Professional Documents
Culture Documents
TENTH CIRCUIT
No. 11-6164
(W.D. Oklahoma)
Respondent - Appellee.
BACKGROUND
Applicant was convicted by a jury on 12 counts of sexual abuse of a child
DISCUSSION
A.
Standard of Review
A COA 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 courts resolution of the constitutional claim was either
debatable or wrong. Id.
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Vouching
Headmasters Testimony
2.
testimony. See Parker v. Scott, 394 F.3d 1302, 130912 (10th Cir. 2005)
(rejecting habeas challenge to similar expert testimony). In the absence of a
transcript of Ms. Hatlelids testimony (which Applicant did not provide to this
court), 1 we cannot say that reasonable jurists would debate the district courts
rejection of this claim.
Applicant also suggests that the OCCA has been inconsistent in its
decisions on whether to admit testimony on sexual abuse, and that this
inconsistency implicates his rights to due process and equal protection under
federal law. But he failed to raise this issue in district court, and we therefore
decline to consider it. See Kelley v. City of Albuquerque, 542 F.3d 802, 817 (10th
Cir. 2008).
3.
Prosecutorial Vouching
Applicant argues that his appellate counsel was ineffective in not arguing
that his trial counsel had been ineffective for failure to call the victims mother to
testify. He unsuccessfully urged this claim before the OCCA when appealing the
trial courts denial of his postconviction collateral attack.
To establish ineffective assistance of counsel, Applicant must show (1) that
his trial attorneys performance was deficient, meaning that his attorneys
representation fell below an objective standard of reasonableness, Strickland v.
Washington, 466 U.S. 668, 68788 (1984), and (2) that he suffered prejudice,
meaning that there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different, id.
at 694. [I]n analyzing an appellate ineffectiveness claim based upon the failure
to raise an issue on appeal, we look at the merits of the omitted issue. Cargle v.
Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (internal quotation marks omitted).
[I]f the [omitted] issue is meritless, its omission will not constitute deficient
performance. Id. The OCCA examined the omitted issue here and found it
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wanting because there was no evidence that the failure to call the victims mother
was prejudicial. It said that Applicant did not provide anything to show that, if
called, [the victims mother] would have actually testified in a manner that would
have been beneficial to [him]. Order Affirming Denial of Appl. for PostConviction Relief at 2, Burling v. State, No. PC-2009-757 (Okla. Crim. App.
Dec. 10, 2009).
Applicant argues that not calling the mother as a witness was particularly
damaging to his case because his counsels opening statement had referred
repeatedly to her forthcoming testimony. Perhaps. But we cannot tell without
knowing what her testimony was going to be. The OCCA reasonably determined
that Applicant had failed to show that he had suffered prejudice.
It is unclear whether Applicant is raising here, or has raised in any prior
proceeding, a claim of ineffective assistance of trial counsel based on trial
counsels decision not to call the victims mother to testify. But if it is being
raised, it obviously fails for the reasons just stated.
D.
Applicant claims that the information charging him with sexual abuse was
so vague that it violated his Sixth and Fourteenth Amendment rights. The
amended information alleged 12 counts of sexual abuse that occurred during a
six-year time span. Applicant argues that because the information did not include
the dates and locations of the alleged abuse, he cannot assert double jeopardy in
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future proceedings, he could not formulate a defense to the charges against him,
and the trial court could not make a meaningful determination of when he would
be eligible for parole.
The OCCA rejected Applicants double-jeopardy claim because jeopardy
has attached to all alleged sexual acts between [Applicant] and [the victim] during
the period of time specified in the Information. Summary Op. at 4, Burling,
No. F-2006-1288 (Aplt. App. at 64). And regarding his ability to prepare a
defense, it said that the materials made available before trial sufficiently
apprised [Applicant] of the charges against him and the prosecutor satisfied his
duty to inform the defendant within reasonable limits and as best known by the
State, the time frame in which these acts were believed to have occurred. Id.
The OCCA did not explicitly address parole.
Applicant fails to point to any deficiency in the OCCAs disposition of his
double-jeopardy concern. Nor does he identify any Supreme Court opinion that
would require his charging document to specify the time and location of the
offense to inform him fairly of the charges filed against him. Indeed, this circuit
has previously rejected a similar due-process challenge to charging documents in
a child-abuse case. See Hunter v. New Mexico, 916 F.2d 595, 596, 600 (10th Cir.
1990) (rejecting 2254 petitioners due-process challenge to a charging document
that contained three counts, the first spanning four years, the second spanning
three years, and the third spanning more than a year). As for the contention that
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CONCLUSION
We DENY Applicants application for a COA and DISMISS his appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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