Jernigan v. Jaramillo
| Decision Date | 17 August 2011 |
| Docket Number | D.C. No. 1:10-CV-00701-MCA-CG,No. 11-2066,11-2066 |
| Parties | TREMAINE JERNIGAN, a/k/a TRAMAINE JERNIGAN, Petitioner-Appellant, v. LAURENCE JARAMILLO; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Tramaine Jernigan,1 a state prisoner proceeding pro se,2 seeks a certificateof appealability ("COA") to challenge the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Jernigan's application for a COA and dismiss his appeal.
In 2008, Mr. Jernigan was convicted of second-degree murder and tampering with evidence in the Twelfth Judicial District Court in Otero County, New Mexico.3 He appealed to the New Mexico Court of Appeals, raising a single state-law sentencing issue. The New Mexico Court of Appeals rejected hischallenge and affirmed.4 Mr. Jernigan then filed a habeas corpus petition in the state district court, raising a bevy of claims under the United States Constitution. The court denied the petition. From this denial, Mr. Jernigan filed a petition for writ of certiorari in the Supreme Court of New Mexico; it denied certiorari.
On July 23, 2010, Mr. Jernigan filed a federal habeas petition in United States District Court for the District of New Mexico in which he raised eighteen claims, alleging ineffective assistance of counsel, prosecutorial misconduct, and violations of his right to due process. Mr. Jernigan's petition was referred to a magistrate judge who concluded that Mr. Jernigan had failed to exhaust several of the claims in the state courts, and recommended that the court afford Mr. Jernigan fourteen days to elect to proceed without the unexhausted claims (i.e., to seek habeas relief only as to the exhausted claims). Absent such an election, the magistrate judge recommended dismissal without prejudice of Mr. Jernigan's entire habeas petition.
On March 15, 2011, the district court adopted the magistrate judge's recommendations and, because Mr. Jernigan would agree to dismissal of only some of the unexhausted claims, the court dismissed his entire habeas petitionwithout prejudice. The court subsequently and summarily denied his application for a COA. Mr. Jernigan now seeks a COA from this court to challenge the district court's dismissal of his § 2254 habeas petition.
A COA is a jurisdictional prerequisite to this court's review of a habeas application. 28 U.S.C. § 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086, 1088 (10th Cir. 2009). Thus, "[w]e will issue a COA 'only if the applicant has made a substantial showing of the denial of a constitutional right.'" Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting 28 U.S.C. § 2253(c)(2)). In order to make such a showing, the applicant must demonstrate "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." United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting 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. (quoting Slack, 529 U.S. at 484).
In determining whether to grant a COA, this court conducts an "overview of the claims in the habeas petition and a general assessment of their merits." United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted).However, "[t]his threshold inquiry does not require full consideration of the factual or legal bases adduced in support of th[ose] claims." Miller-El, 537 U.S. at 336. When the district court denies an applicant relief Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529 U.S. at 484).
In his application for a COA, Mr. Jernigan presents four arguments: (1) that he is entitled to an evidentiary hearing; (2) that the district court "committed . . . plain error" when it ruled that Mr. Jernigan had filed a mixed habeas petition that contained both exhausted and unexhausted claims because he "presented all issues to the state [district] and supreme court," Aplt. Opening Br. at 4-5; (3) that his defense counsel rendered ineffective assistance in failing to conduct any pre-trial investigation; and (4) that his Fourteenth Amendment right to due process was violated when the State "threatened and coerced" a witness into testifying, when "the prosecutor soothed a distraught witness while she testified," and when Mr. Jernigan was brought into court wearing a prison jumpsuit and handcuffs, id. at 6. Because the district court correctly determined that Mr. Jernigan had filed a mixed habeas petition that contained both exhausted and unexhausted claims andproperly dismissed his action when he declined to proceed on only the exhausted claims, we need not reach the merits of Mr. Jernigan's four arguments.
Under § 2254, "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). This "exhaustion doctrine" is grounded upon principles of comity and federalism; accordingly, it "seeks to afford the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary." Vasquez v. Hillery, 474 U.S. 254, 257 (1986). In order to satisfy the doctrine, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—that is, a state prisoner seeking federal habeas relief generally must have first submitted each of his claims to the State's highest court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 23.3[b], at 1205-06 (6th ed. 2011) (). "A state prisoner bears the burden of showing he has exhausted available state remedies." Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). Consequently, Mr. Jernigan bore the burden of demonstrating that he hadexhausted each of his habeas claims with the New Mexico Supreme Court—New Mexico's highest court.
When faced with a mixed petition, a federal court may "permit the petitioner to dismiss the unexhausted claims and proceed with the exhausted claims." Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009) (quoting Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)) (internal quotation marks omitted); see id. (); see also Rose v. Lundy, 455 U.S. 509, 510 (1982) (); Hertz & Liebman, supra, § 23.1, at 1184 ().
As the magistrate judge correctly determined in her recommendation, which the district court later adopted, the claims identified in Sections 2(b), 2(d), 8(b), and 105 of Mr. Jernigan's federal habeas petition—that is, his claims that the prosecutor impermissibly "massaged and soothed" a distraught witness while she testified at his preliminary hearing, that his trial counsel was ineffective in questioning a witness regarding her inconsistent statements, that he was denied due process when he was photographed in a prison jumpsuit in front of the decedent victim's mother, and that he received ineffective assistance of state appellate counsel—were never raised in his petition for a writ of certiorari to the New Mexico Supreme Court. R., Vol. I, at 685, 687 (Proposed Findings & Recommended Disposition, filed Dec. 22, 2010). Nowhere in his state certiorari petition did Mr. Jernigan assert anything resembling an argument that the prosecutor committed misconduct by "massaging" a witness. And, while his petition for certiorari does contain an allegation that he was deprived of effective assistance of counsel when his trial counsel impermissibly questioned a "Ms. Wells" about her inconsistent statements, id. at 617 () (...
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