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Steven Wilson v. Michael Carr, 59 F.3d 179, 10th Cir. (1995)
Steven Wilson v. Michael Carr, 59 F.3d 179, 10th Cir. (1995)
3d 179
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Petitioner appeals the district court's order denying his petition for a writ of
habeas corpus pursuant to 28 U.S.C. 2254. On appeal, petitioner argues that (1)
the prosecutor intentionally withheld exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and (2) the prosecutor used
peremptory challenges to remove minorities from the jury panel in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner also argues that the district
court erred in failing to hold an evidentiary hearing on his Brady and Batson
claims. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm.
Petitioner was convicted of first degree murder of his stepdaughter, who also
had been raped, in Oklahoma state court and sentenced to life imprisonment.
He appealed arguing, among other things, the Brady violation. His conviction
Petitioner then filed this his second petition for writ of habeas corpus in federal
district court raising, among other things, the Brady and Batson issues. The
petition was referred to the magistrate judge who recommended denial of the
petition. After reviewing the state court records, the district court adopted the
magistrate judge's recommendation and denied habeas relief. This appeal
followed.
In this case, the dispute centers on the third criteria: whether the suppressed
evidence was material. "[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A 'reasonable probability' is a
probability sufficient to undermine confidence in the outcome." United States v.
Bagley, 473 U.S. 667, 682 (1985); see Smith v. Secretary of N.M. Dep't of
Corrections, 50 F.3d 801, 826 (10th Cir.1995). The materiality of the evidence
must be evaluated in light of the entire record3 to determine whether the
evidence "creates a reasonable doubt that did not otherwise exist." Banks, 1995
WL 242619, at * 9 (quotation omitted).
8
In this case, the withheld evidence was cumulative and therefore not material.
See Banks, 1995 WL 242619, at * 8. Petitioner presented similar evidence in
his defense at trial. Wilson, 737 P.2d at 1206. Our de novo examination of the
record leads us to conclude that there is no reasonable probability that the trial
result would have been different if the evidence had been disclosed to
petitioner, and therefore, no miscarriage of justice occurred, see Bagley, 473
U.S. at 675.
10
The district court determined this issue was procedurally defaulted in the state
courts. Petitioner disagrees, arguing that Batson was decided while his direct
appeal was pending, his attorney in the collateral proceedings completely failed
to represent him, and failure to consider this claim will result in a fundamental
miscarriage of justice.
11
In all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
12
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Because there is no right to
counsel to pursue a state habeas appeal, any attorney error leading to a default
in state court does not establish cause to excuse default in a federal habeas
corpus proceeding, and the petitioner must "bear the burden of a failure to
follow state procedural rules." Id. at 754, 757. The fundamental miscarriage of
justice exception does not apply in this case because petitioner cannot make "a
colorable showing of factual innocence" with his Batson claim. See Steele v.
Young, 11 F.3d 1518, 1522 & n. 8 (10th Cir.1993)(quotations omitted).
Accordingly, we conclude the district court correctly determined this issue was
procedurally defaulted.
13
Petitioner finally argues that the district court should have held an evidentiary
hearing on his allegations of Brady and Batson violations. Because the record is
sufficient to decide the issues without an evidentiary hearing, petitioner was not
entitled to a hearing. See Coleman v. Brown, 802 F.2d 1227, 1242 (10th
Cir.1986), cert. denied, 482 U.S. 909 (1987). The district court did not err in
failing to hold an evidentiary hearing.
14
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
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 the court's General
Order filed November 29, 1993. 151 F.R.D. 470