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  • Strickland v. Crank, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit denied Floyd Strickland's request for a Certificate of Appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Strickland was convicted of two counts of arson in Wyoming state court and sentenced to concurrent terms of 120-216 months and 60-108 months. The district court denied Strickland's § 2254 petition claiming violations of his constitutional rights, and denied his request for a COA. The Tenth Circuit agreed with the district court's reasoning and found that Strickland did not make a substantial showing that his constitutional rights were denied, as required to issue a CO

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    Filed: 2006-04-11 Precedential Status: Non-Precedential Docket: 05-8062

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    The United States Court of Appeals for the Tenth Circuit denied Floyd Strickland's request for a Certificate of Appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Strickland was convicted of two counts of arson in Wyoming state court and sentenced to concurrent terms of 120-216 months and 60-108 months. The district court denied Strickland's § 2254 petition claiming violations of his constitutional rights, and denied his request for a COA. The Tenth Circuit agreed with the district court's reasoning and found that Strickland did not make a substantial showing that his constitutional rights were denied, as required to issue a CO

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    Strickland v. Crank, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit denied Floyd Strickland's request for a Certificate of Appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Strickland was convicted of two counts of arson in Wyoming state court and sentenced to concurrent terms of 120-216 months and 60-108 months. The district court denied Strickland's § 2254 petition claiming violations of his constitutional rights, and denied his request for a COA. The Tenth Circuit agreed with the district court's reasoning and found that Strickland did not make a substantial showing that his constitutional rights were denied, as required to issue a CO

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    April 11, 2006


    Elisabeth A. Shumaker

    Clerk of Court

    FLOYD STRICKLAND,
    Petitioner - Appellant,

    v.

    SCOTT ABBOTT, Warden, Wyoming


    State Penitentiary,

    No. 05-8062
    (D.C. No. 04-CV-330-J)
    (D. Wyo.)

    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.
    Floyd Strickland was convicted in Wyoming state court of two counts of
    arson. The district court denied both Mr. Stricklands 28 U.S.C. 2254 petition
    for a writ of habeas corpus and his request for a certificate of appealability
    (COA) to appeal the denial of his 2254 petition. He now seeks a COA from

    After examining appellants brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G). The case is therefore ordered submitted without oral argument. This
    Order and Judgment is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be
    cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    this court. For substantially the same reasons set forth by the district court, we
    DENY a COA and DISMISS this appeal.
    In June 2001, Mr. Strickland was convicted of both first- and seconddegree arson in relation to a fire that damaged the basement of his home. See
    Wyo. Stat. Ann. 6-3-101, -102 (2005). He was sentenced to serve concurrent
    terms of between 120 and 216 months on the count of first-degree arson and
    between 60 and 108 months on the count of second-degree arson. On direct
    appeal, Mr. Strickland asserted thirteen points of error, but the Wyoming Supreme
    Court affirmed his conviction and sentence. Strickland v. State, 94 P.3d 1034
    (Wyo. 2004). 1
    Mr. Strickland then filed a pro se 28 U.S.C. 2254 petition in federal
    district court, asserting that the Wyoming Supreme Courts decision is contrary
    to, or involved the unreasonable application of, United States Supreme Court case
    law. 2 Mr. Strickland asserted causes for relief based on: his Fifth Amendment
    Although the original sentence also recommended that Strickland not be
    allowed to return to Natrona County should he be released prior to full service of
    his sentence, the Wyoming Supreme Court found that portion of the sentence to
    be unlawful. Strickland, 94 F.3d at 105051.
    1

    The standard for federal habeas review is set out in 2254:


    An application for a writ of habeas corpus on behalf of a person in
    custody pursuant to the judgment of a State court shall not be granted
    with respect to any claim that was adjudicated on the merits in State
    court proceedings unless the adjudication of the claim . . . resulted in
    a decision that was contrary to, or involved an unreasonable application
    (continued...)

    -2-

    right against double jeopardy, his Fourth Amendment rights, his Sixth
    Amendment right to effective counsel, and his Fifth and Sixth Amendment rights
    to due process and a fair trial.
    Applying the standard given in 2254, the district court denied relief on all
    four grounds. It first concluded that the Wyoming Supreme Court did not
    unreasonably deny Mr. Stricklands double jeopardy claim because, in Wyoming,
    first- and second-degree arson each require[] proof of a fact which the other does
    not. Blockburger v. United States, 284 U.S. 299, 304 (1932). Second, the
    district court rejected Mr. Stricklands Fourth Amendment claims, both because
    he had the opportunity to fully and fairly litigate the issue in the Wyoming courts
    and because the Wyoming Supreme Courts conclusion that Mr. Strickland had
    consented to all the challenged searches was not unreasonable. Third, the district
    court rejected Mr. Stricklands claim that his attorney was ineffective in failing to
    call an expert witness and failing to request several jury instructions. Finally, the
    district court concluded that statements made by the prosecutor did not rise to the
    level of a violation of Mr. Stricklands right to a fair trial. Mr. Strickland sought

    (...continued)
    of, clearly established Federal law, as determined by the Supreme Court
    of the United States . . . .
    28 U.S.C. 2254(d).
    2

    -3-

    to appeal the district courts decision, and the district court denied his request for
    a COA. He renews his request for a COA before this court.
    Congress has mandated that a COA may issue only if the applicant has
    made a substantial showing of the denial of a constitutional right. 28 U.S.C.
    2253(c)(2). We have held that a petitioner can make such a showing by
    demonstrating that the issues he seeks to raise on appeal are deserving of further
    proceedings, subject to a different resolution on appeal, or reasonably debatable
    among jurists of reason. Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.
    2000). In this case, Mr. Strickland has not made such a showing. Therefore, for
    substantially the same reasons set forth in the district courts thorough opinion,
    we DENY Mr. Stricklands request for a COA and DISMISS this appeal.

    ENTERED FOR THE COURT

    David M. Ebel
    Circuit Judge

    -4-

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