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Ray v. McCollum

United States Court of Appeals, Tenth Circuit

March 14, 2018

LANCEY DARNELL RAY, Petitioner-Appellant,
TRACY MCCOLLUM, Warden, Respondent-Appellee.

         (D.C. No. 5:15-CV-00306-R) (W.D. Okla.)

          Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.



         Mr. 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.

         I. Background

         Mr. Ray 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 death.

         II. Standard of Review

         A 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 appealability]").

         When 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. § 2254(d)(2).

         III. Ineffective Assistance of Appellate Counsel

         Mr. Ray claims that his attorneys on direct appeal were constitutionally ineffective. These claims are not reasonably debatable.

         A. Mr. Ray's Arguments

         For 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.

         B. The Applicable Standard

         For the 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.

         C. The State Appeals Court's Consideration of these Claims

         In the 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))).[1]

         D. Merits

         The 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.

         1. Photographs

         Mr. Ray 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.[2] Mr. Ray has not shown any reason to believe that the outcome would have been different with a better appellate challenge to the photographs.

         2. Blood and Saline Infusions

         In 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 differently. ...

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