No. 4:16-CV-00602-JHP-PJC) (N.D. Okla.)
HARTZ, PHILLIPS, and EID, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge.
Reginald Ward, an Oklahoma prisoner proceeding pro se, was
sentenced to life imprisonment for first-degree murder. The
victim was shot between seven and eleven times in both his
front and back. At trial Applicant argued that he shot the
victim in self-defense and that he at most committed
manslaughter. After being instructed on first-degree murder,
the lesser charge of manslaughter by heat of passion, and
self-defense, the jury found him guilty of first-degree
murder. The Oklahoma Court of Criminal Appeals (OCCA)
affirmed on direct appeal and denied postconviction relief.
Applicant then filed in the United States District Court for
the Northern District of Oklahoma an application for relief
under 28 U.S.C. § 2254, which the district court denied.
See Ward v. Allbaugh, No. 16-cv-00602, 2019 WL
2422487, at *1, 9 (N.D. Okla. June 10, 2019). Applicant now
requests a certificate of appealability (COA) from this court
to enable him to appeal on the following grounds: (1)
insufficient evidence to convict him of first-degree murder,
(2) failure to properly instruct the jury, (3) ineffective
assistance of counsel, and (4) error in responding to the
jury during deliberations. See 28 U.S.C. §
2253(c)(1)(A) (requiring COA to appeal denial of relief under
§ 2254). We deny a COA 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). As we
Under the "contrary to" clause, we grant relief
only if the state court arrives at a conclusion opposite to
that reached by the Supreme Court on a question of law or if
the state court decides a case differently than the [Supreme]
Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.
2004) (brackets and internal quotation marks omitted). Relief
is provided under the "unreasonable application"
clause only if the state court identifies the correct
governing legal principle from the Supreme Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case. Id. (internal
quotation marks omitted). Thus, a federal court may not issue
a habeas writ simply because it concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
See id. Rather, "[i]n order for a state
court's decision to be an unreasonable application of
this 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.
eyewitnesses testified at trial about the murder. The
victim's sister gave the following account: Applicant and
the victim were arguing on the street outside the home of
victim's mother. The victim never threatened to shoot
Applicant, nor was he armed. Applicant and the victim
eventually ceased their conversation, and the victim turned
to walk away from Applicant. She also turned to walk away but
within a second heard two pops. Applicant had shot the victim
in the back. After the victim fell backward onto the ground,
Applicant crossed the street and shot him three more times
before fleeing in a vehicle driven by another man. The
driver, a friend of Applicant since grade school, also
testified that the two men had been arguing but said that the
victim kept his right hand in his pocket and threatened to
kill Applicant before Applicant shot him. The friend agreed
with the sister that after the victim fell to the ground,
Applicant walked up to him and shot him at least two more
times. Shortly after the shooting the friend had told a
detective that Applicant shot the victim after the victim was
trying to walk back and was calming down. The friend thought
the victim had a gun but did not see one.
first argues that his due-process rights were violated
because the State presented insufficient evidence to support
a conviction for first-degree murder. According to Applicant,
the evidence established that he acted in self-defense or
that he was guilty of at most first-degree manslaughter under
a heat-of-passion theory or imperfect self-defense theory.
The OCCA rejected these arguments, concluding that a
"rational trier of fact could have found [Applicant] was
not acting in self defense and further found each of the
elements of Murder in the First Degree beyond a reasonable
doubt." Ward v. State, No. F-2014-127, slip op.
at 2 (Okla. Crim. App. Jan. 6, 2015).
habeas review, a federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state
court. The federal court instead may do so only if the state
court decision was objectively unreasonable."
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per
curiam) (internal quotation marks omitted). The district
court's order thoroughly explains how sufficient evidence
existed to support Applicant's conviction. See
Ward, 2019 WL 2422487, at *4-5. For essentially the same
reasons articulated by the district court, we cannot say that
the state-court decision was objectively unreasonable. We add
one comment in response to Applicant's argument that the
testimony from the medical examiner was inconsistent with the
victim's being shot initially in the back (which would
negate a claim of self-defense). The medical examiner
testified that his examination was inconclusive as to whether
the victim was initially shot in the back or front. He also
testified that some bullet wounds indicated that the bullet
entered the victim's body and ricocheted into the
backside of his right arm, which would be consistent with the
victim's being shot in the front after falling to the
ground. Thus, the physical evidence did not conclusively
negate the eyewitness testimony against Applicant. No
reasonable jurist could challenge the district court's
disposition of this claim.
Applicant argues that the state court violated his
due-process rights by failing to provide certain jury
instructions: (1) under 21 Okla. Stat. § 1289.25 (2011),
commonly referred to as the "Stand Your Ground"
law, and (2) on manslaughter by resisting criminal attempt.
first instruction, Applicant argues that an instruction based
on Oklahoma's "Stand Your Ground" statute was
required because it is different from the self-defense
instruction that the jury received. But Applicant did not
argue this proposition to the district court in his §
2254 application. We decline to consider claims for relief
not presented to the district court. See ...