Loftis v. Higgins

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 26, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

EM BR Y JAY LO FTIS,

Petitioner - A ppellant, No. 06-7099
v. (E. D. Oklahoma)
HASK ELL HIGGINS, W arden, (D.C. No. CIV-04-322-FHS)

Respondent - Appellee.

OR DER DENY ING CERTIFICATE O F APPEALABILITY *

Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

Embry Loftis is serving a 15-year sentence for distribution of cocaine base

in violation of Oklahoma law. On July 19, 2004, he filed an application for relief

under 28 U.S.C. § 2254 in the United States District Court for the Eastern District

of Oklahoma. He alleged (1) that he received ineffective assistance of trial

counsel and (2) that the state produced insufficient evidence of a former

conviction that affected his sentencing. His application also appeared to question

the propriety of the testimony of a confidential informant, Donald M ay. The

*
This order and judgment is not binding precedent except under the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.
district court denied his application on September 12, 2006, and denied M r. Loftis

a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (requiring a

COA to appeal denial of habeas application). M r. Loftis now seeks a COA from

this court, raising substantially the same issues. W e deny a COA and dismiss the

appeal.

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 petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

M r. Loftis raises several ineffective-assistance-of-counsel claims. “A

defendant making an ineffective-assistance-of-counsel claim must show both that

counsel’s performance ‘fell below an objective standard of reasonableness’ and

that ‘the deficient performance prejudiced the defense.’” Barkell v. Crouse, 468

F.3d 684, 689 (10th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668

(1984)). M r. Loftis argues that his trial counsel was ineffective because he failed

to give an opening statement, failed to object to part of M ay’s testimony,

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inadequately prepared a defense witness, and gave a defective closing statement.

The district court rejected these arguments in a carefully reasoned order, and no

reasonable jurist could disagree with its conclusions.

M r. Loftis’s contention that the proof of his prior conviction was

insufficient also fails. As the district court found, the proof was sufficient under

O klahom a law and implicates no colorable ground for federal habeas relief. N o

reasonable jurist could disagree with that analysis.

Finally, M r. Loftis raises a somew hat garbled claim regarding M ay’s

credibility. He may be arguing that M ay’s testimony should have been rejected as

incredible, that his attorney inadequately attacked M ay’s testimony, or that the

prosecution failed to provide information concerning charges against M ay and his

motive to lie to assist the prosecution. None of these claims has merit. The jury

could rationally credit M ay’s testimony, and the questioning of M ay at trial

clearly brought out his problems with the law and his consequent motive to assist

the prosecution. No reasonable jurist could dispute the district court’s rejection

of this claim.

For the foregoing reasons, we DENY Mr. Loftis’s application for a COA

and DISM ISS his appeal. W e also D ENY M r. Loftis’s motion to reconsider our

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order of October 5, 2006, denying appointment of counsel, and we DENY his

motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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