FILED
United States Court of Appeals
Tenth Circuit
November 6, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DOVELL “B.” BATTLE,
Petitioner-Appellant, No. 09-5083
v. (N.D. of Okla.)
RANDALL WORKMAN, Warden (D.C. No. 4:06-CV-00112-TCK-FHM)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Dovell B. Battle, an Oklahoma state prisoner, seeks to appeal the denial of
his federal habeas petition. Proceeding pro se in federal district court, Battle
claimed that the state trial court erred when it (1) refused to accept his guilty
plea, (2) then allowed the victim to identify him from the witness stand, and (3)
provided a legally incorrect jury instruction. He also alleged that his lawyers
were constitutionally deficient at trial and on appeal. The district court denied
*
This order is not binding precedent except under the doctrines of law of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.
Battle’s habeas petition on the merits with respect to the in-court identification
and a portion of his ineffective assistance of counsel claims. The district court
held that Battle’s guilty plea, jury instruction, and other ineffective assistance
claims were procedurally barred.
Proceeding pro se on appeal, 1 Battle reargues the issues he raised in district
court and brings new claims based on the state trial court’s rejection of his parole
eligibility instruction, the admission of a detective’s testimony, and his sentence
being “excessive.” Battle fails to demonstrate that reasonable jurists would find
the district court’s assessment of his constitutional claims and its procedural
rulings debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Exercising jurisdiction under 28 U.S.C. § 2253, we DENY a certificate of
appealability (COA) and DISMISS the appeal.
I. Background
This case arises out of the robbery of Golden Pawn Shop in Tulsa,
Oklahoma. The owner of the pawn shop helped a man and a woman browse
through several items. After more than an hour inside the store, the man jumped
behind the clerk’s counter and sprayed the owner with mace or pepper spray. The
assailants fled the store with several dozen rings worth around $6,000 in total.
Three days later, a woman attempted to sell some of the stolen rings back to the
1
We construe Battle’s claims liberally because he proceeds pro se. See
Garcia v. Lemaster, 439 F.3d 1215, 1217 (10th Cir. 2006).
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same pawnshop. The owner alerted police, and the woman was arrested. She
later claimed that she had purchased the rings two days prior from Battle and
another woman.
Prosecutors initially agreed to recommend a four-year sentence for Battle if
he pleaded guilty to Knowingly Concealing Stolen Property. The state trial judge
rejected the plea bargain and the case went to trial on more serious charges that
took into account Battle’s prior felonies. At trial, prosecutors presented
substantial evidence that Battle was the man who had robbed Golden Pawn Shop,
including (1) testimony of the woman police arrested who claimed she bought the
stolen rings from Battle, (2) Battle’s accomplice’s testimony that she had
participated in the robbery with Battle, and (3) the owner’s identification of
Battle as the robber.
A jury found Battle guilty, and he was sentenced to 120 years in prison.
II. Discussion
Battle brings nearly twenty claims on appeal. For the sake of clarity, we
divide them into four groups based on the applicable law. First, the district court
reviewed a set of claims—all centering on the alleged ineffective assistance of
Battle’s appellate counsel—de novo because the state courts had applied incorrect
federal law. On a second set of claims, the state courts had correctly applied
federal law, and therefore the district court used the deferential standard of
review created in the Antiterrorism and Effective Death Penalty Act of 1996
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(AEDPA). Third, the district court held several claims were procedurally barred
under state law. Fourth, Battle asserts several claims on appeal that he altogether
failed to argue in his habeas petition.
We address each set of claims in turn.
A. Claims Reviewed De Novo
The district court properly reviewed Battle’s ineffective assistance of
appellate counsel claims de novo. Battle sought post-conviction relief in state
court for six claims of ineffective assistance of appellate counsel. Both the state
district court and the Oklahoma Court of Criminal Appeals (OCCA) applied the
ineffectiveness standard in Webb v. State, 835 P.2d 115 (Okla. Crim. App. 1992),
to Battle’s claims.
The state district court cited Webb for the proposition that “[t]he mere fact
that counsel fails to recognize the factual or legal basis for a claim, or fails to
raise the claim despite recognizing it, is not sufficient to preclude enforcement of
a procedural default.” R., Vol. 1 at 138 (quoting Webb, 835 P.2d at 116). While
that conclusion may be a corollary of Strickland v. Washington, 466 U.S. 668
(1984), it cannot substitute for the thorough review of counsel’s actions that
Strickland requires. See Strickland, 466 U.S. at 688 (instructing courts to
consider “all the circumstances” surrounding counsel’s actions). Thus, the
district court was correct to find that the state courts had not applied controlling
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federal law and it properly reviewed the claims de novo. See Malicoat v. Mullin,
426 F.3d 1241, 1248 (10th Cir. 2005).
Under Strickland, counsel provides ineffective assistance when his
representation does not meet “an objective standard of reasonableness,”
Strickland, 466 U.S. at 688, and “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “When a habeas petitioner alleges that his appellate
counsel rendered ineffective assistance by failing to raise an issue on direct
appeal, we first examine the merits of the omitted issue.” Hawkins v. Hannigan,
185 F.3d 1146, 1152 (10th Cir. 1999). Only when the issue has merit do we then
apply Strickland to determine if appellate counsel’s assistance was
unconstitutionally ineffective. Id. We address each claim.
1. Failure to investigate alibi witnesses
Battle argues his trial counsel was ineffective because she failed to
investigate alibi witnesses, and his appellate counsel was ineffective because he
failed to raise that ineffective assistance of trial counsel claim. The federal
district court found that appellate counsel made a strategic decision not to raise
the ineffective assistance claim and, besides, Battle had made no plausible
showing of prejudice.
The district court’s judgment is not reasonably debatable or wrong.
Battle’s appellate counsel did investigate his alibi defense even though the
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attorney acknowledged that he did not think “this information will get [Battle’s]
case reversed.” R., Vol. 2 at 515. Upon investigation, however, the appellate
counsel found no evidence—except for Battle’s bare assertion—that Battle had
identified possible alibis for trial counsel. Furthermore, appellate counsel
concluded that the single affidavit of a witness who claimed Battle was not at the
crime scene would not have made out a viable ineffective assistance of trial
counsel claim. Id. at 516. Given the evidence, counsel’s professional judgment
was reasonable.
2. Failure to utilize the accomplice’s confession
Next, Battle argues his trial counsel provided ineffective assistance when
she failed to use his accomplice’s confession, and his appellate counsel was
ineffective because he failed to raise this claim. This argument is meritless and,
consequently, the district court’s denial of relief on the claim is not reasonably
debatable or wrong.
The decision not to introduce Battle’s accomplice’s confession was
undoubtedly strategic. As appellate counsel noted in correspondence with Battle,
the tape references Battle’s former convictions—likely prejudicial to Battle—and
in it his partner alleges that Battle participated in the crime. Id. Additionally, the
alleged benefit Battle would derive from the confession—a weak suggestion that
his accomplice’s husband was in fact the perpetrator—is contradicted by Battle’s
own admission that he possessed the stolen rings. Id.
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3. Failure to object to an “all white” jury
Battle alleges that the jury at his trial was composed entirely of Caucasians,
and that fact alone proves a constitutional violation. Trial counsel did not raise
an objection regarding jury composition, and Battle argues his appellate counsel
was ineffective when he failed to make this ineffective assistance of trial counsel
argument. By itself, the racial composition of a jury does not present a
cognizable constitutional claim. Perhaps Battle intends to bring a claim under
Batson v. Kentucky, 476 U.S. 79 (1986). Batson violations occur when a
prosecutor uses his peremptory challenges purposefully to discriminate against a
racial group. Batson, 476 U.S. at 89. As the district court noted, “nothing in the
record reflects the racial composition of [Battle’s] jury or jury pool,” R., Vol. 2 at
535, and Battle does not allege discriminatory peremptory challenges. Because
the jury composition claim is meritless, the district court’s denial of relief on the
claim is not reasonably debatable or wrong.
4. Counsel’s conflict of interest
Battle claims that his trial counsel violated the attorney-client relationship
because she did not inform him about a potential conflict of interest. Battle
argues he was denied effective assistance of appellate counsel when his counsel
failed to make this ineffective assistance of trial counsel argument on appeal.
This claim lacks merit, and the district court’s denial of relief on the claim
is not reasonably debatable or wrong. Battle did not raise a Sixth Amendment
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objection at trial, and therefore to prevail on his conflict of interest claim, he
“must demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Although
Battle’s precise argument is difficult to discern, he appears to argue that simply
because his trial counsel had represented a government witness in a prior matter,
counsel was unable to provide Battle with effective assistance. In this situation,
we have held that ineffective assistance is proven only when “there is a
substantial and particular relationship between the two cases.” United States v.
Bowie, 892 F. 2d 1494, 1501 (10th Cir. 1990). Here, the witness was in prison
for various drug-related offenses and assault and battery. Battle does not allege
that the witness’s offenses were related to the robbery at issue in Battle’s case.
Regardless of the relationship between the witness’s and Battle’s crimes,
Battle fails to show that his trial counsel’s conflict of interest adversely affected
her performance. Battle makes no specific allegations of ineffective assistance
due to the alleged conflict of interest, and we can discern none from the record.
The witness who Battle’s counsel had previously represented specifically
acknowledged his prior convictions. Evidence challenging the witness’s
credibility thus was presented at trial.
5. Failure to challenge the trial court’s refusal to accept the guilty plea
Battle alleges the trial court improperly refused to accept his guilty plea to
the charge of Knowingly Concealing Stolen Property, and because his appellate
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counsel did not make this argument, the appellate counsel was ineffective. This
claim is meritless, and the district court’s denial of relief on the claim is not
reasonably debatable or wrong. “A criminal defendant does not have an absolute
right under the Constitution to have his guilty plea accepted by the court,” North
Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970), and Battle does not allege that
state law gives him a similar right. Because Battle lacks a constitutional or
statutory right to have his guilty plea accepted, his appellate counsel’s failure to
raise this claim did not constitute ineffective assistance of counsel.
6. Failure to challenge the jury instruction on accomplice testimony
Battle argues that one of the jury instructions at trial was given incorrectly
and appellate counsel’s failure to raise this issue qualified as ineffective
assistance. This claim is meritless, and the district court’s denial of relief on the
claim is not reasonably debatable or wrong. The challenged jury instruction was
correct at the time it was given and it was only modified by a state court decision
after Battle’s direct appeal. See Pink v. State, 104 P.3d 584, 593 (Okla. Crim.
App. 2004) (altering the disputed jury instruction’s language from “may” to
“must”). Obviously, appellate counsel’s assistance could not have been
ineffective merely because he failed to anticipate a change in the law before it
occurred.
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B. Claims Reviewed under AEDPA
The district court reviewed Battle’s in-court identification claim and one of
his ineffective assistance of trial counsel claims under AEDPA. When a state
prisoner files a federal habeas petition, federal courts only may grant relief if the
state court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law” or “was based on an unreasonable determination
of the facts . . . .” 28 U.S.C. § 2254(d). The federal district court held that the
OCCA properly applied controlling federal law to both of the claims, and it
affirmed the OCCA’s judgment. When considering whether to grant a COA, we
ask whether reasonable jurists would find the district court’s judgments debatable
or wrong. We find they would not.
1. In-court identification of Battle
Battle challenges the victim’s in-court identification of him as the robber.
He alleges the victim had been unable to identify him at a preliminary hearing or
in a photographic line up, and that her varied descriptions of the perpetrator raise
constitutional concerns about the fairness of admitting her identification. The
OCCA rejected Battle’s claim, finding under the totality of the circumstances that
the in-court identification was proper, or in the alternative, it was harmless error.
The federal district court held that the OCCA’s ruling reasonably applied the
correct Supreme Court precedent.
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The district court’s holding is correct and beyond reasonable debate. Even
a “suggestive and unnecessary” identification is constitutional “so long as the
identification possesses sufficient aspects of reliability.” Manson v. Brathwaite,
432 U.S. 98, 106 (1977). Courts assess reliability by examining the totality of the
circumstances and weighing “the opportunity of the witness to view the criminal
at the time of the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty demonstrated by
the witness at the confrontation, and the length of time between the crime and the
confrontation.” Neil v. Biggers, 409 U.S. 188, 196, 199–200 (1972).
It was not unreasonable for the trial court to find the victim’s identification
sufficiently reliable to admit into evidence. She testified that she observed Battle
for over an hour in her well-lit store and stated she was “positive” that Battle was
the man who robbed her. R., Vol. 2 at 416. Battle contends that her testimony
was unreliable because she could not identify him in photographs and said he had
hair when, in fact, he is bald. However, the victim explained the alleged
deficiencies in her testimony: the pictures of Battle did not look like him in
person, and she maintains that she consistently told the police that Battle wore a
hat during the robbery.
Even if the trial court unreasonably applied the Biggers factors and should
not have permitted the in-court identification of Battle, the identification did not
have a “substantial and injurious effect or influence in determining the jury’s
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verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citation
omitted). The victim was subject to vigorous cross-examination about her
identification of Battle. The jury also had two other witnesses’ testimony upon
which it could base its conviction. As the district court noted, Battle’s
accomplice testified that Battle and she robbed the pawn shop together, and the
woman arrested at the pawnshop identified Battle in court as the person who sold
her the stolen rings.
2. Trial counsel’s failure to request a transcript of the preliminary hearing
Battle argues that his trial counsel’s failure to request a transcript of the
preliminary hearing constituted ineffective assistance of counsel. Citing
Strickland, the OCCA rejected Battle’s claim. R., Vol. 1 at 48. The federal
district court held that the state court’s ruling was not unreasonable because
Battle failed to show the lack of a transcript satisfied Strickland’s prejudice
prong.
The district court’s ruling is correct and beyond reasonable debate.
Assuming for purposes of argument that failing to request the transcript was
unreasonable, we can discern no prejudice that the transcript’s absence caused
Battle’s defense. Battle’s trial attorney thoroughly cross-examined the victim
whose identification of Battle might have been called into question because of the
preliminary hearing. The trial counsel even called as a witness the court reporter
from the preliminary hearing to testify about what the victim said. And even if
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we found the lack of a transcript prejudiced Battle’s defense in some way,
certainly he would be unable to show “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
C. Procedurally Barred Claims
The district court held that six of Battle’s claims were procedurally barred
because he failed to raise them in his direct appeal. The defaulted claims relate to
the state trial court’s refusal of Battle’s guilty plea, an allegedly deficient jury
instruction, and several ineffective assistance of trial counsel claims. The
underlying actions by the trial counsel and court complained of in this Section of
the Order are identical to the underlying actions discussed in Section II.A., above.
“In a habeas proceeding, we do not address issues that have been defaulted
in state court on an independent and adequate state procedural ground, unless
cause and prejudice or a fundamental miscarriage of justice is shown.” Maes v.
Thomas, 46 F.3d 979, 985 (10th Cir. 1995) (citing Coleman v. Thompson, 501
U.S. 722, 750 (1991)). To be independent, the procedural ground must be based
solely on state law. Clearly, a bar based on state procedure alone constitutes an
independent state ground. To be adequate, the procedural ground “must be
strictly or regularly followed and applied evenhandedly to all similar claims.”
Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999). We have held,
generally, “Oklahoma’s procedural rule barring post-conviction relief for claims
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petitioner could have raised on direct appeal constitutes an independent and
adequate ground” sufficient to bar federal habeas review. Id. at 1175; accord
Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993) (finding Oklahoma courts
have applied the procedural bar “not inconsistently” to defaulted constitutional
claims). Battle’s claims related to the trial court’s refusal to accept his guilty
plea and the disputed jury instruction are thus barred.
We have conducted a more searching inquiry into a state’s procedural
default rule when it is applied to ineffective assistance of trial counsel claims.
The default will prevent federal habeas review when, first, “trial and appellate
counsel differ,” and, second, “the ineffectiveness claim can be resolved upon the
trial record alone.” English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998).
Battle was represented by different appellate and trial counsel, and all but his
claim related to alibi witnesses can be resolved on the trial record. Therefore,
Battle’s ineffective assistance of trial counsel claims related to his accomplice’s
confession, the racial composition of the jury, and the trial counsel’s conflict of
interest are barred.
The remaining ineffective assistance of trial counsel claim is barred, as
well. It is not clear whether the remaining claim, which centers on trial counsel’s
alleged failure to investigate alibi witnesses, can be decided on the trial record.
On the one hand, an alleged failure of counsel to investigate witnesses likely
would involve evidence extrinsic to the trial. On the other hand, it is far from
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certain that Battle even has alleged the existence of alibi witnesses whose
testimony would satisfy Strickland’s demanding prejudice prong. Assuming this
claim could not be decided on the trial record, it still is barred because Battle fails
to make “specific allegations . . . as to the inadequacy of the state procedure” to
supplement the trial record. Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir.
1999). That is, Battle does not allege that Oklahoma’s procedure for
supplementing the trial record prevented him from building an appropriate record
in his direct appeal. Because Battle has not “place[d] that issue before the district
court in a clear way,” the district court correctly held that his claim was
procedurally barred. Id.
Battle can overcome these otherwise valid procedural bars by
demonstrating either cause for the default and actual prejudice due to it, or that a
fundamental miscarriage of justice would occur if the default were enforced.
Coleman, 501 U.S. at 750. Battle is unable to show cause for his default. He
argues that his failure to raise the defaulted claims on direct appeal was due to the
ineffective assistance of his appellate counsel. However, we have already
explained how each of Battle’s ineffective assistance of appellate counsel claims
either lacked merit or did not meet Strickland. Similarly, Battle is not able to
show that a fundamental miscarriage of justice would occur if we upheld the
procedural bar to hearing his claims. “To meet this test, a criminal defendant
must make a colorable showing of factual innocence.” Beavers v. Saffle, 216 F.3d
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918, 923 (10th Cir. 2000). Battle must “show that it is more likely than not that
no reasonable juror would have convicted him” in light of new evidence. Schlup
v. Delo, 513 U.S. 298, 327 (1995). It does not appear that Battle claims he is
factually innocent. See R., Vol. 2 at 493–94. But even if he did make that claim,
he provides no new evidence to support the conclusion that no reasonable juror
would have convicted him.
In sum, the district court’s holding that six of Battle’s claims were
procedurally defaulted is correct and beyond reasonable debate.
D. Waived Claims
Finally, Battle raises five claims on appeal that he did not bring before the
district court. He argues that his trial counsel was ineffective because she failed
to request a suspect line up before the preliminary hearing and did not sufficiently
challenge the victim regarding her identification of Battle. He also claims the
trial court erred when it admitted a detective’s testimony regarding the
photographic line up, refused Battle’s parole eligibility instruction, and sentenced
him to more than 100 years in prison.
We decline to consider the claims Battle did not raise in federal district
court. Generally, “a federal appellate court does not consider an issue not passed
upon below.” In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)). We apply this waiver rule
regularly. See, e.g., Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999); Jones
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v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000). Battle provides no reasons for his
failure to raise these claims in district court, and, consequently, we decline to
consider them.
III. Conclusion
For the foregoing reasons, we DENY a certificate of appealability (COA)
and DISMISS the appeal.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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