English v. Cody, 00-5115

• Decision Date: 06 March 2001
• Docket Number: No. 00-5115,00-5115
• Citation: 241 F.3d 1279
• Parties: (10th Cir. 2001) GREGORY DALE ENGLISH, Petitioner-Appellant, v. R. MICHAEL CODY, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1279

241 F.3d 1279 (10th Cir. 2001)

GREGORY DALE ENGLISH, Petitioner-Appellant, v. R. MICHAEL CODY, Respondent-Appellee.

No. 00-5115

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 06, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 95-CV-753-B)

[Copyrighted Material Omitted] Submitted on the briefs: Gregory Dale English, Pro se.

Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner-appellant Gregory Dale English appeals from the district court's order denying his petition for a writ of habeas corpus. This matter comes before us on English's request for a certificate of appealability (COA).¹

This case was filed in district court prior to the AEDPA amendments to 28 U.S.C. 2254. For this reason, we apply the pre-AEDPA version of that statute to English's claims. See Lindh v. Murphy, 521 U.S. 320 (1997). English's appeal, however, was filed in this court after the effective date of the AEDPA amendments. Therefore, AEDPA's COA requirement applies to this appeal. See Slack v. McDaniel, 529 U.S. 473, 482 (2000).

In order to receive a COA, English must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). A petitioner meets this standard if he shows that his issues "are debatable among jurists, or that a court could resolve the issues differently, or that the questions deserve further proceedings." United States v. Sistrunk, 111 F.3d 91, 91 (10th Cir. 1997).

In our previous decision in this case, we vacated the district court's interlocutory decision refusing to apply a procedural bar to English's claims of ineffective assistance of counsel. English v. Cody, 146 F.3d 1257, 1265 (10th Cir. 1998). We remanded to the district court for a determination of whether English's ineffective assistance of counsel claims embraced matters in the trial record, or whether they required enlargement of the record. Id. at 1264. If the district court concluded that English's ineffective assistance claims concerned matters entirely manifest within the record of his state court appeal, these claims would be procedurally barred. Id. If, on the other hand, English's claims required further supplementation of the record on appeal or additional fact-finding, the district court was to consider whether Oklahoma's remand procedure was adequate for that purpose. Id. at 1264-65. If the remand procedure was inadequate, we instructed the district court to refuse to apply a procedural bar and to address English's ineffective assistance claims on the merits. Id. at 1265.

On remand, the district court found that:

(1) English's underlying Confrontation Clause claim had been fairly presented to the Oklahoma Court of Criminal Appeals on direct appeal and was not procedurally barred. It found that a Confrontation Clause violation had occurred, but that the violation was harmless because there was adequate evidence of English's guilt (2) English's underlying claim concerning impermissibly suggestive photo identification procedures was procedurally barred;

(3) English's claims of ineffective assistance of trial counsel were procedurally barred. It found that English had separate counsel at trial and on appeal, and that his ineffective assistance of trial counsel claims embraced matters within the trial record. In light of this finding, the district court found it unnecessary to decide whether Oklahoma's remand procedure was adequate to provide further factual development;

(4) English's claims of ineffective assistance of appellate counsel pertaining to counsel's failure to raise his ineffective assistance of trial counsel claims were meritless. Since these claims failed on their merits, English could not satisfy the standard for an ineffective assistance of appellate counsel claim.

In this appeal, English argues the following: (1) the record was insufficient to determine his ineffective assistance of counsel claims; (2) the district court should have held an evidentiary hearing on his claims; (3) all of the evidence presented to the jury was tainted; and (4) he is actually innocent. To the extent that English's issues involve attacks on the district court's procedural rulings, to receive a COA, English must show both "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. In assessing his claims, "[w]e review the district court's legal conclusions de novo and its factual findings under the clearly erroneous standard." Ross v. Ward, 165 F.3d 793, 798 (10th Cir. 1999).

1. Application of procedural bar to suggestive photo identification claims

English claims that eyewitnesses Kerry Wilburn and Paul Rusher were shown unnecessarily suggestive pre-trial photographic lineups. Before they were shown the lineups, he argues, each witness failed to identify English as the man who committed the robberies. Afterwards, however, they were persuaded by the lineups to change their minds and to implicate English. He argues that his counsel was ineffective in failing to challenge the photo lineups.

The district court concluded that this ineffective assistance claim was procedurally barred because English failed to raise it on direct appeal in state court and the claim concerned matters entirely manifest within the state court record. English argues that the district court should not have applied procedural bar because the record is insufficient to determine his claim. Alternatively, he argues that he was entitled to an evidentiary hearing on this claim to further develop the record.

English identifies four items that he believes are missing from the record and required for resolution of this claim: (1) evidence that Wilburn and Rusher initially misidentified him; (2) evidence concerning the unnecessarily suggestive photo identification procedures; (3) evidence concerning trial counsel's knowledge of the identification procedures; and (4) evidence concerning his attorney's efforts put forth in developing the identification procedures issue. Appellant's Opening Br. at 16B. Even assuming that the record is incomplete and procedural bar inappropriate, we cannot grant English a COA because he has failed to make a debatable showing that his suggestive identification claim, or any of his claims, for that matter, states "a valid claim of the denial of a constitutional right." Slack, 529 U.S. at 484.

In order to prevail on a claim of an unduly suggestive photographic lineup, a defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. See United States v. Wade, 388 U.S. 218, 240 n.31 (1967). It is only after the defendant meets this burden that the burden shifts to the government to prove that the identification was reliable independent of the suggestive procedure. Id. It is only necessary to reach the second element of the inquiry if the court first determines that the array was impermissibly suggestive. See United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir. 1994).

Although he argues about the reliability of the eyewitnesses' testimony, English has never advanced any facts that show the identification procedures used in his case were impermissibly suggestive. English complains about the use of a second lineup containing his picture, after a witness chose the wrong picture from the first lineup, but he fails to show that this is itself impermissibly suggestive.

Moreover, there was abundant evidence that the lineups were not suggestive. Before any evidence was presented to the jury, witness Kerry Wilburn took the stand in response to counsel's motion to suppress identification. With regard to the lineup, he testified that the officers did nothing to suggest which of the men in the photos was in custody, or which he should identify. Trial Tr. at 128-29. The trial court viewed the photographs from the lineup and stated that they "appear to be an excellent lineup. I don't see any problems or any discrepancies that would focus in on any one individual." Id. at 129. The state court's factual findings as to this issue are binding on this court.²

English does not identify anything suggestive about the photographs or suggest anything that his attorney might have presented that would have met his evidentiary burden of showing they were suggestive. Thus, even if there is a controversy about the district court's determination that this issue was procedurally barred, English fails to meet his burden of showing that jurists of reason could find that the underlying issue states a valid claim of a denial of a constitutional right. For this reason, he is not entitled to a COA as to this issue.

It follows that English's ineffective assistance of appellate counsel claim based on the photographic lineup also fails to earn him a COA. If the underlying issue was not valid, his counsel was not ineffective for failing to raise it on direct appeal. Nor is English entitled to an evidentiary hearing, since he has identified no dispute about whether the photographic lineup was suggestive which would require further factual development of the record. See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (stating, in pre-AEDPA case, that evidentiary hearing is not required where there is no factual dispute). Finally, as will be seen, English's claim of actual innocence is unsupported by the record and also fails to support his application for a COA.

2. Application of harmless error to Confrontation Clause claim

Confrontation Clause violations . . . are constitutional trial errors subject to harmless error analysis. A federal court reviewing a state court determination in a habeas proceeding should not grant relief unless the court finds the trial error had substantial and...