FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 7, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
ISHMAEL VARGAS,
Petitioner - Appellant, No. 12-6083
(D.C. No. 5:11-CV-00554-R)
v. (W.D. Oklahoma)
DAVID MILLER, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
Applicant Ishmael Vargas, an Oklahoma prisoner, filed a pro se application
for relief under 28 U.S.C. § 2254 in the United States District Court for the
Western District of Oklahoma. The district court denied the application.
Applicant seeks a certificate of appealability (COA) from this court to appeal the
denial. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a
§ 2254 application). We deny his application for a COA and dismiss the appeal.
I. BACKGROUND
A jury convicted Applicant of first-degree murder, and he was sentenced to
life imprisonment without the possibility of parole. The Oklahoma Court of
Criminal Appeals (OCCA) affirmed his conviction and sentence on direct appeal.
He also sought state postconviction relief, but the state district court denied relief
and the OCCA affirmed.
On May 16, 2011, Applicant filed his § 2254 application, raising eight
claims: (1) that the evidence at trial was insufficient to prove all the elements of
first-degree murder, (2) that he was denied a fair trial because the jury
instructions and the prosecutor’s arguments on voluntary intoxication did not state
the applicable law, (3) that the admission of character evidence violated his right
to due process and a fair trial under the United States and Oklahoma
Constitutions, (4) that the prosecutor improperly appealed to the jury’s sympathy
for the victim, violating Applicant’s right to due process under the United States
and Oklahoma Constitutions, (5) that the trial court deprived him of a fair trial by
defining, and allowing the prosecutor to argue, an incorrect concept of reasonable
doubt, (6) that his trial counsel rendered constitutionally ineffective service in
violation of the United States and Oklahoma Constitutions, (7) that cumulative
error deprived him of due process under the United States and Oklahoma
Constitutions, and (8) that his appellate counsel rendered constitutionally
ineffective service in violation of the United States and Oklahoma Constitutions
by failing to raise the seven above grounds for relief.
In a Supplemental Report and Recommendation (the R&R), the magistrate
judge recommended that Applicant’s claims be denied. Despite Applicant’s
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objections to the R&R, the district court adopted the R&R in its entirety and
denied relief.
In this court Applicant argues that the district court (1) “misconstrued the
facts and applied an erroneous conclusion of law,” Aplt. Br. at 6 (capitalization
omitted), (2) “failed to apply a liberal construction to [his] pleadings,” id. at 7
(capitalization omitted), and (3) erred in denying him relief without granting or
making reference to his request for an evidentiary hearing. He asks that we
reverse his conviction and sentence or, in the alternative, remand his case to the
district court for an evidentiary hearing.
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the [application] 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).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in a state court, a
federal court can grant habeas relief only if the applicant establishes that the
state-court decision was “contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). “AEDPA’s deferential treatment of state court decisions must
be incorporated into our consideration of [Applicant’s] request for [a] COA.”
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
Applicant first argues that the district court misconstrued the facts and
applied an erroneous conclusion of law. We disagree. The magistrate judge’s
R&R thoroughly and cogently explained why all of Applicant’s claims should be
denied. For each federal claim, the R&R identified the applicable Supreme Court
law, summarized the OCCA’s reasons for denying the claim, and correctly
concluded that the OCCA’s decision was neither contrary to nor involved an
unreasonable application of federal law.
Applicant’s next argument is that the district court did not liberally
construe his pleadings. Although his application for a COA fails to point to any
allegation in his pleadings that was not properly construed by the district court, it
does reference his objections to the R&R, which contend that the magistrate judge
failed to construe liberally his ineffective-assistance-of-appellate-counsel claim.
But the district court correctly discerned no error in this regard, and, more
importantly, correctly ruled that the ineffectiveness claim has no merit.
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Finally, Applicant argues that the district court erred by denying relief
without conducting an evidentiary hearing. But such a hearing was unnecessary
to resolve Applicant’s claims. The court’s dismissal of the claims implicitly
rejected any request for an evidentiary hearing, although we note that Applicant’s
§ 2254 application does not appear to make such a request.
III. CONCLUSION
No reasonable jurist could debate the correctness of the district court’s
resolution of Applicant’s claims. We DENY the application for a COA and
DISMISS the appeal. We GRANT the motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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