Tucker v. Murphy

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALSJanuary 12, 2012
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

IRA TUCKER,

Petitioner - Appellant, No. 11-8086
v. (D. Wyoming)
MICHAEL MURPHY, Warden, (D.C. No. 2:10-CV-00206-ABJ)
Wyoming Medium Correctional
Institution; and ATTORNEY
GENERAL, State of Wyoming,

Respondents - Appellees.

ORDER DENYING
CERTIFICATE OF APPEALABILITY *

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
 Petitioner and appellant Ira Tucker pled guilty to two counts of possession

of controlled substances with intent to deliver, in violation of Wyo. Stat. Ann.

§ 35-7-1031(a)(i) and (a) (ii). 1 When his state court proceedings proved

unsuccessful in challenging his convictions, he filed a petition for a writ of

habeas corpus in federal district court. The respondent, Warden Michael Murphy,

filed a partial motion to dismiss and a motion for summary judgment, which the

district court granted. The district court denied a certificate of appealability

(“COA”). Mr. Tucker asks us for a COA to enable him to appeal the dismissal of

his case. For the following reasons, we deny him a COA and dismiss this matter.

As did the district court, we take the basic facts from the state court

decision:

On the afternoon of December 8, 2006, the Sheridan County
Sheriff’s Office received word that an individual wished to provide
information concerning the use of controlled substances in the
county. Deputies Ryan Mulholland and Boot Hill interviewed the
man. In the course of the interview, the man told the deputies that he
had purchased methamphetamine from a man named “Ira” on two
occasions. He gave the deputies “Ira’s” telephone number and told
them that “Ira” drove a black Jeep Cherokee and, when he made trips
into the Sheridan area, frequented the residence of an individual
whose name the deputies recognized from prior controlled substance
investigations.

The following evening, Deputy Mulholland received a call
from the informant advising him that “Ira” was in town. Deputies
Mulholland and Hill went to the addresses the informant provided but
were unable to locate a vehicle matching the description of “Ira’s”
vehicle. They returned later with the informant and observed the

1
One count related to marijuana and one count related to methamphetamine.

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vehicle at one of the locations. Dispatch confirmed the vehicle
license belonged to Mr. Tucker and was registered to a 1996 black
Jeep Cherokee. Deputies also obtained a copy of Mr. Tucker’s
driver’s license with his photograph.

A few days later, the informant went to the Sheridan office of
the Division of Criminal Investigation (DCI) and placed a recorded
phone call to Mr. Tucker. Deputy Hill monitored and recorded the
call during which Mr. Tucker said that he had been to Sheridan and
left some “stuff” and would be back again the next weekend. He also
said that if the informant wanted “green” he could get “QP650.”
Based upon his training and experience as a drug task force officer,
Deputy Hill understood this to mean that Mr. Tucker could provide
the informant with a quarter pound of marijuana for $650.

Several months later, Deputy Mulholland received another
phone call from the informant advising him that Mr. Tucker had
called again and would soon be on his way to Sheridan. Deputy
Mulholland asked the informant to place another recorded telephone
call to Mr. Tucker. The informant agreed and met with Special
Agent Michael Hamilton to place the call. Special Agent Hamilton
monitored the conversation during which Mr. Tucker stated that he
normally charged 200 by the “O” and used the word “kind.” Based
upon his training and experience, Special Agent Hamilton understood
the first reference to mean that Mr. Tucker charged $200 per ounce
for marijuana and the term “kind” to refer to the grade of the
marijuana. Mr. Tucker also told the informant that if he invested in
Mr. Tucker’s “little corporation,” Mr. Tucker would “wake him up.”
Special Agent Hamilton was not familiar with the phrase “wake him
up” and the informant advised him it meant Mr. Tucker would
provide him with methamphetamine.

On the basis of what they heard during the recorded phone
calls, DCI and the sheriff’s office made plans to stop and search Mr.
Tucker’s vehicle as he approached Sheridan. Agents from Casper
who had been conducting surveillance of Mr. Tucker’s Casper
residence advised that he left his home with a female companion in a
white Pontiac with a black bra. Deputy Mike Gale parked his patrol
car at an I-25 exit ramp south of Sheridan and waited. When he saw
a white Pontiac with a black bra and two occupants approaching from
the south, he confirmed the license plate as belonging to Mr. Tucker

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 and stopped the vehicle. He told Mr. Tucker that there had been a
traffic complaint involving a vehicle like the one he was driving.
Deputy Mike Rogers arrived with his dog and had the dog perform an
air sniff around the outside of Mr. Tucker’s vehicle. The dog alerted
to the rear of the vehicle. Deputy Roger searched the rear of the
vehicle and found substances that later tested positive for marijuana
and methamphetamine.

Tucker v. State, 214 P.3d 236, 238-39 (Wyo. 2009).

As indicated, the State of Wyoming charged Mr. Tucker with two counts of

possession of controlled substances with intent to deliver. Mr. Tucker filed a

motion to suppress the evidence seized from his car, arguing there was no

reasonable articulable suspicion to justify the stop because he had committed no

traffic violation. He also claimed the drug dog was not reliable. The state filed a

response stating that it did not rely upon a traffic violation or the drug dog to

justify the stop and search, but, rather, it based the stop and search on information

learned from the confidential informant. The state court denied Mr. Tucker’s

motion to suppress.

Mr. Tucker entered a conditional plea of guilty to the two counts of

possession, preserving his right to appeal the denial of his suppression motion. In

his appeal to the Wyoming Supreme Court, Mr. Tucker argued: (1) the traffic

stop, search and subsequent arrest were illegal as there was no probable cause; (2)

he was denied due process of law because of the conduct of the prosecutor who

included misrepresentations in the affidavit supporting the Information, because

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he was afforded only limited access to the discovery in his case, and delays were

caused by changes in counsel; and (3) the arrest warrant was defective.

The Wyoming Supreme Court affirmed Mr. Tucker’s convictions, finding

that the officers had probable cause to arrest him and search his car, his due

process rights were not violated by the prosecutor, and the arrest warrant was not

defective. The court refused to consider the due process claims based on access

to discovery and delay resulting from a change in counsel, because neither issue

was presented to the district court or properly preserved for appeal in the

conditional guilty plea.

Mr. Tucker then filed a petition for post-conviction relief with the state

district court, arguing: (1) he received ineffective assistance of trial and appellate

counsel; (2) he did not waive the argument regarding not receiving a preliminary

hearing in the circuit court by failing to raise that issue on appeal; (3) the

Information was insufficient to adequately give him notice of the charges against

him; (4) his Fifth Amendment rights were violated when he was charged with two

violations of the same statute; (5) there was insufficient evidence to prove the

element of intent; (6) his guilty plea was involuntary because the charges in the

Information were changed after an agreement was reached and the prosecution

and the district court did not abide by the terms of the plea agreement; (7) he did

not receive an initial appearance within seventy-two hours after his arrest; and (8)

his right to a speedy trial was violated.

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 The state district court denied Mr. Tucker’s request for post-conviction

relief. It concluded that the Fifth Amendment claim (# 5 above) and the claim

relating to whether his guilty plea was voluntary (#6 above) were procedurally

barred pursuant to Wyo. Stat. Ann. § 7-14-103(a)(I), because they could have

been raised on direct appeal but were not, in fact, raised. The court also

concluded that there was no merit to the ineffective assistance of counsel claims,

and that the remaining claims were waived by virtue of Mr. Tucker’s guilty plea.

The Wyoming Supreme Court denied review.

Mr. Tucker then filed the instant petition for a writ of habeas corpus with

the federal district court, arguing twelve issues: (1) ineffective assistance of trial

counsel; (2) ineffective assistance of appellate counsel; (3) the prosecutor failed

to give him sufficient notice of the corrective Information; (4) the state district

court lacked jurisdiction over him as there was never a preliminary hearing

regarding the corrective Information; (5) his due process rights were violated by

the amendment of the Information; (6) the state failed to present sufficient

evidence of the element of intent; (7) his guilty pleas were not voluntary due to

the filing of a corrective Information; (8) his guilty pleas were coerced; (9) his

rights were violated due to the timing of his initial appearance; (10) his speedy

trial rights were violated; (11) the prosecutor engaged in misconduct; and (12) his

right against double jeopardy was violated when he was charged with, and

sentenced for, violating the same statute in two different ways.

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 In a 32-page carefully and thoroughly reasoned opinion, the district court

explained why each issue was either procedurally defaulted or meritless, applying

the standards of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). The court also denied Mr. Tucker’s motion for reconsideration.

With respect to the ineffective assistance of trial counsel claim, the court

concluded that this issue was not raised either on direct appeal or in Mr. Tucker’s

state post-conviction action. As a result, it was not exhausted, but any state court

would find such a claim procedurally barred under state law, and it was therefore

procedurally defaulted in federal court. See Coleman v. Thompson, 501 U.S. 722,

735 n.1 (1991). 2

Regarding his claim that he did not have proper notice of the corrective

Information, the court noted that, while he had raised this issue in his petition for

post-conviction relief in state court, the state court found it waived by virtue of

2
Despite the court’s conclusion that Mr. Tucker failed to raise the issue of
ineffective assistance of trial counsel as a “stand-alone” claim in his state post-
conviction petition, our review of the record indicates that he did, in fact, raise
this issue to some extent, and the state court rejected it on its merits. In his state
post-conviction proceeding, the state court held that his ineffectiveness claims
“lack cogent argument and merely speculate that counsel was ineffective.” Order
at 3, R. Vol. 1 at 58.
Nonetheless, applying the standards of AEDPA directly to the state court’s
decision, we would find no basis for granting Mr. Tucker a COA on this issue.
This is especially true, given the doubly deferential standard applicable to an
ineffectiveness claim in tandem with AEDPA’s review standards. See Premo v.
Moore, 131 S. Ct. 733, 740 (2011); see also Knowles v. Mirzayance, 556 U.S.
111, ___ (2009); Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (holding
that “AEDPA’s deferential treatment of state court decisions must be incorporated
into our consideration of [his] request for [a] COA”).

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his guilty plea. The federal district court similarly concluded it was waived by

Mr. Tucker’s guilty plea, citing Tollett v. Henderson, 411 U.S. 258 (1973). In

Tollett, the Supreme Court observed that:

a guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.

Id. at 267. Mr. Tucker’s claim about notice of the corrective Information is

clearly waived.

With respect to his claim that the failure to hold a preliminary hearing

deprived the state court of subject matter jurisdiction, the district observed that

state law did not support the argument that the failure to hold a preliminary

hearing was a jurisdictional matter. It then noted that the state district court held

that any argument regarding a preliminary hearing was waived by Mr. Tucker’s

guilty plea, and that any such argument was similarly waived by his guilty plea in

federal court. See Tollett, 411 U.S. at 267.

As to Mr. Tucker’s claim that his due process rights were violated by the

amendment of the Information, the district court held that the Information was

amended before Mr. Tucker pled guilty. Thus, like his previous arguments, this

argument has been waived for purposes of federal habeas corpus review.

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 Regarding his argument that the state did not present sufficient evidence of

his intent to commit the crime charged, the district court determined that this

issue was also waived by Mr. Tucker’s guilty plea. Moreover, this issue raises a

matter of state law only, and federal habeas review does not apply to purported

violations of state law.

With respect to his argument that his guilty plea was not voluntary because

the amended Information was filed just before the change of plea hearing, the

district court noted that this issue could have been raised, but was not, before the

Wyoming Supreme Court on direct appeal. On that basis, the state court held the

issue procedurally barred, and it is therefore procedurally defaulted in federal

court.

For essentially the same reason, the district court held Mr. Tucker’s claim

that his guilty plea was coerced was procedurally defaulted in federal court. And

the court found Mr. Tucker’s claim that his rights were violated because he did

not receive his initial appearance within seventy-two hours of his arrest was

waived by his guilty plea, and, in any event, presented only an issue of state law.

Mr. Tucker’s speedy trial claim was deemed similarly waived by his guilty plea.

As to Mr. Tucker’s claim that all of the previous issues support a finding of

prosecutorial misconduct, the district court found this issue not exhausted because

Mr. Tucker failed to raise it on direct appeal or in his state post-conviction

petition.

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 Finally, the district court held that, inasmuch as Mr. Tucker’s double

jeopardy claim had not been raised before the Wyoming Supreme Court, it was

procedurally barred. It was therefore procedurally defaulted in federal court.

This left, as the only viable claim, Mr. Tucker’s claim that his appellate

counsel was ineffective in failing to raise the issues listed above. As the district

court below observed, the “state district court, without significant elaboration,

found the claim had no merit.” Order at 22, R. Vol. 1 at 607. The court went on

to consider “whether the state district court decision was contrary to, or an

unreasonable application of, clearly established federal law.” at 22-23 (citing 28

U.S.C. § 2254(d)). Applying the standards of Strickland v. Washington, 466

U.S. 668 (1984), the court held that the state district court’s decision was not

“contrary to, or an unreasonable application of, clearly established federal law.”

Mr. Tucker now seeks a COA to enable him to challenge the district court’s

conclusions. He frames the issues on appeal as follows: (1) was he given a full

and fair opportunity to litigate his Fourth and Fourteenth Amendment claims on

appeal, “without a complete transcript of record forwarded to the Supreme Court

for appeal?”; (2) were Mr. Tucker’s Fourth and Fourteenth Amendment rights

violated when the district court “dismissed the habeas [petition] without ruling on

the supplemental pleading”; (3) did the district court err when it “did not allow

the petitioner the opportunity to fully develop his claim that the trial court lacked

subject matter jurisdiction by proceeding without a valid probable cause affidavit

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to support the arrest warrant?”; and (4) did the court err when it ruled the “state

court had not exhausted the 6th Amendment issue of ineffective assistance of trial

counsel as a ‘stand alone’ claim?” Appellant’s Br. at 6, 10, 20, 23.

To obtain a COA, Mr. Tucker must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c). 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). When the district court rules on the merits of

a constitutional habeas claim, the petitioner must show that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Id. Where the district court rules on procedural grounds, a COA may

issue when the petitioner shows that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

. . . whether the district court was correct in its procedural ruling.” Id.

No reasonable jurist could dispute the district court’s conclusion that

Mr. Tucker’s claims were either procedurally defaulted or meritless. 3 We cannot

3
We agree with the district court’s observation that Mr. Tucker’s claims
“are not particularly well-defined.” Order at 7, R. Vol. 1 at 592. To the extent
Mr. Tucker attempts to present new issues in this application for a COA, we
would deem them waived. See United States v. Windrix, 405 F.3d 1146, 1156
(continued...)

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improve on the district court’s analysis of Mr. Tucker’s claims, except for our

observation that his claim of ineffective assistance of trial counsel may have been

exhausted but is, in any event, meritless. Accordingly, for substantially the

reasons set forth in the district court’s decision, we agree that a COA should not

issue and this matter should be dismissed.

For the foregoing reasons we DENY a COA and DISMISS this matter.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

3
(...continued)
(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,” particularly where a party has “not argue[d] on appeal that any special
circumstance requires us to address this contention despite lack of preservation
below”).

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