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Degeare v. Bear

United States Court of Appeals, Tenth Circuit

April 23, 2019

COREY E. DEGEARE, Petitioner - Appellant,
v.
CARL BEAR, Warden, Respondent - Appellee.

          (D.C. No. 5:17-CV-00244-D) (W.D. Okla.)

          Before BACHARACH, PHILLIPS, and EID, Circuit Judges.

          ORDER

          ROBERT E. BACHARACH CIRCUIT JUDGE

         Mr. Corey E. Degeare requests a certificate of appealability to appeal the district court's denial of habeas relief. We deny Mr. Degeare's request and dismiss his appeal.

         1. Background

         Mr. Degeare was convicted in Oklahoma state court on three counts of Rape in the First Degree, three counts of Forcible Sodomy, and one count of Lewd Acts with a Child Under Age Sixteen. After unsuccessfully appealing and seeking post-conviction relief in state court, Mr. Degeare sought federal habeas relief, claiming that his appellate counsel in state court had been ineffective by filing a deficient appeal brief and failing to raise better arguments for reversal.

          The district court concluded that

• some of these theories of ineffective assistance of counsel were procedurally barred from omission in Mr. Degeare's initial application for post-conviction relief and
• the state appeals court had reasonably applied federal law in rejecting the other theories of ineffective assistance of appellate counsel. Given these conclusions, the district court denied habeas relief.

         2. The Standard for a Certificate of Appealability

         To appeal this ruling, Mr. Degeare needs a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). To justify a certificate, Mr. Degeare "must make a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, the petitioner must demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). But when a district court has denied relief on procedural grounds, the petitioner must show that reasonable jurists could debate both (1) the validity of the constitutional claim and (2) the correctness of the district court's procedural ruling. See id.

         3. Procedurally Barred Theories of Ineffective Assistance on Appeal

         In district court, Mr. Degeare conceded that he had procedurally defaulted his theories of ineffective assistance on appeal based on the failure to assert ineffectiveness of trial counsel by declining:

1. to cross-examine one of the victims about her prior description of Mr. Degeare's genitals
2. to present evidence that Mr. Degeare's brother was a convicted sex offender and possibly the perpetrator

         The district court agreed with this concession of procedural default on these theories, adding that Mr. Degeare had also procedurally defaulted his theories of ineffective assistance in the appeal based on the failure to assert ineffectiveness of trial counsel involving his missed opportunities to present

• evidence supporting the admissibility of Mr. Beckman's testimony,
• evidence of erectile dysfunction, and
• results of a polygraph test.

         We start by considering whether the state appeals court decision on these claims had rested on adequate and independent state procedural grounds. See, e.g., Wood v. Milyard, 721 F.3d 1190, 1192 (10th Cir. 2013). If the state grounds are adequate and independent, Mr. Degeare would need to show "cause and prejudice" to avoid a procedural default. Id. In our view, Mr. Degeare has not presented a reasonably debatable argument to avoid a procedural default on these theories.

         On three of these theories, Mr. Degeare does not address the district court's ruling on procedural default. He instead criticizes the state appeals court for focusing on arguments raised in his pro se application for post-conviction relief rather than the arguments that his counsel had raised in the post-conviction appeal. But the state appeals court's focus was correct because the post-conviction appeal did not permit introduction of new theories. See Rule 5.2(A), Rules of the Okla. Court of Crim. Appeals. So the state appeals court declined to consider the merits of the new theories. This ruling was indisputably correct because the state procedural ground was adequate and independent of federal law. See Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998) (concluding that the state appeals court's application of Rule 5.2(C) was both adequate and independent). Given the state court's refusal to consider the merits based on an adequate and independent procedural bar, the federal district court concluded that the new theories were procedurally barred. This conclusion was not reasonably debatable.

         In his appeal brief, Mr. Degeare does address procedural default with respect to two of his theories. The first theory is that his appellate counsel failed to assert ineffectiveness of trial counsel based on his missed opportunity to present evidence implicating Mr. Degeare's brother as the culprit. Mr. Degeare's second theory is that his appellate counsel should have asserted ineffectiveness of trial counsel based on his missed opportunity to present evidence of erectile dysfunction.

         Mr. Degeare conceded in district court that his first theory was procedurally defaulted.[1] To avoid the procedural default, Mr. Degeare relies on Martinez v. Ryan, 566 U.S. 1 (2012).[2]Martinez addressed jurisdictions where defendants could use postconviction proceedings to initiate claims involving ineffective assistance of trial counsel. In these jurisdictions, the Martinez Court allowed defendants to raise ineffective-assistance claims for the first time in post-conviction proceedings. See Martinez, 566 U.S. at 9 (recognizing a narrow exception to the general rule refusing to recognize ineffective assistance in postconviction proceedings as cause to excuse a procedural default, where "[i]nadequate assistance of counsel at initial-review collateral proceedings . . . establish cause for a prisoner's procedural default of a claim of ineffective assistance [of trial counsel]"). But Martinez did not suggest that a defendant could wait until the second round of post-conviction proceedings to claim ineffective assistance by appellate counsel. See Davila v. Davis, 137 S.Ct. 2058, 2065 (2017) (declining to extend Martinez "to allow ...


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