FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 16, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
CARL C. JACKSON,
Plaintiff - Appellant,
v. No. 13-6240
(W.D. Oklahoma)
TERRY MARTIN, Warden, (D.C. No. 5:12-CV-00702-W)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Carl Jackson, an Oklahoma state prisoner, filed a pro se application for relief
under 28 U.S.C. § 2254 in the United States District Court for the Western District of
Oklahoma. The district court denied his application. Mr. Jackson now seeks a certificate
of appealability (COA) from this court to pursue an appeal. See 28 U.S.C.
§ 2253(c)(1)(A) (requiring a COA to appeal denial of § 2254 application). Liberally
construing his pleadings in this court, see Brace v. United States, 634 F.3d 1167, 1169
(10th Cir. 2011), we believe he is seeking relief on the following grounds: (1) that the
trial judge failed to give lesser-included-offense instructions, in violation of his due-
process rights; (2) that two searches, one of Mr. Jackson’s person and one of his
temporary residence, were unlawful; and his trial counsel was ineffective in failing to
move to suppress evidence from the searches; (3) that trial counsel was ineffective in
failing to impeach testimony with prior inconsistent statements; (4) that the trial judge
was biased; (5) that the trial judge improperly excluded evidence of gang involvement;
and (6) that accumulation of these errors denied Mr. Jackson a fair trial. We deny a COA
and dismiss the appeal.
I. BACKGROUND
Donnie Jeffers was fatally shot in Oklahoma City on May 18, 2006. Mr. Jackson
was arrested and admitted to shooting in the direction of the victim. In its opinion
affirming Mr. Jackson’s conviction and sentence, the Oklahoma Court of Criminal
Appeals (OCCA) summarized one of his statements to the police as follows:
[Mr. Jackson stated] to Detective Miller that “Rab” Thompson had
threatened and insulted his family earlier that day and he was fearful that
“Rab” and his cohorts were going to cause his family trouble; and that later
that evening, when fired upon by a man or group of individuals whom he
thought included “Rab”, [Mr. Jackson] fired back leading to the death of
the decedent, the unintended victim.
****
[Mr. Jackson] said that as a result of “Rab’s” threats, he wanted to be armed
and ready in case “Rab” showed up later, so he bought 2 guns and
ammunition from “someone off the street”. Then, under the cover of
darkness, he hid behind the Chrysler New Yorker waiting for “Rab”.
Claiming he heard a gunshot, the armed [Mr. Jackson] said he ambushed
the unidentified men from the car and “surprised” them, screaming at them
to drop their weapons. When the unidentified men started shooting in his
direction, Appellant admitted he just started shooting. The decedent was
struck in the right side and in the buttock.
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R., Vol. I at 224–25. Mr. Jackson later claimed that his confession was false and
attempted to suppress it, but it was admitted at trial. His theory of defense at trial was
that “the evidence point[ed] to a gang-related fight involving drugs,” and that he was not
involved. Tr. of Jury Trial Proceedings, Vol. I at 3–4 (State v. Jackson, No. CF-06-3225
(D. Okla. Feb. 2, 2008). The jury convicted him on one count of first-degree murder and
he was sentenced to life imprisonment.
Mr. Jackson appealed his conviction to the OCCA, which affirmed the jury
verdict. He also filed an application for postconviction relief in state court, which was
denied by both the trial court and the OCCA. He then filed his § 2254 application in
federal district court. The district court denied relief, and Mr. Jackson seeks to appeal.
II. DISCUSSION
A. Standard of Review
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing 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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id.
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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides
that when a claim has been adjudicated on the merits in a state court, a federal court can
grant habeas relief only if the applicant establishes 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 proceeding.” 28 U.S.C. § 2254(d)(1), (2). As we have explained:
Under the “contrary to” clause, we grant relief only if the state court arrives
at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Court has on a
set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation
marks omitted). Relief is provided under the “unreasonable application” clause “only if
the state court identifies the correct governing legal principle from the Supreme Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
(brackets and internal quotation marks omitted). Thus, a federal court may not issue a
habeas writ simply because it concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.
See id. Rather, that application must have been unreasonable. Therefore, for those of
Mr. Jackson’s claims which the OCCA adjudicated on the merits, “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). In
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reviewing the state-court decision under § 2254(d)(1), we are “limited to the record that
was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011).
For the reasons that follow, we hold that no reasonable jurist could debate that the
district court’s resolution of Mr. Jackson’s claim was correct.
B. Lesser-included instructions
Mr. Jackson argues that he was “denied due process of law and a fair trial”
because of the “failure to give lesser-included offense instructions to the jury.” Aplt. Br.
at 6. But due process requires a lesser-included-offense instruction only when the
defendant has been sentenced to death. See Johnson v. Keith, 726 F.3d 1134, 1135 n.2
(10th Cir. 2013). And insofar as Mr. Jackson is arguing that his counsel was ineffective
for not requesting a lesser-included instruction, we note that no prejudice resulted
because the OCCA held that such an instruction would have been unsupported by the
evidence.
C. Legality of Searches
Mr. Jackson argues that two searches conducted the evening of the crime were
unlawful: (1) a search of his person near the scene of the crime and (2) a search of a
house shortly thereafter. He also argues that his counsel was ineffective in not moving to
suppress evidence from the searches. To prevail on a claim of ineffective assistance of
counsel, the “defendant must show [(1)] that counsel’s representation fell below an
objective standard of reasonableness” and (2) that he was prejudiced by the substandard
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representation. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The court “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (internal quotation marks omitted).
On direct appeal, however, the OCCA upheld the lawfulness of both searches.
Therefore, the failure of trial counsel to file a motion to suppress could not have
prejudiced him. The motion would have been denied. To be sure, the OCCA’s view of
the legality of the searches might have been incorrect. But we cannot grant habeas relief
on that ground when, as here, the state court “has provided an opportunity for full and fair
litigation of a Fourth Amendment claim.” United States v. Lee Vang Lor, 706 F.3d 1252,
1257 (10th Cir. 2013) (internal quotation marks omitted).
D. Impeachment of Witness
Mr. Jackson argues that counsel was ineffective in discrediting police testimony
about whether there had been crime-scene tape around the home where he was arrested.
He argues, “Trial counsel failed to confront Lt. Campbell as to why his testimony [that
there was no tape] conflicted with what the police originally reported to the State[.]”
Aplt. Br. at 4. But he points to no evidence (only the prosecutor’s opening statement) of
what the police had reported. And, more importantly, he does not explain how a focus on
the discrepancy would have helped him at trial. His counsel may have thought that the
absence of tape was favorable evidence, so there would be no reason to cast doubt on the
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lieutenant’s testimony in that regard. Also, contrary to Mr. Jackson’s assertion in his
brief, the presence of crime-scene tape was irrelevant to the legality of the officers’
search of his person and the home. On this issue he has failed to overcome the Strickland
presumption that counsel’s representation was reasonable. See Strickland, 466 U.S. at
689.
E. Judicial Bias
Mr. Jackson argues that the trial judge was biased against him. To support his
claim, however, he relies only on rulings by the judge. Such evidence does not suffice.
See United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (“Unfavorable
judicial rulings do not in themselves call into question the impartiality of a judge.”).
F. Gang Evidence
Mr. Jackson contends that his trial was so unfair as to deny due process because
the trial judge excluded evidence that the victim and his associates were involved with
gangs. The Supreme Court, however, has noted its “traditional reluctance to impose
constitutional constraints on ordinary evidentiary rulings by state trial courts.” Crane v.
Kentucky, 476 U.S. 683, 689 (1986). That reluctance has been overcome only when the
proffered evidence in itself, if believed, would establish the defendant’s innocence or the
evidence was not excluded on the ground of relevance, risk of undue confusion, or
similar traditional grounds. See Dodd v. Trammell, No. 11-6225, 2013 WL 7753714, at
*10–*11 (10th Cir. Oct. 16, 2013). Here, Mr. Jackson has not established a due-process
violation. He has failed to show what precise evidence was excluded, what purpose
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would have been served by admitting it, or why that purpose could not have been served
by other evidence at trial. In short, it is impossible to credit his claim on the record
before the court.
G. Accumulation of Error
Mr. Jackson’s final claim is that an accumulation of errors “denied [him] a fair
trial and the due process of law.” Aplt. Br. at 6. “In the federal habeas context, a
cumulative-error analysis aggregates all constitutional errors found to be harmless and
analyzes whether their cumulative effect on the outcome of the trial is such that
collectively they can no longer be determined to be harmless.” Lott v. Trammell, 705
F.3d 1167, 1223 (10th Cir. 2013) (internal quotation marks omitted), cert. denied, 134 S.
Ct. 176 (2013). “As the term cumulative suggests, we undertake a cumulative-error
analysis only if there are at least two errors.” Id. (brackets, ellipses, and internal
quotation marks omitted). Mr. Jackson has failed to show any constitutional error, so
there can be no cumulative error.
III. CONCLUSION
We DENY the application for a COA and DISMISS the appeal. We GRANT Mr.
Jackson’s motion to proceed in forma pauperis (IFP).
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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