F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 12 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
GERALD DANIELS,
Petitioner-Appellant,
v. Nos. 95-6453 96-6037 STEVE HARGETT, and ATTORNEY (D.C. No. CIV-92-1663-R) GENERAL OF THE STATE OF (W.D. Okla.) OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Petitioner Gerald Daniels appeals from orders of the district court entered
in his petition seeking habeas relief filed pursuant to 28 U.S.C. § 2254. In No.
95-6453, Daniels appeals the district court’s final judgment denying relief. In
No. 96-6037, Daniels appeals the district court’s denial of his motion to vacate
the district court’s judgment due to alleged fraud on the court committed by
respondents. We affirm.
No. 95-6453
In 1990, Daniels was convicted by a state court jury of first degree felony
murder and was sentenced to life imprisonment. He originally filed this habeas
action claiming state appellate delay and seeking excuse of the exhaustion
requirement under Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). While
this issue was pending, the Oklahoma Court of Criminal Appeals issued a
summary opinion denying relief.
Daniels then amended his petition to include the following issues which he
had raised on his direct appeal: (1) the trial court erred by allowing testimony of
other offenses and evidence of gang drug operations; (2) the properly introduced
evidence was insufficient to establish the underlying felony of kidnaping; and (3)
the trial court committed reversible error in submitting the crime of first degree
murder to the jury. He also claimed that the Oklahoma Court of Criminal
Appeals’ summary dismissal of his appeal was a denial of his First Amendment
-2- right to be heard. The district court dismissed Daniels’ petition holding that his
claims were factually and legally groundless.
On appeal, Daniels argues admission at trial of other crimes he had
committed was improper as was admission of evidence of his reputation. He also
contends the elements of kidnaping could not be found beyond a reasonable
doubt, he should have been provided with a copy of the trial transcript, and
counsel should have been appointed.
In reviewing the district court’s ruling on a § 2254 petition, we accept the
district court’s factual findings unless they are clearly erroneous, and we review
the court’s legal conclusions de novo. See Hill v. Reynolds, 942 F.2d 1494, 1495
(10th Cir. 1991). We construe a pro se litigant’s pleadings liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972).
Daniels argues the trial court erred in admitting evidence of other crimes he
had committed and evidence of his reputation. To be eligible for federal habeas
relief, a petitioner must prove the state trial court’s evidentiary ruling resulted in
a “trial so fundamentally unfair as to constitute a denial of federal constitutional
rights.” Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989) (quotation
omitted). Daniels has not satisfied that burden here.
Daniels also contends the elements of kidnaping were not sufficiently
established. “Evidence is sufficient to support a criminal conviction if a
-3- reasonable jury could find the defendant guilty beyond a reasonable doubt, given
the direct and circumstantial evidence, along with reasonable inferences
therefrom, taken in a light most favorable to the government.” United States v.
Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). In reviewing the trial court's
determination that sufficient evidence supported conviction, we do not weigh any
conflicting evidence nor do we consider the credibility of the witnesses. See
United States v. Pappert, 104 F.3d 1559, 1566 (10th Cir. 1997).
In Oklahoma, a kidnaping occurs when a person, “without lawful authority,
forcibly seizes and confines another . . . against his will.” Okla. Stat. tit. 21,
§ 741. The evidence presented at trial showed that the night of the incident, the
kidnaping victim started “acting crazy” as he was smoking cocaine. Daniels
helped to tie the victim up and directed the others at the house to take the victim
away because he did not want the police to be alerted to the existence of the
“rock” house due to the noise the victim was making. Viewing the evidence in
the light most favorable to the government and not weighing the credibility of the
witnesses, a reasonable jury clearly could have found Daniels guilty of kidnaping
beyond a reasonable doubt.
Daniels contends he should have been provided with a copy of the trial
transcript because the district court’s rendition of the facts did not comport with
his memory of the testimony at trial. As “an indigent § 2254 petitioner does not
-4- have a constitutional right to access a free transcript in order to search for error,”
Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992), the district court did not err
in failing to provide Daniels with a copy of the trial transcript.
Finally, Daniels asserts counsel should have been appointed to represent
him in district court. A habeas petitioner has no right to counsel in that collateral
proceeding. See Clark v. Tansy, 13 F.3d 1407, 1410 (10th Cir. 1993). Therefore,
the district court did not err in not appointing counsel for Daniels.
No. 96-6037
After the district court entered judgment denying habeas relief, Daniels
filed a motion pursuant to Fed. R. Civ. P. 60(b)(3) to vacate the district court’s
judgment due to alleged fraud on the court committed by respondents. Daniels
alleged fraud occurred because respondents indicated they had sent him the trial
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 12 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
GERALD DANIELS,
Petitioner-Appellant,
v. Nos. 95-6453 96-6037 STEVE HARGETT, and ATTORNEY (D.C. No. CIV-92-1663-R) GENERAL OF THE STATE OF (W.D. Okla.) OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
* 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. Petitioner Gerald Daniels appeals from orders of the district court entered
in his petition seeking habeas relief filed pursuant to 28 U.S.C. § 2254. In No.
95-6453, Daniels appeals the district court’s final judgment denying relief. In
No. 96-6037, Daniels appeals the district court’s denial of his motion to vacate
the district court’s judgment due to alleged fraud on the court committed by
respondents. We affirm.
No. 95-6453
In 1990, Daniels was convicted by a state court jury of first degree felony
murder and was sentenced to life imprisonment. He originally filed this habeas
action claiming state appellate delay and seeking excuse of the exhaustion
requirement under Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). While
this issue was pending, the Oklahoma Court of Criminal Appeals issued a
summary opinion denying relief.
Daniels then amended his petition to include the following issues which he
had raised on his direct appeal: (1) the trial court erred by allowing testimony of
other offenses and evidence of gang drug operations; (2) the properly introduced
evidence was insufficient to establish the underlying felony of kidnaping; and (3)
the trial court committed reversible error in submitting the crime of first degree
murder to the jury. He also claimed that the Oklahoma Court of Criminal
Appeals’ summary dismissal of his appeal was a denial of his First Amendment
-2- right to be heard. The district court dismissed Daniels’ petition holding that his
claims were factually and legally groundless.
On appeal, Daniels argues admission at trial of other crimes he had
committed was improper as was admission of evidence of his reputation. He also
contends the elements of kidnaping could not be found beyond a reasonable
doubt, he should have been provided with a copy of the trial transcript, and
counsel should have been appointed.
In reviewing the district court’s ruling on a § 2254 petition, we accept the
district court’s factual findings unless they are clearly erroneous, and we review
the court’s legal conclusions de novo. See Hill v. Reynolds, 942 F.2d 1494, 1495
(10th Cir. 1991). We construe a pro se litigant’s pleadings liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972).
Daniels argues the trial court erred in admitting evidence of other crimes he
had committed and evidence of his reputation. To be eligible for federal habeas
relief, a petitioner must prove the state trial court’s evidentiary ruling resulted in
a “trial so fundamentally unfair as to constitute a denial of federal constitutional
rights.” Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989) (quotation
omitted). Daniels has not satisfied that burden here.
Daniels also contends the elements of kidnaping were not sufficiently
established. “Evidence is sufficient to support a criminal conviction if a
-3- reasonable jury could find the defendant guilty beyond a reasonable doubt, given
the direct and circumstantial evidence, along with reasonable inferences
therefrom, taken in a light most favorable to the government.” United States v.
Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). In reviewing the trial court's
determination that sufficient evidence supported conviction, we do not weigh any
conflicting evidence nor do we consider the credibility of the witnesses. See
United States v. Pappert, 104 F.3d 1559, 1566 (10th Cir. 1997).
In Oklahoma, a kidnaping occurs when a person, “without lawful authority,
forcibly seizes and confines another . . . against his will.” Okla. Stat. tit. 21,
§ 741. The evidence presented at trial showed that the night of the incident, the
kidnaping victim started “acting crazy” as he was smoking cocaine. Daniels
helped to tie the victim up and directed the others at the house to take the victim
away because he did not want the police to be alerted to the existence of the
“rock” house due to the noise the victim was making. Viewing the evidence in
the light most favorable to the government and not weighing the credibility of the
witnesses, a reasonable jury clearly could have found Daniels guilty of kidnaping
beyond a reasonable doubt.
Daniels contends he should have been provided with a copy of the trial
transcript because the district court’s rendition of the facts did not comport with
his memory of the testimony at trial. As “an indigent § 2254 petitioner does not
-4- have a constitutional right to access a free transcript in order to search for error,”
Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992), the district court did not err
in failing to provide Daniels with a copy of the trial transcript.
Finally, Daniels asserts counsel should have been appointed to represent
him in district court. A habeas petitioner has no right to counsel in that collateral
proceeding. See Clark v. Tansy, 13 F.3d 1407, 1410 (10th Cir. 1993). Therefore,
the district court did not err in not appointing counsel for Daniels.
No. 96-6037
After the district court entered judgment denying habeas relief, Daniels
filed a motion pursuant to Fed. R. Civ. P. 60(b)(3) to vacate the district court’s
judgment due to alleged fraud on the court committed by respondents. Daniels
alleged fraud occurred because respondents indicated they had sent him the trial
transcript, but he never received it. The government responded that it had not
sent the transcript to Daniels.
We review the district court’s denial of Rule 60(b) relief for abuse of
discretion. See Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d
1325, 1330 (10th Cir. 1994). “Rule 60(b) relief is only appropriate under
extraordinary circumstances.” Id. While Rule 60(b)(3) provides that a district
court may vacate a judgment for “fraud . . . misrepresentation, or other
misconduct of an adverse party,” the movant must prove the adverse party
-5- committed the fraud, misrepresentation, or misconduct by clear and convincing
evidence. See Anderson v. Department of Health & Human Servs., 907 F.2d 936,
952 (10th Cir. 1990). Further, the movant can only establish fraud by showing
the defrauding party acted with “an intent to deceive or defraud the court,” by
means of a “deliberately planned and carefully executed scheme.” Robinson v.
Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995) (quotation omitted),
cert. denied, 116 S. Ct. 705 (1996).
Daniels claims he did not receive a copy of the transcript despite
respondents’ assertion that he had and that the district court’s citation of the
transcript does not correspond with his memory of events at trial. He showed no
evidence of a deliberate scheme to defraud the court. Indeed, the transcript
submitted to the court was certified as being true and complete. Further, whether
or not Daniels received a copy of the transcript does not have any bearing on
whether any fraud was committed on the court. The district court did not abuse
its discretion in denying Daniels’ motion.
The judgments of the district court are AFFIRMED.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-6-