E.D. Okla., D.C. No. 6:09-CV-00422-JHP-KEW.
Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Harris L Hartz, Circuit Judge
Applicant Daniel Lee Wilson, an Oklahoma state prisoner, applied for relief under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Oklahoma. The district court denied the application. Applicant now seeks a certificate of appealability (COA) from this court so that he may appeal the district court's decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2254 application). We deny a COA and dismiss the appeal.
In April 2005 Applicant was charged by information in Oklahoma state court on counts of first-degree murder and discharging a firearm into an occupied dwelling. The charges related to two shootings in the Morgan Hill area of LeFlore County, Oklahoma. Michael Clark, whom Applicant describes as the state's "key witness, " Aplt. Br. at 7 (emphasis omitted), testified that he rode with Applicant to Morgan Hill on the night of April 4, 2005, where Applicant fired a rifle into a house. Inside the house, Antonio Salinas Mares sustained a gunshot wound to the head and died. Shell casings also linked Applicant to a second shooting at a nearby mobile home.
To establish Applicant's motive for the shootings, the state presented the testimony of Isidro Salinas, an uncle of Mares. Salinas testified that about two months before the shootings, Applicant kidnapped him, forced him to inject drugs and have sex with Applicant's girlfriend, and then demanded that he pay Applicant $600. He further testified that Applicant had menaced him with a gun and threatened to "'kill all of you'" if he was not paid the money. R., Vol. 1 pt. 4 at 655.
The jury found Applicant guilty on both counts, and the court sentenced him to life for the murder and 35 years' imprisonment for the firearm count. He appealed to the Oklahoma Court of Criminal Appeals (OCCA), challenging the admission of Salinas's testimony regarding the kidnapping incident. The OCCA affirmed. Applicant then sought state postconviction relief on the grounds (1) that his trial counsel had rendered ineffective assistance by failing to present witnesses who could have discredited Clark; (2) that his appellate counsel (a different lawyer) had rendered ineffective assistance by failing to raise trial counsel's ineffectiveness on direct appeal; and (3) that the trial court had improperly limited his cross-examination of Clark. The state trial court denied relief and the OCCA affirmed the denial. The court held that Applicant had waived the ineffective-assistance-of-trial-counsel claim by failing to raise the claim on direct appeal, and it summarily rejected on the merits the claim of ineffective assistance of appellate counsel.
In October 2009 Applicant filed his § 2254 application. He argued that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is unconstitutional because it violates Article III of the United States Constitution and the principle of separation of powers. In addition, he repeated his arguments that the admission of Salinas's testimony deprived him of a fair trial, that he had received ineffective assistance of trial and appellate counsel, and that he was denied a fair opportunity to cross-examine Clark. The district court denied relief and denied a COA. Applicant now seeks a COA from this court so that we may review the district court's decision. He pursues all the issues raised in his § 2254 application except his constitutional challenge to AEDPA.
A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires "a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [application] 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 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court's resolution of the constitutional claim was either "debatable or wrong." Id.
AEDPA provides that when a question of federal law has been adjudicated on the merits in state court, a federal court can grant habeas relief only if the applicant establishes that the state-court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). As we have explained:
Under the "contrary to" clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation marks omitted). Relief is provided under the "unreasonable application" clause "only if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. (brackets and internal quotation marks omitted). Thus, a federal court may not grant habeas relief simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. See id. Rather, that application must have been unreasonable. Moreover, "AEDPA's deferential treatment of ...