COREY E. DEGEARE, Petitioner - Appellant,
CARL BEAR, Warden, Respondent - Appellee.
No. 5:17-CV-00244-D) (W.D. Okla.)
BACHARACH, PHILLIPS, and EID, Circuit Judges.
E. BACHARACH CIRCUIT JUDGE
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.
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.
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
• 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.
The Standard for a Certificate of Appealability
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.
Procedurally Barred Theories of Ineffective Assistance on
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
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
• evidence supporting the admissibility of Mr.
• evidence of erectile dysfunction, and
• results of a polygraph test.
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.
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
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.
Degeare conceded in district court that his first theory was
procedurally defaulted. To avoid the procedural default, Mr.
Degeare relies on Martinez v. Ryan, 566 U.S. 1
(2012).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 ...