Higgins v. Addison

Filing 920100915

Opinion

Download PDF
U n i t e d States Court of Appeals T e n t h Circuit FILED S e p t e m b e r 15, 2010 U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E T E N T H CIRCUIT C l e r k of Court A L V I S CLINTON HIGGINS, P e t i t i o n e r - Appellant, v. M I K E ADDISON, Warden, R e s p o n d e n t - Appellee. N o . 10-5048 ( N . D . Oklahoma) ( D . C . No. 4:06-CV-00429-CVE-TLW) O R D E R DENYING CERTIFICATE O F APPEALABILITY B e f o r e MURPHY, GORSUCH, and HOLMES, Circuit Judges. Proceeding pro se, Alvis Clinton Higgins seeks a certificate of a p p e a l a b i l i t y ("COA") from this court so he can appeal the district court's denial o f his 28 U.S.C. 2254 habeas petition. See 28 U.S.C. 2253(c)(1)(A) ( p r o v i d i n g no appeal may be taken from a final order disposing of a 2254 p e t i t i o n unless the petitioner first obtains a COA). Because Higgins has not " ma d e a substantial showing of the denial of a constitutional right," this court d e n i e s his request for a COA and dismisses this appeal. Id. 2253(c)(2). After a jury trial, Higgins was convicted of two counts of lewd molestation, i n violation of Okla. Stat. tit. 21, 1123(A), and one count of sexual battery, in v i o l a t i o n of Okla. Stat. tit. 21, 1123(B). After considering the ten challenges H i g g i n s raised on direct appeal, the Oklahoma Court of Criminal Appeals ("OCCA") affirmed the convictions in an unpublished opinion. Higgins then filed a n application for post-conviction relief with the Oklahoma district court, raising e i g h t claims of error. As to Higgins's claims of ineffective assistance of appellate c o u n s e l , the state district court applied the test set forth in Strickland v. W a s h i n g t o n , 466 U.S. 668 (1984), and concluded Higgins failed to show his c o u n s e l ' s performance was deficient. The court further concluded Higgins's c l a i ms of ineffective assistance of trial counsel, double jeopardy, and sufficiency o f the evidence had been substantially raised on direct appeal and, thus, the d o c t r i n e of res judicata barred further review. Finally, the court refused to c o n s i d e r Higgins's claim that the trial court lacked jurisdiction to sentence him, c o n c l u d i n g the claim was procedurally barred. See Jones v. State, 704 P.2d 1138, 1 1 4 0 (Okla. Crim. App. 1985). Accordingly, the state district court denied H i g g i n s ' s post-conviction application. The OCCA affirmed the denial of postc o n v i c t i o n relief on June 21, 2005. Higgins's second application for postc o n v i c t i o n relief was also denied by the state district court. On appeal, however, t h e OCCA concluded Higgins had been denied a complete appeal in his first postc o n v i c t i o n appeal through no fault of his own. Accordingly, the OCCA addressed a l l of Higgins's claims of entitlement to post-conviction relief but affirmed the d e n i a l of both post-conviction applications. -2- H i g g i n s filed the instant 2254 habeas petition on July 26, 2006. In his p e t i t i o n , Higgins raised seven claims of error. The district court first addressed t h e following claims, all of which were previously adjudicated by the Oklahoma c o u r t s : (1) Higgins's due process rights were violated because he was required to w e a r an ankle monitor during his trial; (2) Higgins was denied a fair trial because me mb e r s of the group "Bikers Against Child Abuse" attended his trial; (3) H i g g i n s ' s trial was fundamentally unfair because the trial court admitted a v i d e o t a p e d interview into evidence and permitted the jury to bring the videotape i n t o the jury room during deliberations; (4) the state presented insufficient e v i d e n c e to support the lewd molestation conviction, thereby violating his due p r o c e s s rights; and (5) Higgins's appellate counsel provided ineffective a s s i s t a n c e . Applying the standard set forth in the Antiterrorism and Effective D e a t h Penalty Act ("AEDPA"), the district court concluded that the Oklahoma c o u r t s ' adjudication of these claims was not contrary to, nor an unreasonable a p p l i c a t i o n of clearly established federal law. 28 U.S.C. 2254(d). The district c o u r t denied Higgins relief on these claims. The court then concluded that n u me r o u s allegations of ineffective assistance of counsel, a claim based on C r a w f o r d v. Washington, 541 U.S. 36 (2004), a challenge to the jury instruction f o r the charge of lewd molestation, and a cumulative error claim were all p r o c e d u r a l l y defaulted in Oklahoma state court and determined the state p r o c e d u r a l bar was independent and adequate. The district court concluded it was -3- p r o c e d u r a l l y barred from considering the claims because Higgins failed to show c a u s e for the default and actual prejudice or that the failure to review his claims w o u l d result in a fundamental miscarriage of justice. See Coleman v. Thompson, 5 0 1 U.S. 722, 750 (1991). This court cannot grant Higgins a COA unless he can demonstrate "that r e a s o n a b l e jurists could debate whether (or, for that matter, agree that) the p e t i t i o n should have been resolved in a different manner or that the issues p r e s e n t e d were adequate to deserve encouragement to proceed further." Slack v. M c D a n i e l , 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether H i g g i n s has carried his burden, this court undertakes "a preliminary, though not d e f i n i t i v e , consideration of the [legal] framework" applicable to each of his c l a i ms . Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Higgins is not required t o demonstrate that his appeal will succeed to be entitled to a COA. He must, h o w e v e r , "prove something more than the absence of frivolity or the existence of me r e good faith." Id. (quotations omitted). This court has reviewed Higgins's application for a COA and appellate b r i e f , the district court's order, and the entire record on appeal pursuant to the f r a me w o r k set out by the Supreme Court in Miller-El and concludes Higgins is n o t entitled to a COA. The district court's resolution of Higgins's claims is not r e a s o n a b l y subject to debate and the claims are not adequate to deserve further -4- p r o c e e d i n g s . One issue raised in Higgins's application for COA, however, d e s e r v e s further clarification. H i g g i n s argues he is entitled to an evidentiary hearing to resolve factual d i s p u t e s surrounding the claims relating to the ankle monitor he allegedly wore t h r o u g h o u t the trial. The ankle monitor claim was presented to the OCCA on d i r e c t appeal and relief was denied because nothing in the record before the O C C A suggested the monitor was visible to the jury. Deck v. Missouri, 544 U.S. 6 2 2 , 626 (2007) ("The law has long forbidden routine use of visible shackles d u r i n g the guilt phase; it permits a State to shackle a criminal defendant only in t h e presence of a special need."). In his first post-conviction application, Higgins r a i s e d an ineffective assistance of counsel claim relating to this issue, arguing his a p p e l l a t e attorney was ineffective for failing to provide the OCCA with affidavits f r o m fourteen individuals who averred that they attended Higgins's trial and could c l e a r l y see the ankle monitor. The state trial court resolved this ineffective a s s i s t a n c e issue without referencing the affidavits provided by Higgins, stating H i g g i n s ' s appellate counsel "presented relevant issues which were supported by f a c t s and authority sufficient to enable the [OCCA] to consider those issues." The OCCA addressed the issue on the merits in Higgins's second post-conviction a p p e a l but summarily denied relief. In his counseled 2254 application, Higgins r a i s e d both the substantive issue and the ineffective assistance issues. The district c o u r t denied relief, concluding (1) the OCCA's resolution of the substantive issue -5- w a s not contrary to or an unreasonable application of clearly established law and ( 2 ) the ineffective assistance claim was not properly developed. In his pro se a p p e l l a t e brief, Higgins conflates his substantive claim with his ineffective a s s i s t a n c e claim. It is clear the district court's denial of habeas relief on both c l a i ms is not reasonably subject to debate. Even assuming the ankle monitor was w o r n during trial and was visible to the jury, Higgins has not identified any S u p r e me Court holding expressly extending the general prohibition on restraining a criminal defendant with visible shackles to the factual situation presented here. See House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008) ("[T]he threshold d e t e r mi n a t i o n that there is no clearly established federal law is analytically d i s p o s i t i v e in the 2254(d)(1) analysis."). Because Higgins has not "made a substantial showing of the denial of a c o n s t i t u t i o n a l right," he is not entitled to a COA. 28 U.S.C. 2253(c)(2). Accordingly, this court denies Higgins's request for a COA and dismisses this appeal. ENTERED FOR THE COURT M i c h a e l R. Murphy C i r c u i t Judge -6-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?