FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 1, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
JOSHUA CLIFTON JOHNSON,
Petitioner - Appellant,
v. No. 14-6093
(W.D. Oklahoma)
EDWARD EVANS, Interim Director, (D.C. No. 5:12-CV-01353-M)
Respondent,
and
JIM FARRIS, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Joshua Clifton Johnson seeks a certificate of appealability (COA) to appeal the
district court’s denial of his application under 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (requiring a COA to appeal denial of a § 2254 application). We deny a
COA and dismiss the appeal.
Mr. Johnson was convicted by a jury in Oklahoma state court of first-degree
robbery and sentenced to 20 years’ imprisonment. The Oklahoma Court of Criminal
Appeals (OCCA) affirmed his conviction. Mr. Johnson then filed an application for
relief under 28 U.S.C. § 2254 in the United States District Court for the Western District
of Oklahoma. The application raised the following claims for relief: (1) the evidence at
trial was insufficient to support the guilty verdict; (2) trial counsel was ineffective in
failing to object to the prosecution’s motion in limine to prevent impeachment of a
witness; (3) the trial court failed to give lesser-offense instructions in violation of
Mr. Johnson’s due-process rights; and (4) the cumulative effect of trial errors deprived
Mr. Johnson of a fair trial. The magistrate judge issued a report and recommendation to
reject these claims. The district court adopted the recommendation and denied the
application.
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. “AEDPA’s deferential
treatment of state court decisions must be incorporated into our consideration of a habeas
petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004)
(footnote omitted). None of the grounds raised by Mr. Johnson satisfies these standards.
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First, Mr. Johnson asserts a due-process violation because the evidence at trial was
insufficient to support his conviction of first-degree robbery. In reviewing the
sufficiency of evidence to support a conviction, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In Oklahoma an individual commits
robbery in the first degree if during the robbery he “threatens a person with immediate
serious bodily injury,” “intentionally puts a person in fear of immediate serious bodily
injury,” or “commits or threatens to commit a felony upon the person.” Okla. Stat. tit. 21,
§ 797 (2001). Mr. Johnson argues that there was no evidence that he intentionally put a
person in fear of immediate serious bodily harm. We disagree. Mr. Johnson testified at
trial that he entered a Walgreens store seeking Lortab, a prescription narcotic pain
medication, and told the pharmacist behind the counter, “Give me all your Lortab and no
one will get hurt.” Aplt. Br. at 8 (internal quotation marks omitted). A rational juror
could infer that implicit in the demand is the threat that the pharmacist would be seriously
injured if she did not comply. The OCCA held that the evidence sufficed; and Mr.
Johnson has not pointed to any Supreme Court decision that would preclude that holding.
The OCCA’s decision was undebatably not an unreasonable application of clearly
established Supreme Court law. See Anderson-Bey v. Zavaras, 641 F.3d 445, 448–51
(10th Cir. 2011).
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Mr. Johnson also argues that the trial court violated his due-process rights in
failing to instruct the jury on the lesser crimes of larceny and grand larceny in the
nighttime. But the Supreme Court has not recognized a constitutional right to a lesser-
included-offense instruction in a noncapital case. See Johnson v. Keith, 726 F.3d 1134,
1135 n.2 (10th Cir. 2013). After all, the jury found beyond a reasonable doubt that
Mr. Johnson committed first-degree robbery, and the Supreme Court has never suggested
that the special due-process considerations applicable in capital cases, see Beck v.
Alabama, 447 U.S. 625 (1980), require lesser-included instructions in other
circumstances, even when required by state law. The district court’s rejection of this
claim is not debatable.
Finally, Mr. Johnson claims that cumulative errors deprived him of a
fundamentally fair trial. “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.” Alverson v. Workman, 595 F.3d 1142, 1162 (10th Cir.
2010) (brackets and internal quotation marks omitted). The OCCA did not find any
constitutional errors. The district court correctly determined that this was not an
unreasonable application of clearly established federal law. Hence, the cumulative-error
doctrine does not apply. See Hooks v. Workman, 689 F.3d 1148, 1195 (10th Cir. 2012)
(cumulative-error analysis does not apply “to the cumulative effect of non-errors”
(internal quotation marks omitted)).
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We DENY the application for a COA and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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