F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 28 2000 TENTH CIRCUIT PATRICK FISHER Clerk
WILEY GENE JULY,
Petitioner-Appellant, No. 00-7029 v. (E. District of Oklahoma) (D.C. No. 98-CV-355-S) RON CHAMPION,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining Petitioner’s brief and the 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 court therefore orders the case submitted without oral argument.
Wiley Gene July, proceeding pro se , seeks a certificate of appealability
(“COA”) to enable him to appeal the district court’s denial of the habeas petition
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing
that an appeal may not be taken from the denial of a § 2254 habeas petition
unless the petitioner first obtains a COA). July was convicted of first degree
murder in Oklahoma state court and received a sentence of life without parole.
July filed a direct appeal with the Oklahoma Court of Criminal Appeals
(“OCCA”). July raised four issues in his direct appeal: (1) the denial of the
assistance of an expert at his trial violated his rights to due process and the
effective assistance of counsel; (2) statements he gave during custodial
interrogations were not made voluntarily because he was intoxicated; (3) the
waiver of his Miranda rights was not made knowingly, voluntarily, and
intelligently; and (4) the state trial court erred when it denied his request to
instruct the jury on voluntary intoxication and on the lesser-included offense of
first degree manslaughter.
The OCCA addressed each of July’s claims and issued an opinion wherein
it affirmed July’s conviction and sentence. July filed the instant § 2254 habeas
petition with the United States District Court for the Eastern District of
Oklahoma on July 20, 1998. In his habeas petition, July reasserted the four
claims he raised before the OCCA.
The district court assigned the matter to a United States magistrate judge
who made findings and recommended July’s habeas petition be dismissed. After
-2- reviewing July’s objections, the district court adopted the magistrate judge’s
findings and recommendation, and dismissed July’s petition. The district court
also refused to grant July a COA and denied his motion to proceed in forma
pauperis on appeal. July’s renewed request to proceed in forma pauperis is
granted.
July filed his habeas petition after April 24, 1996 and, therefore, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this court’s
review of his claims. Each of July’s claims has already been addressed by the
OCCA on the merits. Under the standards of review set out in 28 U.S.C. §
2254(d), therefore, this court cannot grant the writ of habeas corpus unless the
state court’s decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented at trial.” Id. §
2254(d)(2); see also Williams v. Taylor , 120 S. Ct. 1495, 1518-23 (2000)
(interpreting 28 U.S.C. § 2254(d)(1)).
July first claims that his due process rights were violated because the state
of Oklahoma refused to hire an expert to assist him in presenting a defense of
involuntary intoxication. He further claims this denial rendered his counsel
ineffective. Both elements of this claim were addressed by the OCCA in July’s
-3- direct appeal. The OCCA concluded that July had failed to make a preliminary
showing that he needed the assistance of an expert. See Ake v. Oklahoma , 470
U.S. 68, 82-83 (1985); Caldwell v. Mississippi , 472 U.S. 320, 323 n.1 (1985)
(interpreting Ake to require “more than undeveloped assertions that the requested
assistance would be beneficial”).
The OCCA further concluded that July failed to demonstrate that he
suffered any prejudice because of the state’s failure to provide an expert. The
OCCA noted that an expert would not have been permitted to testify regarding
July’s capability to form the requisite intent to commit first degree murder. See
Hooks v. State , 862 P.2d 1273, 1279 (Okla. Crim. 1993). The OCCA further
noted that the state medical examiner was available to testify as to the “general
characteristics of intoxication” and that July could have presented other witness
“to testify as to his level of intoxication.” See Strickland v . Washington , 466
U.S. 668, 687 (1984) (holding that petitioner must show both that his counsel
was ineffective and that he was prejudiced by counsel’s deficient performance).
The OCCA, thus, concluded that July had failed to establish that he was
prejudiced by the failure to appoint an expert. After a thorough review of the
record, this court agrees with the district court that the OCCA’s disposition of
this claim is not “contrary to” or an “unreasonable application of, clearly
established Federal law.” Williams , 120 S. Ct. at 1523.
-4- July next claims that statements he made to police officers during custodial
interrogations should have been excluded because they were not made
voluntarily. The OCCA applied the “totality of the circumstances” test to
determine whether July’s confession was voluntary. See Arizona v. Fulminante ,
499 U.S. 279, 285 (1991). In reaching the conclusion that July’s statements were
given voluntarily, the OCCA relied on evidence in the record that despite his
intoxication, July appeared rational and gave coherent, appropriate responses to
all questions asked of him. The OCCA also noted the lack of evidence that July
was coerced into making the statements.
The OCCA also rejected July’s claim that his waiver of his Miranda rights
was not made knowingly, voluntarily, and intelligently because of his
intoxication. The OCCA specifically found that July was Mirandized before he
made statements to the police and that he unequivocally indicated to police that
he understood his rights as they were explained to him by the officer. The OCCA
also found that the record contained no evidence that July was intimidated or
coerced into waiving his constitutional rights. See Moran v. Burbine , 475 U.S.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 28 2000 TENTH CIRCUIT PATRICK FISHER Clerk
WILEY GENE JULY,
Petitioner-Appellant, No. 00-7029 v. (E. District of Oklahoma) (D.C. No. 98-CV-355-S) RON CHAMPION,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining Petitioner’s brief and the 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 court therefore orders the case submitted without oral argument.
Wiley Gene July, proceeding pro se , seeks a certificate of appealability
(“COA”) to enable him to appeal the district court’s denial of the habeas petition
* 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. he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing
that an appeal may not be taken from the denial of a § 2254 habeas petition
unless the petitioner first obtains a COA). July was convicted of first degree
murder in Oklahoma state court and received a sentence of life without parole.
July filed a direct appeal with the Oklahoma Court of Criminal Appeals
(“OCCA”). July raised four issues in his direct appeal: (1) the denial of the
assistance of an expert at his trial violated his rights to due process and the
effective assistance of counsel; (2) statements he gave during custodial
interrogations were not made voluntarily because he was intoxicated; (3) the
waiver of his Miranda rights was not made knowingly, voluntarily, and
intelligently; and (4) the state trial court erred when it denied his request to
instruct the jury on voluntary intoxication and on the lesser-included offense of
first degree manslaughter.
The OCCA addressed each of July’s claims and issued an opinion wherein
it affirmed July’s conviction and sentence. July filed the instant § 2254 habeas
petition with the United States District Court for the Eastern District of
Oklahoma on July 20, 1998. In his habeas petition, July reasserted the four
claims he raised before the OCCA.
The district court assigned the matter to a United States magistrate judge
who made findings and recommended July’s habeas petition be dismissed. After
-2- reviewing July’s objections, the district court adopted the magistrate judge’s
findings and recommendation, and dismissed July’s petition. The district court
also refused to grant July a COA and denied his motion to proceed in forma
pauperis on appeal. July’s renewed request to proceed in forma pauperis is
granted.
July filed his habeas petition after April 24, 1996 and, therefore, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this court’s
review of his claims. Each of July’s claims has already been addressed by the
OCCA on the merits. Under the standards of review set out in 28 U.S.C. §
2254(d), therefore, this court cannot grant the writ of habeas corpus unless the
state court’s decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented at trial.” Id. §
2254(d)(2); see also Williams v. Taylor , 120 S. Ct. 1495, 1518-23 (2000)
(interpreting 28 U.S.C. § 2254(d)(1)).
July first claims that his due process rights were violated because the state
of Oklahoma refused to hire an expert to assist him in presenting a defense of
involuntary intoxication. He further claims this denial rendered his counsel
ineffective. Both elements of this claim were addressed by the OCCA in July’s
-3- direct appeal. The OCCA concluded that July had failed to make a preliminary
showing that he needed the assistance of an expert. See Ake v. Oklahoma , 470
U.S. 68, 82-83 (1985); Caldwell v. Mississippi , 472 U.S. 320, 323 n.1 (1985)
(interpreting Ake to require “more than undeveloped assertions that the requested
assistance would be beneficial”).
The OCCA further concluded that July failed to demonstrate that he
suffered any prejudice because of the state’s failure to provide an expert. The
OCCA noted that an expert would not have been permitted to testify regarding
July’s capability to form the requisite intent to commit first degree murder. See
Hooks v. State , 862 P.2d 1273, 1279 (Okla. Crim. 1993). The OCCA further
noted that the state medical examiner was available to testify as to the “general
characteristics of intoxication” and that July could have presented other witness
“to testify as to his level of intoxication.” See Strickland v . Washington , 466
U.S. 668, 687 (1984) (holding that petitioner must show both that his counsel
was ineffective and that he was prejudiced by counsel’s deficient performance).
The OCCA, thus, concluded that July had failed to establish that he was
prejudiced by the failure to appoint an expert. After a thorough review of the
record, this court agrees with the district court that the OCCA’s disposition of
this claim is not “contrary to” or an “unreasonable application of, clearly
established Federal law.” Williams , 120 S. Ct. at 1523.
-4- July next claims that statements he made to police officers during custodial
interrogations should have been excluded because they were not made
voluntarily. The OCCA applied the “totality of the circumstances” test to
determine whether July’s confession was voluntary. See Arizona v. Fulminante ,
499 U.S. 279, 285 (1991). In reaching the conclusion that July’s statements were
given voluntarily, the OCCA relied on evidence in the record that despite his
intoxication, July appeared rational and gave coherent, appropriate responses to
all questions asked of him. The OCCA also noted the lack of evidence that July
was coerced into making the statements.
The OCCA also rejected July’s claim that his waiver of his Miranda rights
was not made knowingly, voluntarily, and intelligently because of his
intoxication. The OCCA specifically found that July was Mirandized before he
made statements to the police and that he unequivocally indicated to police that
he understood his rights as they were explained to him by the officer. The OCCA
also found that the record contained no evidence that July was intimidated or
coerced into waiving his constitutional rights. See Moran v. Burbine , 475 U.S.
412, 421 (1986) (holding that Miranda rights are properly waived if “the totality
of the circumstances surrounding the interrogation reveal[s] both an uncoerced
choice and the requisite level of comprehension”). The OCCA’s disposition of
July’s claims relating to statements he made to police officers is neither “contrary
-5- to” nor an “unreasonable application of, clearly established Federal law” and is
not “based on an unreasonable determination of the facts in light of the evidence
presented at trial.” 28 U.S.C. § 2254(d)(1), (2).
July’s final argument is that the trial court improperly failed to instruct the
jury on the lesser-included offense of voluntary manslaughter and improperly
failed to given an instruction on voluntary intoxication. July’s claim relating to
the lack of an instruction on the lesser-included offense fails because this court
has held that a state court’s failure to give a lesser-included instruction in a non-
capital case never raises a constitutional question. See Lujan v. Tansay , 2 F.3d
1031, 1036-37 (10th Cir. 1993). Because § 2254 can be invoked only to correct
violations of the United States Constitution, July’s claim on the lesser-included
instruction, is not cognizable in a § 2254 habeas petition. See Estelle v. McGuire ,
502 U.S. 62, 67-68 (1991).
July’s claim that his due process rights were violated by the trial court’s
failure to instruct the jury on voluntary intoxication also fails. July raised his
claim before the OCCA; the OCCA concluded July had failed to introduce any
evidence that “he was so intoxicated that he was unable to form the necessary
intent to kill.” Even if this court were to conclude the state court erred by failing
to give the requested jury instruction, July is not entitled to relief on this claim in
a § 2254 habeas petition unless the state court’s error “had the effect of rendering
-6- the trial so fundamentally unfair as to cause a denial of a fair trial in the
constitutional sense.” Brinlee v. Crisp , 608 F.2d 839, 854 (10th Cir. 1979). After
a thorough review of the record, this court concludes July’s trial was not rendered
fundamentally unfair by the state court’s failure to give the requested instruction
on voluntary intoxication.
July must make a “substantial showing of the denial of a constitutional
federal right” before he is entitled to a COA. 28 U.S.C. § 2253(c)(2). July may
make this showing by demonstrating the issues raised are debatable among
jurists, a court could resolve the issues differently, or that the questions presented
deserve further proceedings. See Slack v. McDaniel , 120 S. Ct. 1595, 1603-04
(2000). Upon review of the relevant case law, July’s appellate brief and his
application for a COA, and the entire record on appeal, we agree with the district
court’s conclusion that July has failed to demonstrate that the OCCA’s
adjudication of his claims is “contrary to, or involved an unreasonable
application of, clearly established Federal law,” or is “based on an unreasonable
determination of the facts in light of the evidence presented at trial.” 28 U.S.C. §
2254(d)(1), (2). July’s claims on appeal, therefore, lack merit.
This court concludes the issues raised by July are not reasonably debatable,
subject to a different resolution on appeal, or deserving of further proceedings.
July has not made a substantial showing of the denial of a federal right and he is
-7- not entitled to a COA. See 28 U.S.C. § 2253(c)(2). Consequently, we deny
July’s application for a COA and dismiss his appeal for substantially those
reasons set out in the magistrate judge’s findings and recommendation dated
November 8, 1999.
ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge
-8-