Hobbs v. Gibson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 15 2000 TENTH CIRCUIT PATRICK FISHER Clerk

JAMES JOEL HOBBS,

Petitioner-Appellant, No. 99-6324 v. (W. District of Oklahoma) (D.C. No. 98-CV-628-L) GARY GIBSON,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This matter is before the court on James J. Hobbs’ pro se request for a

certificate of appealability (“COA”) and motion to proceed on appeal in forma

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. pauperis. 1 Hobbs seeks a COA so that he can appeal the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. 2253(c)(1)(A)

(providing that no appeal may be taken from the denial of a § 2254 petition unless

the petitioner first obtains a COA). Because Hobbs has not “made a substantial

showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies

Hobbs’ request for a COA and dismisses this appeal.

Hobbs was convicted of first degree murder in Oklahoma state court and

sentenced to life imprisonment without the possibility of parole. On direct appeal

to the Oklahoma Court of Criminal Appeals (“OCCA”), Hobbs asserted, inter

alia, that his conviction had to be reversed because the videotaped confession was

improperly admitted at trial. In particular, Hobbs asserted that he had repeatedly

requested an attorney during the taped interview, but that police officers had

continued to interrogate him until he confessed to the crime. Applying the

Supreme Court’s decisions in Miranda v. Arizona, 384 U.S. 436 (1966), Edwards

v. Arizona, 451 U.S. 477 (1081), and Davis v. United States, 512 U.S. 452 (1994),

the OCCA concluded that Hobbs’ references to an attorney during the taped

interview did not rise to the level of unequivocal and unambiguous requests for

counsel.

1 This court has jurisdiction to consider Hobbs’ request for a COA because his notice of appeal was timely filed under the prison mailbox rule set forth by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988).

-2- At the conclusion of his direct appeal and state post-conviction

proceedings, Hobbs filed the instant § 2254 petition, raising the same Miranda

issue he had raised on direct appeal to the OCCA. The petition was referred to a

magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B); the

magistrate judge recommended that the petition be denied. The magistrate judge

began by noting that Hobbs was entitled to relief with respect to a claim

adjudicated on the merits in state court only upon showing that the state court’s

adjudication of the claim: (1) “resulted in a decision contrary to, or involved an

unreasonable interpretation of, clearly established” Supreme Court precedent; or

(2) “resulted in a decision that 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). With this standard in mind, the magistrate concluded that the OCCA

had cited to and considered the controlling Supreme Court precedent in resolving

Hobbs’ Miranda claim and that the OCCA’s application of that precedent to the

facts of this case was not unreasonable. Upon de novo review of the magistrate

judge’s Report and Recommendation (“R & R”), the district court adopted the

R & R and dismissed Hobbs’ petition.

In his request for a COA, Hobbs asserts that the OCCA erred in

determining that his references to an attorney during the taped confession were

equivocal and ambiguous, and that the district court erred in concluding that the

-3- decision of the OCCA was neither contrary to nor an unreasonable application of

Supreme Court precedent. 2 As noted above, Hobbs is entitled to a COA only

upon making a substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2). Hobbs can make such a showing by demonstrating that the

issue he seeks to raise is debatable among jurist of reason, subject to a different

resolution on appeal, or deserving of further proceedings. See Barefoot v. Estelle,

463 U.S. 880, 893 (1983). This court has undertaken a thorough review of

Hobbs’ request for a COA and appellate brief, the magistrate judge’s R & R, the

district court order, the direct appeal opinion of the OCCA, and the entire record

on appeal. That close review reveals, as concluded by the district court, that the

decision of the OCCA is not contrary to or an unreasonable interpretation of

existing Supreme Court precedent. 3 Accordingly, the district court’s denial of

2 In addition to the Miranda claim which was included in his § 2254 petition and addressed by the district court, Hobbs seeks to raise the following four issues in his request for a COA: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) illegal search of his vehicle; and (4) the evidence was insufficient to support a conviction for first degree malice murder. This court will not consider issues raised for the first time on appeal. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.1992).

3 We recognize that this court has not interpreted the new standards of review set out in § 2254(d). Furthermore, the United States Supreme Court has granted certiorari on the issue. See Williams v. Taylor, 119 S. Ct. 1355 (1999); see also 67 U.S.L.W. 3608 (U.S. Apr. 6, 1999) (listing issues presented). Nevertheless, under any possible interpretation of the standards, we conclude the result of this appeal would be the same. See Smallwood v. Gibson, 191 F.3d 1257, 1265 n. 2 (10th Cir. 1999).

-4- Hobbs’ § 2254 habeas petition is not reasonably debatable, subject to a different

resolution on appeal, or in need of further proceedings. This court, therefore,

DENIES Hobbs’ request for a COA, DENIES Hobbs’ request to proceed in

forma pauperis, and DISMISSES the appeal.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

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