FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court LANCEY DARNELL RAY,
Petitioner-Appellant, No. 17-6117 v. (D.C. No. 5:15-CV-00306-R) (W.D. Okla.) TRACY MCCOLLUM, Warden,
Respondent-Appellee. _________________________________
ORDER _________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________
Mr. Lancey Ray, an Oklahoma prisoner appearing pro se,
unsuccessfully sought federal habeas relief in district court and wants to
appeal. To appeal, however, he needs a certificate of appealability. Clark
v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). He applied for this
certificate and moved to supplement his brief. We will allow the
supplementation but decline to issue a certificate of appealability.
I. Background
Mr. Ray was convicted of first-degree child-abuse murder in
Comanche County, Oklahoma. Okla. Stat. tit. 21, § 701.7(C). His stepson,
ten-year old Malik Ray, died after being hit by both his mother and Mr. Ray. The mother used a board, and Mr. Ray used a belt. Mr. Ray denies
that his actions caused the death.
II. Standard of Review
A certificate of appealability is appropriate only if one or more of
Mr. Ray’s appeal points is reasonably debatable. United States v. Springer,
875 F.3d 968, 981 (10th Cir. 2017). To decide whether an appeal point is
reasonably debatable, we consider the standard for habeas relief. See
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (holding that the
“[Antiterrorism and Effective Death Penalty Act]’s deferential treatment of
state court decisions must be incorporated into our consideration of a
habeas petitioner’s request for [a certificate of appealability]”).
When the state appeals court has decided the merits, the federal
district court can grant habeas relief only if the petitioner shows that the
state-court adjudication of his claim was
“contrary to” or “involved an unreasonable application of” federal law, 28 U.S.C. § 2254(d)(1), or
“based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).
III. Ineffective Assistance of Appellate Counsel
Mr. Ray claims that his attorneys on direct appeal were
constitutionally ineffective. These claims are not reasonably debatable.
2 A. Mr. Ray’s Arguments
For appellate counsel, Mr. Ray alleges failure
to argue that photographs offered at trial had been unfairly prejudicial,
to present evidence that some of Malik’s conditions had resulted from infusions of saline and blood rather than abuse, and
to argue that Malik’s treating physician had misidentified Malik’s cardiovascular shock.
B. The Applicable Standard
For the claims of ineffective assistance on appeal, Mr. Ray must
show that his appellate attorneys’ performance had been objectively
unreasonable and prejudicial. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th
Cir. 2003). The alleged deficiencies were prejudicial only if better
representation would have created a reasonable probability of a different
outcome in the direct appeal. Id.
C. The State Appeals Court’s Consideration of these Claims
In the post-conviction appeal, the state appellate court rejected the
claims involving appellate counsel, reasoning that the omitted arguments
would not have been meritorious. Order Affirming Denial of Post-
Conviction Relief at 4, Ray v. State, No. PC 2014-1053 (Okla. Crim. App.
Mar. 18, 2015). This decision was on the merits even in the absence of
elaboration. See Black v. Workman, 682 F.3d 880, 892 (10th Cir. 2012)
(“When the state court does not explain its reasoning, the [petitioner] must 3 still show that ‘there was no reasonable basis for the state court to deny
relief.’” (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011))). 1
D. Merits
The state appeals court rejected the claims of ineffective assistance
of appellate counsel, and this decision did not unreasonably apply clearly
established federal law or unreasonably find facts from the evidence
presented.
1. Photographs
Mr. Ray contends that his appellate counsel was deficient in failing
to challenge the introduction of photographs. This contention is facially
invalid because Mr. Ray’s appellate counsel did challenge the conviction
based on introduction of the photographs. 2 Mr. Ray has not shown any
1 Mr. Ray argues that the state district judge failed to consider the merits of the ineffective-assistance claims. This argument is irrelevant because we consider only the highest state court’s adjudication of the merits. See Greene v. Fisher, 565 U.S. 34, 39-40 (2011). 2 In the direct appeal, Mr. Ray’s counsel challenged introduction of the photographs and the state appeals court rejected this challenge, stating:
As to Proposition 2, the trial court did not abuse its discretion in admitting several post-mortem photographs which depicted the numerous injuries the child victim had sustained. These photographs were relevant to corroborate and illustrate the testimony of the forensic pathologist and other medical witnesses, and they were not misleading. The jury was made well aware, throughout the trial, that the bruising depicted in the photographs was more pronounced than what medical personnel observed when the child was first admitted to the
4 reason to believe that the outcome would have been different with a better
appellate challenge to the photographs.
2. Blood and Saline Infusions
In alleging ineffective assistance of appellate counsel, Mr. Ray also
challenges the State’s evidence regarding Malik’s hemorrhaging of soft
tissue during his treatment. This challenge is difficult to understand
because Mr. Ray does not state what appellate counsel should have done
differently. Because Mr. Ray is pro se, however, we will liberally construe
his appellate brief on this issue.
Mr. Ray cites pages 42, 43, and 58 of Volume III of the trial
transcript. There Dr. Yacoub, the forensic pathologist, testified that
Malik’s soft tissue had diffuse hemorrhaging. Dr. Yacoub elsewhere
attributed this hemorrhaging to trauma. Trial Tr., vol. III at 61. Mr. Ray
argues that Dr. Yacoub is wrong because the diffuse hemorrhaging had
resulted from the infusion of too much saline and blood rather than trauma.
At trial, Dr. Theodore Ware, who treated Malik in the emergency room,
hospital. Appellant’s argument is based on the faulty presumption that depictions of injuries become less probative as the body’s natural reaction to them manifests itself. The countless bruises on the victim’s body – and the fact that they appeared darker the day after they were inflicted – were direct results of the unreasonable force inflicted on the child.
Ray v. State, No. F-2012-538, slip. op. at 2-3 (Okla. Crim. App. Sept. 24, 2013) (unpublished).
5 testified that the medical staff had given Malik saline and blood in a
desperate effort to save his life. Trial Tr., vol. I at 247-49.
With regard to the infusions, we cannot discern what Mr. Ray’s
appellate counsel should have done differently. Obviously it would have
been futile for the appellate counsel to inject her own “medical” opinion
disputing the medical opinions of the State’s expert witnesses.
Nor do we see why the cause of the hemorrhaging would have
mattered on appeal. At trial, Mr. Ray’s theory was that his wife had
inflicted the fatal injuries. But Mr. Ray did not question the fact that
someone had inflicted the physical injuries that ultimately led to Malik’s
death. For example, Mr. Ray’s trial counsel argued: “We’re not alleging
that [Malik] wasn’t grievously injured by someone. We’re not alleging that
he didn’t die from these injuries.” Trial Tr., vol. III at 82. And, as
discussed below, whoever struck the fatal blows would have been
criminally responsible for Malik’s death even if his death had been
hastened by the infusion of too much saline and blood. See Part IV(C),
below. As a result, the absence of prejudice would stymie Mr. Ray’s
challenge to appellate counsel’s handling of the issue. 3
3 In the body of his appellate brief, Mr. Ray also argues that Dr. Yacoub should not have been allowed to offer expert testimony because he admitted that he had not known the volume of fluids administered to Malik. Appellant’s Opening Br. at 20-21 (quoting Trial Tr., vol. III at 72). This testimony came at the end of the cross-examination of Dr. Yacoub. Trial
6 3. Cyanosis
In federal district court, Mr. Ray also focused on appellate counsel’s
failure to show that Malik’s skin condition had reflected cyanosis from
aspiration. When Malik was hospitalized, the emergency-room report noted
cyanosis of the skin and
bruises covering Malik in various stages of healing.
The emergency-room report shows diagnoses of child abuse, respiratory
failure, and hypothermia.
Again, Mr. Ray does not identify what his appellate counsel should
have done differently. Even with a liberal construction of Mr. Ray’s appeal
brief, we do not see how the reference to cyanosis would suggest any
deficiencies in appellate counsel’s performance. The skin continued to turn
bluish when Malik died. But the jury knew about this discoloration, for the
treating physicians acknowledged in their testimony that the photographs
depicted greater discoloration than what had been observed in the hospital.
Tr., vol. III at 71-72. And trial counsel did not challenge the admissibility of Dr. Yacoub’s opinion testimony. In the absence of a trial objection, appellate counsel would have had to show plain error in the introduction of Dr. Yacoub’s opinion testimony. Lewis v. State, 970 P.2d 1158, 1166 (Okla. Crim. App. 1998). No reasonable jurist could surmise that appellate counsel could have shown plain error in the introduction of this testimony. As a result, this theory of ineffective assistance on appeal would have foundered for lack of prejudice. See Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure § 11.10(d) & n.143 (2d ed. 1999 & 2004 Supp.) (“[C]ourts have noted that the prejudice element of Strickland may be more readily satisfied than the . . . [comparable] component of the plain error standard.”).
7 As a result, this appeal point would strike any reasonable jurist as
groundless.
4. Shock
Mr. Ray also argues that his appellate counsel should have argued
that Malik’s treating physician had misidentified the type of shock that
Malik had experienced. Mr. Ray has not explained why the
misidentification would matter. For example, he does not say whether Mr.
Ray’s abuse could only cause one type of shock or if it matters for some
other reason. In the absence of any reason to think that Mr. Ray’s direct
appeal might have been decided differently, we reject Mr. Ray’s theory of
ineffective assistance involving misidentification of Malik’s shock.
* * *
In these circumstances, we conclude that no jurist could reasonably
question the state appellate court’s rejection of Mr. Ray’s claims of
ineffective assistance of appellate counsel.
IV. Ineffective Assistance of Trial Counsel
Mr. Ray also alleges that his trial counsel was ineffective.
A. Undeveloped Arguments
Without explanation or support, Mr. Ray asks for a certificate of
appealability on trial counsel’s ineffective assistance in failing to
dispute the legal sufficiency of the medical examiner’s opinion,
8 present the facts regarding a violation of Brady v. Maryland, 373 U.S. 83 (1963),
object to a variance, and
object to a jury instruction on a lesser-included offense. 4
Without any development of these appeal points, we decline to issue a
certificate of appealability. See Fairchild v. Trammell, 784 F.3d 702, 724
(10th Cir. 2015); see also Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 841 (10th Cir. 2005) (rejecting an argument included in an
opening brief by a pro se appellant because “‘[w]e do not consider merely
including an issue within a list to be adequate briefing’” (quoting Utahns
for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir.
2002))).
B. Photographs, Cyanosis, and Blood Infusions
In federal district court, Mr. Ray also claimed that his trial counsel
had been ineffective in failing
4 Mr. Ray is ambiguous about whether he actually seeks a certificate of appealability on these points. On page 7, he says that he wants to appeal “Grounds/Propositions I, V/VII, X and XI.” Appellant’s Opening Br. at 7. Ground X, provided on page 10, lists these points. But on page 13, Mr. Ray says that he wants to combine those points into a “single Ground 11 standing alone” on ineffective assistance of trial counsel. Liberally construing the pro se application for a certificate of appealability, we conclude that Mr. Ray’s submission of Ground 11 was not meant to preclude consideration of his other arguments.
9 to correctly challenge introduction of the photographs and
to explain the distortions caused by cyanosis and blood infusions.
Mr. Ray’s argument is contradicted by the state-court record. For example,
Mr. Ray admits that his trial attorney had objected to all of the State’s
photographs. And, as the Oklahoma Court of Criminal Appeals explained,
Mr. Ray’s trial counsel elicited acknowledgments throughout the trial that
the bruising depicted in the photographs was more pronounced than what
medical personnel had observed. Ray v. State, No. F-2012-538, slip. op. at
2-3 (Okla. Crim. App. Sept. 24, 2013) (unpublished); see note 2, above.
Mr. Ray insists that his trial counsel should have pointed out that
cyanosis was not indicative of unreasonable force. Appellant’s Opening Br.
at 31. In district court and in our court, Mr. Ray relies solely on his own
“medical opinion” that cyanosis can cause discoloration of the skin. In our
view, however, no reasonable jurist could have expected exclusion of the
photographs with the addition of Mr. Ray’s explanation for the
discoloration of Malik’s skin. 5
5 In a single phrase, Mr. Ray asserts that his trial counsel failed to consult with experts to testify about the effect of skin cyanosis. Appellant’s Opening Br. at 32. But Mr. Ray does not
say whether he ever presented this allegation to the district court or
present evidentiary support for his assertion.
10 C. Blood Loss
According to Mr. Ray, his trial counsel was ineffective for failing to
rebut the State’s claim of blood loss in the tissues. Here, Mr. Ray
apparently refers to his own lay medical opinion. His trial counsel took a
similar approach, intensively challenging the State’s expert witnesses
about why Malik had lost so much blood.
Mr. Ray alleges that this strategy was not ideal and that his attorney
should have presented evidence of diffuse soft tissue edema to explain the
blood loss in tissues. Again, Mr. Ray relies on his own lay diagnosis of
diffuse soft tissue edema. He states that he supplied his trial attorney with
over 80 pages of supporting correspondence but declines to furnish us with
this correspondence, tell us what it comprised, or furnish us with anything
other than his own lay opinion.
Nor does Mr. Ray explain why the cause of the blood loss would
have mattered. According to Mr. Ray, the blood loss resulted from the
infusions administered to Malik. Even if the infusions had contributed to
the blood loss, the infusions had themselves resulted from Malik’s physical
condition after being hit by Mr. Ray. For criminal homicide in Oklahoma,
the defendant is criminally responsible whenever his or her conduct “was a
This assertion is not adequately developed for meaningful review. See p. 9, above.
11 substantial factor in bringing about the victim’s death.” State v. Caesar,
237 P.3d 792, 794-95 (Okla. Crim. App. 2010). Thus, Mr. Ray fails to
provide a plausible theory of prejudice from trial counsel’s allegedly
subpar challenge to the State’s explanation for Malik’s blood loss.
V. Failure to Satisfy State Procedural Requirements in Ruling on the Post-Conviction Application
Oklahoma law establishes certain requirements for state district
courts when ruling on a post-conviction application. Okla. Stat. tit. 22,
§§ 1083-84. These requirements address the necessity of findings,
conclusions, and evidentiary hearings. In light of these requirements, Mr.
Ray contends that the state district court should have granted an
evidentiary hearing on some of the claims.
Even if Mr. Ray were right, a violation of state post-conviction
requirements would not justify habeas relief. See Steele v. Young, 11 F.3d
1518, 1524 (10th Cir. 1993) (“Steele’s claim challenging the Oklahoma
post-conviction procedures on their face and as applied to him would fail
to state a federal constitutional claim cognizable in a federal habeas
proceeding.”); Hopkinson v. Shillinger, 866 F.2d 1185, 1219 (10th Cir.
1989) (holding that a procedural error in carrying out state post-conviction
procedures would “not rise to the level of a federal constitutional claim
recognizable in habeas corpus proceedings”), overruled on other grounds
as stated in Phillips v. Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).
12 Thus, we have declined to issue certificates of appealability for similar
challenges based on a failure to comply with state procedural requirements
in post-conviction proceedings. See Shipley v. Oklahoma, 313 F.3d 1249,
1251 (10th Cir. 2002) (conclusions of law); Davis v. Beck, 151 F. App’x
707, 709 (10th Cir. 2005) (unpublished) (findings of fact and conclusions
of law). We do the same here and decline to issue a certificate of
appealability on the challenges to rulings in Mr. Ray’s state post-
conviction proceedings.
VI. Failure to Instruct the Jury on Definitions of “Malicious” and “Unreasonable Force”
Mr. Ray alleges a failure to instruct the jury on the meaning of the
terms “malicious” and “unreasonable force.”
Mr. Ray invokes plain-error review because his trial counsel failed to
object to the missing instructions. According to Mr. Ray, his counsel did
not “affirmatively waive[]” the missing jury instructions. Appellant’s Mot.
to Supplement at 4; see United States v. Carrasco-Salazar, 494 F.3d 1270,
1272 (10th Cir. 2007) (“‘[A] party that has forfeited a right by failing to
make a proper objection may obtain relief for plain error; but a party that
has waived a right is not entitled to appellate relief.’” (emphasis in
original) (quoting United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.
2006))). But even if Mr. Ray did not waive the claims, he would still need
to show exhaustion of the claims in state court and their presentation in
13 federal district court. See 28 U.S.C. § 2254(b)(1)(A) (exhaustion); Chase v.
Crisp, 523 F.2d 595, 597 (10th Cir. 1975) (presentation in federal district
court).
Mr. Ray did not raise this claim in the state appeals court or the
federal district court, 6 and his arguments for plain error do not overcome
these procedural deficits. There are some situations where a habeas
petitioner’s failure to exhaust claims in state court is excused, including
where a petitioner makes “a credible showing of actual innocence.”
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). In a few places, Mr. Ray
proclaims that he is “actually innocent.” Appellant’s Mot. to Supplement at
20. But “[t]o make a credible showing of actual innocence, a ‘petitioner
must support his allegations of constitutional error with new reliable
evidence . . . that was not presented at trial.’” Frost v. Pryor, 749 F.3d
1212, 1231-32 (10th Cir. 2014) (quoting Cummings v. Sirmons, 506 F.3d
1211, 1223 (10th Cir. 2007)). Mr. Ray has not supported his assertion of
6 Mr. Ray’s arguments on the missing jury instructions cannot be exhausted in state court now because they had not been raised in the state petition for post-conviction relief. See Okla. Stat. tit. 22, § 1086 (“All grounds for relief available to a [post-conviction petitioner] . . . must be raised in his original, supplemental or amended application.”). Mr. Ray’s arguments are thus subject to an anticipatory procedural bar. See Thacker v. Workman, 678 F.3d 820, 841 (10th Cir. 2012).
14 actual innocence with evidence omitted at his trial, so he could not
overcome the defense of exhaustion even in the absence of forfeiture. 7
VII. Request for Reclassification
Mr. Ray asks that we “reclassify” his first-degree-murder conviction
because the jury instructions and the evidence supported only second-
degree manslaughter. This argument was not raised in state court or in
federal district court. Mr. Ray again cannot overcome the defenses of
exhaustion and forfeiture.
But his argument is also legally incorrect. Mr. Ray focuses on the
fact that the jury was only instructed on the meaning of the word “willful”
rather than the word “malicious.” The underlying statute does contain both
words, but they are separated by a disjunctive: “A person commits murder
in the first degree when the death of a child results from the willful or
malicious injuring . . . .” Okla. Stat. tit. 21, § 701.7(C) (emphasis added).
The jury did not need a definition of “malicious” to find Mr. Ray guilty
because the statute makes “willful” conduct sufficient for conviction of
first-degree murder when the conduct results in the death of a child.
7 Mr. Ray also argues that (1) his trial counsel was ineffective for failing to seek the instructions and (2) his appellate counsel was ineffective for failing to raise this argument on direct appeal. These arguments are also subject to the defenses of exhaustion and forfeiture.
15 Because Mr. Ray’s appellate argument is procedurally and
substantively meritless, we decline to issue a certificate of appealability on
this issue.
VIII. Denial of the Right to an Impartial Jury
Mr. Ray makes two arguments regarding the denial of an impartial
jury. The first argument is that one juror knew a prosecution witness and
had been familiar with the case prior to the trial. The second argument is
that the jury was tainted by media coverage.
Mr. Ray raised the first argument on direct appeal, and the Oklahoma
Court of Criminal Appeals rejected the argument on the merits. The juror
“assured the trial court that he could be fair and impartial, and the record”
gave the court “no reason to doubt that assessment.” Ray v. State, No. F-
2012-538, slip op. at 2 (Okla. Crim. App. Sept. 24, 2013) (unpublished).
Thus, the court concluded that it had no reason to regard the juror as
biased. Id. at 2 n.2. The state court’s determination did not involve an
unreasonable factual determination or application of Supreme Court
precedent, for Mr. Ray has not provided any reason to question the juror’s
assurances of impartiality.
Mr. Ray failed to present his argument about media coverage in state
court or in federal district court. Consequently, this argument is
procedurally deficient and subject to an anticipatory procedural bar. See
note 6, above.
16 This argument is also legally deficient. Mr. Ray cites three opinions
to support his claim. One opinion, Nebraska Press Association v. Stuart,
addresses the First Amendment prior-restraint doctrine and does not
support Mr. Ray’s habeas claim. 427 U.S. 539, 541 (1976). Indeed, the
Supreme Court held that the prior restraint had not been justified in part
because “adverse publicity does not inevitably lead to an unfair trial.” Id.
at 554.
The other two opinions found actual or possible prejudice to criminal
defendants on the basis of media coverage, but both cases contained
evidence of prejudice. See Irvin v. Dowd, 366 U.S. 717, 725-28 (1961)
(describing “clear and convincing” evidence of community prejudice
against the defendant, including the fact that two-thirds of the jurors had
thought before the trial that the petitioner was guilty); United States v.
Davis, 60 F.3d 1479, 1482 (10th Cir. 1995) (noting that the defendant
submitted an affidavit of a jury consultant based on post-verdict juror
interviews showing that jurors had watched television during the trial).
Here, however, Mr. Ray does not present any evidence of a taint on the
jury from the news coverage. As a result, Mr. Ray’s claim is not
reasonably debatable.
IX. Sufficiency of the Evidence
Mr. Ray’s opening brief presents a request for a certificate of
appealability on the ground that his conviction was not supported by
17 sufficient evidence. Mr. Ray argues that the medical examiner’s opinion
testimony was inadmissible under the state and federal evidentiary rules.
Mr. Ray’s brief also combines this ground with others as part of his
request for a certificate of appealability on his ineffective-assistance
claims. Mr. Ray does not develop the standalone sufficiency claim, so we
reject it. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841
(10th Cir. 2005); see also p. 9, above (discussing the failure to develop
another appellate argument).
X. Conclusion
Mr. Ray’s ineffective-assistance claims clearly fail because he does
not show prejudice from his counsel’s allegedly deficient performance. His
other claims are also facially invalid or undeveloped. Thus, we deny Mr.
Ray’s request for a certificate of appealability and dismiss the appeal. 8
Entered for the Court
Robert E. Bacharach Circuit Judge
8 Mr. Ray’s motion to proceed in forma pauperis is granted.