judge recommended denial of the
petition. Citing Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999), the
magistrate judge concluded that Mr. Hawkins’s ineffective assistance claim was
adjudicated on the merits by the OCCA. The magistrate judge therefore
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concluded that the OCCA’s determination was entitled to deference under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under
AEDPA,
[i]f a claim is adjudicated on the merits in state court, we will grant
habeas relief to a petitioner only if he can establish that the state court
decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States,” or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceedings.”
Spears v. Mullin, 343 F.3d 1215, 1255 (10th Cir. 2003) (quoting 28 U.S.C. §
2254(d)(1), (2)). Noting that AEDPA requires federal courts to presume state
court factual findings are correct and places the burden on the petitioner to rebut
this presumption by clear and convincing evidence, see id., the magistrate judge
determined that Mr. Hawkins had not met AEDPA’s demanding standards under §
2254. See Upchurch v. Bruce, 333 F.3d 1158, 1162 (10th Cir. 2000) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)).
The magistrate judge ruled that the OCCA’s determination that Mr.
Hawkins was not prejudiced by his counsel’s failure to timely include the
witness’s name on the witness list was not an unreasonable application of
Strickland. The familiar two-part test of Strickland requires a petitioner to show
not only that counsel’s performance was objectively unreasonable, but also that it
prejudiced him or her. See Strickland, 466 U.S. at 689-90. To meet the prejudice
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prong, Mr. Hawkins must establish a reasonable probability that the witness’s
testimony would have resulted in a different outcome at trial. See id. at 694.
The magistrate judge determined that Mr. Hawkins could not do so because
(1) Mr. Hawkins made incriminating admissions to Department of Human
Services and law enforcement officials concerning the lewd molestation acts
against the child, (2) Mr. Hawkins wrote a letter to the child, apologizing for what
he had done and for claiming that she was lying, and (3) Mr. Hawkins’s counsel
had an opportunity to explore the relationship between Mr. Hawkins and the
child.
The magistrate judge also addressed Mr. Hawkins’s request for an
evidentiary hearing to present the factual basis for his ineffective assistance
claim. Having determined that Mr. Hawkins was diligent in attempting to develop
the factual basis for his claim by moving to supplement the record and requesting
an evidentiary hearing in state court, the magistrate judge concluded he was not
entitled to an evidentiary hearing in federal court because his allegations were
contravened by the factual record in the case. See Rec. doc. 16, at 14-15 (Rep’t
and Rec. filed Nov. 12, 2004).
After considering and rejecting Mr. Hawkins’s objections to the magistrate
judge’s report and recommendation, the district court adopted it in its entirety and
agreed that Mr. Hawkins was not entitled to an evidentiary hearing because his
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claim of prejudice was contravened by the existing factual record. The district
court also denied the habeas petition with regard to the ineffective assistance
claim.
Mr. Hawkins then filed a notice of appeal. Because the district court did
not address the issue of a COA, a COA is deemed denied under our Emergency
General Order of October 1, 1996. We construe Mr. Hawkins’s notice of appeal
as a request for a COA. We must determine whether to grant a COA before
turning to the merits. We exercise jurisdiction under 28 U.S.C. § 2253 and deny a
COA.
II. DISCUSSION
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). A COA can issue only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating 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, 537 U.S. at 327. “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 336. “This threshold inquiry does not require
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full consideration of the factual or legal bases adduced in support of the claims.
In fact, the statute forbids it.” Id. While Mr. Hawkins is not required to prove
the merits of his case in applying for a COA, he must nevertheless demonstrate
“something more than the absence of frivolity or the existence of mere good faith
on his or her part.” Id. at 338 (internal quotation marks omitted).
For substantially the same reasons set forth in the magistrate judge’s report
and recommendation as adopted by the district court in its December 2004 Order,
we conclude that Mr. Hawkins has not “made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
III. CONCLUSION
We have reviewed Mr. Hawkins’s brief, the magistrate judge’s thorough
and well-reasoned report and recommendation, the district court’s order, and the
record on appeal. Because Mr. Hawkins has failed to make the necessary
showing, we deny a COA and dismiss the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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