FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 7, 2019
Elisabeth A. Shumaker Clerk of Court GARRY RANDALL WEST,
Petitioner - Appellant, No. 18-6059 v. (D.C. No. 5:16-CV-00931-C) (W.D. Okla.) JASON BRYANT,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
Petitioner Garry Randall West, an Oklahoma state prisoner proceeding pro se,1
seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal
of his habeas petition brought under 28 U.S.C. § 2254. The district court dismissed
Mr. West’s petition on the merits and declined to grant him a COA. We deny
Mr. West’s COA request and dismiss the appeal.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Mr. West is proceeding pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). I. BACKGROUND
A. Factual History
In late 2011, a Stillwater, Oklahoma, police investigator searched an online
filesharing site looking for internet protocol (“IP”) addresses in the local area that might
be involved in downloading child pornography. The investigator connected a video
depicting sexually explicit conduct between a preadolescent male and an adult male with
an IP address associated with Mr. West’s residence in Perkins, Oklahoma.2 Because
Perkins was outside of the investigator’s jurisdiction, the investigator passed along the
information and assisted in writing a search warrant affidavit for Mr. West’s residence. In
January 2012, the investigator joined the Perkins police department to execute the search
warrant at Mr. West’s residence, where the police found several disassembled computers
and one laptop that appeared operable. Finding evidence that an additional computer had
been removed from the home, the officers decided to meet with Mr. West at his
workplace.
Four police officers—two uniformed, two plainclothes—arrived at Mr. West’s
workplace in three marked police vehicles. The two plainclothes officers entered the
building and the business’s co-owner, Paula Fitch, directed them to Mr. West. The
officers told Mr. West they were not going to arrest him at that time but were only
gathering information and looking for another computer.
2 While the investigator was unable to download the video directly from Mr. West’s IP address, he was able to download the file from another user. The investigator then matched the downloaded video with an identical file Mr. West was sharing. 2 The officers then asked Mr. West for identification, which Mr. West said was in
his truck in the parking lot. Mr. West and the two officers went to his truck, Mr. West
handed them his identification, and the officers returned it after copying the information
from his license. One of the officers then returned to the building and explained to
Ms. Fitch that the police were looking for a computer belonging to Mr. West that may
contain child pornography. Ms. Fitch told the officer Mr. West often brought a red laptop
to the office. When the officer requested Ms. Fitch’s consent to search the building, she
expressed concern about the disruption a search would cause.
The officer exited the building and returned to Mr. West, reiterating that Mr. West
was not under arrest but also stating that it was “time to be honest” and tell the officers
where the red laptop was. Preliminary Hearing Tr. (July 31, 2012) at 22–23. Mr. West
asked whether the officers had a search warrant; they admitted they did not. After
thinking for a few minutes, Mr. West told the officers his red laptop was in the business’s
server room. At no point did the officers advise Mr. West of his Miranda rights.3
Mr. West alleged that during this questioning, he was enclosed in a circle of
officers, his own vehicle, and patrol cars, making him feel like he could not leave. Ms.
Fitch corroborated these factual circumstances.
The officer returned to Ms. Fitch and told her the red laptop was in the server
room. She led the officer into the server room, where the officer saw a black bag with
3 See Miranda v. Arizona, 384 U.S. 436 (1966).
3 Mr. West’s red laptop sticking out.4 The officer seized the red laptop and an external hard
drive (which was also in the bag), along with Mr. West’s smartphone from his office. The
officer then told Mr. West he was free to leave.
The police subsequently obtained a warrant to search the contents of the red laptop
and the external hard drive, and an investigator identified over three hundred images and
videos of child pornography on the external hard drive. The police also found child
pornography on a separate laptop seized from Mr. West’s home as well as on various
floppy disks and hard drives from his home.
B. Procedural History
1. Mr. West’s Trial and Sentencing
Oklahoma indicted Mr. West on one count of aggravated possession of child
pornography (“Count One”), Okla. Stat. tit. 21, § 1040.12(A), and one count of unlawful
access to a computer to violate Oklahoma statutes, Okla. Stat. tit. 21, § 1958 (“Count
Two”). Mr. West moved to suppress the evidence from his red laptop and the external
hard drive as fruits of a warrantless search, arguing his statement about the location of the
red laptop should be suppressed along with all evidence obtained from the red laptop and
external hard drive. Mr. West also argued that prosecution under both counts of the
indictment constituted double jeopardy. The trial court denied his motions.
4 Although worried about the potential disruption of her business if the police searched the entire building, Ms. Fitch testified she “wasn’t forced to do anything.” Preliminary Hearing Tr. (July 31, 2012) at 80. 4 After the preliminary hearing, Mr. West renewed his suppression motion, which
the district court again denied. Mr. West proceeded to a bench trial on July 29, 2013. The
court found Mr. West guilty on both counts and imposed concurrent sentences of
twenty-three years’ imprisonment for Count One and five years’ imprisonment for Count
Two.
2. Mr. West’s Direct Appeal
Mr. West appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), again
arguing for suppression of the evidence from his red laptop and hard drive. In addition,
he argued the two convictions violated state law prohibitions on double punishment and
the conviction was not for a crime that required him to serve eighty-five percent of his
sentence (“eighty-five percent crime”).5 The OCCA affirmed Mr. West’s convictions in
an unpublished opinion.
3. Mr. West’s State Post-Conviction Proceedings
Mr. West then filed an application for post-conviction relief in the state trial court,
raising thirteen propositions of error.6 The trial court denied relief, rejecting his
ineffective assistance of counsel claims on the merits because Mr. West failed to show
5 Under Oklahoma law, a defendant convicted of certain designated crimes must serve at least eighty-five percent of the imposed sentence before he can be eligible for parole or a sentence reduction based on earned credits. Okla. Stat. tit. 21, § 13.1. 6 These claims can be summarized as ineffective assistance of trial and appellate counsel, a defective search warrant, lack of justification for a warrantless search, violation of state prohibitions on double punishment, Miranda violations, fabrication of evidence, the need for a defense expert, and that his convictions were not eighty-five percent crimes.
5 prejudice, and dismissing his other claims as procedurally barred. Mr. West appealed the
denial of his post-conviction application, but the OCCA affirmed.
4. Mr. West’s § 2254 proceedings
Next, Mr. West filed a motion under § 2254 for habeas relief in the Western
District of Oklahoma, raising eight separate claims.7 A magistrate judge recommended
denying Mr. West’s petition. West v. Bryant, No. CIV-16-931-C, 2018 WL 1442976
(W.D. Okla. Feb. 28, 2018), report and recommendation adopted, No. CIV-16-931-C,
2018 WL 1440984 (W.D. Okla. Mar. 22, 2018). The magistrate judge determined “the
majority of [Mr. West]’s federal claims were either unexhausted and/or procedurally
barred.” Id. at *3. However, “in the interest of efficiency,” the magistrate judge addressed
each of the claims on the merits. Id. The district court adopted the report and
recommendation in its entirety over Mr. West’s objection and denied Mr. West § 2254
relief. West, 2018 WL 1440984, at *1. But the district court did not address whether to
grant Mr. West a COA. Id. Mr. West timely appealed and, after a limited remand, the
district court also denied Mr. West’s request for a COA. On May 11, 2018, Mr. West
filed an application for a COA with this court.
7 Mr. West’s claimed grounds for relief were (1) ineffective assistance of appellate counsel; (2) ineffective assistance of trial counsel; (3) the evidence seized at his workplace should have been suppressed as fruit of the poisonous tree; (4) the search warrant in the original record had no relation to his residence; (5) a Miranda violation; (6) a due process challenge to his conviction’s classification as an eighty-five percent crime; (7) he was improperly convicted under the aggravated possession of child pornography statute as it existed at the time of sentencing rather than at the time of the alleged conduct; and (8) his convictions violated the Double Jeopardy Clause of the Fifth Amendment. 6 II. ANALYSIS
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) conditions a state
prisoner’s right to appeal a denial of habeas relief on the grant of a COA, which is
unavailable unless the applicant demonstrates a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(1)(A), (c)(2). Where, as here, a district court
has rejected the constitutional claims on the merits, “the petitioner 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). Mr. West does not
make the required showing, so we deny his request.
We address Mr. West’s arguments below in the same order as the district court:
(1) Fourth Amendment challenge to the search and seizure; (2) Miranda claim; (3)
applicability of the eighty-five percent rule; (4) challenge to the definition of child
pornography; (5) double jeopardy claim; and (6) ineffective assistance of counsel.8 In
reviewing these claims, we provide additional factual and procedural background as
necessary to perform the AEDPA analysis.
A. Grounds III and IV—Challenges to the Search and Seizure
In Ground III, Mr. West argues the red laptop and hard drive, seized during a
warrantless search of his workplace, should have been suppressed as fruits of an
unconstitutional search. He also argues, in Ground IV, that the search warrant
8 In addition to his application for a COA and accompanying brief, Mr. West filed a second motion for a COA and a second opening brief. We construe his second motion as a motion to supplement his initial application for a COA. We GRANT the motion to supplement and consider both briefs together. 7 included in the original record was fatally defective because it listed an incorrect
address, date, and items to be seized. Mr. West raised these claims in his application
for post-conviction relief in the state court. See ROA at 286–303. The state trial court
concluded these issues were procedurally barred and did not consider them on the
merits. Id. at 42. But in the “interest of efficiency” the federal district court
“avoid[ed] deciding [the] procedural bar questions [because the] claims can be
readily dismissed on the merits.” West, 2018 WL 1442976, at *3.
Under Stone v. Powell, “where the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” 428 U.S. 465, 494
(1976) (footnote omitted). This court has held that a state provides “full and fair
litigation” when:
trial counsel inform[s] the trial court of the factual basis for a Fourth Amendment claim, appellate counsel present[s] the issue to the state appellate court on direct appeal, and the state courts thoughtfully consider[] the facts underlying petitioner’s Fourth Amendment claim but reject[] it on the merits by applying appropriate Supreme Court precedents.
Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009) (internal quotation
marks omitted).
The district court concluded that Mr. West’s Fourth Amendment challenges
were fully and fairly litigated in the state courts. West, 2018 WL 1442976, at *4–5.
Our review of the record confirms that conclusion. Mr. West’s trial attorneys made
8 an oral motion to suppress during the preliminary hearings and followed up with a
written motion. Later, Mr. West’s trial attorneys renewed the motion, and the state
trial court held a hearing on it. After the trial court denied the motion to suppress and
Mr. West was convicted at a bench trial, appellate counsel raised the suppression
claims to the OCCA. But the OCCA determined the trial court correctly denied the
motions. And in his pro se post-conviction application, Mr. West again asserted his
Fourth Amendment claims, which the state courts denied. Indeed, even Mr. West
acknowledges that “[t]he method employed . . . in . . . seizing computer equipment
and other items, all without a warrant or consent, was heavily litigated by written and
oral Motions to Suppress” and included an “extended hearing on the Suppression
Motion.” Accordingly, challenges to the search and seizure were fully and fairly
litigated during Mr. West’s trial, direct appeal, and post-conviction application.
Mr. West argues, however, that he did not receive “full and fair litigation” in
the state court proceedings because the OCCA never addressed his Fourth
Amendment challenge to the warrantless search of his workplace, instead
determining the search was consensual. But “[v]oluntary consent to search” is an
exception to the Fourth Amendment prohibition on warrantless searches, United
States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (quotation marks omitted), and
“[a] warrantless consent search is reasonable and thus consistent with the Fourth
Amendment irrespective of the availability of a warrant,” Fernandez v. California,
571 U.S. 292, 306 (2014). Accordingly, the state courts rejected Mr. West’s Fourth
Amendment claim on the merits “by applying appropriate Supreme Court
9 precedents.” Matthews, 577 F.3d at 1194 (internal quotation marks omitted). As a
result, the state courts were not required to address whether the officers had probable
cause to procure a warrant for Mr. West’s place of employment or whether exigent
circumstances justified the warrantless search. The state courts reasonably concluded
that Ms. Fitch’s consent to the search of the server room is an exception to the Fourth
Amendment warrant requirements.
Mr. West had a full and fair opportunity to litigate his claims. See Smallwood
v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (affirming denial of habeas relief
pursuant to Stone where petitioner moved to suppress evidence, objected at trial, and
raised the issue to the OCCA on direct appeal).9 Thus, reasonable jurists would not
find the district court’s determination that it was precluded from considering Mr.
West’s claims in Grounds III and IV under Stone debatable or wrong. See Slack, 529
U.S. at 484.
9 Mr. West also argues that he could not have received “full and fair litigation” because the correct search warrant was not included in the original record on appeal. But the record indicates otherwise. It is true that the original record included a search warrant for an unrelated criminal investigation. But that error was corrected and Mr. West’s attorneys had access to the correct search warrant, which was made part of the state court record in response to Mr. West’s post-conviction application. Compare O.R. at 50 (Motion to Suppress Warrantless Search and Seizure of Defendant’s Laptop Computer) (“The search warrant described a specific address of a single family residence in the city of Perkins, Oklahoma and specific items to be searched for and seized including computer equipment or any medium that would contain alleged images of child pornography.”), with ROA at 478–81 (correct search warrant) (listing residence as an address in Perkins and the items to be seized as computers and computer hardware that may contain child pornography). Furthermore, the state trial court referred to the correct warrant in its denial of Mr. West’s application for post-conviction relief.
10 B. Ground V—Alleged Miranda Violation
In Ground V, Mr. West alleges the police officers never read him his Miranda
rights despite detaining and interrogating him outside his office. Mr. West raised this
argument in his state post-conviction application, but the state trial court mistakenly
determined the claim had been raised on direct appeal, and it therefore declined to
consider it. See West, 2018 WL 1442976, at *6. Because Oklahoma courts had not
addressed the claim on the merits, the district court properly exercised independent
review over the claim, Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir. 1999), presuming
any relevant “determination of a factual issue made by a State court . . . to be correct”
unless rebutted “by clear and convincing evidence,” 28 U.S.C. § 2254(e)(1).
The district court determined Mr. West’s statement that the red laptop was in the
server room did not implicate his Miranda rights. West, 2018 WL 1442976, at *7. “The
Miranda rule protects against violations of the Self-Incrimination Clause, which . . . is
not implicated by the introduction at trial of physical evidence resulting from voluntary
statements.” United States v. Patane, 542 U.S. 630, 634 (2004) (plurality opinion).
“[P]hysical evidence obtained as fruit of a voluntary statement by a defendant to a law-
enforcement officer is admissible at trial regardless of whether the officer gave the
defendant Miranda warnings.” United States v. Phillips, 468 F.3d 1264, 1265 (10th Cir.
2006).
“[T]he ultimate issue of voluntariness . . . is a question of law,” United States v.
McNeal, 862 F.3d 1057, 1061 (10th Cir. 2017), but the analysis involves “the totality of
all the surrounding circumstances—both the characteristics of the accused and the details
11 of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Accepting,
as it must, the state court’s findings of fact, the district court determined that Mr. West’s
statements about the laptop’s location were voluntary and uncoerced. The state court
found:
From the evidence it appears to this Court that at the time the statements in question were made by [Mr. West] to the Stillwater Police Department detective that [Mr. West] was not deprived of his freedom of action to the degree associated with a formal arrest and that said statements were the product of free and deliberate choice of [Mr. West]. Said statements were given by [Mr. West] in a familiar or neutral location, i.e. the parking lot of [Mr. West]’s place of employment in view of other persons besides law enforcement officers; [Mr. West] at no time was placed in handcuffs or placed on the ground or any other compromising posture; the police followed or accompanied [Mr. West] from the building of his employer to the parking lot without obvious control or restraint by the police as opposed to being ordered by the police to accompany them; the police did not forcibly enter the premises of [Mr. West]’s place of employment; [Mr. West] was told by the police officer he was not under arrest and would not be arrested that day; [Mr. West] was not subjected to physical abuse or intimidation by the police; and [Mr. West] is 52 years old, and appears to possess at a minimum a reasonable level of intelligence.
O.R. at 96–97. Mr. West adduces some evidence to challenge the conclusion that his
statement was voluntary,10 but this evidence falls outside the state trial court’s factual
findings, and Mr. West has not shown by clear and convincing evidence that those
10 Specifically, Mr. West points to Ms. Fitch’s testimony that he was between two cars and there was an officer on either side of the exit. However, this evidence cannot overcome the presumption in favor of the state court’s finding that he “was not deprived of his freedom of action to the degree associated with a formal arrest and that said statements were the product of free and deliberate choice.” See O.R. 96–97; see also Stansbury v. California, 511 U.S. 318, 322 (1994) (“[A] court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there was a formal arrest or restraining on freedom of movement of the degree associated with a formal arrest.” (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation marks omitted)). 12 findings were incorrect. See Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (“[A]ny
state-court findings of fact that bear upon the claim are entitled to a presumption of
correctness rebuttable only by clear and convincing evidence.” (quotation marks
omitted)). Thus, reasonable jurists would not find the district court’s conclusion that Mr.
West’s statement to the police was voluntary, and therefore did not implicate Miranda,
debatable or wrong.
C. Ground VI—Challenge to the Eighty-Five Percent Rule
Mr. West argues that aggravated child pornography was not an enumerated
felony to which the eighty-five percent rule applied until 2015—several years after
he committed the crime. Thus, he contends it is an ex post facto law that has
increased his sentence by denying him earned time credits in violation of the Fifth
and Fourteenth Amendments to the federal Constitution. Although Mr. West objected
to the classification of his crime of conviction as an eighty-five percent crime in the
state court, he did not couch the argument in federal constitutional terms. As a result,
the OCCA ruled only on the state law question of whether the crime of conviction
qualified as an eighty-five percent crime, holding that it did. Thus, the district court
was free to independently consider Mr. West’s federal constitutional claim. Littlejohn
v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013). And we can grant a COA on that
claim only if the district court’s decision is fairly debatable. Slack, 529 U.S. at 484.
Oklahoma law provides a person convicted of a felony enumerated in
Oklahoma Statute title 21, § 13.1 “shall not be eligible for parole consideration prior
to serving eighty-five percent (85%) of the sentence imposed.” Okla. Stat. tit. 21,
13 § 12.1. The statute also prevents inmates convicted of the enumerated offenses from
being “eligible for earned credits or any other type of credits which have the effect of
reducing the length of the sentence to less than eighty-five percent (85%) of the
sentence imposed.” Id. Mr. West argues that aggravated child pornography was not
an enumerated felony to which the eighty-five percent rule applied until 2015—
several years after he committed the crime.
Mr. West argued in the district court that because aggravated child
pornography was not enumerated in the statute when he was convicted, it is an ex
post facto law that has unconstitutionally increased his sentence by denying him
earned time credits. The district court rejected his argument, reasoning that
“application of the 85% Rule . . . does not extend the duration of incarceration
beyond the term of years initially imposed[.] [I]t merely postpones the date on which
an inmate is initially eligible to be considered for parole.” West, 2018 WL 1442976,
at *7. Reasoning that Mr. West “lacks any federal due process rights in the parole
process,” the district court concluded he also lacked a liberty interest protected by the
federal Due Process Clause. Id. As we now explain, the district court’s decision is not
fairly debatable.
To establish a due process violation, Mr. West “must first demonstrate that he
has been deprived of a constitutionally-protected liberty or property interest.”
Boutwell v. Keating, 399 F.3d 1203, 1211 (10th Cir. 2005). As a general matter, there
is no federal constitutional right to parole. Greenholtz v. Inmates of Neb. Penal and
Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of
14 a convicted person to be conditionally released before the expiration of a valid
sentence.”). Moreover, this court has repeatedly held that where a state’s “parole
scheme is discretionary, [a prisoner] has no constitutionally protected due process
liberty interest in parole.” Griffith v. Bryant, 625 F. App’x 914, 917 (10th Cir. 2015)
(unpublished); see Boutwell, 399 F.3d at 1213–15; Shirley v. Chestnut, 603 F.2d 805,
807 (10th Cir. 1979). Because the eighty-five percent rule does not implicate a
constitutionally protected interest, Mr. West cannot successfully allege a due process
violation based on its application to his sentence. Therefore, the district court’s
rejection of Mr. West’s due process challenge was neither debatable nor wrong.
D. Ground VII—Challenge to the Definition of Child Pornography
Mr. West next asserts an ex post facto challenge, observing that after he
committed the crime but before his conviction, Oklahoma modified the definition of
“child pornography” to provide that “[e]ach visual depiction or individual image
shall constitute a separate item and multiple copies of the same identical material
shall be counted as a separate item.” Okla. Stat. tit. 21, § 1024.1(A) (eff. Nov. 1,
2012). Mr. West did not raise this claim on direct appeal or post-conviction in the
state court, but the district court exercised its discretion to avoid the procedural bar
issue and to instead dismiss the claim on the merits. See Brown, 515 F.3d at 1092–93.
Mr. West does not elaborate on his argument beyond a mere assertion that the
definition was misapplied, thereby somehow depriving the state court of jurisdiction
to enter sentence. Construing his argument liberally, James v. Wadas, 724 F.3d 1312,
1315 (10th Cir. 2013), the district court interpreted Mr. West’s argument as: prior to
15 inclusion of this definition, all the images on his single external hard drive would
have been lumped together as one “material,” and thus would not have constituted
“aggravated” possession of child pornography under § 1040.12a. West, 2018 WL
1442976, at *8. The district court rejected this argument, reasoning that the same
definition of child pornography “is used throughout multiple statutes,” including the
criminal statute operative at the time he committed the crime. Id.
Mr. West is correct that the specific language he highlights was added to
§ 1024.1(a) after he committed the crime of conviction. Nonetheless, his argument
fails because the aggravated possession of child pornography statute already included
similar language. See Okla. Stat. tit. 21 § 1040.12a (2011) (describing the offense as
the “possess[ion of] one hundred (100) or more separate materials depicting child
pornography” and defining “material” as “all digital and computerized images and
depictions”). And that language had been interpreted consistent with the subsequent
amendment. See Hamilton v. State, 387 P.3d 903, 906 (Okla. Crim. App. 2016)
(rejecting appellant’s claim that “multiple obscene images on a single computer hard
drive should be considered a single item of contraband,” because Oklahoma Statute
title 21, § 1040.12a “punishes the possession of 100 or more ‘separate materials’”
and “[t]he Legislature clearly intended that each visual image of child pornography
should constitute a separate ‘material’ for purposes of [Okla. Stat. tit. 21,
§ 1040.12a].”). Because the prevailing definition under Oklahoma’s aggravated
possession of child pornography statute at the time Mr. West committed the crime
defined each image as a “separate material,” the district court’s rejection of Mr.
16 West’s ex post facto challenge to Oklahoma’s statutory definition of child
pornography was neither debatable nor wrong.
E. Ground VIII—Alleged Double Jeopardy Clause Violation
The state court convicted Mr. West of two felonies: (1) aggravated possession
of child pornography and (2) unlawful use of a computer network to violate an
Oklahoma statute, in this case the possession of child pornography. Mr. West
contends both offenses punish the same action and so his convictions violate the
Double Jeopardy Clause of the Fifth Amendment. See Benton v. Maryland, 395 U.S.
784, 787 (1969) (holding “the Double Jeopardy Clause of the Fifth Amendment is
applicable to the States through the Fourteenth Amendment”).
On direct appeal in state court, Mr. West raised only a state law claim,
challenging the two convictions as double punishment in violation of Oklahoma law.
Consequently, the OCCA ruled only on the state law issue. Mr. West raised his
federal double jeopardy argument for the first time in state post-conviction
proceedings, and the state courts rejected the argument as procedurally barred.11
The district court rejected Mr. West’s constitutional claim, exercising its
discretion to consider the issue on the merits. See Slack, 529 U.S. at 485 (holding that
where the claim was dismissed on procedural grounds without reaching the merits, the
11 Mr. West raised this argument in his state post-conviction petition as part of “Ground VIII” for relief. ROA at 28–29. The state trial court rejected this argument as procedurally barred, mistakenly concluding it was “addressed by the direct appeal and summary opinion and res judicata bars Petitioner from further relief.” Id. at 42. The OCCA affirmed. Id. at 45–46. 17 court of appeals may dispose of it on the merits or procedural bar, depending on which
“answer is more apparent from the record and arguments”). The district court evaluated
the double jeopardy claim under Blockburger v. United States. West, 2018 WL
1442976, at *9. In Blockburger, the Supreme Court held “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” 284 U.S. 299, 304
(1932). And since Blockburger, the Supreme Court has expressly rejected the
argument that criminal prosecution for multiple felonies stemming from the same
single act violates the Double Jeopardy Clause if the offenses have distinct elements.
United States v. Dixon, 509 U.S. 688, 704 (1993).
Aggravated possession of child pornography requires the state to prove the
defendant: (1) knowingly, (2) possessed, (3) one hundred or more separate images of
(4) child pornography. Okla. Stat. tit. 21, § 1040.12a. In comparison, unlawful access
to a computer to violate an Oklahoma statute requires the state to prove the
defendant: (1) communicated with or retrieved data from, (2) a computer system or
network, (3) for the purpose of using the access to violate an Oklahoma statute. Okla.
Stat. tit. 21, § 1958.
As illustrated above, Mr. West’s two offenses contain different elements.
Where the convictions required proof of different facts, Blockburger dictates that no
double jeopardy violation occurred. 284 U.S. at 304. Thus, the district court’s
18 conclusion rejecting Mr. West’s double jeopardy claim was neither debatable nor
wrong.
F. Grounds I & II—Ineffective Assistance of Trial Counsel and Appellate Counsel
Mr. West claims he received ineffective assistance of trial and appellate counsel.
With respect to ineffective assistance of trial counsel, the state trial court concluded these
claims “could or should have been raised on direct appeal and Petitioner has therefore
waived consideration of those issues as grounds for relief through the Post-Conviction
process.” The OCCA affirmed that ruling. The federal district court agreed that “the
majority of Petitioner’s federal claims are either unexhausted and/or potentially
procedurally barred,” but it considered and rejected each of these claims on the merits.
West, 2018 WL 1442976, at *3.
As to the claims of ineffective assistance of appellate counsel, the state trial court
considered each ground asserted and rejected it on the merits. The OCCA affirmed,
concluding, “Petitioner has not established that any of the alleged errors for which he
claims his appellate counsel was ineffective would provide a reasonable probability that
the result of his appeal would have been different.”
Applying the framework of Strickland v. Washington, 466 U.S. 668 (1984), the
district court found the OCCA had reasonably denied all of Mr. Strickland’s ineffective
assistance claims. West, 2018 WL 1442976, at *10. The first prong of Strickland
mandates that the defendant “must show that counsel’s performance was deficient”; the
second prong requires the defendant to show “that the deficient performance prejudiced
19 the defense” by “depriv[ing] the defendant of a fair trial.” 466 U.S. at 687. Counsel’s
performance is “deficient” if it is “outside the wide range of professionally competent
assistance.” Id. at 690. “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Id. As we now explain, based on this standard, no reasonable jurist would
find the district court’s conclusion debatable or wrong. See Slack, 529 U.S. at 484.
1. Ineffective Assistance of Trial Counsel
a. Failure to adequately examine the original record
In Ground II(1)(a), Mr. West argues that his trial counsel was ineffective because
counsel did not adequately examine the original record for errors—in particular, the
absence of the search warrant authorizing a search of Mr. West’s residence. As the
district court observed, however, trial counsel had access to the correct search warrant
and referred to it in his submissions to the state trial court. See West, 2018 WL 1442976,
at *10; O.R. at 50 (Motion to Suppress Warrantless Search and Seizure of Defendant’s
Laptop Computer); see also supra note 9. Although the original record did not include
the correct search warrant, the warrant existed and was promptly provided by the State
when notified of the error. Accordingly, no prejudice could have arisen from counsel’s
failure to identify this error in the original record sooner, and no reasonable jurist would
find the district court’s denial of this claim debatable or wrong.
b. Failure to adequately investigate surrounding circumstances
In Ground II(1)(b), Mr. West asserts that trial counsel failed to adequately:
(i) investigate other individuals who lived at Mr. West’s residence and had access to his
20 computer equipment and internet; (ii) prepare for preliminary hearings; (iii) review the
search warrant; (iv) ascertain whether Mr. West was given a Miranda warning; and
(v) ascertain whether a search warrant was actually issued for Mr. West’s residence. But
Mr. West has not explained how any of the above alleged inadequacies have prejudiced
him. Furthermore, as discussed above, the correct warrant was produced, and trial
counsel did argue (albeit unsuccessfully) that Mr. West was not given a Miranda
warning. Therefore, no reasonable jurist would dispute the district court’s denial of this
ineffective assistance of counsel claim
c. Failure to secure an expert witness and sufficiently examine State’s expert
In Grounds II(1)(c) and (e), Mr. West argues that his trial attorneys provided
ineffective assistance by not calling an expert witness to refute the State’s expert witness
and for not sufficiently examining the State’s forensic expert regarding the methods used
to search Mr. West’s computer.
Mr. West argues that the State’s expert witness testimony regarding how the child
pornography was discovered and linked to Mr. West was “so technical that all attorneys
and even the Trial Court itself were somewhat ‘at sea.’” ROA at 10. Because of the
expert’s purportedly nebulous explanation, Mr. West asserts his counsel should have
cross-examined the expert or, in the alternative, called an expert witness for the defense.
But Mr. West does not explain how cross-examination of the State’s expert would have
affected the outcome of trial or what his own expert would have testified. See Strickland,
466 U.S. at 687 (requiring a showing “that [counsel’s] deficient performance prejudiced
the defense”).
21 Absent any theory of how Mr. West was prejudiced, no reasonable jurist could
dispute the district court’s denial of this ineffective assistance of counsel claim. See
James, 724 F.3d at 1315 (holding we will not act as the appellant’s advocate).
d. Failure to properly communicate with Mr. West
Mr. West claims in Ground II(1)(d) that his counsel did not properly communicate
with him because they failed to: (i) request in-depth consultation with him to ascertain
specific facts; (ii) relay that they were unknowledgeable about the technical facts in the
case and were unable to adequately communicate with him regarding those technical
facts; (iii) acknowledge correspondence sent from Mr. West in jail; (iv) discuss trial
strategy with him; and, (v) prepare him to testify for hearings and trial.
Despite accusing his attorneys of these inadequacies, Mr. West again omits any
argument as to how this prejudiced him at trial. Without any showing of prejudice, no
reasonable jurist could dispute the district court’s finding that the OCCA reasonably
denied Mr. West’s ineffective assistance claims based on failure of trial counsel to
communicate.
e. Failure to argue that Mr. West was being charged under a statute inapplicable to the crimes he was charged with
In Ground II(1)(f), Mr. West alleges his counsel failed to argue that his crime did
not fit the statutory requirement of Oklahoma Statute title 21, § 1040.12a requiring
possession of over 100 materials of child pornography. For the reasons explained above,
Mr. West was properly charged and convicted under this statute. See supra Section II.C.
Therefore, if Mr. West’s counsel objected to the charges, his objection would have been
22 meritless. Counsel is not ineffective for failing to raise a meritless objection. Sperry v.
McKune, 445 F.3d 1268, 1275 (10th Cir. 2006).
Thus, the district court’s conclusion that the Oklahoma courts reasonably denied
Mr. West’s ineffective assistance of trial counsel claims is not debatable or wrong.
2. Ineffective Assistance of Appellate Counsel
Mr. West argues his appellate counsel was ineffective for failing to raise an
ineffective assistance of trial counsel claim related to the claims discussed in Section
II.F.1 and for failing to: (1) adequately challenge the warrantless search of Mr. West’s
workplace; (2) adequately argue the double jeopardy violations; (3) argue that Mr. West’s
statements should have been suppressed; and (4) argue on direct appeal that trial counsel
was ineffective for failing to immediately appeal the trial court’s suppression decision.
As discussed, Mr. West has not shown any constitutional violations resulting from
ineffective assistance of trial counsel. See supra Section II.F.1. Thus, Mr. West cannot
show prejudice from his appellate counsel’s failure to argue ineffective assistance of trial
counsel. See Smith v. Robbins, 528 U.S. 259, 289 (2000) (holding that defendant “must
satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective
assistance of appellate counsel”). We now consider the claims unique to appellate
counsel.
Regarding Mr. West’s first and second challenges, appellate counsel did make
arguments based on the warrantless search and alleged double jeopardy. See ROA at
150–57. Mr. West does not explain how his counsel’s performance fell short of the
Strickland standard, but instead, only restates the facts that occurred on the date of the
23 seizure of his red laptop. We give deference to the OCCA’s merits ruling affirming the
trial court’s denial of post-conviction relief, see Smith v. Duckworth, 824 F.3d 1233, 1242
n.6 (10th Cir. 2016) (“[B]ecause the OCCA considered the merits of [the underlying]
claim in considering whether ineffective assistance excused his procedural default, we
must apply AEDPA deference to the OCCA’s evaluation of that [underlying] claim.”),
and Mr. West has not shown the OCCA unreasonably applied federal law in rejecting his
post-conviction application. Thus, the district court’s rejection of these arguments is not
Mr. West’s next challenge is that appellate counsel should have argued for
suppression of Mr. West’s statements about the red laptop’s location because Mr. West
was under an interrogative atmosphere and received no Miranda warning. Mr. West
cannot show prejudice from appellate counsel’s failure to raise this argument because, as
the district court concluded based on the OCCA’s factual findings, Mr. West’s statements
were voluntary. See supra Section II.B. Moreover, regardless of whether he was entitled
to a Miranda warning, the physical evidence police found based on Mr. West’s
statements did not merit suppression. Id.
Mr. West’s last challenge is that appellate counsel performed ineffectively by not
immediately appealing the trial court’s suppression decision. Because Mr. West’s
appellate counsel had not yet been appointed at that stage of the proceedings, we
construe his argument as faulting trial counsel for not immediately appealing. In any
event, his argument fails because an “order overruling [a] motion to suppress . . . [is] not
a final order in the case and hence not appealable.” Hughes v. State, 172 P.2d 435, 438
24 (Okla. Crim. App. 1946); see also Di Bella v. United States, 369 U.S. 121, 131 (1962)
(“Orders granting or denying suppression . . . are truly interlocutory, for the criminal trial
is then fairly in train.”). Because counsel could not have immediately appealed the
adverse suppression decision, counsel could not have been ineffective for failing to do so,
nor could appellate counsel be ineffective for failing to argue trial counsel should have
done so. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (“[I]f the issue is
meritless, its omission will not constitute deficient performance.”).
In sum, Mr. West has failed to plausibly allege that his counsels’ performance was
deficient or prejudicial at either the trial or appellate stage. Accordingly, the district
court’s conclusion that the OCCA reasonably found no ineffective assistance of counsel
is neither debatable nor wrong.
III. CONCLUSION
Mr. West has not demonstrated that the district court's assessment of any of his
constitutional claims is debatable or wrong. See Slack, 529 U.S. at 484. Therefore, we
DENY his request for a COA and DISMISS this appeal.12
12 Mr. West has also filed a motion requesting this court “declare the Oklahoma Aggravated Pornography Statute, Procedure, Conviction and Sentence . . . Unconstitutional” because it violates the First Amendment and the Double Jeopardy Clause of the Fifth Amendment and arguing he was denied his constitutional right to a trial by jury. Mr. West also filed a motion “to review and grant relief on . . . grounds for relief non-exhausted [sic],” “to declare exhaustion futile,” and “to grant plain error review and relief.” He is not entitled to a COA on these issues. At no point prior to these proceedings has Mr. West raised any of these arguments. As such, they are unexhausted in state court and furthermore we generally “do not address arguments presented for the first time on appeal.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012). “A district court cannot be debatably wrong on issues that are not fairly presented to or
25 Entered for the Court
Carolyn B. McHugh Circuit Judge
decided by it.” United States v. Clifton, 728 F. App’x 880, 882 (10th Cir. 2018) (unpublished) (citation and quotation marks omitted). We therefore DENY these motions. Mr. West has also filed a motion to submit transcript excerpts. Because Respondent Jason Bryant has filed the complete transcripts along with the original state court record, we DENY Mr. West’s motion as moot. Finally, Mr. West has filed a motion to proceed in forma pauperis. “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Although the trial court so certified in this case, Mr. West “may nonetheless move this court for leave to proceed on appeal in forma pauperis pursuant to the mechanism set forth in” Federal Rule of Appellate Procedure 24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007). As in the district court, “to succeed on his motion, an appellant must show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). After careful consideration of Mr. West’s application, we agree with the district court that he has not shown the existence of such a reasoned, nonfrivolous argument. His motion for leave to proceed in forma pauperis is accordingly DENIED.