FILED
United States Court of Appeals
Tenth Circuit
November 2, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHRISTOPHER LEYJA,
Petitioner-Appellant, Nos. 10-6121 and 10-6140
v. (W.D. of Okla.)
DAVID PARKER, Warden, (D.C. No. 5:09-CV-00265-W)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Petitioner Christopher Leyja, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. Exercising
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny his request for a COA,
*
This order is not binding precedent except under the doctrines of law of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.
deny his request to proceed on appeal in forma pauperis, and dismiss these
appeals.
I. Background
Following a jury trial in Oklahoma state court, Leyja was convicted of
three charges involving his former girlfriend, Donna Thompson: first-degree rape
(Count I), first-degree burglary (Count II), and forcible oral sodomy (Count III).
He was sentenced to forty years on Count I, twenty years on Count II, and twenty
years on Count III, each to be served consecutively. The Oklahoma Court of
Criminal Appeals (OCCA) affirmed Leyja’s conviction on direct appeal. Leyja’s
pursuit of state post-conviction relief was also unsuccessful.
Leyja subsequently filed a habeas petition in federal district court. The
district court referred the matter to a magistrate judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). In a carefully reasoned and
thorough report and recommendation, the magistrate judge recommended Leyja’s
petition be denied. The district court adopted the magistrate judge’s
recommendation and denied the petition. The court then denied Leyja’s
application for a COA, stating,
Because the Court has rejected Leyja’s claims on their merits . . . the
Court finds that to be entitled to a COA Leyja ‘must demonstrate that
reasonable jurists would find th[is] . . . [C]ourt’s assessment of the
constitutional claims debatable or wrong.’ Upon review of the
record, the Court finds that Leyja would be unable to make the
requisite showing . . . .
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May 20, 2010 Order at 1 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The district court also denied Leyja leave to appeal in forma pauperis because
“upon review of the record [] Leyja would not be able to present a reasoned,
nonfrivolous argument on the law and facts in support of the issues to be raised
on appeal. Leyja’s appeal therefore is not taken in good faith.” June 2, 2010
Order at 1. Leyja sought a second COA to appeal the district court’s denial of his
application to proceed in forma pauperis, which the district court also denied.
Leyja now seeks a COA from this court to enable him to appeal the denial
of his habeas petition and his application to proceed in forma pauperis. He raises
the following issues: (1) insufficient evidence of guilt, (2) actual innocence, (3)
ineffective assistance of trial counsel, (4) ineffective assistance of appellate
counsel, (5) the erroneous admission of expert testimony, (6) the erroneous
admission of a portion of a medical report in violation of Leyja’s Sixth
Amendment right to confrontation, (7) an alleged Brady violation by prosecutors
in misrepresenting that a witness could not be located, and (8) an alleged Brady
violation by prosecutors in failing to disclose a study on which expert testimony
was based.
We interpret Leyja’s request for a COA regarding the district court’s denial
of his application to proceed in forma pauperis as a renewed application for this
status.
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II. Discussion
Without a COA, we lack jurisdiction to consider the merits of a habeas
appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only if “the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make the requisite showing, Leyja must demonstrate that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).
Because the OCCA addressed the merits of several of Leyja’s claims,
“AEDPA’s deferential treatment of state court decisions must be incorporated into
our consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935,
938 (10th Cir. 2004). Under the Antiterrorism and Effective Death Penalty Act of
1996, “AEDPA,” we may grant a habeas petition on a claim that was adjudicated
on the merits in state court only if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” id. § 2254(d)(2).
Leyja is a pro se litigant and we construe his pleadings and other papers
generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
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Having thoroughly reviewed the record, we conclude Leyja is not entitled
to a COA on any of the issues that he seeks to pursue on appeal. As a threshold
matter, three of Leyja’s claims were not raised with the district court and are
waived. Leyja’s habeas petition did not address (1) the erroneous admission of
the medical report, (2) the alleged Brady violation by prosecutors in
misrepresenting that a witness could not be located, or (3) the alleged Brady
violation by prosecutors in withholding a study on which expert testimony was
based. As a general rule, we will not consider issues on appeal that were not
raised before the district court as part of the habeas petition. See Rhine v. Boone,
182 F.3d 1153, 1154 (10th Cir. 1999); see also Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 721–22 (10th Cir. 1993).
As to Leyja’s remaining claims, we agree with the findings of the
magistrate judge that were subsequently adopted by the district court. For
substantially the reasons stated in the report and recommendation, we affirm the
district court’s decision.
Leyja first argues his conviction for first-degree rape was based on
insufficient evidence of guilt. In support, Leyja cites the “911” tape in which
Thompson stated that she agreed to have sexual intercourse. Leyja also points to
a letter written by Leyja’s trial counsel asserting Thompson did not want to
prosecute because she had consented. However, Thompson’s complete statement
on the tape was that Leyja “terrorized me at knife point and hammer and said he
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was gonna kill me . . . and so I had sex with him so that he wouldn’t kill me.” R.
911 Tape, Trial Exhibit 56. At trial, Thompson also testified she had intercourse
with Leyja only because he threatened her with force and she feared for her life.
We agree with the magistrate judge that a rational trier of fact could have found
Leyja forced Thompson to have sexual intercourse using a threat of violence.
This claim therefore fails.
Leyja also seeks a COA on the ground that he is actually innocent of the
crimes for which he was convicted. But a claim of actual innocence does not
support federal habeas relief, absent an independent constitutional violation
occurring in the underlying criminal proceeding. Herrera v. Collins, 506 U.S.
390, 400 (1993) (“This rule is grounded in the principle that federal habeas courts
sit to ensure that individuals are not imprisoned in violation of the
Constitution—not to correct errors of fact.”). And as noted above, a rational jury
could have concluded that Leyja committed the crime.
Next, Leyja contends his trial counsel was ineffective for failure to call two
additional fact witnesses. Under Strickland v. Washington, counsel provides
ineffective assistance when the representation does not meet “an objective
standard of reasonableness,” and “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. 668, 688, 694 (1984). The OCCA found that failure to call
the first witness did not prejudice the outcome of the trial. We agree with the
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magistrate judge this conclusion was not contrary to or an unreasonable
application of federal law. We also find that trial counsel’s decision not to call
the second witness was reasonable, given the possibility that his medical history
would undermine his credibility and that similar evidence could be presented
through other witnesses. We therefore deny a COA on this claim.
In his petition, Leyja also alleges his appellate counsel was ineffective, but
does not explain the basis for his claim. We assume he intends to raise the same
claim he made below, that his appellate attorney filed a defective appeal brief
depriving the OCCA of jurisdiction over the appeal, and that his appellate
attorney should have made additional arguments for ineffective assistance of trial
counsel. We agree with the magistrate judge’s finding Leyja’s appellate brief was
not defective and that, in any case, Leyja suffered no prejudice from any such
error as the OCCA reached the merits of his claims. We also agree Leyja’s
claims of ineffective trial assistance are without merit, and therefore appellate
counsel did not err in failing to raise these claims.
Finally, Leyja contends the trial court erred in admitting the testimony of
the prosecution’s expert. The OCCA affirmed the expert was qualified to testify
on human sexual response under the test established by Daubert v. Merrell Dow
Pharms., 509 U.S. 579 (1993). Noting the qualification of an expert is a factual
issue for purposes of federal habeas review, the magistrate judge held this was not
an unreasonable determination in light of the facts presented at trial. Given the
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expert’s testimony as to her training and experience in sexual assault nursing, we
agree.
III. Conclusion
We GRANT Leyja’s motion to consolidate both applications for COA. For
the reasons stated above, we DENY Leyja’s request for a COA and DISMISS the
matter. We also DENY his request for leave to proceed on appeal in forma
pauperis.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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