FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 30, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
MICHAEL JAY SHOWALTER,
Petitioner - Appellant,
No. 11-6289
v. (D.C. No. 5:11-CV-00088-M)
(W. D. Oklahoma)
MIKE ADDISON, WARDEN,
Respondent - Appellee.
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.
Michael Jay Showalter, acting pro se, seeks a certificate of appealability
(“COA”) to enable him to appeal the denial of his 28 U.S.C. § 2254 petition for
*
This order is not binding precedent, except under the doctrines of law of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.
relief from his conviction for forcible sodomy and the manufacture of child
pornography. For the following reasons, we deny him a COA and dismiss this
matter.
BACKGROUND
A jury convicted Mr. Showalter, of one count of forcible sodomy, in
violation of Okla. Stat. tit. 21, § 888, and one count of manufacturing child
pornography, in violation of Okla. Stat. tit. 21, § 1021.2, both after two or more
prior felony convictions. 1 He was sentenced to forty years’ imprisonment on the
forcible sodomy count and fifteen years on the child pornography count, with the
sentences to run consecutively. Mr. Showalter appealed to the Oklahoma Court
of Criminal Appeals (“OCCA”), which affirmed his conviction and sentence. He
filed the instant habeas petition, raising five grounds for relief: (1) the trial court
erred in admitting evidence where no chain of custody was proved; (2) the court
erred in allowing one of the prosecution’s expert witnesses to testify, even though
some of the discovery material relating to the expert’s testimony had not been
turned over to the defense; (3) Mr. Showalter’s conviction for taking pictures of
himself while allegedly having sex with the victim and his conviction for having
sex with the victim violate the double jeopardy clause and therefore require that
1
The manufacture of child pornography charge was apparently based on
Mr. Showalter’s taking photographs of himself while engaged in the conduct
which was the basis of his other count of conviction.
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one of his convictions be set aside; (4) the court erred when it ordered Mr.
Showalter’s sentence for each conviction to be served consecutively; and (5)
cumulative error compelled the grant of his habeas petition.
These are the same claims which Mr. Showalter argued on direct appeal,
and they have been accordingly exhausted.
DISCUSSION
Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantive showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). He may do so 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)
(internal quotation marks omitted). Thus, when the district court has ruled on the
merits of a petitioner’s claims, the petitioner must show that “reasonable jurists
could find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. Where the district court has ruled on procedural grounds, a COA
may be granted 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.
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As the Supreme Court has reminded us recently, “[i]f this standard is
difficult to meet, that is because it was meant to be.” Harrington v. Richter, 131
S. Ct. 770, 786 (2011). “It preserves authority to issue the writ in cases where
there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with this Court’s precedents.” Id.
Mr. Showalter makes the same five arguments on appeal that he made
before the district court. We accordingly address them in order.
Mr. Showalter first argues that the district court erred in admitting DNA
evidence obtained from oral buccal swabs where there was no proper chain of
custody established with respect to the swabs. At Mr. Showalter’s trial, Grace
Helms, a criminologist with the Oklahoma State Bureau of Investigation
(“OSBI”), testified that she had received from the Enid Police Department buccal
swabs taken from Mr. Showalter. Defense counsel objected to Ms. Helms’
testimony regarding DNA, on the ground that she did not testify how the swabs
came into the possession of the Enid Police Department. The trial court overruled
defense counsel’s objection.
On cross-examination, Ms. Helms was asked about the circumstances of her
receipt of the swabs and she indicated that, while she did not know who actually
took the swabs, they were part of an
evidence package . . . submitted to the OSBI Northwestern Regional
Laboratory, . . . by Shaclair Garcia, who is . . . with the Enid Police
Department, for Mr. Hess, who is also with the Enid Police
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Department, on May 30th of 2007. And then that evidence was
transported from the OSBI Lab in Enid to the OSBI Lab–at that time
it was in Oklahoma City. So it was transported there by Anthony
Goldman, who is an associate with the OSBI, on the 12th of June of
2007.
Tr. of Trial Vol. II at 135-36. 2 She also testified that she received a “Request for
Laboratory Examination Form” which contained the signatures of the officers
submitting the evidence and the signature of the OSBI employee responsible for
transporting the evidence. Id. at 136.
On direct appeal, the OCCA rejected Mr. Showalter’s challenge to
Ms. Helms’ testimony, stating that “the trial court did not abuse its discretion in
admitting the DNA evidence over defense counsel’s chain of custody objection.”
Showalter v. State, No. F-2008-1069 (OCCA, March 3, 2010) (summary op.).
The problem Mr. Showalter faces in making this argument before us is that
it “focus[es] exclusively on the proper interpretation of Oklahoma state law.”
Johnson v. Mullin, 505 F.3d 1128, 1141 (10th Cir. 2007). “[I]t is not the
province of a federal habeas court to reexamine state court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As the
district court correctly observed, Mr. Showalter “presents no additional evidence
in this habeas action that the proper chain of custody evidence was so deficient as
to render his trial fundamentally unfair.” Report & Recommendation at 6, R. Vol.
2
The State moved to compel Mr. Showalter to produce oral buccal swabs,
and the trial court granted that motion.
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1 at 179. 3 The district court correctly determined that this issue presents no
grounds for issuing Mr. Showalter a COA.
Mr. Showalter next argues that the trial court erred in allowing one of the
State’s experts, Todd Rigley, to testify regarding DNA evidence, when Mr.
Showalter claims the State violated Oklahoma’s Criminal Discovery Code by
failing to provide to the defense some forty pages of discovery. It appears that
the “missing” forty pages were documentation forming the basis for the expert
reports regarding DNA evidence. The reports themselves were provided to the
defense.
To the extent this is, again, a matter purely of state law, it runs afoul of the
rule that habeas does not provide for review of claimed errors of state law. See
Estelle, 502 U.S. at 67-68. To the extent he argues it was so egregious an error as
to have rendered his trial fundamentally unfair (which he does, in a conclusory
manner, in his appellate brief), he simply fails to establish how the error affected
his trial. Mr. Showalter does not explain just what the forty pages contained, nor
does he even attempt to explain how their absence rendered his trial unfair. Thus,
this argument provides no basis for the issuance of a COA.
3
The district court assigned this case for initial consideration to a
magistrate judge. The magistrate judge issued a report and recommendation,
recommending dismissal of Mr. Showalter’s habeas petition. The district court
then adopted the report and recommendation in whole.
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Mr. Showalter’s third argument is that his convictions for forcible sodomy
(count one) and manufacture of child pornography (count two) violate the double
jeopardy clause of the United States Constitution as well as an Oklahoma
statutory prohibition against double punishment. With respect to the
Constitutional claim, the long-standing rule is that “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). In this case, it is clear that the offenses
of forcible sodomy and manufacture of child pornography require different
elements of proof. Thus, the federal Constitutional claim of a double jeopardy
violation provides no basis for granting a COA.
And the OCCA’s determination that there was no violation of Oklahoma’s
statutory prohibition against double punishment resolves that issue as, once again,
habeas review does not exist to remedy alleged violations of state law.
Mr. Showalter’s next argument (which he lists among his arguments but
fails to develop in his brief) is that the trial court abused its discretion when it
ordered his sentences to run concurrently. Oklahoma law provides that, unless an
order directs two sentences to run concurrently, they are presumed to run
consecutively. See Riley v. State, 947 P.2d 530, 535 (Okla. Crim. App. 1997);
Okla. Stat. tit. 22, § 976. Once again, we note that habeas is not the appropriate
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vehicle to challenge matters of pure state law. And the OCCA, on direct appeal,
held that the trial court did not abuse its discretion when it ordered Mr. Showalter
to serve his sentences consecutively.
Mr. Showalter’s final argument (which he also lists among his arguments
but fails to develop in his brief) is that he was the victim of cumulative error. We
have expressly stated that “a cumulative error analysis should evaluate only the
effect of matters determined to be error, not the cumulative effect of non-errors.”
Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002). Finding no errors at all in
Mr. Showalter’s case, we perceive no cumulative error.
CONCLUSION
For the foregoing reasons, we DENY Mr. Showalter a COA and DISMISS
this matter. We also DENY his motion to proceed on appeal in forma pauperis,
as he has not demonstrated “the existence of a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal.” Watkins v. Leyba,
543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n,
115 F.3d 809,812 (10th Cir. 1997) (internal quotation marks omitted)).
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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