Dobbins v. Allbaugh

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 1, 2018
• Docket: 18-6055
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS August 1, 2018 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

ROMON LAMONT DOBBINS,

Petitioner - Appellant, No. 18-6055 v. (D.C. No. 5:17-CV-00521-M) (W.D. Okla.) JOE M. ALLBAUGH,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.

Appellant, Romon Lamont Dobbins, an Oklahoma state prisoner proceeding

pro se and in forma pauperis, seeks a certificate of appealability (“COA”) from

this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). In 2014, Dobbins was convicted in Oklahoma state court of drug

trafficking and possession of a controlled dangerous substance with intent to

distribute. His convictions were affirmed by the Oklahoma Court of Criminal

Appeals (“OCCA”) on February 8, 2016. His state application for post-conviction relief was denied by the state trial court and the denial was affirmed by the

OCCA.

Dobbins filed the instant § 2254 federal habeas petition on February 7,

2018, raising the following two claims: (1) ineffective assistance of trial counsel

for failing to challenge the sufficiency of the affidavit supporting the search

warrant that led to his arrest and (2) ineffective assistance of appellate counsel for

failing to argue trial counsel’s ineffective assistance. Dobbins’s petition was

referred to a magistrate judge who prepared a written Report and

Recommendation (R&R). The R&R reviewed Dobbins’s ineffective assistance

claims de novo based on its conclusion the OCCA had not fully addressed them

because Dobbins modified his arguments on appeal. See 28 U.S.C. § 2254(b)(2)

(providing federal court can deny unexhausted habeas claims on the merits). The

R&R recommended denying relief on the claims, concluding Dobbins had not met

his burden under Strickland v. Washington, 466 U.S. 668 (1984). After

considering Dobbins’s written objections to the R&R, the district court adopted

the findings and conclusions in the R&R and denied Dobbins’s habeas petition.

To be entitled to a COA, Dobbins must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

-2- manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Dobbins has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Dobbins need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. (quotations omitted).

This court has reviewed Dobbins’s application for a COA and appellate

brief, 1 the R&R, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El and

concludes that Dobbins is not entitled to a COA. The district court’s resolution of

Dobbins’s claims is not reasonably subject to debate and the claims are not

adequate to deserve further proceedings.

1 In his appellate brief, Dobbins raises an additional claim that was not included in his § 2254 petition, challenging the sufficiency of the evidence presented at trial. This court does not consider issues raised for the first time on appeal. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).

-3- Because Dobbins has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This

court denies Dobbins’s request for a COA and dismisses this appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

-4-