No. 4:16-CV-00024-CVE-JFJ) (N.D. Okla.)
HARTZ, PHILLIPS, and EID, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L Hartz Circuit Judge
Phillip Steven Borden was convicted by an Oklahoma jury on
several charges arising out of sexual abuse of two children.
He was sentenced to three terms of life imprisonment, and his
convictions were affirmed on direct appeal. After he
unsuccessfully sought state postconviction relief, he filed
an application for relief under 28 U.S.C. § 2254 in the
United States District Court for the Northern District of
Oklahoma. The district court denied his application. He now
requests a certificate of appealability (COA) from this
court. See 28 U.S.C. § 2253(c)(1)(A) (requiring
COA to appeal denial of relief under § 2254). We deny
his request and dismiss the appeal.
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.
McDaniel, 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.
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, 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). A federal
court may not grant relief simply because it concludes in its
"independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly." Gipson v. Jordan, 376 F.3d
1193, 1196 (10th Cir. 2004) (internal quotation marks
omitted). Rather, "[i]n order for a state court's
decision to be an unreasonable application of [the Supreme]
Court's case law, the ruling must be objectively
unreasonable, not merely wrong; even clear error will not
suffice." Virginia v. LeBlanc, 137 S.Ct. 1726,
1728 (2017) (per curiam) (internal quotation marks omitted).
To prevail, "a litigant must show that the state
court's ruling was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Id. (ellipsis and internal quotation marks omitted).
addition, AEDPA establishes a deferential standard of review
for state-court factual findings. "AEDPA . . . mandates
that state court factual findings are presumptively correct
and may be rebutted only by 'clear and convincing
evidence.'" Saiz v. Ortiz, 392 F.3d 1166,
1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).
Further, the Supreme Court has held that review under §
2254(d)(1), just as under § 2254(d)(2), "is 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); see id.
at 185 n.7. "AEDPA's deferential treatment of state
court decisions must be incorporated into our consideration
of a habeas petitioner's request for [a] COA."
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.
was convicted of the rape and molestation of two young girls,
De. H. and Da. H., whom he met while dating their mother.
After the dating ended, the girls continued to visit
Applicant's home. "The victims could not provide
exact dates for the incidents, but described them in relation
to the three houses that petitioner occupied during an eight
year period." Dist. Ct. Op. at 1. Applicant seeks a COA
on three grounds: (1) the prosecution unduly interfered with
witnesses; (2) he was denied due process because he was not
provided adequate notice of the conduct that was the basis of
the charges against him; and (3) the prosecution knowingly
presented false testimony.
first claim Applicant alleges that the prosecution
intimidated three witnesses into not testifying in his
defense. The state trial court, however, found that the
evidence of interference submitted by Applicant was not
sufficient to support a finding that the prosecution had
interfered with the defense witnesses. The findings of the
state court are presumptively correct, and Applicant did not
rebut the findings with clear and convincing evidence. No
reasonable jurist could challenge the district court's
disposition of this claim.
second claim Applicant argues that his due-process rights
were violated because the information filed against him did
not include specific dates on which the charged conduct took
place. See Cole v. Arkansas, 333 U.S. 196, 201
(1948) ("No principle of procedural due process is more
clearly established than that notice of the specific charge .
. . [is] among the constitutional rights of every accused in
a criminal proceeding."). The OCCA determined that the
information was sufficiently detailed to appraise Applicant
of the charges against him and enable him to prepare his
defense. Applicant cites state-court opinions holding that
failure to identify a sufficiently precise timeframe during
which the charged conduct took place can violate due process;
but he needs opinions of the United States Supreme Court that
address circumstances involving an allegedly overbroad period
of time in which the charged offense occurred, see House
v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008)
("[C]learly established law consists of Supreme Court
holdings in cases where the facts are at least
closely-related or similar to the case sub
judice."). Because he has not directed our
attention to any such opinion, no reasonable jurist could
challenge the district court's disposition of this claim.
third claim, Applicant argues that his due-process rights
were violated because the prosecution knowingly presented
false testimony by Bucky King. See Napue v.
Illinois, 360 U.S. 264, 269 (1959) ("[A] conviction
obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment."). But Applicant never asserted, much less
presented evidence, that the prosecution knew that King's
testimony was false. No reasonable jurist could challenge the
district court's disposition of this claim.
Applicant argues that he is entitled to an evidentiary
hearing on his first and third claims. We are not persuaded.
An evidentiary hearing is appropriate only if the state
court's decision was contrary to or an unreasonable
application of clearly established federal law under §
2254(d)(1) or an unreasonable determination of the facts
under § 2254(d)(2), and the prisoner acted diligently in
developing the factual record in state court under §
2254(e)(2). See Milton v. Miller, 744 F.3d 660,
672-73 (10th Cir. 2014). When the state court has adjudicated
the merits of an issue, the federal court cannot consider
evidence outside the state-court record when it reviews
whether the applicant has shown that the state-court decision
was contrary to clearly established federal law. See
Pinholster, 563 U.S. at 180-81. Relying on Townsend
v. Sain, 372 U.S. 293, 312 (1963), and Littlejohn v.
Trammell, 704 F.3d 817, 858 (10th Cir. 2013), Applicant
asserts he was entitled to an evidentiary hearing because he
diligently tried to develop the evidentiary record in the
state court, as required by § 2254(e)(2). But
Townsend was decided before § 2254(d)(1) was
enacted as part of AEDPA, and Littlejohn applied the
pre-§ 2254(d)(1) standard of review because the state
court had failed to adjudicate the merits of the
applicant's claim, see 704 F.3d at 857 n.21. In
this case we have ruled that Applicant has not satisfied
§ 2254(d) on any of his claims. Pinholster
makes it clear that therefore the district court was not
required to conduct an evidentiary hearing. See 563
U.S. at 180-86.
DENY a COA and DISMISS ...