FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court PHILLIP STEVEN BORDEN,
Petitioner - Appellant,
v. No. 19-5032 (D.C. No. 4:16-CV-00024-CVE-JFJ) JASON BRYANT, Warden, James (N.D. Okla.) Crabtree Correctional Center,
Respondent - Appellee. _________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________
Applicant Phillip Steven Borden was convicted by an Oklahoma jury on several
charges arising out of sexual abuse of two children. He was sentenced to three terms of
life imprisonment, and his convictions were affirmed on direct appeal. After he
unsuccessfully sought state postconviction relief, he filed an application for relief under
28 U.S.C. § 2254 in the United States District Court for the Northern District of
Oklahoma. The district court denied his application. He now requests a certificate of
appealability (COA) from this court. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to
appeal denial of relief under § 2254). We deny his request and dismiss the appeal.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that . . . includes showing 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.”
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.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides
that when a claim has been adjudicated on the merits in a state court, a federal court can
grant habeas relief only if the applicant establishes that the state-court decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A federal court may not grant relief
simply because it concludes in its “independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Gipson v.
Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks omitted).
Rather, “[i]n order for a state court’s decision to be an unreasonable application of [the
Supreme] Court’s case law, the ruling must be objectively unreasonable, not merely
wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728
(2017) (per curiam) (internal quotation marks omitted). To prevail, “a litigant must show
that the state court’s ruling was so lacking in justification that there was an error well
2 understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. (ellipsis and internal quotation marks omitted).
In addition, AEDPA establishes a deferential standard of review for state-court
factual findings. “AEDPA . . . mandates that state court factual findings are
presumptively correct and may be rebutted only by ‘clear and convincing evidence.’”
Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).
Further, the Supreme Court has held that review under § 2254(d)(1), just as under
§ 2254(d)(2), “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n.7.
“AEDPA’s deferential treatment of state court decisions must be incorporated into our
consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d
935, 938 (10th Cir. 2004).
Applicant was convicted of the rape and molestation of two young girls, De. H.
and Da. H., whom he met while dating their mother. After the dating ended, the girls
continued to visit Applicant’s home. “The victims could not provide exact dates for the
incidents, but described them in relation to the three houses that petitioner occupied
during an eight year period.” Dist. Ct. Op. at 1. Applicant seeks a COA on three
grounds: (1) the prosecution unduly interfered with witnesses; (2) he was denied due
process because he was not provided adequate notice of the conduct that was the basis of
the charges against him; and (3) the prosecution knowingly presented false testimony.
On his first claim Applicant alleges that the prosecution intimidated three
witnesses into not testifying in his defense. The state trial court, however, found that the
3 evidence of interference submitted by Applicant was not sufficient to support a finding
that the prosecution had interfered with the defense witnesses. The findings of the state
court are presumptively correct, and Applicant did not rebut the findings with clear and
convincing evidence. No reasonable jurist could challenge the district court’s disposition
of this claim.
On his second claim Applicant argues that his due-process rights were violated
because the information filed against him did not include specific dates on which the
charged conduct took place. See Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No
principle of procedural due process is more clearly established than that notice of the
specific charge . . . [is] among the constitutional rights of every accused in a criminal
proceeding.”). The OCCA determined that the information was sufficiently detailed to
appraise Applicant of the charges against him and enable him to prepare his defense.
Applicant cites state-court opinions holding that failure to identify a sufficiently precise
timeframe during which the charged conduct took place can violate due process; but he
needs opinions of the United States Supreme Court that address circumstances involving
an allegedly overbroad period of time in which the charged offense occurred, see House
v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (“[C]learly established law consists of
Supreme Court holdings in cases where the facts are at least closely-related or similar to
the case sub judice.”). Because he has not directed our attention to any such opinion, no
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court PHILLIP STEVEN BORDEN,
Petitioner - Appellant,
v. No. 19-5032 (D.C. No. 4:16-CV-00024-CVE-JFJ) JASON BRYANT, Warden, James (N.D. Okla.) Crabtree Correctional Center,
Respondent - Appellee. _________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________
Applicant Phillip Steven Borden was convicted by an Oklahoma jury on several
charges arising out of sexual abuse of two children. He was sentenced to three terms of
life imprisonment, and his convictions were affirmed on direct appeal. After he
unsuccessfully sought state postconviction relief, he filed an application for relief under
28 U.S.C. § 2254 in the United States District Court for the Northern District of
Oklahoma. The district court denied his application. He now requests a certificate of
appealability (COA) from this court. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to
appeal denial of relief under § 2254). We deny his request and dismiss the appeal.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that . . . includes showing 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.”
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.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides
that when a claim has been adjudicated on the merits in a state court, a federal court can
grant habeas relief only if the applicant establishes that the state-court decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A federal court may not grant relief
simply because it concludes in its “independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Gipson v.
Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks omitted).
Rather, “[i]n order for a state court’s decision to be an unreasonable application of [the
Supreme] Court’s case law, the ruling must be objectively unreasonable, not merely
wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728
(2017) (per curiam) (internal quotation marks omitted). To prevail, “a litigant must show
that the state court’s ruling was so lacking in justification that there was an error well
2 understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. (ellipsis and internal quotation marks omitted).
In addition, AEDPA establishes a deferential standard of review for state-court
factual findings. “AEDPA . . . mandates that state court factual findings are
presumptively correct and may be rebutted only by ‘clear and convincing evidence.’”
Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).
Further, the Supreme Court has held that review under § 2254(d)(1), just as under
§ 2254(d)(2), “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n.7.
“AEDPA’s deferential treatment of state court decisions must be incorporated into our
consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d
935, 938 (10th Cir. 2004).
Applicant was convicted of the rape and molestation of two young girls, De. H.
and Da. H., whom he met while dating their mother. After the dating ended, the girls
continued to visit Applicant’s home. “The victims could not provide exact dates for the
incidents, but described them in relation to the three houses that petitioner occupied
during an eight year period.” Dist. Ct. Op. at 1. Applicant seeks a COA on three
grounds: (1) the prosecution unduly interfered with witnesses; (2) he was denied due
process because he was not provided adequate notice of the conduct that was the basis of
the charges against him; and (3) the prosecution knowingly presented false testimony.
On his first claim Applicant alleges that the prosecution intimidated three
witnesses into not testifying in his defense. The state trial court, however, found that the
3 evidence of interference submitted by Applicant was not sufficient to support a finding
that the prosecution had interfered with the defense witnesses. The findings of the state
court are presumptively correct, and Applicant did not rebut the findings with clear and
convincing evidence. No reasonable jurist could challenge the district court’s disposition
of this claim.
On his second claim Applicant argues that his due-process rights were violated
because the information filed against him did not include specific dates on which the
charged conduct took place. See Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No
principle of procedural due process is more clearly established than that notice of the
specific charge . . . [is] among the constitutional rights of every accused in a criminal
proceeding.”). The OCCA determined that the information was sufficiently detailed to
appraise Applicant of the charges against him and enable him to prepare his defense.
Applicant cites state-court opinions holding that failure to identify a sufficiently precise
timeframe during which the charged conduct took place can violate due process; but he
needs opinions of the United States Supreme Court that address circumstances involving
an allegedly overbroad period of time in which the charged offense occurred, see House
v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (“[C]learly established law consists of
Supreme Court holdings in cases where the facts are at least closely-related or similar to
the case sub judice.”). Because he has not directed our attention to any such opinion, no
reasonable jurist could challenge the district court’s disposition of this claim.
On his third claim, Applicant argues that his due-process rights were violated
because the prosecution knowingly presented false testimony by Bucky King. See Napue
4 v. Illinois, 360 U.S. 264, 269 (1959) (“[A] conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under the Fourteenth
Amendment.”). But Applicant never asserted, much less presented evidence, that the
prosecution knew that King’s testimony was false. No reasonable jurist could challenge
the district court’s disposition of this claim.
Finally, Applicant argues that he is entitled to an evidentiary hearing on his first
and third claims. We are not persuaded. An evidentiary hearing is appropriate only if the
state court’s decision was contrary to or an unreasonable application of clearly
established federal law under § 2254(d)(1) or an unreasonable determination of the facts
under § 2254(d)(2), and the prisoner acted diligently in developing the factual record in
state court under § 2254(e)(2). See Milton v. Miller, 744 F.3d 660, 672–73 (10th Cir.
2014). When the state court has adjudicated the merits of an issue, the federal court
cannot consider evidence outside the state-court record when it reviews whether the
applicant has shown that the state-court decision was contrary to clearly established
federal law. See Pinholster, 563 U.S. at 180–81. Relying on Townsend v. Sain, 372 U.S.
293, 312 (1963), and Littlejohn v. Trammell, 704 F.3d 817, 858 (10th Cir. 2013),
Applicant asserts he was entitled to an evidentiary hearing because he diligently tried to
develop the evidentiary record in the state court, as required by § 2254(e)(2). But
Townsend was decided before § 2254(d)(1) was enacted as part of AEDPA, and
Littlejohn applied the pre-§ 2254(d)(1) standard of review because the state court had
failed to adjudicate the merits of the applicant’s claim, see 704 F.3d at 857 n.21. In this
case we have ruled that Applicant has not satisfied § 2254(d) on any of his claims.
5 Pinholster makes it clear that therefore the district court was not required to conduct an
evidentiary hearing. See 563 U.S. at 180–86.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Harris L Hartz Circuit Judge