FILED
United States Court of Appeals
Tenth Circuit
May 19, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
HENRY VEASMAN,
Petitioner-Appellant, No. 08-5023
v. (N.D. of Okla.)
MIKE MULLIN, Warden, (D.C. No. CV-04-602-TCK-PJC)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **
Henry Elvis Veasman seeks a certificate of appealability (COA) to
challenge the district court’s denial of habeas corpus relief to him under 28
U.S.C. § 2254. The district court denied all seven of Veasman’s constitutional
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
claims. Proceeding pro se, 1 Veasman now seeks a COA from this court on five of
the grounds raised below.
We conclude Veasman is not entitled to relief under § 2254 and therefore
DENY his request for a COA.
I. Background
Veasman was convicted of drug and firearm offenses in Oklahoma state
court. The court imposed a cumulative sentence of imprisonment of 61 years.
After his conviction and sentencing, Veasman appealed to the Oklahoma Court of
Criminal Appeals (OCCA). He raised seven propositions of error, 2 all of which
were rejected by the OCCA. Veasman restated the same seven claims in a
petition for habeas corpus filed in the federal district court. Veasman also sought
an evidentiary hearing to supplement the record for his habeas petition. The
district court rejected all seven of Veasman’s claims and denied him an
evidentiary hearing. This request for a COA followed.
1
Because Veasman proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
2
The seven alleged errors were: (1) error in overruling his motion to
suppress; (2) insufficient evidence to prove possession of marijuana with intent to
distribute; (3) insufficient evidence to prove use of a weapon in commission of a
felony; (4) prosecutorial misconduct; (5) error in rejecting his motion for
severance; (6) improper calculation and excessive length of sentence; and (7)
cumulative error depriving him of a fair trial.
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II. Discussion
To obtain a COA, Veasman must make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). This standard is satisfied by demonstrating that “reasonable
jurists could debate whether . . . 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)
(internal quotation marks omitted). “[A] claim can be debatable even though
every jurist of reason might agree, after the COA has been granted and the case
has received full consideration, that petitioner will not prevail.” Miller-El, 537
U.S. at 338.
Veasman seeks a COA from this court on five grounds. First, he argues the
Oklahoma trial court erred in denying his motion to suppress. Second, he asserts
prosecutorial misconduct during the course of his trial. Third, he claims the trial
court erred in denying his motion to sever his trial from the trial of his co-
defendant. Fourth, he argues his sentence was improperly calculated under an
out-of-date statute. Fifth, he states the cumulative effect of the four errors he
alleges deprived him of a fair trial.
For substantially the same reasons set forth by the district court, we
conclude that Veasman’s petition has no merit. We address each argument in
turn.
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Motion to Suppress
The district court determined it was precluded from reviewing Veasman’s
Fourth Amendment motion-to-suppress claim because Veasman had a full and fair
opportunity to litigate the claim in state court. The district court’s conclusion
was correct.
The Supreme Court has long held “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his
trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). This rule has survived the
enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). See,
e.g., Brown v. Sirmons, 515 F.3d 1072, 1082–83 (10th Cir. 2008) (applying rule
announced in Stone). Because we agree with the district court that the OCCA
fully and fairly adjudicated Veasman’s Fourth Amendment claim, we cannot
consider the claim here.
Prosecutorial Misconduct
Veasman alleges various acts of prosecutorial misconduct, including
improper closing remarks and appeals to societal alarm. We agree with the
district court that none of the prosecutor’s alleged misconduct rises to the level of
a constitutional violation. “Generally, a prosecutor’s improper remarks require
reversal of a state conviction only if the remarks ‘so infected the trial with
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unfairness as to make the resulting conviction a denial of due process.’” Hung
Thanh Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Veasman points to no misconduct
rising to that level here.
Motion for Severance
Veasman argues the Oklahoma trial court should have severed his trial from
the trial of his co-defendant. Severance is generally a question of state law not
cognizable in federal habeas proceedings. See Fox v. Ward, 200 F.3d 1286, 1292
(10th Cir. 2000). Veasman can state a claim for relief, however, if “there is a
strong showing of prejudice caused by the joint trial.” Id. (quoting Cummings v.
Evans, 161 F.3d 610, 619 (10th Cir. 1998)). “Such actual prejudice is shown if
the defenses are truly mutually exclusive, such that the jury could not believe the
core of one defense without discounting entirely the core of the other.” Id. at
1293 (quotation omitted).
We agree with the district court that Veasman’s allegations do not meet this
standard. As the OCCA noted, the defenses of Veasman and his co-defendant
were almost entirely consistent with each other; the jury did not need to entirely
discount one to believe the other. Veasman has not suffered prejudice rising to
the level of a constitutional violation.
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Sentencing Calculations
The district court correctly concluded habeas relief is not available to
Veasman based on the length of his sentence. Veasman’s primary argument is
that he was sentenced under an out-of-date statute to 40 years imprisonment for
manufacturing methamphetamine. He correctly notes the applicable portion of
the Oklahoma sentencing statute for that crime was changed from a range of “20
years to life” to “7 years to life.” Compare Okla. Stat. tit. 63, § 2-401(G)(2)
(2000), with id. (2002); see also 2001 Okla. Sess. Laws ch. 437, § 31(C). The
change took effect after Veasman committed the crime, but before his conviction
and sentencing. Because this is the first time Veasman has raised this argument,
however, we will not consider it.
It is well settled that an argument not raised on direct appeal in state court
will be procedurally barred absent several exceptions not relevant here. 3 See
Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002) (“In order to exhaust his
state remedies, a federal habeas petitioner must have first fairly presented the
substance of his federal habeas claim to state courts.”); Medlock v. Ward, 200
F.3d 1314, 1322–23 (10th Cir. 2000) (“We may not consider issues raised in a
habeas petition that have been defaulted in state court on an independent and
3
On direct appeal to the OCCA, Veasman claimed his sentence violated
Oklahoma law for the sole reason that its length was “excessive” and “shocked
the conscience.” R., Ex. D (Aplt. Br.) at 37 (citing Bartell v. Oklahoma, 881 P.2d
92, 101 (Okla. Crim. App. 1994)).
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adequate procedural ground, unless the petitioner can demonstrate cause and
prejudice or a fundamental miscarriage of justice.” (internal quotation marks
omitted)). Veasman gives us no reason to depart from the general rule that
arguments not presented in the state courts will not be considered on habeas
review.
Cumulative Error
Because we conclude the district court correctly determined all four of
Veasman’s other claims lacked merit, the district court was obviously correct to
conclude there was no cumulative error. See, e.g., Workman v. Mullin, 342 F.3d
1100, 1116 (10th Cir. 2003) (concluding defendant’s “sentence cannot be
unconstitutional due to cumulative error because we have not found that the
district court committed error”).
III. Conclusion
For the reasons set forth above, we DENY Veasman’s petition for a COA.
We GRANT his motion to “hold his pro se pleadings in [sic] less stringent
standards.”
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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