Lovell v. Thorpe

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 19, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JIMMIE LEE LOVELL,

Petitioner - Appellant,

v. No. 20-7051 (D.C. No. 6:19-CV-00024-RAW-KEW) JACK THORPE, (E.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.** _________________________________

Jimmie Lee Lovell, an Oklahoma state prisoner, seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his habeas

petition under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. § 1291, we

deny his request for a COA.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. I. BACKGROUND

In 2014, Lovell struck a roadway median while riding his motorcycle, ejecting

his passenger and killing her on impact. At trial, several first responders testified that

Lovell smelled of alcohol and that he had admitted having consumed alcohol that

evening. Paramedics transported Lovell to the hospital where a nurse took a sample

of Lovell’s blood. Later analysis revealed that his blood-alcohol concentration was

0.114. An Oklahoma jury convicted Lovell on one count of first-degree manslaughter

and one count of driving under the influence of alcohol.1 As a result of his

conviction, Lovell is currently serving a four-year house arrest sentence.

After his sentencing, Lovell filed a direct appeal claiming (1) that the results

of his blood-alcohol test should have been suppressed before trial and (2) that his

manslaughter conviction should be vacated. The Oklahoma Court of Criminal

Appeals denied relief on both claims. As to the suppression argument, the court noted

that the state had retained Lovell’s blood sample for the time required by Oklahoma

law, but that Lovell made no request for independent testing within the statutory

timeframe. As to his second argument, the court determined that Lovell had failed to

show an inconsistent verdict, despite the jury’s convicting Lovell of first-degree

manslaughter but acquitting him of the lesser-included negligent-homicide offense.

The court also concluded that the record provided sufficient evidence to sustain the

manslaughter conviction. Lovell then petitioned the federal district court for habeas

1 Lovell was acquitted of two charges: a lesser-included negligent-homicide charge and a speeding charge. 2 relief. In a thorough order, the district court explored and properly rejected Lovell’s

habeas claims. In addition, the court later denied Lovell’s motion for rehearing,

which it construed as a Rule 59(e) motion.

II. DISCUSSION

We lack jurisdiction to consider Lovell’s appeal unless a COA is issued.

Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253(c)(1).

Though Lovell’s notice of appeal didn’t request a COA, we will treat it as an

application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483 (2000) (citations

omitted).

To obtain a COA, “a habeas prisoner must make a substantial showing of the

denial of a constitutional right,” by demonstrating 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.’” Id. at 483–84 (citation omitted); see also 28

U.S.C. § 2253(c)(2). This requires that we undertake a “preliminary, though not

definitive, consideration of the [legal] framework” of each of Lovell’s claims. Miller-

El, 537 U.S. at 338 (citations omitted). And though the petitioner needn’t “convince a

judge . . . that he or she would prevail,” a prisoner seeking a COA must prove

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

Id. at 337–38 (internal quotation marks and citation omitted).

Because the district court rejected Lovell’s claims on the merits, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s

3 assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.

And “[w]e review the district court’s factual findings for clear error and its legal

conclusions de novo.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)

(citation omitted).

A. Blood-Alcohol Test

Under his first claim for habeas relief, Lovell argues that his blood-alcohol test

results should have been suppressed on grounds that he wasn’t given a fair

opportunity to independently test the sample before it was destroyed. Admitting his

test into evidence, he contends, undermines Oklahoma’s legislative intent. But this

argument relies primarily on the application of Oklahoma state statutory law and

“[f]ederal habeas review is not available to correct state law evidentiary errors.”

Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012) (alteration in original)

(citation omitted). “In conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the

United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (footnote and citations

omitted). Nonetheless, Lovell could be entitled to relief if the alleged state-law error

was “so grossly prejudicial that it fatally infected the trial and denied the

fundamental fairness that is the essence of due process.” Hooks, 689 F.3d at 1180

But the district court rejected his claim, ruling that Lovell “failed to

demonstrate the existence of a state-law error, much less a ‘grossly prejudicial’ one.”

R. vol. 1 at 174 (quoting Hooks, 689 F.3d at 1180). Oklahoma law requires that blood

4 tested for alcohol concentration be retained for sixty days after collection “to enable

the tested person, at his or her own option and expense, to have an independent

analysis made of such specimen.” Okla. Stat. tit. 47, § 752(E) (2019). Yet Lovell

made no such request until after the sixty days had expired and the sample had been

destroyed.

In response, Lovell claims that he doesn’t remember his blood being taken, so

he didn’t know to test the sample until he was charged with the instant offense—over

a month after the sample was destroyed. But the court of criminal appeals determined

that the record didn’t support Lovell’s claims, and we presume a state court’s factual

determination is correct. 28 U.S.C. § 2254(e)(1). Lovell hasn’t presented sufficient

evidence to overcome this presumption.

In any event, he has no constitutional right to the preservation of blood

samples. See California v. Trombetta, 467 U.S. 479, 491 (1984) (“[T]he Due Process

Clause of the Fourteenth Amendment does not require that law enforcement agencies

preserve breath samples in order to introduce the results of breath-analysis tests at

trial.” (footnote omitted)); see also Arizona v. Youngblood, 488 U.S. 51, 58 (1988)

(“We therefore hold that unless a criminal defendant can show bad faith on the part

of the police, failure to preserve potentially useful evidence does not constitute a

denial of due process of law.”). Thus, no reasonable jurist could debate that the

district court should have resolved this claim differently.

5 B. Manslaughter Conviction

Lovell fares no better with his second claim for habeas relief. He argues that

his first-degree manslaughter conviction should be vacated for two reasons: (1) the

jury acquitted him of the lesser-included offense of negligent homicide, and

(2) insufficient evidence supported a manslaughter conviction.

According to Lovell, acquittal of the lesser-included negligent-homicide

offense should have required the court to vacate his manslaughter conviction. “There

are sound reasons, however, not to concern ourselves with the consistency of jury

verdicts in criminal cases.” United States v. Espinoza, 338 F.3d 1140, 1147 (10th Cir.

2003). Though we can speculate why the jury found Lovell guilty of first-degree

manslaughter and acquitted him of negligent homicide, we can’t infer from the jury’s

acquittal the basis of its conviction. See id. at 1148. In instances of truly inconsistent

verdicts, “[t]he most that can be said . . . is that the verdict shows that either in the

acquittal or the conviction the jury did not speak their real conclusions, but that does

not show that they were not convinced of the defendant’s guilt.” United States v.

Powell, 469 U.S. 57, 63 (1984) (emphasis added) (citation omitted).

What’s more, as the district court noted, “[t]here is no federal constitutional

right to a consistent verdict, as long as sufficient evidence supports a conviction.” R.

vol. 1 at 177 (citing Powell, 469 U.S. at 65–67). Here, Lovell was protected from any

potential jury error by the state’s and the district court’s independent review of the

sufficiency of the evidence. Powell, 469 U.S. at 67. Such a review requires asking

“whether, after viewing the evidence in the light most favorable to the prosecution,

6 any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation

omitted). Both the court of criminal appeals and the district court determined that the

evidence in the record satisfied the Jackson standard. We agree.

Under Oklahoma law, the elements of a first-degree manslaughter conviction

include: (1) the death of a human; (2) caused by defendant; (3) while engaged in the

commission of a misdemeanor—here, driving a motor vehicle with a blood or breath

alcohol concentration of 0.08 or more. See Okla. Stat. 21, § 711(1) (2021); see also

id. 47, § 11-902(A)(1) (2020). As explained by the criminal court of appeals, “the

evidence proved beyond a reasonable doubt Appellant drove his motorcycle at

approximately 84 mph while intoxicated, leaving the roadway for no external

reasons, i.e., weather or other traffic, thus causing the death of his passenger.” R. vol.

1 at 148. A reasonable juror could find that these facts plausibly moved Lovell’s

conduct beyond mere negligence and into the realm of first-degree manslaughter.

Lovell’s assertions otherwise don’t suffice to overcome the Jackson standard, which

“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319. In our view, no jurist could

reasonably debate the sufficiency of evidence regarding Lovell’s guilt.

7 III. CONCLUSION

Accordingly, we deny Lovell’s request for a COA and dismiss his appeal.

Entered for the Court

Gregory A. Phillips Circuit Judge