F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 28, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
SALVADOR JOSEPH LAFAUCI,
Petitioner - A ppellant, No. 06-7106 v. (E. D. Oklahoma) REGINALD HINES, W arden, (D.C. No. 04-CV -00004-FHS)
Defendant - Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Salvador LaFauci was convicted in Oklahoma state court on charges of
robbery by force or fear, first-degree burglary, and making an obscene phone call.
He filed an application in the United States District Court for the Eastern District
of Oklahoma seeking relief under 28 U.S.C. § 2254. The court denied the
application and his request for a certificate of appealability (COA). See
28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2254 motion).
On January 16, 2007, he filed with this court an application for a COA. It
contends that (1) because the victim was w ell known, the venue of the trial should
have been changed; (2) the evidence to convict him was insufficient; (3) he was
denied due process of law; (4) the victim’s identification of him at trial was
tainted by a pretrial show-up arranged by law-enforcement officers; (5) the district court erred in not giving an alibi instruction; (6) his counsel inadequately
represented him; (7) his convictions on both robbery and burglary charges
violated his double-jeopardy rights; and (8) his sentence is excessive.
W e deny a COA and dismiss the appeal.
I. B ACKGR OU N D
On M arch 14, 2000, a male intruder entered Virginia Reheard’s home.
W hile she was lying in bed, he opened her bedroom door and turned on the light,
saying, “If you don’t give me all of your money, I’m going to kill you.” R. Vol. 4
at 12. M s. Reheard reached for a pistol under her pillow, but a struggle ensued
and the intruder disarmed her. W hen she informed the assailant that she had
money in her kitchen, he dragged her down a 40-foot hallway and forced her to
give him three bank bags containing coins and bills. At one point he grabbed her
and she tried to strike him back. Her heart monitor fell to the floor and the
assailant fled. During these events several lights were on in the house, so
M s. Reheard had a clear view of the assailant’s face.
After the attack M s. Reheard received several obscene phone calls. She
complained to police, telling them that the caller’s voice sounded similar to the
intruder’s. The calls were ultimately traced to an apartment occupied by
M r. LaFauci, M ichelle Lee, and Jeremy Jenkins. Officer Ken Long interviewed
M s. Lee by telephone and at work. She provided information incriminating
M r. LaFauci and signed a consent form to search the apartment. A search of
-2- M r. LaFauci’s room revealed one of M s. Reheard’s bank pouches. M r. LaFauci,
who was at the apartment at the time, was arrested. The officers found in his
billfold an address label with M s. Reheard’s phone number and address written on
it.
W hile M r. LaFauci was in custody, Officer Long called M s. Reheard and
requested her to come to the Sheriff’s office to view a lineup. The office was in
the same building as the jail. W hen M s. Reheard arrived, she waited in the lobby
area. Long was with M r. LaFauci in the building’s office section, but proceeded
to take him to the jail. He had not been informed that M s. Reheard had arrived,
and his path with M r. LaFauci brought them to the lobby. Upon seeing the two
men, M s. Reheard stood up and exclaimed, “[T]hat’s him!” R. Vol. 4 at 32.
Despite this identification she was asked to view a photographic lineup. The
array contained, apparently by accident, tw o different pictures of M r. LaFauci.
W hen M s. Reheard told Long about the duplication, she was instructed to circle
the one that she thought most resembled the intruder.
At trial M s. Reheard identified M r. LaFauci as the intruder. Despite the
testimony of a witness who claimed that he was elsewhere on the night of the
offense, M r. LaFauci was convicted. He was sentenced to 51 years’
imprisonment.
II. D ISC USSIO N
-3- 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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district court's resolution of the constitutional claim was either
“debatable or wrong.” Id.
The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in state court, a
federal court will grant habeas relief only when 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).
Under the “contrary to” clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, relief is provided only if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that
-4- principle to the facts of the prisoner’s case. Thus we may not issue a habeas writ simply because we conclude in our independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (citations and internal
quotation marks omitted). Therefore, for those of M r. LaFauci’s claims that were
adjudicated on the merits in state court, “A EDPA's deferential treatment of state
court decisions must be incorporated into our consideration of [his] request for
COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
W e need not address the applicant’s assertions that (1) he should have been
granted a change of venue or (2) the evidence at trial was insufficient to convict
him, because they were not raised in his habeas application before the district
court. See Parker v. Scott,
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 28, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
SALVADOR JOSEPH LAFAUCI,
Petitioner - A ppellant, No. 06-7106 v. (E. D. Oklahoma) REGINALD HINES, W arden, (D.C. No. 04-CV -00004-FHS)
Defendant - Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Salvador LaFauci was convicted in Oklahoma state court on charges of
robbery by force or fear, first-degree burglary, and making an obscene phone call.
He filed an application in the United States District Court for the Eastern District
of Oklahoma seeking relief under 28 U.S.C. § 2254. The court denied the
application and his request for a certificate of appealability (COA). See
28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2254 motion).
On January 16, 2007, he filed with this court an application for a COA. It
contends that (1) because the victim was w ell known, the venue of the trial should
have been changed; (2) the evidence to convict him was insufficient; (3) he was
denied due process of law; (4) the victim’s identification of him at trial was
tainted by a pretrial show-up arranged by law-enforcement officers; (5) the district court erred in not giving an alibi instruction; (6) his counsel inadequately
represented him; (7) his convictions on both robbery and burglary charges
violated his double-jeopardy rights; and (8) his sentence is excessive.
W e deny a COA and dismiss the appeal.
I. B ACKGR OU N D
On M arch 14, 2000, a male intruder entered Virginia Reheard’s home.
W hile she was lying in bed, he opened her bedroom door and turned on the light,
saying, “If you don’t give me all of your money, I’m going to kill you.” R. Vol. 4
at 12. M s. Reheard reached for a pistol under her pillow, but a struggle ensued
and the intruder disarmed her. W hen she informed the assailant that she had
money in her kitchen, he dragged her down a 40-foot hallway and forced her to
give him three bank bags containing coins and bills. At one point he grabbed her
and she tried to strike him back. Her heart monitor fell to the floor and the
assailant fled. During these events several lights were on in the house, so
M s. Reheard had a clear view of the assailant’s face.
After the attack M s. Reheard received several obscene phone calls. She
complained to police, telling them that the caller’s voice sounded similar to the
intruder’s. The calls were ultimately traced to an apartment occupied by
M r. LaFauci, M ichelle Lee, and Jeremy Jenkins. Officer Ken Long interviewed
M s. Lee by telephone and at work. She provided information incriminating
M r. LaFauci and signed a consent form to search the apartment. A search of
-2- M r. LaFauci’s room revealed one of M s. Reheard’s bank pouches. M r. LaFauci,
who was at the apartment at the time, was arrested. The officers found in his
billfold an address label with M s. Reheard’s phone number and address written on
it.
W hile M r. LaFauci was in custody, Officer Long called M s. Reheard and
requested her to come to the Sheriff’s office to view a lineup. The office was in
the same building as the jail. W hen M s. Reheard arrived, she waited in the lobby
area. Long was with M r. LaFauci in the building’s office section, but proceeded
to take him to the jail. He had not been informed that M s. Reheard had arrived,
and his path with M r. LaFauci brought them to the lobby. Upon seeing the two
men, M s. Reheard stood up and exclaimed, “[T]hat’s him!” R. Vol. 4 at 32.
Despite this identification she was asked to view a photographic lineup. The
array contained, apparently by accident, tw o different pictures of M r. LaFauci.
W hen M s. Reheard told Long about the duplication, she was instructed to circle
the one that she thought most resembled the intruder.
At trial M s. Reheard identified M r. LaFauci as the intruder. Despite the
testimony of a witness who claimed that he was elsewhere on the night of the
offense, M r. LaFauci was convicted. He was sentenced to 51 years’
imprisonment.
II. D ISC USSIO N
-3- 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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district court's resolution of the constitutional claim was either
“debatable or wrong.” Id.
The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in state court, a
federal court will grant habeas relief only when 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).
Under the “contrary to” clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, relief is provided only if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that
-4- principle to the facts of the prisoner’s case. Thus we may not issue a habeas writ simply because we conclude in our independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (citations and internal
quotation marks omitted). Therefore, for those of M r. LaFauci’s claims that were
adjudicated on the merits in state court, “A EDPA's deferential treatment of state
court decisions must be incorporated into our consideration of [his] request for
COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
W e need not address the applicant’s assertions that (1) he should have been
granted a change of venue or (2) the evidence at trial was insufficient to convict
him, because they were not raised in his habeas application before the district
court. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (claims raised
for the first time on appeal are deemed to be w aived). M oreover, M r. LaFauci’s
general contention that (3) his due-process rights were violated fails to provide
sufficient particularity for us to determine whether he has a claim. See Fogle v.
Pierson, 435 F.3d 1252, 1263 n.7 (10th Cir. 2006) (“Pro se status does not relieve
the plaintiff of the burden of alleging sufficient facts on which a recognized legal
claim could be based. Conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” (ellipsis,
brackets and internal quotation marks omitted)).
-5- As to the preserved claims, no reasonable jurist could dispute the district
court’s cogent analysis rejecting the assertions that (4) the victim’s in-court
identification of M r. LaFauci w as tainted by an impermissibly suggestive show-
up; (5) the trial court denied him due process by not giving a specific jury
instruction regarding alibi witnesses; (6) his counsel was ineffective in not
requesting an alibi jury instruction; (7) his double-jeopardy rights were violated;
and (8) his sentence was excessive.
IV . C ON CLU SIO N
W e therefore deny a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz Circuit Judge
-6-