Ponds v. Harding

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 17, 2024
• Docket: 24-5047
• Status: Unpublished

Opinion

Appellate Case: 24-5047 Document: 51-1 Date Filed: 10/17/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 17, 2024 _______________________________________ Christopher M. Wolpert Clerk of Court PRENTICE EUGENE PONDS, II,

Petitioner - Appellant,

v. No. 24-5047 (D.C. No. 4:21-CV-00104-CVE-CDL) RANDY HARDING, Warden, (N.D. Okla.)

Respondent - Appellee. _______________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY _______________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _______________________________________

This case grew out of state-court convictions of Mr. Prentice Ponds,

II, for robbery and insurance fraud. Mr. Ponds unsuccessfully sought post-

conviction relief in state court and habeas relief in federal district court.

He wants to appeal the denial of federal habeas relief. To do so, however,

he needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A).

A judge can issue a certificate only if Mr. Ponds shows that his

appellate arguments are reasonably debatable. See Slack v. McDaniel, 529

U.S. 473, 484 (2000). We conclude that Mr. Ponds hasn’t made that

showing, so we deny his request for a certificate of appealability. Appellate Case: 24-5047 Document: 51-1 Date Filed: 10/17/2024 Page: 2

In his habeas petition, Mr. Ponds asserted insufficiency of the

evidence, ineffectiveness of trial and appellate counsel, denial of a fair

trial, and imposition of an illegal sentence. In this appeal, he pursues only

the claim of ineffective assistance of appellate counsel. In district court,

Mr. Ponds alleged that his appellate counsel had

 suffered a serious illness,

 failed to challenge the participation of a juror who lacked proficiency in English, and

 neglected to raise ineffectiveness of trial counsel for declining to strike the juror, failing to proffer two photographs into evidence, and failing to request a jury instruction that Mr. Pond’s punishment would be subject to Oklahoma’s 85% rule. 1

The federal district court declined to consider the merits of these claims

based on procedural default.

Under the doctrine of procedural default, a federal district court can

generally decline to consider the merits of a habeas claim when the state

appellate court found waiver based on an independent and adequate state-

law procedural requirement. Spears v. Mullin, 343 F.3d 1215, 1251 (10th

Cir. 2003). Even when the requirement is independent and adequate,

however, the federal court can reach the merits when the petitioner shows

cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

1 Under Oklahoma law, conviction of some crimes prevent eligibility for parole until the defendant has served 85% of the sentence. See Okla. Stat. tit. 21, § 12.1. 2 Appellate Case: 24-5047 Document: 51-1 Date Filed: 10/17/2024 Page: 3

The federal district court based procedural default on Oklahoma’s

rules addressing the timing requirements for a claim of ineffective

assistance of appellate counsel. In Oklahoma, the petitioner must

ordinarily raise these claims in the first post-conviction application. Hatch

v. State, 924 P.3d 284, 294 (Okla. Crim. App. 1996). When a petitioner

waits until the second post-conviction application, the state appellate court

regularly declines to consider the claim based on waiver. E.g., Bosse v.

State, 499 P.3d 771, 776 (Okla. Crim. App. 2021).

Despite this procedural requirement, Mr. Ponds waited until his

second post-conviction application to claim ineffectiveness of appellate

counsel based on the attorney’s illness, failure to challenge the convictions

based on the juror ’s participation, failure to claim ineffectiveness of trial

counsel for declining to strike a prospective juror lacking proficiency in

English, declining to proffer the photographs into evidence, and declining

to request a jury instruction on Oklahoma’s 85% rule. Because Mr. Ponds

waited until his second post-conviction application to raise these claims,

the state appellate court found waiver.

Given this finding, we must determine whether Oklahoma’s

procedural requirement is adequate. McCracken v. Gibson, 268 F.3d 970,

976 (10th Cir. 2001). We regard a procedural requirement as adequate if it

has been applied evenhandedly and regularly in all similar circumstances.

Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999). We’ve held that

3 Appellate Case: 24-5047 Document: 51-1 Date Filed: 10/17/2024 Page: 4

Oklahoma’s procedural requirement is adequate because the state appellate

court regularly and evenhandedly refuses to consider claims of ineffective

assistance of appellate counsel when they are newly asserted in a second

post-conviction application. Fontenot v. Crow, 4 F.4th 982, 1024 (10th Cir.

2021).

Because the procedural requirement was adequate, Mr. Ponds must

show cause for his failure to raise the claims before his second post-

conviction application. For cause, Mr. Ponds relies on his pro se status.

But we’ve held that pro se status does not constitute cause for a procedural

default. Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993); Rodriguez v.

Maynard, 948 F.2d 684, 688 (10th Cir. 1991).

Mr. Ponds also argues that when he filed his first post-conviction

application, he hadn’t known the extent of his appellate attorney’s illness.

Even if Mr. Ponds is right, however, this argument wouldn’t show cause

because the attorney’s illness would be relevant only if it had led to

identifiable errors or omissions. Mr. Ponds could have identified such

errors or omissions even if he hadn’t known how ill the attorney had been.

Given the clear adequacy of the procedural requirement and absence

of any cause, the district court’s reliance on procedural default is not

reasonably debatable. We thus decline to issue a certificate of

appealability.

4 Appellate Case: 24-5047 Document: 51-1 Date Filed: 10/17/2024 Page: 5

This matter is dismissed.

Entered for the Court

Robert E. Bacharach Circuit Judge