FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 19, 2017
Elisabeth A. Shumaker
Clerk of Court
MICHAEL LEE JIMENEZ,
Petitioner - Appellant,
v.
No. 17-6077
JOE ALLBAUGH, (D.C. No. 5:15-CV-01087-R)
(W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, MURPHY and MATHESON, Circuit Judges.
Petitioner-Appellant Michael Lee Jimenez, a state inmate appearing pro se, seeks a
certificate of appealability (“COA”) to appeal from the district court’s denial of his 28
U.S.C. § 2254 habeas petition. Jimenez v. Patton, No. CIV-15-1087-R, 2017 WL
1082477 (W.D. Okla. Mar. 22, 2017). To obtain a COA, Mr. Jimenez must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Because Mr. Jimenez has not made
*
This order is not binding precedent except under the doctrines of law of the case,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.
such a showing, we deny a COA, deny his motion for leave to proceed in forma pauperis
(“IFP”), and dismiss the appeal.
Mr. Jimenez was convicted by a jury of murder and related crimes in Oklahoma
state court. He was sentenced to life in prison without parole, along with additional terms
of years for the related crimes. The Oklahoma Court of Criminal Appeals (“OCCA”)
affirmed his convictions. Mr. Jimenez later filed a 28 U.S.C. § 2254 habeas petition,
asserting violations of the Confrontation Clause based on the admission of a witness’s
preliminary-hearing testimony and the testimony of a medical examiner whose opinion
was based on an autopsy report and related findings of a different, non-testifying medical
examiner; prosecutorial misconduct; ineffective assistance of counsel; and cumulative
error. The magistrate judge who reviewed Mr. Jimenez’s petition recommended that it be
denied. Jimenez v. Patton, No. CIV-15-1087-R, 2016 WL 8578263 (W.D. Okla. June 23,
2016). After considering Mr. Jimenez’s objections, the district court adopted the
recommendation, denied the petition, and denied a COA. Jimenez, 2017 WL 1082477, at
*1–2. Mr. Jimenez timely sought a COA, raising the same claims he presented to the
district court.
For this court to grant a COA, Mr. Jimenez must demonstrate 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, 529 U.S. at 484 (citation and internal quotation marks omitted).
Where, as here, the claims were decided by the state courts on the merits, Mr.
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Jimenez must show that the state courts’ resolution either “resulted in a decision that was
contrary to, or involved an unreasonable application of, 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.” 28 U.S.C.
§ 2254(d)(1)–(2). Under the “contrary to” clause, a federal court may grant the writ “if
the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).
Under the “unreasonable application” clause, a federal court may grant the writ only if
“the state court’s application of clearly established federal law was objectively
unreasonable.” Id. at 409. The inquiry is further limited “to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011). The state court’s factual findings are presumed correct unless rebutted
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Applying the requisite standard of deference, we find that the district court’s
conclusion that Mr. Jimenez is not entitled to relief on each of these grounds is not
reasonably debatable. Our determination that reasonable jurists could not debate the
district court’s resolution of Mr. Jimenez’s claims for a Confrontation Clause violation
based on the admission of preliminary-hearing testimony, prosecutorial misconduct,
ineffective assistance of counsel, and cumulative error are for the reasons stated in the
magistrate judge’s report and recommendation.
Our reasoning differs, however, for Mr. Jimenez’s Confrontation Clause claim
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based on the admission at trial of expert testimony that may have relied upon the report
and findings of a non-testifying expert. Because Mr. Jimenez did not object to the
testimony at trial, the OCCA reviewed the claim for plain error, acknowledging that,
“given the constitutional nature of the claim, any error must be harmless beyond a
reasonable doubt.” 1 R. 179. The OCCA concluded that there was no error because the
testifying expert provided independent observations and conclusions and did not testify to
the opinions of the non-testifying expert or the contents of his report. Id. at 180.
Additionally, the report was not introduced into evidence. Id.
In determining that the OCCA’s resolution of this claim was reasonable and
consistent with Supreme Court precedent, the magistrate judge and the district court
relied on Justice Alito’s opinion in Williams v. Illinois, 132 S. Ct. 2221 (2012), to
conclude that a defendant’s right to confrontation is not violated when a testifying expert,
when stating the basis for his independent opinion, references a report prepared by
another expert without commenting on the conclusions expressed in the report. See
Jimenez, 2017 WL 1082477, at *1; Jimenez, 2016 WL 8578263, at *7–9. In so doing,
the magistrate judge and the district court overlooked the fact that Justice Alito’s opinion
was joined only by a plurality. We express no view as to whether the plurality opinion
should be treated as controlling.
Nevertheless, given these facts and the deferential standard of review, the
conclusion that Mr. Jimenez is not entitled to federal habeas relief for his Confrontation
Clause claim is not reasonably debatable. The OCCA specifically rejected the factual
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premise of Mr. Jimenez’s claim, that the expert had no independent basis for his
conclusions, twice stating that the expert’s opinion resulted from his independent
investigation. The expert did not testify as to any findings or conclusions in the report.
The degree to which an expert may reference (let alone rely upon) a report made by
another person not called as a witness is not clearly established, particularly given the 4–
1–4 divide of the opinions in Williams v. Illinois. See United States v. Pablo, 696 F.3d
1280, 1291 (10th Cir. 2012). Further, we have recognized that opinion testimony will not
violate the Confrontation Clause when the testifying expert provides an independent
judgment, even if the testimony is in some part based on inadmissible evidence. United
States v. Kamahele, 748 F.3d 984, 1000 (10th Cir. 2014); see also, e.g., United States v.
Maxwell, 724 F.3d 724, 727 (7th Cir. 2013). Regardless, given the deference we must
apply, the OCCA’s conclusion that there was no error is not reasonably debatable.
We therefore DENY Mr. Jimenez’s request for a COA, DENY his request to
proceed IFP, and DISMISS his appeal.
ENTERED FOR THE COURT
Paul J. Kelly
Circuit Judge
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