Matthew v. Sirmons, 10th Cir. (2005)
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
August 22, 2005
PATRICK FISHER
Clerk
ALEX MATTHEW,
Petitioner-Appellant,
v.
MARTY SIRMONS, Warden,
No. 04-6047
(D.C. No. 03-CV-339)
(W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT
Before HARTZ , McKAY , and PORFILIO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner Alex Matthew, an Oklahoma inmate, appeals the district court's
denial of his 28 U.S.C. 2254 habeas petition. After a nonjury trial in his
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
underlying criminal case, Matthew was convicted of robbery with a firearm and
sentenced to fifteen years imprisonment. The Oklahoma Court of Criminal
Appeals affirmed his conviction and later denied his application for
post-conviction relief. Matthew then filed his federal 2254 habeas petition.
After thoroughly reviewing Matthews petition in a twenty-one-page report and
recommendation dated January 9, 2004, the magistrate judge determined that
Matthew was not entitled to habeas relief. Over Matthews objections, the
district court adopted the magistrate judges report and recommendation in its
entirety and denied the petition in an order dated January 29, 2004. This court
granted a certificate of appealability with respect to Matthews claims, permitting
him to pursue this appeal.
See 28 U.S.C. 2253(c)(1). We now vacate the
certificate of appealability and dismiss.
To be entitled to federal habeas relief, Matthew must demonstrate that the
state courts resolution of his claims was contrary to, or involved an
unreasonable application of, clearly established Supreme Court precedent, or
represented an unreasonable determination of the facts in light of the evidence
presented. 28 U.S.C. 2254(d);
see also Williams v. Taylor , 529 U.S. 362,
412-13 (2000). In district court and on appeal, Matthew has raised three issues.
We note that the legal discussion in Matthews appellate brief is
substantially identical to the discussion in his district court brief. For this court,
(continued...)
1
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He maintains that the victims eyewitness testimony was improperly admitted at
his trial, that he was denied substantive due process by the state appellate courts
refusal to consider his argument concerning the unfairness of a photo lineup (for
lack of an adequate record), and that he received ineffective assistance of trial
counsel. 2
We have reviewed the appellate briefs and the entire record on appeal. The
relevant facts of this case are fully and accurately described in the magistrate
judges report and recommendation and we will not repeat them here. Because
(...continued)
Matthew has changed the term petitioner to appellant and modified the font
size. However, he has not adapted his argument to address the reasoning of the
magistrate judge and conclusions reached by the district court. Needless to say,
we disapprove of this practice. We are also unwilling to condone Matthews
failure to correct obvious errors. To illustrate, he states in both briefs that a
portion of a police officers testimony had no purpose other than the [sic]
prejudice the jury, even though no jury was present at his trialthe case was tried
to the court. See Aplt. Br. at 17; Aplt. App., Tab. 2 at 14.
1
Further, neither Matthews brief nor the wardens brief complies with 10th
Cir. R. 28.2(A), (B). The rule requires appellants brief to include the magistrate
judges report and recommendation and the district courts order; it calls for
appellees brief to include this material if appellants brief is deficient in this
regard. Id.
Matthews district court and appellate briefs mention ineffective assistance
of appellate counsel, but do not provide any support for this type of claim. Like
the magistrate judge, we determine that Matthew does not sufficiently assert that
appellate counsel provided ineffective assistance and therefore we deem the issue
waived. See Utahns for Better Transp. v. United States Dept of Transp
., 305
F.3d 1152, 1175 (10th Cir. 2002),
modified on rehg , 319 F.3d 1207 (2003)
(stating that issues will be deemed waived if they are not adequately briefed).
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we agree with the magistrate judges assessment of Matthews claims, and
because these claims have not undergone any refinement on appeal, we decline to
duplicate the analysis. Briefly, Matthew failed to show that the state courts
conclusion regarding the reliability of the victims eyewitness testimony was in
any way contrary to, or an unreasonable application of Supreme Court law.
See
Neil v. Biggers , 409 U.S. 188, 199-200 (1972) (setting out factors for an
evaluation of the constitutionality of a pretrial identification procedure).
Furthermore, the Oklahoma Court of Criminal Appeals did not violate Matthews
substantive due-process rights in denying review of his photo lineup.
See Hatch
v. Okla. , 58 F.3d 1447, 1460 (10th Cir. 1995) (summarizing Supreme Court
precedent standing for the principle that there is no constitutional right to an
appeal under the Due Process Clause). Finally, we see no basis for his claims of
ineffective assistance of trial counsel.
See Strickland v. Washington , 466 U.S.
668, 687 (1984) (requiring a habeas petitioner to establish both that his counsel's
performance was deficient and that the deficiency prejudiced his defense).
It is now beyond debate Matthew is not entitled to habeas relief under
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2254. The order granting a certificate of appealability is VACATED as
improvidently granted, and the appeal is DISMISSED.
Entered for the Court
John C. Porfilio
Circuit Judge
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04-6047, Matthew v. Sirmons
HARTZ , Circuit Judge, dissenting:
I agree that Mr. Matthew should be denied relief for essentially the reasons
set forth in the magistrate judges report and recommendation. Rather than
quashing the certificate of appealability (COA), however, I would recognize the
COA and affirm the district court judgment.
The decision to grant a COA is a preliminary one. The nature of the
process is described in
Miller-El v. Cockrell , 537 U.S. 332, 336-42 (2003):
The COA determination under 2253(c) requires an overview
of the claims in the habeas petition and a general assessment of their
merits. We look to the District Courts application of AEDPA to
petitioners constitutional claims and ask whether that resolution was
debatable amongst jurists of reason.
This threshold inquiry does not
require full consideration of the factual or legal bases adduced in
support of the claims. In fact, the statute forbids it
.
...
We do not require petitioner to prove, before the issuance of a COA,
that some jurists would grant the petition for habeas corpus. Indeed,
a claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.
...
Deciding the substance of an appeal in what should only be a
threshold inquiry undermines the concept of a COA. The question is
the debatability of the underlying constitutional claim, not the
resolution of that debate.
(emphasis added). To say, as does the majority opinion, that the COA in this case
was improvidently granted is to say that the judge who granted the COA either
(1) should have inquired more deeply into the matter before issuing the certificate
or (2) could not reasonably have seen potential issues of substance in Mr.
Matthews claims. In my view, the first ground for vacating the COA would be
contrary to the directives of the Supreme Court concerning how to perform the
task of deciding whether to grant a COA, and the second ground amounts to a
determination that the judge issuing the COA was not just wrong, but
unreasonable. Moreover, once the matter has been fully briefed, I see no purpose
served by quashing the COA rather than affirming the judgment below.
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