West v. Farris

588 F. App'x 749
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 7, 2014
Docket14-6107
StatusUnpublished

This text of 588 F. App'x 749 (West v. Farris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West v. Farris, 588 F. App'x 749 (10th Cir. 2014).

Opinion

ORDER DENYING CERTIFICATE OF APPEALABILITY *

CARLOS F. LUCERO, Circuit Judge.

Zonta Vincent West seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

I

On November 7, 2008, while delivering pizza, Jeremy Moore was shot dead outside of an apartment complex in Oklahoma City. Police investigators discovered that the pizza was ordered from a telephone at West’s home in a nearby apartment com-, plex.

Under videotaped questioning, West claimed that an acquaintance, Rondell Griffin, used his phone to order the pizza, intending to rob the delivery person. West revealed substantial knowledge of the crime that only a participant was likely to know. He denied taking part in the robbery, maintaining instead that he told Griffin and Christian Holder, a co-conspirator who arrived later, that their robbery plan was “crazy.” West proffered an alibi that he was with his girlfriend, Ashley Tucker, in her apartment during the time of the murder but made conflicting statements about when he went to Tucker’s *751 apartment. In a later interview, Tucker told the police that West came and went from her apartment at times different from West’s account.

According to Griffin, he and West jointly hatched the robbery scheme. After Griffin called for the pizza, they informed Holder of their plan. Holder agreed to participate and retrieved brass knuckles to use in the robbery. Holder testified that the trio then went to the apartment complex where Moore’s body was found. Both Holder and Griffin claimed that, once there, they ran into a man named Larry Stelly, who asked them about their plans and told them he had a gun. Holder testified that West obtained Stelly’s gun and shot Moore after he arrived to deliver the pizza.

Aside from a receipt for the pizza found in Moore’s pocket, the only physical evidence the police discovered was a pizza warming bag in Griffin’s shed. The gun was never located.

A jury convicted West of first degree felony murder. He was sentenced to life with the possibility of parole. The Oklahoma Court of Criminal Appeals (“OCCA”) denied his direct appeal. The district court denied his petition for habeas corpus. West now seeks a COA to appeal that denial.

II

West may not appeal the denial of § 2254 relief without a COA. § 2258(c)(1). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard, West must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) 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. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted).

Construing West’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991), he alleges that his constitutional rights were denied in four ways: (1) he received ineffective assistance of counsel; (2) he was denied due process and the right to confront his accuser; (3) the evidence against him was insufficient to support his conviction; and (4) the jury was not instructed regarding lesser included offenses.

A

A petitioner claiming ineffective assistance of counsel must establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In reviewing a state court’s application of Strickland, we must be doubly deferential, inquiring “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011).

West first argues that his trial counsel were ineffective because they failed to call Tucker, his alibi witness. An affidavit submitted in West’s direct appeal explains that although Tucker arrived in court pursuant to her subpoena, district attorney staff informed her that she could go home. Tucker was told that she did *752 not need to worry about the defense’s subpoena, because only the prosecution could “lock her up.” West’s attorneys searched the courthouse for Tucker and sent an investigator to her home, but ultimately decided to proceed without calling her because the jury had already heard West’s alibi in a videotaped statement. The OCCA concluded that counsel’s decision did not constitute ineffective representation, but was instead a strategic decision on the part of defense counsel. We agree with the district court that the OCCA’s decision was neither contrary to, nor an unreasonable application of, Supreme Court precedent.

Separately, West argues that his counsel were ineffective because they failed to request an alibi instruction. The OCCA rejected this claim in part because the jury was instructed on exculpatory statements. West’s attorney understood the exculpatory statement instruction as including West’s alibi. We thus agree with the district court that the OCCA’s determination was reasonable.

Finally, West contends that his lawyers were ineffective because their ignorance of evidentiary rules opened the door to harmful evidence. West argues that his lawyers structured their trial strategy so as to prevent three witnesses from testifying. Those witnesses averred that Holder told them that West shot Moore. West’s lawyers nevertheless cross-examined Holder about his motivation to fabricate testimony against West to obtain a reduced sentence, incorrectly believing that this would not open the door to Holder’s prior consistent statements made to the three witnesses. The OCCA concluded that West was not prejudiced by this error because his attorneys were allowed to recall Holder and impeach him with inconsistencies in his testimony that they had previously avoided, making his statements to the three -witnesses seem less credible. Despite West’s attorneys’ deficient performance, we agree with the district court that the OCCA’s conclusion is neither contrary to, nor an unreasonable application of, Strickland.

B

West contends that improper hearsay testimony violated both the Confrontation Clause and his due process rights.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Slack v. McDaniel
529 U.S. 473 (Supreme Court, 2000)
Welch v. Workman
639 F.3d 980 (Tenth Circuit, 2010)
Turrentine v. Mullin
390 F.3d 1181 (Tenth Circuit, 2004)
United States v. Jarvis
499 F.3d 1196 (Tenth Circuit, 2007)
Harrington v. Richter
131 S. Ct. 770 (Supreme Court, 2011)
Hall v. Bellmon
935 F.2d 1106 (Tenth Circuit, 1991)
Banks v. Workman
692 F.3d 1133 (Tenth Circuit, 2012)
Childress v. State
2000 OK CR 10 (Court of Criminal Appeals of Oklahoma, 2000)

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Bluebook (online)
588 F. App'x 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-farris-ca10-2014.