F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 18, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
H ECTO R O M A R SA N TO Y O ,
Petitioner-A ppellant,
v. No. 06-6303 (D.C. No. CIV-05-1253-L) JUSTIN JONES, Director, (W .D. Okla.)
Respondent-Appellee.
O RD ER DEN YIN G CERTIFICATE O F APPEALABILITY
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
Hector Omar Santoyo, an Oklahoma state prisoner proceeding pro se, seeks
a certificate of appealability (COA) that would allow him to challenge the district
court’s order denying his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that M r. Santoyo
has failed to make “a substantial showing of the denial of a constitutional right,”
we DENY his request for a COA and dismiss the appeal. Id. at § 2253(c)(2).
I. Background
In 2002, an Oklahoma jury convicted M r. Santoyo of trafficking in illegal
drugs. H e w as sentenced to life imprisonment and assessed a fine of $75,000. H e
filed a direct appeal (with different counsel representing him), contending that the evidence presented at trial was insufficient to support his conviction,
prosecutorial misconduct denied him a fair trial, his sentence was excessive, and
the cumulative effect of these errors denied him a fair trial. In 2004, the
Oklahoma Court of Criminal Appeals (OCCA) rejected these four contentions and
affirmed M r. Santoyo’s conviction and sentence.
M r. Santoyo then filed an application for post-conviction relief in state
court, asserting that the separate and cumulative effect of trial court errors and
prosecutorial misconduct deprived him of a fair trial and due process of law, he
was denied his Sixth Amendment right to effective assistance of trial and
appellate counsel, and his conviction and sentence should be vacated because he
is actually innocent. 1 In September 2005, the state court denied his application
for post-conviction relief, stating:
W ith the exception of his claim of ineffective assistance of appellate counsel, Petitioner could have raised the arguments in the instant Application on direct appeal. Indeed, his claim of prosecutorial misconduct has been previously raised and rejected. As such it is barred by the doctrine of res judicata. Petitioner’s remaining claims are barred by the doctrine of w aiver. Even were this Court not to apply the procedural bar of waiver, Petitioner would not be entitled to the collateral relief he now seeks.
R. Doc. 26, Ex. D at 3; see Browning v. State, 144 P.3d 155, 156 (Okla. Crim.
App. 2006) (“W e will not treat the post-conviction process as a second appeal,
1 W e note that the cumulative-error claim raised in M r. Santoyo’s application for post-conviction relief relied upon some alleged trial court errors that he did not present on direct appeal.
-2- and will apply the doctrines of res judicata and waiver where a claim either was,
or could have been, raised in the petitioner’s direct appeal.”), cert. denied,
127 S. Ct. 406 (2006). The state court also rejected M r. Santoyo’s
ineffective-assistance-of-appellate-counsel claim, noting that counsel was not
required to raise every conceivable argument for review on appeal and concluding
that M r. Santoyo had failed to establish that counsel’s performance was
“constitutionally deficient.” R. Doc. 26, Ex. D at 5 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
In October 2005, while his appeal to the OCCA from the denial of his
application for post-conviction relief was pending, M r. Santoyo petitioned the
federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. In the
petition he sought relief on eight grounds. Specifically, he alleged that: (1) the
evidence was insufficient to support his conviction, (2) prosecutorial misconduct
deprived him of a fair trial and due process of law, (3) his sentence was
unconstitutionally excessive, (4) the separate and cumulative effect of trial court
errors and prosecutorial misconduct deprived him of a fair trial and due process of
law, (5 and 6) he was denied his Sixth Amendment right to effective assistance of
trial counsel, (7) he was denied his Sixth Amendment right to effective assistance
of appellate counsel, and (8) his conviction and sentence should be vacated
-3- because he is actually innocent. 2 In January 2006, the OCCA affirmed the denial
of M r. Santoyo’s application for post-conviction relief. In September 2006, the
federal district court, adopting the magistrate judge’s July 2006 thirty-nine page
report and recommendation, denied his habeas petition. In so doing, the district
court held that the OCCA’s on-the-merits rejection on direct appeal of grounds
one through three was not contrary to, or an unreasonable application of, clearly
established federal law. See id. at § 2254(d). Turning to grounds four, five, six,
and eight, the district court found that the OCCA’s reliance on its procedural bar
rule, in its post-conviction disposition, was an adequate and independent ground
for its decision such that the district court would only consider the merits of these
grounds if M r. Santoyo demonstrated cause for the default and actual prejudice,
or that a fundamental miscarriage of justice would result from the court’s failure
to consider them. See Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004)
(observing that habeas petitioner w ill not receive review of claims “defaulted in
state court on independent and adequate state procedural grounds unless
[petitioner] has demonstrated cause and prejudice or a fundamental miscarriage of
justice”); see also English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998) (stating
that Oklahoma’s procedural bar will preclude habeas review of ineffective
assistance claims only when “trial and appellate counsel differ” and the “claim
2 Ground four mirrors the cumulative-error claim raised in his state court application for post-conviction relief.
-4- can be resolved upon the trial record alone”). Next, the court construed ground
seven as asserting that ineffective assistance of appellate counsel was both cause
for M r. Santoyo’s procedural default and a separate ground for habeas relief. But
the court essentially held that the OCCA’s on-the-merits rejection of ground
seven was not contrary to, or an unreasonable application of, clearly established
federal law. See 28 U.S.C. § 2254(d). Thus, the district court concluded that
M r. Santoyo had not demonstrated cause for the default of grounds four, five, six,
and eight; that it was unnecessary to determine whether he had demonstrated
actual prejudice; and that a fundamental miscarriage of justice would not result
from the court’s failure to consider these grounds. The district court also denied
M r.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 18, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
H ECTO R O M A R SA N TO Y O ,
Petitioner-A ppellant,
v. No. 06-6303 (D.C. No. CIV-05-1253-L) JUSTIN JONES, Director, (W .D. Okla.)
Respondent-Appellee.
O RD ER DEN YIN G CERTIFICATE O F APPEALABILITY
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
Hector Omar Santoyo, an Oklahoma state prisoner proceeding pro se, seeks
a certificate of appealability (COA) that would allow him to challenge the district
court’s order denying his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that M r. Santoyo
has failed to make “a substantial showing of the denial of a constitutional right,”
we DENY his request for a COA and dismiss the appeal. Id. at § 2253(c)(2).
I. Background
In 2002, an Oklahoma jury convicted M r. Santoyo of trafficking in illegal
drugs. H e w as sentenced to life imprisonment and assessed a fine of $75,000. H e
filed a direct appeal (with different counsel representing him), contending that the evidence presented at trial was insufficient to support his conviction,
prosecutorial misconduct denied him a fair trial, his sentence was excessive, and
the cumulative effect of these errors denied him a fair trial. In 2004, the
Oklahoma Court of Criminal Appeals (OCCA) rejected these four contentions and
affirmed M r. Santoyo’s conviction and sentence.
M r. Santoyo then filed an application for post-conviction relief in state
court, asserting that the separate and cumulative effect of trial court errors and
prosecutorial misconduct deprived him of a fair trial and due process of law, he
was denied his Sixth Amendment right to effective assistance of trial and
appellate counsel, and his conviction and sentence should be vacated because he
is actually innocent. 1 In September 2005, the state court denied his application
for post-conviction relief, stating:
W ith the exception of his claim of ineffective assistance of appellate counsel, Petitioner could have raised the arguments in the instant Application on direct appeal. Indeed, his claim of prosecutorial misconduct has been previously raised and rejected. As such it is barred by the doctrine of res judicata. Petitioner’s remaining claims are barred by the doctrine of w aiver. Even were this Court not to apply the procedural bar of waiver, Petitioner would not be entitled to the collateral relief he now seeks.
R. Doc. 26, Ex. D at 3; see Browning v. State, 144 P.3d 155, 156 (Okla. Crim.
App. 2006) (“W e will not treat the post-conviction process as a second appeal,
1 W e note that the cumulative-error claim raised in M r. Santoyo’s application for post-conviction relief relied upon some alleged trial court errors that he did not present on direct appeal.
-2- and will apply the doctrines of res judicata and waiver where a claim either was,
or could have been, raised in the petitioner’s direct appeal.”), cert. denied,
127 S. Ct. 406 (2006). The state court also rejected M r. Santoyo’s
ineffective-assistance-of-appellate-counsel claim, noting that counsel was not
required to raise every conceivable argument for review on appeal and concluding
that M r. Santoyo had failed to establish that counsel’s performance was
“constitutionally deficient.” R. Doc. 26, Ex. D at 5 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
In October 2005, while his appeal to the OCCA from the denial of his
application for post-conviction relief was pending, M r. Santoyo petitioned the
federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. In the
petition he sought relief on eight grounds. Specifically, he alleged that: (1) the
evidence was insufficient to support his conviction, (2) prosecutorial misconduct
deprived him of a fair trial and due process of law, (3) his sentence was
unconstitutionally excessive, (4) the separate and cumulative effect of trial court
errors and prosecutorial misconduct deprived him of a fair trial and due process of
law, (5 and 6) he was denied his Sixth Amendment right to effective assistance of
trial counsel, (7) he was denied his Sixth Amendment right to effective assistance
of appellate counsel, and (8) his conviction and sentence should be vacated
-3- because he is actually innocent. 2 In January 2006, the OCCA affirmed the denial
of M r. Santoyo’s application for post-conviction relief. In September 2006, the
federal district court, adopting the magistrate judge’s July 2006 thirty-nine page
report and recommendation, denied his habeas petition. In so doing, the district
court held that the OCCA’s on-the-merits rejection on direct appeal of grounds
one through three was not contrary to, or an unreasonable application of, clearly
established federal law. See id. at § 2254(d). Turning to grounds four, five, six,
and eight, the district court found that the OCCA’s reliance on its procedural bar
rule, in its post-conviction disposition, was an adequate and independent ground
for its decision such that the district court would only consider the merits of these
grounds if M r. Santoyo demonstrated cause for the default and actual prejudice,
or that a fundamental miscarriage of justice would result from the court’s failure
to consider them. See Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004)
(observing that habeas petitioner w ill not receive review of claims “defaulted in
state court on independent and adequate state procedural grounds unless
[petitioner] has demonstrated cause and prejudice or a fundamental miscarriage of
justice”); see also English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998) (stating
that Oklahoma’s procedural bar will preclude habeas review of ineffective
assistance claims only when “trial and appellate counsel differ” and the “claim
2 Ground four mirrors the cumulative-error claim raised in his state court application for post-conviction relief.
-4- can be resolved upon the trial record alone”). Next, the court construed ground
seven as asserting that ineffective assistance of appellate counsel was both cause
for M r. Santoyo’s procedural default and a separate ground for habeas relief. But
the court essentially held that the OCCA’s on-the-merits rejection of ground
seven was not contrary to, or an unreasonable application of, clearly established
federal law. See 28 U.S.C. § 2254(d). Thus, the district court concluded that
M r. Santoyo had not demonstrated cause for the default of grounds four, five, six,
and eight; that it was unnecessary to determine whether he had demonstrated
actual prejudice; and that a fundamental miscarriage of justice would not result
from the court’s failure to consider these grounds. The district court also denied
M r. Santoyo’s motion to supplement the record with a M ay 2006 letter from the
M exican Consulate because it did not, in accordance with Rule 7(b) of the Rules
Governing Section 2254 Cases, predate his October 2005 habeas corpus petition.
A nd, citing 28 U .S.C . § 2254(e)(2), the district court found that he had not show n
that he was entitled to an evidentiary hearing. See also R. Doc. 26, Ex. D (order
denying application for post-conviction relief) at 5 (stating that petitioner had not
demonstrated his entitlement to an evidentiary hearing).
M r. Santoyo subsequently sought a COA from the district court and
requested leave to proceed in forma pauperis (IFP) on appeal. The district court
denied his request for a COA and denied his application to proceed IFP, ruling
-5- that he had “not presented a reasoned, nonfrivolous argument on appeal and that
the appeal [wa]s not taken in good faith.” Id. Doc. 47 at 3.
II. Discussion
In his application for a COA and his opening brief, M r. Santoyo repeats
grounds one, two, and seven (insufficient evidence, prosecutorial misconduct, and
ineffective assistance of appellate counsel), and, as far as w e can discern, objects
to the district court’s dismissal, on procedural grounds, of grounds four, five, six,
and eight (cumulative error, ineffective assistance of trial counsel, and actual
innocence). 3 He also asserts that the district court abused its discretion by not
holding an evidentiary hearing with appointed counsel, and by denying his motion
to supplement the record with a letter from the M exican Consulate. Finally, he
asserts that the district court erred by not addressing his argument that the “state’s
procedural rule requiring that all claims of ineffective assistance of trial counsel
be raised on direct appeal with supplementation of the record by evidentiary
hearing, and general failure of [public defenders] assigned to non-capital cases to
do so, renders the [procedural] rule inadequate to bar federal review.”
Application for a COA at 2e.
3 M r. Santoyo withdrew ground three (excessive sentence). R. Doc. 39 at 7 (“Petitioner . . . voluntarily withdraws . . . claim [three].”); id. Doc. 41 at 3 (same).
-6- A habeas petitioner like M r. Santoyo may appeal the denial of his petition
for relief under 28 U .S.C. § 2254 only if the district court or this Court first
issues a COA. Id. at § 2253(c)(1)(A). A COA will issue only if a petitioner
makes a “substantial showing of the denial of a constitutional right.” Id. at
§ 2253(c)(2). To make such a showing, a petitioner must demonstrate that
“reasonable jurists could debate whether . . . 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). To the extent that the district
court dismisses the petition on procedural grounds, a petitioner must also show
that “jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id. Further, we review for abuse of discretion
the district court’s decisions to deny a petitioner’s request for an evidentiary
hearing, and a petitioner’s motion to supplement the record. Schiriro v.
Landrigan, 127 S. Ct. 1933, 1937, 1939-40 (2007) (request for evidentiary
hearing); Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005)
(same); Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir. 1994) (motion to
supplement record).
Even under the liberal standard by which w e judge a pro se litigant’s
pleadings, see Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003),
M r. Santoyo has failed to convince us that the district court should have resolved
-7- his petition differently. Specifically, reasonable jurists could not debate the
federal district court’s determination that the OCCA’s rejection of grounds one,
two, and seven was not contrary to, or an unreasonable application of, the
standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (insufficient
evidence), Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (prosecutorial
misconduct), and Strickland, 466 U.S. at 687 (ineffective assistance of counsel).
Likewise, because M r. Santoyo cannot demonstrate cause and prejudice for his
procedural default of grounds four, five, six, and eight, and because his claims of
a fundamental miscarriage of justice are unavailing, jurists of reason would not
find it debatable whether the district court was correct in its procedural rulings on
these grounds. See Smith, 379 F.3d at 925. M oreover, the district court did not
abuse its discretion in finding that M r. Santoyo had not shown entitlement to an
evidentiary hearing, or in denying his motion to supplement the record, and the
court did not err by failing to explicitly address his argument, as we understand it,
that federal review cannot be barred by Oklahoma’s procedural rule requiring that
ineffective-assistance-of-trial-counsel claims be raised on direct appeal.
-8- III. Conclusion
M r. Santoyo’s application for a COA is D ENIED and the appeal is
DISM ISSED. His application to proceed IFP on appeal is GRANTED.
Entered for the Court
M ichael W . M cConnell Circuit Judge
-9-