Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 15, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JOHN STEPHEN ROUTT,
Petitioner - Appellant,
v. No. 24-5016 (D.C. No. 4:21-CV-00014-CVE-JFJ) WILLIS PETTIT, Warden, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HOLMES, Chief Judge, MORITZ, and CARSON, Circuit Judges. _________________________________
John Stephen Routt, proceeding pro se, seeks a certificate of appealability (COA)
to appeal from the district court’s denial of his 28 U.S.C. § 2254 application challenging
his Oklahoma convictions for burglary in the first degree, threatening an act of violence,
and unlawful possession of a controlled drug. We deny a COA and dismiss this matter.
BACKGROUND
The convictions arose out of an altercation at the apartment of Mr. Routt’s sister,
Mary Lewis. The altercation involved Mr. Routt; his girlfriend, Gina Gibson; Ms. Lewis;
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 2
and Ms. Lewis’s husband, Anthony Lewis. The jury heard testimony from Ms. Lewis,
Mr. Lewis, and Mr. Routt.1 Ms. Gibson did not testify.
Ms. Lewis and Mr. Lewis testified that Mr. Routt had been living with them until
they told him to leave because he used physical force against Ms. Lewis in the presence
of her daughter and grandchild. Mr. Routt left some belongings at their apartment.
About a week later, on August 15, 2016, the Lewises woke up around 5 a.m. to knocking
on the door. Ms. Lewis went to the door. She asked who it was, and was told
Ms. Gibson. But when Ms. Lewis opened the door, Mr. Routt was behind Ms. Gibson.
According to the Lewises, Mr. Routt pushed Ms. Gibson into the apartment and
threw her on the floor. He then pushed Ms. Lewis up against a wall and held a knife to
her throat. He threatened her, stating he would kidnap her and have people beat her, rape
her, and starve her to death. Ms. Lewis tried to escape, running out the door, but
Mr. Routt grabbed her and pulled her back in. While he was in the apartment, he grabbed
a three-pound sledgehammer and brandished it, threatening to bash Ms. Lewis in the
head. At some point, he sheathed the knife. Eventually he allowed Ms. Lewis to go to
the bathroom, and she was able to call the police, who responded and detained Mr. Routt.
Both Ms. Gibson and Mr. Routt had been wearing backpacks. Ms. Lewis testified
that both backpacks were Mr. Routt’s. One of the backpacks, which was orange,
contained a smaller bag with a baggie of a crystal substance. Officers and a laboratory
1 Ms. Lewis and Mr. Routt testified in person. The jury heard Mr. Lewis’s testimony from the preliminary hearing because he had passed away before the trial. 2 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 3
employee testified that the substance field-tested and then laboratory-tested positive for
methamphetamine.
Mr. Routt was the defense’s only witness. He testified that Ms. Gibson had told
him Ms. Lewis was giving away his belongings. He was upset, but did not push his way
into the apartment. His only intention was to get his stuff back. Ms. Lewis let
Ms. Gibson and him into the apartment before an argument began over replacing his
property. He admitted he carried a knife, but he denied he ever pulled it from the sheath.
He also admitted he grabbed the sledgehammer, but said he was picking it up and moving
it to keep Mr. Lewis from using it against him. And he admitted that the orange
backpack was his, but he denied that the methamphetamine was his.
The jury found Mr. Routt guilty of burglary in the first degree, threatening an act
of violence, and unlawful possession of a controlled drug, but not guilty of kidnapping
and assault with a dangerous weapon. In light of Mr. Routt’s prior felony convictions,
Oklahoma law allowed enhancement of the sentence. The jury assessed 40 years’
imprisonment on the burglary and drug convictions plus six months’ imprisonment on the
threatening conviction. The state district court sentenced Mr. Routt in accordance with
the jury’s verdict, imposing concurrent 40-year sentences and a consecutive six-month
sentence. The Oklahoma Court of Criminal Appeals (OCCA) affirmed.
Mr. Routt then filed two state-court collateral proceedings, first a petition for
post-conviction relief and then a habeas petition. The state courts denied both petitions.
After completing his state proceedings, Mr. Routt brought a § 2254 application
identifying twelve grounds for relief. The district court denied several grounds on the
3 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 4
merits and concluded that the other grounds were procedurally defaulted. It denied the
§ 2254 application and denied a COA.
DISCUSSION
To appeal from the district court’s denial of his § 2254 application, Mr. Routt must
obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). A COA is appropriate when a movant
makes “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
For a COA on the claims that the district court decided on the merits, Mr. Routt “must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). For a COA on the claims that the district court held
were procedurally defaulted, Mr. Routt must show that reasonable jurists would debate
both “whether the petition states a valid claim of the denial of a constitutional right” and
“whether the district court was correct in its procedural ruling.” Id.2
I. Claims Denied on the Merits (Grounds 2-6, 11, and 12)
Under 28 U.S.C. § 2254(d), a petitioner must show that the state court’s
adjudication of his claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “resulted in a decision that was
2 Because Mr. Routt proceeds pro se, we construe his filings liberally, but we do not act as his attorney. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). To the extent he attempts to incorporate by reference arguments he made in the district court, we decline to consider such arguments. See Fulghum v. Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015) (noting that incorporating district-court arguments by reference is improper and deeming such arguments waived). 4 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 5
based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding,” § 2254(d)(2). “[D]eference and reasonableness are our
watchwords as we review [state-court] rulings” in habeas. Meek v. Martin, 74 F.4th
1223, 1248 (10th Cir. 2023). “[I]t is insufficient to show that the state court’s decision
was merely wrong or even clear error. The prisoner must show that a state court’s
decision is so obviously wrong that no reasonable judge could arrive at the same
conclusion given the facts of the prisoner’s case.” Id. (citation and internal quotation
marks omitted). Id. It is Mr. Routt’s burden to satisfy the “demanding standards” for
habeas relief. Id. at 1249.
A. Ineffective Assistance of Counsel (Grounds 2 and 11)
Ineffective-assistance claims are governed by Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, the applicant “must show that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Id. at 687.
“When a habeas petitioner alleges ineffective assistance of counsel, deference exists both
in the underlying constitutional test (Strickland) and the . . . standard for habeas relief,
creating a doubly deferential judicial review.” Harris v. Sharp, 941 F.3d 962, 973
(10th Cir. 2019) (internal quotation marks omitted). Under this double deference, the
federal courts consider “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. at 974 (internal quotation marks omitted).
1. Trial Counsel (Ground 2)
Ground 2 argues that Mr. Routt’s trial counsel was ineffective in failing to
investigate, failing to call Ms. Gibson as a witness, failing to impeach the Lewises’ 5 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 6
testimony with prior inconsistent testimony and statements, and in conceding knowledge
of the methamphetamine. Mr. Routt argued in both his direct appeal and his state
post-conviction petition that his trial counsel was ineffective. In the direct appeal, the
OCCA held that he failed to demonstrate prejudice. In reviewing the denial of the state
post-conviction petition, the OCCA held that the claims should have been raised in the
direct appeal (although it apparently also considered them in the course of evaluating
Mr. Routt’s claim of ineffective assistance of appellate counsel). Giving Mr. Routt the
benefit of the doubt, the district court analyzed both the performance prong and the
prejudice prong with regard to each allegation of ineffective assistance of trial counsel.
In light of the “doubly deferential” review due ineffective-assistance claims,
Harris, 941 F.3d at 973 (internal quotation marks omitted), no reasonable jurist would
debate the rejection of these claims. The district court carefully examined each
allegation. For substantially the reasons it discussed, Mr. Routt has not shown the
OCCA’s decisions were so beyond the realm of reasonableness that they could be
considered contrary to or an unreasonable application of Strickland. Nor has Mr. Routt
shown that the district court’s application of Strickland was debatable.
2. Appellate Counsel (Ground 11)
Ground 11 claims that appellate counsel was ineffective in omitting meritorious
issues while raising meritless ones. Citing Strickland, the OCCA held that Mr. Routt
failed to establish deficient performance or prejudice. The district court held that the
OCCA’s decision was not contrary to or an unreasonable application of Strickland.
6 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 7
Mr. Routt argues his appellate counsel should have raised the issues he identifies
as Grounds 7 and 8 in his § 2254 application. The district court considered both issues to
be meritless, so that Mr. Routt failed to demonstrate prejudice. For substantially the
reasons discussed in Section II.A. below, it does not appear that reasonable jurists would
debate the merits of Grounds 7 or 8. Therefore, no reasonable jurist would debate the
conclusion that the OCCA’s decision was not contrary to or an unreasonable application
of Strickland. See Davis v. Sharp, 943 F.3d 1290, 1299 (10th Cir. 2019) (“If the omitted
issue is meritless, its omission will not constitute deficient performance.” (internal
quotation marks omitted)).
B. Sufficiency of the Evidence (Ground 3)
Ground 3 challenges the sufficiency of the evidence of possession of a controlled
substance. The OCCA held that, viewing the evidence in the light most favorable to the
State, the State proved all the elements of the crime beyond a reasonable doubt. The
district court held that the OCCA’s decision was not contrary to or an unreasonable
application of Jackson v. Virginia, 443 U.S. 307, 319 (1979), or an unreasonable
application of the facts in light of the evidence presented. In arriving at that conclusion,
the district court noted that a jury could have found joint possession of the backpack
containing the methamphetamine and that a reasonable factfinder could have disbelieved
Mr. Routt’s testimony denying the methamphetamine was his.
The district court properly identified the highly deferential standards for a habeas
claim challenging the sufficiency of the evidence. See, e.g., Meek, 74 F.4th at 1252,
1261-62. Mr. Routt repeats that the evidence was insufficient. But he ignores the district 7 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 8
court’s reasons for concluding the OCCA’s decision does not violate either § 2254(d)(1)
or (d)(2)—including the requirement to view all testimony and evidence in the light most
favorable to the State, see Jackson, 443 U.S. at 319. He thus has failed to show that
reasonable jurists would debate the district court’s rejection of this claim.
C. Jury Instruction (Ground 4)
Ground 4 alleges the jury instruction regarding constructive possession was
incomplete, allowing a finding of guilt based only on proximity to the drugs. The OCCA
held that the failure to give a fuller instruction was not plain error. Noting that the
question on habeas review was “whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process,” R. Vol. I at 533 (internal
quotation marks omitted), the district court held that the OCCA’s decision was not
contrary to or an unreasonable application of clearly established federal law. The district
court noted the instruction given to the jury incorporated the concepts Mr. Routt says
were lacking, and evidence beyond proximity supported a finding of constructive
possession.
The district court identified the appropriate legal standard. See Middleton v.
McNeil, 541 U.S. 433, 437 (2004) (“[N]ot every ambiguity, inconsistency, or deficiency
in a jury instruction rises to the level of a due process violation. The question is whether
the ailing instruction so infected the entire trial that the resulting conviction violates due
process.” (ellipsis and internal quotation marks omitted)). Before this court, Mr. Routt
attacks the sufficiency of the jury instruction rather than challenging the district court’s
8 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 9
reasoning. He thus has failed to show that reasonable jurists would debate the district
court’s rejection of this claim.
D. Prosecutorial Misconduct (Ground 5)
Ground 5 claims the prosecutor improperly vouched for Ms. Lewis’s credibility.
The OCCA held that the remarks did not constitute impermissible vouching. The district
court held that Mr. Routt failed to show the OCCA’s decision was contrary to or an
unreasonable application of clearly established federal law, and further, that he failed to
show the remarks made the trial fundamentally unfair.
Mr. Routt contends the remarks at issue do constitute improper vouching. But for
habeas relief, it is not enough to show mere error: “[t]he relevant question is whether the
prosecutors’ comments so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(internal quotation marks omitted). Even if the OCCA erred, Mr. Routt fails to show
reasonable jurists would debate whether the remarks made the trial fundamentally unfair.
E. Sentence Enhancement (Ground 6)
Ground 6 asserts the state trial court improperly enhanced the sentence for
possession of a controlled drug under a general enhancement statute rather than a
drug-specific enhancement statute. The OCCA held that because Mr. Routt had prior
convictions for both non-drug-related and drug-related felonies, the State could elect to
enhance his sentence under either provision. The district court held that it was bound by
the OCCA’s interpretation of Oklahoma law and that Mr. Routt had failed to show the
OCCA’s application of the law was arbitrary in the constitutional sense. 9 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 10
Mr. Routt asserts that the OCCA erred in determining either enhancement statute
could apply. He then states, in a conclusory manner, that the error makes the
enhancement of his sentence an arbitrary deprivation of liberty. But “[o]n collateral
review, we emphatically cannot review a state court’s interpretation of its own state law.”
Meek, 74 F.4th at 1271 (internal quotation marks omitted). And “[a] habeas applicant
cannot transform a state law claim into a federal one merely by attaching a due process
label.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017). No reasonable
jurist would debate the district court’s rejection of Ground 6.
F. Cumulative Error (Ground 12)
Ground 12 invokes cumulative error. “A cumulative-error analysis aggregates all
errors found to be harmless and analyzes whether their cumulative effect on the outcome
of the trial is such that collectively they can no longer be determined to be harmless.”
Meek, 74 F.4th at 1275 (internal quotation marks omitted). “We ask whether the various
errors we have identified collectively had a substantial and injurious effect or influence in
determining the jury’s verdict.” Id. at 1276 (brackets and internal quotation marks
omitted).
Before this court, Mr. Routt asserts, in a conclusory manner, that “[t]he cumulative
errors deprived [him] of a fair proceeding and reliable outcome.” Aplt. Opening
Br./Appl. for COA at CM/ECF p. 27. This abbreviated discussion does not adequately
preserve a cumulative-error argument, and we deem it waived. See Meek, 74 F.4th at
1275 (discussing briefing-waiver doctrine).
10 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 11
II. Claims Denied as Procedurally Defaulted (Grounds 1, 7-10)
The district court held Grounds 1, 7, 8, 9, and 10 were procedurally defaulted and
Mr. Routt failed to show cause and prejudice or a fundamental miscarriage of justice to
excuse the default. In seeking a COA, Mr. Routt clarifies that he intended Ground 1’s
allegation of actual innocence as cause for excusing a procedural default, not as a
stand-alone claim. And he does not mention Ground 9. We thus examine only
Grounds 7, 8, and 10.
A. Grounds 7 and 8
Mr. Routt asserts that because the OCCA addressed Grounds 7 and 8 in assessing
his claim of ineffective assistance of counsel, a state procedural bar does not preclude
federal habeas review. See Jones v. Gibson, 206 F.3d 946, 956 (10th Cir. 2000). Even if
reasonable jurists would debate the district court’s procedural ruling, however, he has not
shown they would debate whether the underlying allegations state a valid claim of a
violation of a constitutional right.3
Ground 7 challenges the sufficiency of the information as to the burglary charge.
“An indictment is sufficient if it sets forth the elements of the offense charged, puts the
defendant on fair notice of the charges against which he must defend, and enables the
defendant to assert a double jeopardy defense.” United States v. Dashney, 117 F.3d
1197, 1205 (10th Cir. 1997); see Russell v. United States, 369 U.S. 749, 763-64 (1962).
No reasonable jurist would debate whether the information met these requirements.
3 Having assumed the procedural ruling is debatable, we need not consider Mr. Routt’s alternate procedural argument that he showed cause to overcome the default. 11 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 12
Ground 8 alleges a constructive amendment and/or variance with regard to the
charge of threatening an act of violence. A simple “variance is fatal only when the
defendant is prejudiced in his defense because he cannot anticipate from the indictment
what evidence will be presented against him or is exposed to the risk of double jeopardy,”
while a constructive amendment requires determining “whether the jury was permitted to
convict the defendant upon a set of facts distinctly different from that set forth in the
indictment.” Hunter v. New Mexico, 916 F.2d 595, 599 (10th Cir. 1990) (per curiam)
(internal quotation marks omitted). Mr. Routt asserts that although the information
alleged he threatened to kill Ms. Lewis while holding a sledgehammer, “[n]othing in the
record shows [he] held a sledgehammer and threaten[ed] to kill Mary Lewis.”
Aplt.Opening Br./Appl. for COA at CM/ECF p. 25. But the transcript shows that Mr.
Lewis testified that Mr. Routt took the sledgehammer away from Ms. Gibson and
threatened to smash Ms. Lewis’s head in with it. With the factual basis for his claim
contradicted by the record, Mr. Routt fails to show that reasonable jurists could debate
the existence of a variance or a constructive amendment.
B. Ground 10
Ground 10 challenges the sufficiency of the instruction regarding reasonable
doubt. This claim was first raised in the state habeas petition, and the OCCA held that
Mr. Routt could have raised it on direct appeal or in his state post-conviction proceeding.
The district court determined this was a procedural default. Mr. Routt asserts that a
deficient reasonable-doubt instruction cannot be procedurally defaulted because it is a
12 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 13
structural error. We have held, however, that “even structural errors are subject to state
procedural bars.” Thornburg v. Mullin, 422 F.3d 1113, 1141 (10th Cir. 2005).
A habeas applicant can overcome a procedural default by showing cause and
prejudice or a fundamental miscarriage of justice (i.e., actual innocence). See Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Mr. Routt’s Ground 1 asserts a gateway claim of
actual innocence. The actual-innocence “standard is demanding,” and “tenable
actual-innocence gateway pleas are rare.” Fontenot v. Crow, 4 F.4th 982, 1031
(10th Cir. 2021) (internal quotation marks omitted). “The gateway should open only
when a petition presents evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error.” Id. (internal quotation marks omitted).
The district court concluded that Mr. Routt’s proffered new evidence, including
Ms. Gibson’s affidavit, did not meet the demanding actual-innocence standard. For
substantially the reasons discussed by the district court, we are not persuaded that
reasonable jurists would debate whether Mr. Routt established an actual-innocence
gateway claim. See, e.g., Stafford v. Saffle, 34 F.3d 1557, 1561-62 (10th Cir.1994)
(holding corroborative or speculative evidence insufficient to meet high threshold for
actual innocence in evaluating whether actual-innocence claim warranted leave to amend
habeas petition).
III. Remaining Arguments
Mr. Routt asserts that the district court erred in denying his § 2254 application
without holding an evidentiary hearing. Where an issue is reviewed for abuse of
13 Appellate Case: 24-5016 Document: 27-1 Date Filed: 10/15/2024 Page: 14
discretion, such as a decision on evidentiary hearings, the COA question is “whether a
reasonable jurist could conclude that the District Court abused its discretion.” Buck v.
Davis, 580 U.S. 100, 123 (2017). Where a court can resolve a habeas claim on the
existing record, it does not abuse its discretion when it denies an evidentiary hearing.
Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003). Moreover, federal courts are
severely restricted in granting evidentiary hearings in § 2254 proceedings. See, e.g.,
Andrew v. White, 62 F.4th 1299, 1346-47 (10th Cir. 2023), pet. for cert. filed (U.S.
Jan. 22, 2024) (No. 23-6573). Mr. Routt relies on Milton v. Miller, 744 F.3d 660, 672-73
(10th Cir. 2014), but there the court granted an evidentiary hearing only after concluding
the applicant had satisfied the requirements of § 2254(d)(1). Mr. Routt has not satisfied
those requirements.
Finally, Mr. Routt lists certain technical deficiencies in the documents relating to
his state post-conviction proceedings that, he argues, denied him fundamental fairness.
These assertions do not demonstrate that reasonable jurists would debate the OCCA’s
denial of his post-conviction petition or the district court’s denial of his § 2254 claims.
CONCLUSION
We deny a COA and dismiss this matter.
Entered for the Court
Jerome A. Holmes Chief Judge