White v. Crow
| Decision Date | 21 October 2021 |
| Docket Number | 21-6006 |
| Parties | ROY WHITE, Petitioner - Appellant, v. SCOTT CROW, Director, Respondent - Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 5:20-CV-00449-C) (W.D. Okla.)
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
Roy White, an Oklahoma prisoner representing himself, seeks a certificate of appealability (COA) to appeal the district court's denial of his application for a writ of habeas corpus under 28 U.S.C. § 2254. We deny a COA and dismiss this matter.
White was convicted in Oklahoma state court on two counts-first-degree murder and possession of a firearm after conviction of a felony. The convictions arise from the murder of Donald Brewer in a motel room rented by Frank Crowley, who knew Brewer and White. According to Crowley's trial testimony, Brewer was visiting with him when White came to the room. Crowley knew the two men had a disagreement about money. After White and Brewer argued briefly about a debt, White shot Brewer several times, then fled.
Crowley ran across the street to a patrol car and frantically told officers his friend had just been shot. He described the shooter as a heavy-set black male wearing a red sweatshirt and carrying a black backpack. A detective responding to the scene saw a heavy-set black male walking away from the motel wearing a tank top, which the detective considered odd because the shirt was inappropriate clothing for the cold December weather. When the detective approached the man, who turned out to be White, White ran but was soon apprehended. White initially told the detective he was running because he had heard gunshots. When interviewed by different detective later that night, White added that he had gone to the motel to see his friend "Short," and that he was in the doorway of Short's room when he heard gunshots and began running. The interviewing detective knew Crowley and knew that his nickname was "Short."
A search of pathways leading from the motel uncovered a sweatshirt and backpack in the grass behind a nearby building. The detective who apprehended White testified that it appeared they had recently been discarded because the grass was wet but the items were dry. The backpack contained marijuana and a .32 caliber revolver.
At trial, Crowley testified that the gun found in the backpack looked like the gun White used to shoot Brewer; it was the same color and had a small loop known as a "lanyard ring" at the bottom of the grip, as Crowley had described to the interviewing detective shortly after the shooting. Crowley said White shot at Brewer until he ran out of bullets, and the cylinder of the gun found was full of empty shells. A state firearms examiner testified that although the gun was operable, she could not determine whether one bullet fragment retrieved from the scene came from that gun because the fragment was too damaged. She did, however, conclude that the fragment had the same class characteristics as bullets that would fit the gun.
Police had obtained swabs from White's hands and face to test for gunshot residue (GSR) and submitted the gun, backpack, sweatshirt, and a cheek swab for a DNA comparison. The state criminalist who tested the items explained at trial that White was excluded as the donor of DNA recovered from the backpack and that the sample obtained from the sweatshirt was not suitable for analysis. But the criminalist testified that White's DNA was consistent with traces found on the gun and that the odds of finding a random match between the gun and an unrelated individual in the general population were at least 1 in 26. The GSR test detected elements swabbed from White's face (a mixture of lead, barium, and antimony) found in GSR and not normally attributable to any other source, but the test did not detect any such elements from White's hand swabs.
White did not testify at trial. The jury found him guilty of first-degree murder and being a felon in possession. He was sentenced to life without parole plus ten years. The Oklahoma Court of Criminal Appeals (OCCA) affirmed White's convictions and sentence. See White v. State, 437 P.3d 1061, 1073 (Okla. Crim. App. 2019).
White then filed a habeas petition under 28 U.S.C. § 2254. A magistrate judge issued a report and recommendation (R&R) to deny the petition. The district court adopted the R&R over White's objections and denied the petition. White seeks a COA on the denial of six of the seven grounds for relief raised in his petition.
To appeal the denial of a § 2254 petition, a petitioner must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). To obtain a COA on claims the district court denied on the merits, a petitioner must make "a substantial showing of the denial of a constitutional right," § 2253(c)(2), such 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) (internal quotation marks omitted). For claims the district court denied on a procedural ground without reaching the merits, the petitioner must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling." Id. "Each component of [this] showing is part of a threshold inquiry." Id. at 485. Thus, if a petitioner cannot make a showing on the procedural issue, we need not address the constitutional component. See id.
Our consideration of White's request for a COA must incorporate the "deferential treatment of state court decisions" mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). We therefore "look to the District Court's application of AEDPA to [White's] constitutional claims and ask whether that resolution was debatable amongst jurists of reason." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To that end, we must keep in mind that when a state court has adjudicated the merits of a claim, a federal court may grant habeas relief only if that state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).
A state-court decision is contrary to clearly established federal law if (1) "the state court applies a rule that contradicts the governing law set forth in Supreme Court cases"; or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent." House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (brackets and internal quotation marks omitted). "A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts." Id.
Whether there has been an unreasonable application of clearly established federal law is an objective inquiry. Williams v. Taylor, 529 U.S. 362, 409-10 (2000). "An application of Supreme Court law may be incorrect without being unreasonable." Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013). A decision is objectively unreasonable "only if all fairminded jurists would agree that the state court got it wrong." Id. (internal quotation marks omitted). "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted).
Because White represent himself, we construe his filings liberally, but we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Grounds one and two of White's habeas petition involved whether there was sufficient evidence that he possessed the firearm and used it to kill Brewer. The OCCA decided these issues on the merits, applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979)-"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
The OCCA first considered White's argument that the physical evidence linking him to the crime was inconclusive. The court noted that the DNA sample from the gun was a mixture from more than one source and thus materially affected the probative value of a comparison with White's sample. But regardless, the court said, the statistical evidence showed White was 26 times more likely to have contributed DNA to the pistol than an unrelated person from the general population, and the GSR test of the facial swabs showed that White had recently been in close proximity to the discharge of a firearm.
The OCCA next considered the credibility of Crowley's eyewitness testimony. The court determined that any innocent misidentification of White as the shooter was counterbalanced by the fact that Crowley knew White personally, and although Crowley's status as a felon was relevant to the possibility that he simply lied that White was the shooter, there was no evidence Crowley had any motive to falsely accuse White. The OCCA explained that Crowley's testimony matched other evidence in significant ways-the gun found near the scene matched Crowley's description of it in unique ways ...
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