Mays v. Dinwiddie

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 14, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

JERRY LEE MAYS,

Plaintiff-Appellant, No. 11-5047
(D.C. No. 4:07-CV-00671-GKF-PJC)
v. (N.D. of Okla.)
WALTER DINWIDDIE,

Respondent-Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **

Jerry Lee Mays, an Oklahoma state prisoner appearing pro se, 1 seeks a

certificate of appealability (COA) to enable him to appeal the district court’s

dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

*
This order is not binding precedent except under the doctrines of law of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.
1
Because Mays is proceeding pro se, we construe his filings liberally.
See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
After careful review of the record, we conclude each of Mays’s claims either

lacks merit or are procedurally barred.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we DENY the

application for a COA and DISMISS the appeal.

I. Background

Mays was convicted of several crimes arising from an incident at a Tulsa,

Oklahoma business. Mays had parked his car in front of the dumpster for the

Poultry Express Distributing Company, apparently with the intent of scavenging a

discarded television. An employee of the company told Mays he was on private

property and asked him to leave. At this point, Mays got into his car, put the car

into reverse, and rapidly accelerated, causing the employee to push back from the

car with his hands to avoid being struck. The employee, seeing that Mays had a

gun, shouted a warning to his co-workers. A second employee retrieved an ax

from his truck and threw the ax at Mays’s taillight, where it lodged temporarily.

Mays then stopped his car, pointed his gun over his shoulder and shouted, “I’ll

kill you . . . !” R., Vol. I at 399–400. The two employees ran inside to call the

police and get help.

Mays then returned on foot, with the gun. An unarmed employee

confronted him outside the company’s entrance. Mays pointed his gun at the

employee, who ran for cover. Mays fired at least four shots before two other

employees returned with guns. Those employees attempted to shoot at Mays. A

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gun held by one worker misfired, but another worker fired two shots back at

Mays. Mays fired another shot, which ricocheted off of the building and hit one

of the employees in the back. Mays then fled the scene but was arrested later that

day.

Oklahoma charged Mays with shooting with intent to kill (Counts I and

IV), felonious possession of a firearm (Count II), and assault and battery with a

dangerous weapon (Count III)—all enhanced because Mays had two or more prior

felony convictions. Mays was represented by counsel. After trial, a jury found

Mays guilty on all counts but Count III, where the jury found Mays guilty of the

lesser offense of assault and battery. Mays was sentenced to 40 years’

imprisonment for Count I, 30 years’ imprisonment for Count II, 90 days’

imprisonment for Count III, and 40 years’ imprisonment for Count IV. His

sentences were set to run consecutively.

Mays, represented by counsel, directly appealed to the Oklahoma Court of

Criminal Appeals (OCCA). The OCCA did not reverse Mays’ convictions, but it

modified his sentences for Counts I and IV from 40 years’ imprisonment to 30

years’ imprisonment for both counts. The OCCA affirmed his convictions and

sentences for Counts II and III.

Mays then sought post-conviction relief in Oklahoma state court, which

denied his petition. Mays’s subsequent appeal to the OCCA was unsuccessful.

He then filed a second application for post-conviction relief in the state district

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court, which was also denied, and he pursued a second unsuccessful collateral

appeal.

Mays then filed this habeas petition in federal court, claiming ineffective

assistance of trial and appellate counsel. 2 The district court denied the petition,

holding that Mays did not receive ineffective assistance of appellate counsel and

that claims he received ineffective assistance of trial counsel either lack merit or

were procedurally barred. Mays v. Dinwiddie, No. 07-CV-671, 2011 WL

1059806, at *5–7, 8 (D. Okla. Mar. 21, 2011). The court granted Mays’s petition

to proceed in forma pauperis on appeal.

Mays now seeks a COA from this court to enable him to appeal the denial

of his habeas petition. In his petition, Mays raises the following grounds for

relief: (1) ineffective assistance of appellate counsel, (2) ineffective assistance of

trial counsel, (3) improper jury instructions, (4) sentencing error, and

(5) accumulated error violating his right to due process.

II. Discussion

Without a COA, we lack jurisdiction to consider the merits of a state

prisoner’s habeas appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only

2
In 2009, Mays filed a § 1983 action alleging ineffective assistance of his
public defender at trial, however that suit was dismissed by the district court, and
the dismissal was affirmed by this court. See Mays v. Tulsa Cnty. Public
Defender’s Office, 354 F. App’x 314 (10th Cir. 2009). Further, a prior habeas
petition initiated by Mays with respect to his 2001 second degree burglary
conviction was dismissed by the district court and affirmed by this court. See
Mays v. Dinwiddie, 580 F.3d 1136 (10th Cir. 2009).

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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, Mays 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).

Where the OCCA addressed the merits of a petitioner’s claims, as it did in

part here, “[the Anti-Terrorism and Effective Death Penalty Act (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 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). To the

extent any of Mays’s claims were not raised in state court, he has no available

remedy on federal habeas review. Id. §§ 2254(b), 2254(c).

Having thoroughly reviewed the record, we conclude Mays is not entitled

to a COA on any of the issues that he seeks to pursue on appeal. As a threshold

matter, we note the only issues Mays raises on appeal that were included in his

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federal habeas petition are (1) ineffective assistance of appellate counsel, and (2)

ineffective assistance of trial counsel. 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, e.g., United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.

2005) (declining to address an issue that the party “did not argue in district

court,” because in general we will not consider an argument not raised below, and

“he [did] not argue on appeal that any special circumstance requires us to address

this contention despite lack of preservation below”); Parker v. Scott, 394 F.3d

1302, 1327 (10th Cir. 2005) (“Parker raises several other alleged failures of

counsel to object at trial, all of which he has waived by failing to assert them in

his district court habeas petition.”). Mays’s claims regarding improper jury

instructions, sentencing error, and accumulated error violating the right to due

process are therefore waived. 3

As to Mays’s remaining claims, we agree with the district court that they

either lack merit or are procedurally barred. For substantially the same reasons

discussed by the district court, we deny Mays’s request for a COA.

A. Ineffective Assistance of Appellate Counsel

In his difficult-to-comprehend petition and appellate materials, Mays

contends his state appellate counsel was ineffective for failing to raise several

claims of ineffective assistance of trial counsel. To prevail on his claims for

3
Even if we reached the issues, we find them without merit as well.

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ineffective assistance of counsel, Mays must show his counsel’s performance “fell

below an objective standard of reasonableness” and “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 688 (1984).

Our review of counsel’s performance under Strickland is highly deferential:

“counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at

690. “To be deficient, the performance must be outside the wide range of

professionally competent assistance. In other words, it must [be] completely

unreasonable, not merely wrong.” Hooks v. Workman, 606 F.3d 715, 723 (10th

Cir. 2010) (quotation omitted).

The challenge is even greater for a petitioner under § 2254, as our review

in such circumstances is “doubly deferential.” Knowles v. Mirzayance, 129 S. Ct.

1411, 1420 (556 U.S. 111) (2009). When assessing a state prisoner’s ineffective

assistance of counsel claim on habeas review, we “defer to the state court’s

determination that counsel’s performance was not deficient and, further, defer to

the attorney’s decision in how best to represent a client.” Crawley v. Dinwiddie,

584 F.3d 916, 922 (10th Cir. 2009). We also recognize that, “because the

Strickland standard is a general standard, a state court has . . . more latitude to

reasonably determine that a defendant has not satisfied [the] standard.” Knowles,

129 S. Ct. at 1420 (citation omitted).

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 Although it is difficult to ascertain Mays’s precise arguments, he seems to

assert that appellate counsel should have challenged the following purported

errors by trial counsel: (1) failure to challenge the constitutionality of the

sentence; (2) failure to object to prosecutor’s questioning during voir dire; (3)

failure to challenge the sentencing court’s jurisdiction; (4) failure to present

material facts that require vacating Mays’s conviction and sentence in the interest

of justice; (5) failure to object to a sentencing enhancement based on a prior

conviction where that conviction was “stale” under Oklahoma law; (6) failure to

question trial counsel’s investigation, preparation, and objections; (7) failure to

object to the double-counting of a prior conviction as both a basis for a crime

charged and an enhanced sentence; (8) failure to object to an improper jury

instruction that did not address assault and battery as a lesser included offense of

assault and battery with a dangerous weapon; and (9) failure to object to the

prosecutor’s remarks during closing arguments.

Of Mays’s nine contentions, he expressly raised only one in his habeas

petition to the federal district court: appellate counsel’s failure to question trial

counsel’s investigation and preparation. Additionally, although we generally will

not consider assertions that were not raised before the district court, see Windrix,

405 F.3d at 1156, we construe Mays’s complaint liberally to find he has also

realleged another of his claims before the district court: appellate counsel’s

failure to challenge trial counsel’s “failure to provide brief, to object to sentence

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enhancement, to object to hearsay, to prepare for identification testimony, to

object to prosecutor’s improper statements.” R., Vol. I at 45. For substantially

the same reasons as set forth by the district court, we reject Mays’s arguments on

both of these points.

Oklahoma state courts found that Mays’s appellate counsel did not provide

ineffective assistance. The Oklahoma district court concluded that “Petitioner’s

appellate counsel was reasonably competent,” R., Vol. I at 276, and the OCCA

agreed: “The fact appellate counsel fails to recognize or raise a claim, regardless

of merit, is not and cannot alone be sufficient to establish ineffective assistance,

or to preclude enforcement of a procedural default,” Id. at 316. Although we

agree with the substantive conclusion of the Oklahoma state courts, it is debatable

whether they applied the correct legal standard.

In reviewing the effectiveness of appellate counsel, we focus on the merits

of the omitted claims. In Smith v. Robbins, 528 U.S. 259, 285 (2000), the

Supreme Court held that to show ineffective assistance of appellate counsel, a

petitioner “must . . . show that his counsel was objectively unreasonable in failing

to find arguable issues to appeal—that is, that counsel unreasonably failed to

discover nonfrivolous issues and to file a merits brief raising them” (citation

omitted). If a petitioner makes this showing, he then must establish “a reasonable

probability that, but for his counsel’s unreasonable failure to file a merits brief,

he would have prevailed on his appeal.” Id. Interpreting Smith, we have held that

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the omission of a sufficiently meritorious claim can, in itself, establish ineffective

assistance. Cargle v. Mullin, 317 F.3d 1196, 1202–05 (10th Cir. 2003) (quotation

omitted). When a habeas petitioner alleges his appellate counsel rendered

ineffective assistance by failing to raise an issue on direct appeal, we first

examine the merits of the omitted issue. Hawkins v. Hannigan, 185 F.3d 1146,

1152 (10th Cir. 1999). If the omitted issue is meritless, counsel’s failure to raise

it is not constitutionally ineffective. Id. If the issue has merit, we must then

determine whether counsel’s failure to raise the claim on direct appeal was

deficient and prejudicial. Id. We note, however, that the Sixth Amendment does

not require an attorney to raise every non-frivolous issue on appeal, “but rather

[counsel] may select from among them in order to maximize the likelihood of

success on appeal.” Cargle, 317 F.3d at 1202 (citation omitted).

The OCCA’s analysis of Mays’s ineffectiveness allegations may have

deviated from the controlling federal standard, as expressed in Smith, 528 U.S. at

285–86. The lesson of Smith, as explained in Cargle, 317 F.3d at 1202–05, is that

to assess the effectiveness of appellate counsel, a reviewing court must consider

the merits of unraised claims, and then decide whether the failure to raise a

meritorious claim was deficient and would have been prejudicial. It is

questionable whether the OCCA conducted this analysis. The OCCA’s approach

was not unambiguously improper, however, given that its language—“appellate

counsel[’s] fail[ure] to recognize or raise a claim, regardless of merit, is not and

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cannot alone be sufficient to establish ineffective assistance,” R., Vol. I at 316

(emphasis added)—can be read to suggest the existence of a multiple-step

analysis consistent with Smith.

Ultimately, we need not decide whether the OCCA applied the correct legal

standard. Indeed, even under de novo review—the standard applied if the

OCCA’s approach was erroneous—we find Mays’s contentions lack merit. First,

we find Mays has not posited any constitutional problems regarding appellate

counsel’s decision to decline to challenge trial counsel’s preparation, diligence,

and objections. Indeed, Mays provides no factual support for his allegations: he

does not allege what additional preparation should have been undertaken, identify

witnesses trial counsel should have interviewed, or identify the objections trial

counsel should have made. Mays has not shown that appellate counsel performed

deficiently in failing to raise this unsubstantiated claim.

Mays likewise provides no factual support for his second preserved

allegation. He does not give us any reason to believe that appellate counsel had

any meritorious ineffective assistance arguments at his disposal. Specifically, he

does not explain how trial counsel failed to provide a brief, object to a sentencing

enhancement, object to hearsay, prepare for identification testimony, or object to

the prosecutor’s improper statements. Mays’s unsupported arguments and

confusing narrative do not suggest the existence of constitutional concerns.

Mays’s petition is insufficient to merit a COA on these allegations.

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 B. Ineffective Assistance of Trial Counsel

Mays also realleges his trial counsel was ineffective. Although it is again

difficult to comprehend Mays’s precise arguments, it is clear his allegations do

not suffice to merit a COA on this issue. Mays’s submissions do not identify any

constitutional violations, and he has given us no reason to doubt the state court’s

description of his counsel’s performance:

Examination of the record reveals that Petitioner’s arguments fail
to overcome the first tier of the Strickland test. Petitioner’s
experienced trial counsel and appellate counsel acted as []
reasonably competent attorneys under the facts and circumstances
of this case. Trial [counsel] conducted a preliminary hearing
where he was afforded the opportunity to observe the demeanor
and credibility of the State’s witnesses. He cross examined the
State’s witnesses at the preliminary hearing. He filed a Motion
to Quash. He conducted a hearing on his Motions on January 27,
2005. He filed a Motion to Produce and for the jury to assess
punishment. He obtained discovery. At trial he exercised four
peremptory challenges at jury selection. He cross examined the
State’s witnesses. He demurred to the State’s evidence and
sought a directed verdict. He put on a defense and submitted
proposed jury instructions. A reviewing court should indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonably professional assistance.

R., Vol. I at 275 (quotation omitted).

The Oklahoma court applied the correct legal standard under Strickland,

and its analysis is sound. For this reason, we need not consider whether Mays’s

claims are procedurally defaulted on account of the OCCA’s determination that

his ineffective assistance claims were procedurally improper because he did not

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raise them on direct appeal. 4 It suffices to say that Mays’s habeas petitions do not

state cognizable claims such that reasonable jurists could debate whether he

suffered a constitutional violation.

We also note that any claim raised by Mays for the first time in his second

state application for post-conviction relief, or in his federal petitions, is

procedurally barred. See Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000);

Anderson v. Sirmons, 476 F.3d 1131, 1139–41 (10th Cir. 2007). Mays has not

shown “cause or prejudice” for the default of any claims, and he has not

demonstrated that a fundamental miscarriage of justice would result if his claims

are not considered. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). For

4
As Oklahoma state courts noted, despite having a new attorney on appeal,
Mays did not raise ineffective assistance arguments on direct appeal. Under
Oklahoma law, failure to raise ineffective assistance of counsel claims on direct
appeal constitutes waiver, such that a petitioner may not make the claims the
basis of a post-conviction application. Okla. Stat. tit. 22, § 1086 (2001); see also
Berget v. State, 907 P.2d 1078, 1081–85 (Okla. Crim. App. 1995).

Relying on this rule, on post-conviction review, the OCCA declined to
consider Mays’s claims of ineffective assistance of trial counsel as a result of his
failure to raise the claims on direct appeal. Then, in affirming the trial court’s
denial of Mays’s second application for post-conviction relief, the OCCA
endorsed the trial court’s finding that the “claims presented in this second
application for post conviction relief were the same issues raised in Petitioner’s
first application for post conviction relief, which was denied.” R., Vol. I at 348.
For this reason, it is possible that all of Mays’s ineffective assistance of trial
counsel allegations are procedurally barred. Nevertheless, we decline to reach
this issue, partly because we are not in a position to assess the adequacy of the
trial record.

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these reasons, Mays is not entitled to a COA on his ineffective assistance of trial

counsel claims.

III. Conclusion

For the foregoing reasons, we DENY Mays’s request for a COA and

DISMISS his appeal.

ENTERED FOR THE COURT

Timothy M. Tymkovich
Circuit Judge

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