Ray v. McCollum

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 14, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LANCEY DARNELL RAY,

Petitioner-Appellant,
No. 17-6117
v. (D.C. No. 5:15-CV-00306-R)
(W.D. Okla.)
TRACY MCCOLLUM, Warden,

Respondent-Appellee.
_________________________________

ORDER
_________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________

Mr. Lancey Ray, an Oklahoma prisoner appearing pro se,

unsuccessfully sought federal habeas relief in district court and wants to

appeal. To appeal, however, he needs a certificate of appealability. Clark

v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). He applied for this

certificate and moved to supplement his brief. We will allow the

supplementation but decline to issue a certificate of appealability.

I. Background

Mr. Ray was convicted of first-degree child-abuse murder in

Comanche County, Oklahoma. Okla. Stat. tit. 21, § 701.7(C). His stepson,

ten-year old Malik Ray, died after being hit by both his mother and Mr.
Ray. The mother used a board, and Mr. Ray used a belt. Mr. Ray denies

that his actions caused the death.

II. Standard of Review

A certificate of appealability is appropriate only if one or more of

Mr. Ray’s appeal points is reasonably debatable. United States v. Springer,

875 F.3d 968, 981 (10th Cir. 2017). To decide whether an appeal point is

reasonably debatable, we consider the standard for habeas relief. See

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (holding that the

“[Antiterrorism and Effective Death Penalty Act]’s deferential treatment of

state court decisions must be incorporated into our consideration of a

habeas petitioner’s request for [a certificate of appealability]”).

When the state appeals court has decided the merits, the federal

district court can grant habeas relief only if the petitioner shows that the

state-court adjudication of his claim was

 “contrary to” or “involved an unreasonable application of”
federal law, 28 U.S.C. § 2254(d)(1), or

 “based on an unreasonable determination of the facts.” 28
U.S.C. § 2254(d)(2).

III. Ineffective Assistance of Appellate Counsel

Mr. Ray claims that his attorneys on direct appeal were

constitutionally ineffective. These claims are not reasonably debatable.

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 A. Mr. Ray’s Arguments

For appellate counsel, Mr. Ray alleges failure

 to argue that photographs offered at trial had been unfairly
prejudicial,

 to present evidence that some of Malik’s conditions had
resulted from infusions of saline and blood rather than abuse,
and

 to argue that Malik’s treating physician had misidentified
Malik’s cardiovascular shock.

B. The Applicable Standard

For the claims of ineffective assistance on appeal, Mr. Ray must

show that his appellate attorneys’ performance had been objectively

unreasonable and prejudicial. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th

Cir. 2003). The alleged deficiencies were prejudicial only if better

representation would have created a reasonable probability of a different

outcome in the direct appeal. Id.

C. The State Appeals Court’s Consideration of these Claims

In the post-conviction appeal, the state appellate court rejected the

claims involving appellate counsel, reasoning that the omitted arguments

would not have been meritorious. Order Affirming Denial of Post-

Conviction Relief at 4, Ray v. State, No. PC 2014-1053 (Okla. Crim. App.

Mar. 18, 2015). This decision was on the merits even in the absence of

elaboration. See Black v. Workman, 682 F.3d 880, 892 (10th Cir. 2012)

(“When the state court does not explain its reasoning, the [petitioner] must
3
still show that ‘there was no reasonable basis for the state court to deny

relief.’” (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011))). 1

D. Merits

The state appeals court rejected the claims of ineffective assistance

of appellate counsel, and this decision did not unreasonably apply clearly

established federal law or unreasonably find facts from the evidence

presented.

1. Photographs

Mr. Ray contends that his appellate counsel was deficient in failing

to challenge the introduction of photographs. This contention is facially

invalid because Mr. Ray’s appellate counsel did challenge the conviction

based on introduction of the photographs. 2 Mr. Ray has not shown any

1
Mr. Ray argues that the state district judge failed to consider the
merits of the ineffective-assistance claims. This argument is irrelevant
because we consider only the highest state court’s adjudication of the
merits. See Greene v. Fisher, 565 U.S. 34, 39-40 (2011).
2
In the direct appeal, Mr. Ray’s counsel challenged introduction of the
photographs and the state appeals court rejected this challenge, stating:

As to Proposition 2, the trial court did not abuse its discretion
in admitting several post-mortem photographs which depicted
the numerous injuries the child victim had sustained. These
photographs were relevant to corroborate and illustrate the
testimony of the forensic pathologist and other medical
witnesses, and they were not misleading. The jury was made
well aware, throughout the trial, that the bruising depicted in
the photographs was more pronounced than what medical
personnel observed when the child was first admitted to the

4
reason to believe that the outcome would have been different with a better

appellate challenge to the photographs.

2. Blood and Saline Infusions

In alleging ineffective assistance of appellate counsel, Mr. Ray also

challenges the State’s evidence regarding Malik’s hemorrhaging of soft

tissue during his treatment. This challenge is difficult to understand

because Mr. Ray does not state what appellate counsel should have done

differently. Because Mr. Ray is pro se, however, we will liberally construe

his appellate brief on this issue.

Mr. Ray cites pages 42, 43, and 58 of Volume III of the trial

transcript. There Dr. Yacoub, the forensic pathologist, testified that

Malik’s soft tissue had diffuse hemorrhaging. Dr. Yacoub elsewhere

attributed this hemorrhaging to trauma. Trial Tr., vol. III at 61. Mr. Ray

argues that Dr. Yacoub is wrong because the diffuse hemorrhaging had

resulted from the infusion of too much saline and blood rather than trauma.

At trial, Dr. Theodore Ware, who treated Malik in the emergency room,

hospital. Appellant’s argument is based on the faulty
presumption that depictions of injuries become less probative
as the body’s natural reaction to them manifests itself. The
countless bruises on the victim’s body – and the fact that they
appeared darker the day after they were inflicted – were direct
results of the unreasonable force inflicted on the child.

Ray v. State, No. F-2012-538, slip. op. at 2-3 (Okla. Crim. App. Sept. 24,
2013) (unpublished).

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testified that the medical staff had given Malik saline and blood in a

desperate effort to save his life. Trial Tr., vol. I at 247-49.

With regard to the infusions, we cannot discern what Mr. Ray’s

appellate counsel should have done differently. Obviously it would have

been futile for the appellate counsel to inject her own “medical” opinion

disputing the medical opinions of the State’s expert witnesses.

Nor do we see why the cause of the hemorrhaging would have

mattered on appeal. At trial, Mr. Ray’s theory was that his wife had

inflicted the fatal injuries. But Mr. Ray did not question the fact that

someone had inflicted the physical injuries that ultimately led to Malik’s

death. For example, Mr. Ray’s trial counsel argued: “We’re not alleging

that [Malik] wasn’t grievously injured by someone. We’re not alleging that

he didn’t die from these injuries.” Trial Tr., vol. III at 82. And, as

discussed below, whoever struck the fatal blows would have been

criminally responsible for Malik’s death even if his death had been

hastened by the infusion of too much saline and blood. See Part IV(C),

below. As a result, the absence of prejudice would stymie Mr. Ray’s

challenge to appellate counsel’s handling of the issue. 3

3
In the body of his appellate brief, Mr. Ray also argues that Dr.
Yacoub should not have been allowed to offer expert testimony because he
admitted that he had not known the volume of fluids administered to Malik.
Appellant’s Opening Br. at 20-21 (quoting Trial Tr., vol. III at 72). This
testimony came at the end of the cross-examination of Dr. Yacoub. Trial

6
 3. Cyanosis

In federal district court, Mr. Ray also focused on appellate counsel’s

failure to show that Malik’s skin condition had reflected cyanosis from

aspiration. When Malik was hospitalized, the emergency-room report noted

 cyanosis of the skin and

 bruises covering Malik in various stages of healing.

The emergency-room report shows diagnoses of child abuse, respiratory

failure, and hypothermia.

Again, Mr. Ray does not identify what his appellate counsel should

have done differently. Even with a liberal construction of Mr. Ray’s appeal

brief, we do not see how the reference to cyanosis would suggest any

deficiencies in appellate counsel’s performance. The skin continued to turn

bluish when Malik died. But the jury knew about this discoloration, for the

treating physicians acknowledged in their testimony that the photographs

depicted greater discoloration than what had been observed in the hospital.

Tr., vol. III at 71-72. And trial counsel did not challenge the admissibility
of Dr. Yacoub’s opinion testimony. In the absence of a trial objection,
appellate counsel would have had to show plain error in the introduction of
Dr. Yacoub’s opinion testimony. Lewis v. State, 970 P.2d 1158, 1166
(Okla. Crim. App. 1998). No reasonable jurist could surmise that appellate
counsel could have shown plain error in the introduction of this testimony.
As a result, this theory of ineffective assistance on appeal would have
foundered for lack of prejudice. See Wayne R. LaFave, Jerold H. Israel, &
Nancy J. King, Criminal Procedure § 11.10(d) & n.143 (2d ed. 1999 &
2004 Supp.) (“[C]ourts have noted that the prejudice element of Strickland
may be more readily satisfied than the . . . [comparable] component of the
plain error standard.”).

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As a result, this appeal point would strike any reasonable jurist as

groundless.

4. Shock

Mr. Ray also argues that his appellate counsel should have argued

that Malik’s treating physician had misidentified the type of shock that

Malik had experienced. Mr. Ray has not explained why the

misidentification would matter. For example, he does not say whether Mr.

Ray’s abuse could only cause one type of shock or if it matters for some

other reason. In the absence of any reason to think that Mr. Ray’s direct

appeal might have been decided differently, we reject Mr. Ray’s theory of

ineffective assistance involving misidentification of Malik’s shock.

* * *

In these circumstances, we conclude that no jurist could reasonably

question the state appellate court’s rejection of Mr. Ray’s claims of

ineffective assistance of appellate counsel.

IV. Ineffective Assistance of Trial Counsel

Mr. Ray also alleges that his trial counsel was ineffective.

A. Undeveloped Arguments

Without explanation or support, Mr. Ray asks for a certificate of

appealability on trial counsel’s ineffective assistance in failing to

 dispute the legal sufficiency of the medical examiner’s opinion,

8
  present the facts regarding a violation of Brady v. Maryland,
373 U.S. 83 (1963),

 object to a variance, and

 object to a jury instruction on a lesser-included offense. 4

Without any development of these appeal points, we decline to issue a

certificate of appealability. See Fairchild v. Trammell, 784 F.3d 702, 724

(10th Cir. 2015); see also Garrett v. Selby Connor Maddux & Janer, 425

F.3d 836, 841 (10th Cir. 2005) (rejecting an argument included in an

opening brief by a pro se appellant because “‘[w]e do not consider merely

including an issue within a list to be adequate briefing’” (quoting Utahns

for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir.

2002))).

B. Photographs, Cyanosis, and Blood Infusions

In federal district court, Mr. Ray also claimed that his trial counsel

had been ineffective in failing

4
Mr. Ray is ambiguous about whether he actually seeks a certificate of
appealability on these points. On page 7, he says that he wants to appeal
“Grounds/Propositions I, V/VII, X and XI.” Appellant’s Opening Br. at 7.
Ground X, provided on page 10, lists these points. But on page 13, Mr. Ray
says that he wants to combine those points into a “single Ground 11
standing alone” on ineffective assistance of trial counsel. Liberally
construing the pro se application for a certificate of appealability, we
conclude that Mr. Ray’s submission of Ground 11 was not meant to
preclude consideration of his other arguments.

9
  to correctly challenge introduction of the photographs and

 to explain the distortions caused by cyanosis and blood
infusions.

Mr. Ray’s argument is contradicted by the state-court record. For example,

Mr. Ray admits that his trial attorney had objected to all of the State’s

photographs. And, as the Oklahoma Court of Criminal Appeals explained,

Mr. Ray’s trial counsel elicited acknowledgments throughout the trial that

the bruising depicted in the photographs was more pronounced than what

medical personnel had observed. Ray v. State, No. F-2012-538, slip. op. at

2-3 (Okla. Crim. App. Sept. 24, 2013) (unpublished); see note 2, above.

Mr. Ray insists that his trial counsel should have pointed out that

cyanosis was not indicative of unreasonable force. Appellant’s Opening Br.

at 31. In district court and in our court, Mr. Ray relies solely on his own

“medical opinion” that cyanosis can cause discoloration of the skin. In our

view, however, no reasonable jurist could have expected exclusion of the

photographs with the addition of Mr. Ray’s explanation for the

discoloration of Malik’s skin. 5

5
In a single phrase, Mr. Ray asserts that his trial counsel failed to
consult with experts to testify about the effect of skin cyanosis.
Appellant’s Opening Br. at 32. But Mr. Ray does not

 say whether he ever presented this allegation to the district
court or

 present evidentiary support for his assertion.

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 C. Blood Loss

According to Mr. Ray, his trial counsel was ineffective for failing to

rebut the State’s claim of blood loss in the tissues. Here, Mr. Ray

apparently refers to his own lay medical opinion. His trial counsel took a

similar approach, intensively challenging the State’s expert witnesses

about why Malik had lost so much blood.

Mr. Ray alleges that this strategy was not ideal and that his attorney

should have presented evidence of diffuse soft tissue edema to explain the

blood loss in tissues. Again, Mr. Ray relies on his own lay diagnosis of

diffuse soft tissue edema. He states that he supplied his trial attorney with

over 80 pages of supporting correspondence but declines to furnish us with

this correspondence, tell us what it comprised, or furnish us with anything

other than his own lay opinion.

Nor does Mr. Ray explain why the cause of the blood loss would

have mattered. According to Mr. Ray, the blood loss resulted from the

infusions administered to Malik. Even if the infusions had contributed to

the blood loss, the infusions had themselves resulted from Malik’s physical

condition after being hit by Mr. Ray. For criminal homicide in Oklahoma,

the defendant is criminally responsible whenever his or her conduct “was a

This assertion is not adequately developed for meaningful review. See p. 9,
above.

11
substantial factor in bringing about the victim’s death.” State v. Caesar,

237 P.3d 792, 794-95 (Okla. Crim. App. 2010). Thus, Mr. Ray fails to

provide a plausible theory of prejudice from trial counsel’s allegedly

subpar challenge to the State’s explanation for Malik’s blood loss.

V. Failure to Satisfy State Procedural Requirements in Ruling on the
Post-Conviction Application

Oklahoma law establishes certain requirements for state district

courts when ruling on a post-conviction application. Okla. Stat. tit. 22,

§§ 1083-84. These requirements address the necessity of findings,

conclusions, and evidentiary hearings. In light of these requirements, Mr.

Ray contends that the state district court should have granted an

evidentiary hearing on some of the claims.

Even if Mr. Ray were right, a violation of state post-conviction

requirements would not justify habeas relief. See Steele v. Young, 11 F.3d

1518, 1524 (10th Cir. 1993) (“Steele’s claim challenging the Oklahoma

post-conviction procedures on their face and as applied to him would fail

to state a federal constitutional claim cognizable in a federal habeas

proceeding.”); Hopkinson v. Shillinger, 866 F.2d 1185, 1219 (10th Cir.

1989) (holding that a procedural error in carrying out state post-conviction

procedures would “not rise to the level of a federal constitutional claim

recognizable in habeas corpus proceedings”), overruled on other grounds

as stated in Phillips v. Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).

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Thus, we have declined to issue certificates of appealability for similar

challenges based on a failure to comply with state procedural requirements

in post-conviction proceedings. See Shipley v. Oklahoma, 313 F.3d 1249,

1251 (10th Cir. 2002) (conclusions of law); Davis v. Beck, 151 F. App’x

707, 709 (10th Cir. 2005) (unpublished) (findings of fact and conclusions

of law). We do the same here and decline to issue a certificate of

appealability on the challenges to rulings in Mr. Ray’s state post-

conviction proceedings.

VI. Failure to Instruct the Jury on Definitions of “Malicious” and
“Unreasonable Force”

Mr. Ray alleges a failure to instruct the jury on the meaning of the

terms “malicious” and “unreasonable force.”

Mr. Ray invokes plain-error review because his trial counsel failed to

object to the missing instructions. According to Mr. Ray, his counsel did

not “affirmatively waive[]” the missing jury instructions. Appellant’s Mot.

to Supplement at 4; see United States v. Carrasco-Salazar, 494 F.3d 1270,

1272 (10th Cir. 2007) (“‘[A] party that has forfeited a right by failing to

make a proper objection may obtain relief for plain error; but a party that

has waived a right is not entitled to appellate relief.’” (emphasis in

original) (quoting United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.

2006))). But even if Mr. Ray did not waive the claims, he would still need

to show exhaustion of the claims in state court and their presentation in

13
federal district court. See 28 U.S.C. § 2254(b)(1)(A) (exhaustion); Chase v.

Crisp, 523 F.2d 595, 597 (10th Cir. 1975) (presentation in federal district

court).

Mr. Ray did not raise this claim in the state appeals court or the

federal district court, 6 and his arguments for plain error do not overcome

these procedural deficits. There are some situations where a habeas

petitioner’s failure to exhaust claims in state court is excused, including

where a petitioner makes “a credible showing of actual innocence.”

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). In a few places, Mr. Ray

proclaims that he is “actually innocent.” Appellant’s Mot. to Supplement at

20. But “[t]o make a credible showing of actual innocence, a ‘petitioner

must support his allegations of constitutional error with new reliable

evidence . . . that was not presented at trial.’” Frost v. Pryor, 749 F.3d

1212, 1231-32 (10th Cir. 2014) (quoting Cummings v. Sirmons, 506 F.3d

1211, 1223 (10th Cir. 2007)). Mr. Ray has not supported his assertion of

6
Mr. Ray’s arguments on the missing jury instructions cannot be
exhausted in state court now because they had not been raised in the state
petition for post-conviction relief. See Okla. Stat. tit. 22, § 1086 (“All
grounds for relief available to a [post-conviction petitioner] . . . must be
raised in his original, supplemental or amended application.”). Mr. Ray’s
arguments are thus subject to an anticipatory procedural bar. See Thacker
v. Workman, 678 F.3d 820, 841 (10th Cir. 2012).

14
actual innocence with evidence omitted at his trial, so he could not

overcome the defense of exhaustion even in the absence of forfeiture. 7

VII. Request for Reclassification

Mr. Ray asks that we “reclassify” his first-degree-murder conviction

because the jury instructions and the evidence supported only second-

degree manslaughter. This argument was not raised in state court or in

federal district court. Mr. Ray again cannot overcome the defenses of

exhaustion and forfeiture.

But his argument is also legally incorrect. Mr. Ray focuses on the

fact that the jury was only instructed on the meaning of the word “willful”

rather than the word “malicious.” The underlying statute does contain both

words, but they are separated by a disjunctive: “A person commits murder

in the first degree when the death of a child results from the willful or

malicious injuring . . . .” Okla. Stat. tit. 21, § 701.7(C) (emphasis added).

The jury did not need a definition of “malicious” to find Mr. Ray guilty

because the statute makes “willful” conduct sufficient for conviction of

first-degree murder when the conduct results in the death of a child.

7
Mr. Ray also argues that (1) his trial counsel was ineffective for
failing to seek the instructions and (2) his appellate counsel was
ineffective for failing to raise this argument on direct appeal. These
arguments are also subject to the defenses of exhaustion and forfeiture.

15
 Because Mr. Ray’s appellate argument is procedurally and

substantively meritless, we decline to issue a certificate of appealability on

this issue.

VIII. Denial of the Right to an Impartial Jury

Mr. Ray makes two arguments regarding the denial of an impartial

jury. The first argument is that one juror knew a prosecution witness and

had been familiar with the case prior to the trial. The second argument is

that the jury was tainted by media coverage.

Mr. Ray raised the first argument on direct appeal, and the Oklahoma

Court of Criminal Appeals rejected the argument on the merits. The juror

“assured the trial court that he could be fair and impartial, and the record”

gave the court “no reason to doubt that assessment.” Ray v. State, No. F-

2012-538, slip op. at 2 (Okla. Crim. App. Sept. 24, 2013) (unpublished).

Thus, the court concluded that it had no reason to regard the juror as

biased. Id. at 2 n.2. The state court’s determination did not involve an

unreasonable factual determination or application of Supreme Court

precedent, for Mr. Ray has not provided any reason to question the juror’s

assurances of impartiality.

Mr. Ray failed to present his argument about media coverage in state

court or in federal district court. Consequently, this argument is

procedurally deficient and subject to an anticipatory procedural bar. See

note 6, above.

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 This argument is also legally deficient. Mr. Ray cites three opinions

to support his claim. One opinion, Nebraska Press Association v. Stuart,

addresses the First Amendment prior-restraint doctrine and does not

support Mr. Ray’s habeas claim. 427 U.S. 539, 541 (1976). Indeed, the

Supreme Court held that the prior restraint had not been justified in part

because “adverse publicity does not inevitably lead to an unfair trial.” Id.

at 554.

The other two opinions found actual or possible prejudice to criminal

defendants on the basis of media coverage, but both cases contained

evidence of prejudice. See Irvin v. Dowd, 366 U.S. 717, 725-28 (1961)

(describing “clear and convincing” evidence of community prejudice

against the defendant, including the fact that two-thirds of the jurors had

thought before the trial that the petitioner was guilty); United States v.

Davis, 60 F.3d 1479, 1482 (10th Cir. 1995) (noting that the defendant

submitted an affidavit of a jury consultant based on post-verdict juror

interviews showing that jurors had watched television during the trial).

Here, however, Mr. Ray does not present any evidence of a taint on the

jury from the news coverage. As a result, Mr. Ray’s claim is not

reasonably debatable.

IX. Sufficiency of the Evidence

Mr. Ray’s opening brief presents a request for a certificate of

appealability on the ground that his conviction was not supported by

17
sufficient evidence. Mr. Ray argues that the medical examiner’s opinion

testimony was inadmissible under the state and federal evidentiary rules.

Mr. Ray’s brief also combines this ground with others as part of his

request for a certificate of appealability on his ineffective-assistance

claims. Mr. Ray does not develop the standalone sufficiency claim, so we

reject it. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841

(10th Cir. 2005); see also p. 9, above (discussing the failure to develop

another appellate argument).

X. Conclusion

Mr. Ray’s ineffective-assistance claims clearly fail because he does

not show prejudice from his counsel’s allegedly deficient performance. His

other claims are also facially invalid or undeveloped. Thus, we deny Mr.

Ray’s request for a certificate of appealability and dismiss the appeal. 8

Entered for the Court

Robert E. Bacharach
Circuit Judge

8
Mr. Ray’s motion to proceed in forma pauperis is granted.

18