FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 27, 2015
Elisabeth A. Shumaker
Clerk of Court
MOZELL PAUL GOUDEAU
Petitioner – Appellant, No. 14-6215
(D.C. No. 5:13-CV-00240-M)
v. (W.D. Okla.)
JANET DOWLING, Warden
Respondent – Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Mozell Goudeau is a prisoner currently in the custody of the Oklahoma
Department of Corrections. Goudeau was tried and convicted in state court on charges of
Robbery with a Dangerous Weapon after Former Conviction of Two or More Felonies
and received a life sentence. On direct appeal, the Oklahoma Court of Criminal Appeals
(OCCA) affirmed Goudeau’s conviction and sentence.
Goudeau then initiated this § 2254 action in the Western District of Oklahoma. A
report and recommendation by the magistrate judge found no actionable deficiencies in
the OCCA’s treatment of the eight grounds for relief urged by Goudeau. Thus, the
magistrate recommended denying habeas relief on all eight grounds. After reviewing de
*
This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
novo the magistrate’s report and recommendation, the district court adopted the
magistrate’s report in its entirety. Under the Antiterrorism and Effective Death Penalty
Act of 1996, the district court also denied Goudeau a certificate of appealability (COA).
Goudeau’s brief reiterates the same eight arguments he has previously raised in his
direct appeal to the OCCA as well as in his motion before the district court. Stated
succinctly, Goudeau’s arguments are: (1) the admission of inadmissible hearsay denied
him his right to a fair trial and to cross-examine witnesses against him; (2) Charles
Mackey’s in-court identification of him was unreliable as it was the product of a highly
suggestive environment; (3) evidentiary harpoons deprived him of a fair trial; (4) the
state’s introduction of evidence of a suspended sentence on one of his previous
convictions constituted plain error; (5) he was prejudiced by ineffective assistance of
counsel; (6) prosecutorial misconduct constituted fundamental error and deprived him of
a fair trial; (7) his life sentence is excessive; and (8) the cumulative effect of errors
deprived him of a fair trial. For the reasons stated herein, we deny Goudeau’s application
for a certificate of appealability and dismiss Goudeau's appeal
I. Factual Background
At Goudeau’s trial, Charles Mackey testified about the robbery of his home in
Chickasha, Oklahoma. Mackey stated that on July 24, 2009, an individual (whom
Mackey later identified as Goudeau) put a hand over Mackey’s mouth, placed a knife to
his throat, and told him he would cut him if Mackey made any noise. The man then tied
Mackey’s hands in front of his body and took items from Mackey’s desk. The man made
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no effort to disguise his appearance, and Mackey testified he would never forget
Goudeau’s face. After Goudeau left the room, Mackey heard him take some additional
possessions from the back bedroom where Mackey’s son Charles had been staying.
Goudeau then left through the front door.
Three additional witnesses offered critical testimony at Goudeau’s trial. The first was
Aurelia Chaney, who worked at the furniture store across from Mackey’s home. She
testified that she saw unusual activity at Mackey’s house while she was taking a break
outside. Specifically, she noticed a pickup truck parked outside the house with one person
inside it. She then saw an individual leave Mackey’s house with a laundry basket filled
with items, place the basket in the bed of the truck, and climb into the truck bed. Once the
individual was in the truck bed, the truck drove away.
The second critical witness was Harrison Hodge. Hodge testified that Goudeau came
to his house a few days after the incident and bragged about robbing an “old man” and
getting away with it. Hodge also testified that Goudeau told him he planned on next
robbing an old woman who he believed had a safe in her residence.
The final important witness was police officer Jeremy Alexander. Alexander testified
that on July 26, 2009, he found a truck matching the description of the truck parked in
Mackey’s driveway on the day of the robbery. The three individuals in the truck identified
themselves as Shaun Daugherty, the truck’s owner; his wife, Winter Daugherty; and a
passenger named Keiston Price. When questioned about the robbery, Alexander testified
that Price told him that a person named “Mo” and a person named “Ducky” had
borrowed the truck for several hours on July 24. Because Shaun Daugherty did not have a
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valid driver’s license, he was arrested, the truck was impounded, and officers performed
an inventory search. Among other items the officers found a piece of rope, the
composition of which was consistent with the rope used to bind Mackey’s hands together.
II. The COA
A COA acts as a jurisdictional prerequisite to our consideration of a state prisoner’s
appeal from the denial of his habeas petition by the district court. Miller-El v. Cockrell,
537 U.S. 322, 335–36 (2003). Until a COA is issued, we lack jurisdiction to rule on the
merits of such an appeal. Id. at 336. To obtain a COA, a plaintiff must make a substantial
showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Where, as
here, a district court has rejected the constitutional claims on the merits, a plaintiff can
only obtain a COA by “showing 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).
Goudeau has not made an adequate showing here. His argument before us merely
restates the eight issues he has previously raised both before the OCCA in his direct
appeal and before the district court in his petition for a writ of habeas corpus. Both the
OCCA and the magistrate judge thoroughly considered and disposed of these arguments.
Having carefully reviewed Goudeau’s brief, the record on appeal, the OCCA’s decision,
and the magistrate’s report, we can find no issue that meets our standard for the grant of a
certificate of appealability. While we therefore lack jurisdiction to reach the merits of this
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appeal, we provide a brief review of the issues to illustrate our bases for denying
Goudeau a COA.
a. Inadmissible Hearsay
Goudeau’s arguments concerning inadmissible hearsay form his principal
contention before us. As noted above, Jeremy Alexander testified at Goudeau’s trial
regarding his conversation with Shaun Daugherty, Winter Daugherty, and Keiston Price.
These statements were initially properly admitted for a nonhearsay purpose, but the trial
court later improperly allowed the prosecution to misuse them by arguing that they
proved Goudeau’s possession of the truck on the day of the robbery. As Goudeau had no
opportunity to cross-examine these witnesses, the OCCA found that the use of these
extrajudicial statements as testimonial evidence violated Goudeau’s right to confrontation
under the Sixth Amendment. Given the strength of the state’s case and the other witnesses
against Goudeau, however, the OCCA found the improper admission of this testimony
harmless beyond a reasonable doubt. The magistrate reviewed this finding de novo,
properly considered whether the error had a “substantial injurious effect or influence in
determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and
reached the conclusion that it had no such effect.
Goudeau has provided no basis for a reasonable jurist to reach a contrary
determination. Even absent the statements at issue, the government had a rock-solid
eyewitness who intently observed Goudeau as he committed the crime and subsequently
identified him as the perpetrator. The government also had another witness who testified
that Goudeau admitted to committing a crime remarkably similar to the one at issue here.
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We can perceive no reason why this issue would warrant further discussion before this
court.
b. Mackey’s In-court Identification
As to Mackey’s in-court identification of Goudeau, Goudeau has again provided no
reason for us to question the identification or to believe that a reasonable jurist could vary
from the OCCA’s conclusion. Ordinarily, we consider whether a courtroom identification
was tainted by a pre-trial confrontation by considering: (1) the prior opportunity of the
witness to observe the defendant during the criminal act; (2) the degree of attention of the
witness; (3) the accuracy of the witness’s prior identification; (4) the witness’s level of
certainty; and (5) the time between the crime and the confrontation. Manson v.
Brathwaite, 432 U.S. 98, 114–116 (1977). Goudeau does not seem to contest any of these
five factors, instead simply making the conclusory assertion that Mackey’s identification
was tainted. Mackey had a more than adequate opportunity to see Goudeau while he
committed the crime, and was absolutely certain in his identification of Goudeau as the
perpetrator at trial. We can see no grounds for granting a COA on this claim.
c. Evidentiary Harpoons and Evidence of a Prior Suspended Sentence
We also must deny Goudeau’s claims for a COA based on evidentiary harpoons and
admission of evidence of a prior suspended sentence. Both of these challenges are to
state-court evidentiary rulings, and thus are based on state law. As a federal habeas court,
we lack authority to review a state court’s interpretation or application of its own state
laws unless the rulings “rendered the trial so fundamentally unfair that a denial of
constitutional rights [resulted].” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002)
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(internal quotation marks omitted). The OCCA did not believe that the pieces of
testimony identified by Goudeau should be considered “evidentiary harpoons” under
Oklahoma law, and Goudeau has not demonstrated how this ruling rendered his trial
fundamentally unfair.
As to the admission of evidence of his prior suspended sentence, this evidence was
presented at the sentencing phase of Goudeau’s trial. Just as with evidentiary issues at
trial, Goudeau must demonstrate to us that the admission of this evidence denied him a
fundamentally fair sentencing procedure. Hooks v. Workman, 689 F.3d 1148, 1180 (10th
Cir. 2012). While the OCCA determined that this evidence was improperly admitted, it
found this error harmless. We can see no basis for a reasonable jurist to disagree. While
evidence of this suspended sentence was improperly admitted at sentencing, evidence of
two other felonies was unquestionably properly admitted. As Goudeau’s sentencing range
was based on “two or more felonies,” it is impossible for him to claim the improper
admission of this third felony rendered his sentencing fundamentally unfair.
d. Ineffective Assistance of Counsel
Goudeau’s claims of ineffective assistance of counsel also fail based on the OCCA’s
application of Oklahoma state law. Goudeau’s entire basis for this claim is that his trial
counsel should have objected at trial to the introduction of evidence that the OCCA
determined was properly admitted under state law. As the evidence was properly
admitted, no reasonable jurist could find deficient Goudeau’s trial counsel’s failure to
object to its admission.
e. Prosecutorial Misconduct
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Goudeau believes his trial was infected with prosecutorial misconduct.
Specifically, he contends that in his opening statement the prosecutor invoked
sympathy for the victim by stating that the items stolen belonging to Mackey’s son
Charles included pain medication, and that Charles needed the medication because he
had been injured serving in Afghanistan. Goudeau also suggests the prosecutor’s
closing statement invoked societal alarm by stating that people like Goudeau chose
elderly victims because it made it easier to successfully complete the crime. While
prosecutorial misconduct can warrant habeas relief, the standard for granting such
relief is particularly high when the misconduct is not alleged to have denied the
defendant the benefit of a specific provision of the Bill of Rights, or to have “so
prejudiced a specific right . . . as to amount to a denial of that right.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). The prosecutor’s comments here cannot be
said to have done either, and do not even seem improper. This claim does not warrant
the granting of a COA.
f. Life Sentence
Goudeau also contests the imposition of a life sentence for his crime. Goudeau’s
sentence was within the range set by state law, and ordinarily habeas review
“ends once [the court] determine[s] the sentence is within the limitation set by statute.”
Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). There is no reason why a review
of Goudeau’s sentence should proceed beyond this determination.
g. Cumulative Error
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Goudeau’s final contention is that the cumulative effect of trial errors deprived him of
a fair trial. Cumulative error exists when the “cumulative effect of two or more
individually harmless errors has the potential to prejudice the defendant to the same
extent as a single reversible error.” Duckett v. Mullin, 306 F.3d at 992 (quoting United
State v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)). Goudeau here seeks to aggregate a
harmless error of state law (the admission of his prior suspended sentence at sentencing)
and a harmless error of constitutional law (the admission of testimonial hearsay). We
agree with the magistrate that there is no way that these errors, even in the aggregate,
denied Goudeau a fundamentally fair trial. A COA need not issue on these grounds.
III. Conclusion
For the reasons stated herein, we DENY Goudeau's application for a certificate of
appealability and DISMISS Goudeau's appeal.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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