No. 5:15-CV-00306-R) (W.D. Okla.)
LUCERO, BACHARACH, and MORITZ, Circuit Judges.
E. BACHARACH CIRCUIT JUDGE
Lancey Ray, an Oklahoma prisoner appearing pro se,
unsuccessfully sought federal habeas relief in district court
and wants to appeal. To appeal, however, he needs a
certificate of appealability. Clark v.
Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). He applied
for this certificate and moved to supplement his brief. We
will allow the supplementation but decline to issue a
certificate of appealability.
was convicted of first-degree child-abuse murder in Comanche
County, Oklahoma. Okla. Stat. tit. 21, § 701.7(C). His
stepson, ten-year old Malik Ray, died after being hit by both
his mother and Mr. Ray. The mother used a board, and Mr. Ray
used a belt. Mr. Ray denies that his actions caused the
Standard of Review
certificate of appealability is appropriate only if one or
more of Mr. Ray's appeal points is reasonably debatable.
United States v. Springer, 875 F.3d 968, 981 (10th
Cir. 2017). To decide whether an appeal point is reasonably
debatable, we consider the standard for habeas relief.
See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.
2004) (holding that the "[Antiterrorism and Effective
Death Penalty Act]'s deferential treatment of state court
decisions must be incorporated into our consideration of a
habeas petitioner's request for [a certificate of
the state appeals court has decided the merits, the federal
district court can grant habeas relief only if the petitioner
shows that the state-court adjudication of his claim was
. "contrary to" or "involved
an unreasonable application of" federal law, 28 U.S.C.
§ 2254(d)(1), or
. "based on an unreasonable
determination of the facts." 28 U.S.C. §
Ineffective Assistance of Appellate Counsel
claims that his attorneys on direct appeal were
constitutionally ineffective. These claims are not reasonably
Mr. Ray's Arguments
appellate counsel, Mr. Ray alleges failure
. to argue that photographs offered at trial
had been unfairly prejudicial,
. to present evidence that some of
Malik's conditions had resulted from infusions of saline
and blood rather than abuse, and
. to argue that Malik's treating
physician had misidentified Malik's cardiovascular shock.
The Applicable Standard
claims of ineffective assistance on appeal, Mr. Ray must show
that his appellate attorneys' performance had been
objectively unreasonable and prejudicial. Cargle v.
Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). The
alleged deficiencies were prejudicial only if better
representation would have created a reasonable probability of
a different outcome in the direct appeal. Id.
The State Appeals Court's Consideration of these
post-conviction appeal, the state appellate court rejected
the claims involving appellate counsel, reasoning that the
omitted arguments would not have been meritorious. Order
Affirming Denial of Post-Conviction Relief at 4, Ray v.
State, No. PC 2014-1053 (Okla. Crim. App. Mar. 18,
2015). This decision was on the merits even in the absence of
elaboration. See Black v. Workman, 682 F.3d 880, 892
(10th Cir. 2012) ("When the state court does not explain
its reasoning, the [petitioner] must still show that
'there was no reasonable basis for the state court to
deny relief.'" (quoting Harrington v.
Richter, 562 U.S. 86, 98 (2011))).
state appeals court rejected the claims of ineffective
assistance of appellate counsel, and this decision did not
unreasonably apply clearly established federal law or
unreasonably find facts from the evidence presented.
contends that his appellate counsel was deficient in failing
to challenge the introduction of photographs. This contention
is facially invalid because Mr. Ray's appellate counsel
did challenge the conviction based on introduction
of the photographs. Mr. Ray has not shown any reason to
believe that the outcome would have been different with a
better appellate challenge to the photographs.
Blood and Saline Infusions
alleging ineffective assistance of appellate counsel, Mr. Ray
also challenges the State's evidence regarding
Malik's hemorrhaging of soft tissue during his treatment.
This challenge is difficult to understand because Mr. Ray
does not state what appellate counsel should have done