Higgins v. Addison

Filing 920100915

Opinion

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H i g g i n s raised on direct appeal, the Oklahoma Court of Criminal Appeals ("OCCA") affirmed the convictions in an unpublished opinion.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.

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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
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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

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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
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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

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