Roy White v. SCOTT CROW, Director

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ROY WHITE,
Petitioner - Appellant,
v.
SCOTT CROW, Director,
Respondent - Appellee.
No. 21-6006
(D.C. No. 5:20-CV-00449-C)
(W.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Roy White, an Oklahoma prisoner representing himself, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his application for a writ of
habeas corpus under 28 U.S.C. § 2254. We deny a COA and dismiss this matter.
I. Background
White was convicted in Oklahoma state court on two counts—first-degree murder
and possession of a firearm after conviction of a felony. The convictions arise from the
murder of Donald Brewer in a motel room rented by Frank Crowley, who knew Brewer
and White. According to Crowley’s trial testimony, Brewer was visiting with him when
 This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 21, 2021
Christopher M. Wolpert
Clerk of Court
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White came to the room. Crowley knew the two men had a disagreement about money.
After White and Brewer argued briefly about a debt, White shot Brewer several times,
then fled.
Crowley ran across the street to a patrol car and frantically told officers his friend
had just been shot. He described the shooter as a heavy-set black male wearing a red
sweatshirt and carrying a black backpack. A detective responding to the scene saw a
heavy-set black male walking away from the motel wearing a tank top, which the
detective considered odd because the shirt was inappropriate clothing for the cold
December weather. When the detective approached the man, who turned out to be
White, White ran but was soon apprehended. White initially told the detective he was
running because he had heard gunshots. When interviewed by different detective later
that night, White added that he had gone to the motel to see his friend “Short,” and that
he was in the doorway of Short’s room when he heard gunshots and began running. The
interviewing detective knew Crowley and knew that his nickname was “Short.”
A search of pathways leading from the motel uncovered a sweatshirt and backpack
in the grass behind a nearby building. The detective who apprehended White testified
that it appeared they had recently been discarded because the grass was wet but the items
were dry. The backpack contained marijuana and a .32 caliber revolver.
At trial, Crowley testified that the gun found in the backpack looked like the gun
White used to shoot Brewer; it was the same color and had a small loop known as a
“lanyard ring” at the bottom of the grip, as Crowley had described to the interviewing
detective shortly after the shooting. Crowley said White shot at Brewer until he ran out
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of bullets, and the cylinder of the gun found was full of empty shells. A state firearms
examiner testified that although the gun was operable, she could not determine whether
one bullet fragment retrieved from the scene came from that gun because the fragment
was too damaged. She did, however, conclude that the fragment had the same class
characteristics as bullets that would fit the gun.
Police had obtained swabs from White’s hands and face to test for gunshot residue
(GSR) and submitted the gun, backpack, sweatshirt, and a cheek swab for a DNA
comparison. The state criminalist who tested the items explained at trial that White was
excluded as the donor of DNA recovered from the backpack and that the sample obtained
from the sweatshirt was not suitable for analysis. But the criminalist testified that
White’s DNA was consistent with traces found on the gun and that the odds of finding a
random match between the gun and an unrelated individual in the general population
were at least 1 in 26. The GSR test detected elements swabbed from White’s face (a
mixture of lead, barium, and antimony) found in GSR and not normally attributable to
any other source, but the test did not detect any such elements from White’s hand swabs.
White did not testify at trial. The jury found him guilty of first-degree murder and
being a felon in possession. He was sentenced to life without parole plus ten years. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed White’s convictions and
sentence. See White v. State, 437 P.3d 1061, 1073 (Okla. Crim. App. 2019).
White then filed a habeas petition under 28 U.S.C. § 2254. A magistrate judge
issued a report and recommendation (R&R) to deny the petition. The district court
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adopted the R&R over White’s objections and denied the petition. White seeks a COA
on the denial of six of the seven grounds for relief raised in his petition.
II. Legal Framework
To appeal the denial of a § 2254 petition, a petitioner must first obtain a COA.
See 28 U.S.C. § 2253(c)(1)(A). To obtain a COA on claims the district court denied on
the merits, a petitioner must make “a substantial showing of the denial of a constitutional
right,” § 2253(c)(2), such 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) (internal quotation marks omitted). For claims the district court denied
on a procedural ground without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and . . . whether the district court was correct in its procedural
ruling.” Id. “Each component of [this] showing is part of a threshold inquiry.”
Id. at 485. Thus, if a petitioner cannot make a showing on the procedural issue, we need
not address the constitutional component. See id.
Our consideration of White’s request for a COA must incorporate the “deferential
treatment of state court decisions” mandated by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
We therefore “look to the District Court’s application of AEDPA to [White’s]
constitutional claims and ask whether that resolution was debatable amongst jurists of
reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To that end, we must keep in
mind that when a state court has adjudicated the merits of a claim, a federal court may
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grant habeas relief only if that state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2).
A state-court decision is contrary to clearly established federal law if (1) “the state
court applies a rule that contradicts the governing law set forth in Supreme Court cases”;
or (2) “the state court confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a result different from that
precedent.” House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (brackets and internal
quotation marks omitted). “A state court decision involves an unreasonable application
of clearly established federal law when it identifies the correct governing legal rule from
Supreme Court cases, but unreasonably applies it to the facts.” Id.
Whether there has been an unreasonable application of clearly established federal
law is an objective inquiry. Williams v. Taylor, 529 U.S. 362, 409-10 (2000). “An
application of Supreme Court law may be incorrect without being unreasonable.”
Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013). A decision is objectively
unreasonable “only if all fairminded jurists would agree that the state court got it wrong.”
Id. (internal quotation marks omitted). “The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted).
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Because White represent himself, we construe his filings liberally, but we do not
act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. Discussion
A. Sufficiency of the evidence
Grounds one and two of White’s habeas petition involved whether there was
sufficient evidence that he possessed the firearm and used it to kill Brewer. The OCCA
decided these issues on the merits, applying the standard set forth in Jackson v. Virginia,
443 U.S. 307, 319 (1979)—“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
The OCCA first considered White’s argument that the physical evidence linking
him to the crime was inconclusive. The court noted that the DNA sample from the gun
was a mixture from more than one source and thus materially affected the probative value
of a comparison with White’s sample. But regardless, the court said, the statistical
evidence showed White was 26 times more likely to have contributed DNA to the pistol
than an unrelated person from the general population, and the GSR test of the facial
swabs showed that White had recently been in close proximity to the discharge of a
firearm.
The OCCA next considered the credibility of Crowley’s eyewitness testimony.
The court determined that any innocent misidentification of White as the shooter was
counterbalanced by the fact that Crowley knew White personally, and although
Crowley’s status as a felon was relevant to the possibility that he simply lied that White
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was the shooter, there was no evidence Crowley had any motive to falsely accuse White.
The OCCA explained that Crowley’s testimony matched other evidence in significant
ways—the gun found near the scene matched Crowley’s description of it in unique ways
(lanyard ring, chamber with only empty shells); the DNA from the gun could have been
White’s; and White was observed walking near the scene in only a tank top in winter
weather. A sweatshirt was found nearby (Crowley said the shooter was wearing a
sweatshirt), and White’s path was consistent with where the backpack, sweatshirt, and
gun were found. The OCCA also considered other issues that may have weakened the
State’s case, including that the sweatshirt was not the same color that Crowley had
described and Crowley’s history of mental health problems. The OCCA concluded those
issues were adequately presented for the jury’s consideration—Crowley said he was not
looking at what the shooter was wearing but at the gun, and whether his mental health
history may have affected his credibility was explored at trial.
Finally, the OCCA noted that the jury also had White’s admission to the police
that he had been standing in the doorway of a motel room rented by “Short,” which was
Crowley’s nickname, when he heard the gunshots and fled. Although White did not
admit to the shooting, the OCCA concluded “his unsolicited admission to actually being
at the scene is certainly peculiar and raises suspicion when considered in light of all the
other evidence.” White, 437 P.3d at 1067.
Based on all this evidence and construing it in the light most favorable to the
prosecution, the OCCA concluded that a rational juror could find beyond a reasonable
doubt that White possessed a firearm and used it to kill Brewer with malice aforethought.
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The district court summarily determined that the OCCA’s application of the
Jackson standard was reasonable.
In his COA application, White argues that reasonable doubt existed because
(1) the police failed to test Crowley for GSR or DNA, and Crowley had “had far more
motive than Petitioner,” COA Appl. at 3; (2) the GSR report proved White had not fired
the gun because the probability of having fired a revolver seven times and having no
GSR on the hands is so low (according to White, 1 in 1021
) as to be impossible, and there
was evidence proving White had not washed his hands; and (3) the only DNA evidence
obtained from the backpack was from someone else, and the gun had none of White’s
DNA on it. White maintains that “[t]he logical and reasonable conclusion is that [he] was
standing near the man who fired the gun and killed Donald Brewer.” Id. He contends
that the courts “ruled contrary to the evidence and made an unreasonable conclusion that
[White] managed to carry the backpack to where it was found without leaving any of his
DNA on it and planting someone else’s DNA on it, while fleeing the scene [of] a murder
and being apprehended within minutes, while also not leaving any of his DNA on a pistol
they contend he had just fired 7 times and fled with, without getting any GSR on his
hands.” Id. at 4.
Reasonable jurists could not debate the district court’s determination that the
OCCA reasonably applied Jackson to the facts. White focuses only on the GSR and
DNA evidence, which the OCCA recognized was somewhat weak. But he does not
identify or explain Crowley’s motive to kill Brewer, and contrary to White’s argument,
the DNA found on the gun was consistent with his own. Furthermore, he overlooks other
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significant evidence of guilt: (1) Crowley’s eyewitness testimony, which the jury could
reasonably have believed despite credibility issues; (2) officer testimony that White was
found walking nearby in a tank top in winter weather, and a sweatshirt was discovered
together with a backpack containing a gun that matched Crowley’s description of the gun
used to shoot Brewer; and (3) White’s admission that he was present when the murder
was carried out. Any failure to test Crowley appears immaterial in light of White’s
failure to identify any motive Crowley might have had and because of his theory,
advanced as part of his ineffective-assistance-of-counsel claim (discussed below), that an
alternative suspect shot Brewer, not Crowley. Accordingly, we deny a COA on grounds
one and two.
B. Failure to instruct jury on lesser-included offense
Ground three of White’s habeas petition concerned whether the trial court violated
his due process rights by failing to instruct the jury on the lesser-included offense of
second-degree depraved-mind murder. The OCCA reviewed this claim for plain error
and concluded there was none because the evidence of malice required for first-degree
murder was “overwhelming” and “no rational juror could have concluded [he] acted
merely with a depraved mind, regardless of human life.” White, 437 P.3d at 1067
(internal quotation marks omitted). The district court concluded that this claim is not
cognizable in habeas because “‘[t]he Supreme Court has never recognized a federal
constitutional right to a lesser included offense instruction in non-capital cases.’” R.,
Vol. I at 405 (quoting Davis v. Roberts, 579 F. App’x 662, 668 (10th Cir. 2014)).
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In his COA application, White says only that “the Courts refus[ed] to consider key
aspects of the record,” and this makes the denial of relief debatable by reasonable jurists.
COA Appl. at 5. This conclusory contention falls short of meeting White’s burden to
demonstrate that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Slack, 529 U.S. at 484. Accordingly, we deny
a COA on ground three.
C. Admission of bad-character evidence
In ground four of his habeas petition, White asserted that the admission of
bad-character evidence violated his constitutional right to a fair trial. The district court
ruled that this ground for relief was subject to anticipatory procedural bar because White
raised it before the OCCA only as a state-law claim, not a constitutional issue, and he
would be barred from presenting it to the OCCA now. See Fontenot v. Crow, 4 F.4th
982, 1023-24 (10th Cir. 2021) (discussing anticipatory procedural bar in Oklahoma state
court); Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam) (“If a habeas petitioner
wishes to claim that an evidentiary ruling at a state court trial denied him the due process
of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal
court, but in state court.”). The district court further concluded White had not attempted
to overcome the procedural bar by demonstrating either cause for the default and
resulting prejudice or a fundamental miscarriage of justice. In his COA application,
White wholly fails to address the district court’s procedural ruling, focusing instead on
the merits of this issue. He therefore has not met his burden under the COA standard, so
we deny a COA on ground four.
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D. Ineffective assistance of trial counsel
White’s request for a COA on ground six of his habeas petition is based on
allegations that trial counsel provided constitutionally ineffective assistance by not using
(1) affidavits and video interviews from two people (Witnesses #1 and #2) suggesting
that White did not shoot Brewer; (2) an affidavit from another person (Witness #3) who
claimed to have been in the motel room and knew that an alternative suspect (not White
or Crowley) shot Brewer; and (3) crime-scene photographs suggesting
cross-contamination of DNA evidence. These materials were not used at trial; White
submitted them to the OCCA with an application for an evidentiary hearing.
The OCCA recognized that ineffective-assistance claims are governed by
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), which requires a showing of
both deficient performance, id. at 687, and “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different,”
id. at 694. The OCCA denied the request for an evidentiary hearing based on
Strickland’s performance prong, but without “conclusively decid[ing] whether trial
counsel rendered deficient performance,” White, 437 P.3d at 1071. Regardless, that
determination “operates as an adjudication on the merits of the Strickland claim and is
therefore entitled to deference under § 2254(d)(1),” because in determining that White
failed to meet the standard required for an evidentiary hearing, the OCCA “necessarily”
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decided that he did not meet Strickland’s “more rigorous” test. Lott v. Trammell,
705 F.3d 1167, 1213 (10th Cir. 2013) (internal quotation marks omitted).1
The OCCA declined to consider the affidavit from Witness #3, who claimed to
have been in the motel room, because it was neither signed nor notarized. Regarding the
interviews of Witnesses #1 and #2, the OCCA ruled that their accounts were hearsay, but
even setting that problem aside, the accounts “were not consistent with each other,”
“neither was particularly coherent in itself,” and “neither account [was] supported by
corroborating evidence.” White, 437 P.3d at 1071. Further, neither witness claimed they
would have been willing to testify in court; in fact, appellate counsel had filed their
statements under seal, claiming their lives would be in jeopardy if their accounts were
made public. For all these reasons, the OCCA concluded that these accounts had little or
no practical value for defense counsel.
Concerning the photographs, White argued that they showed the possibility of
cross-contamination of DNA evidence. One set suggested police removed the gun from
the backpack, removed the shells from the gun, and photographed the gun and the shells
lying on top of the sweatshirt. The OCCA failed to see how this arrangement could have
caused any contamination because no usable DNA was collected from the sweatshirt, and
there was no evidence that the shells themselves were tested. Another set of photographs
1 The OCCA examined the ineffective-assistance claim “only to decide whether
the materials submitted in support of that claim show, by clear and convincing evidence,
a strong possibility that trial counsel was ineffective for failing to utilize or identify the
evidence in question, such that further fact-finding, through an evidentiary hearing, is
warranted.” White, 437 P.3d at 1071.
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showed the gun on the bed in the motel room with an evidence sack between the gun and
the bedspread. The OCCA determined that use of these photographs “could easily have
backfired” because White disclaimed any connection to the gun, so the only way his
DNA could have wound up on the bed and later transferred to the gun was if he had
“been exactly where the shooting occurred, as Crowley testified.” Id. at 1072.
The district court denied habeas relief on this ground, concluding that White could
not prevail in light of the doubly deferential review of ineffective assistance claims under
Strickland and AEDPA. See Richter, 562 U.S. at 105 (explaining that Strickland and
AEDPA are “highly deferential” standards, “and when the two apply in tandem, review is
doubly so” (internal quotation marks omitted)).
In his COA application, White has not demonstrated that the district court’s
conclusion is reasonably debatable. White argues that his claim regarding the additional
evidence is materially indistinguishable from Williams v. Taylor, 529 U.S. 362 (2000).
We disagree. In Williams the Supreme Court concluded counsel’s performance at the
sentencing phase of a capital murder trial was constitutionally deficient because
(1) counsel thought (incorrectly) that state law prohibited access to records concerning
Williams’s “nightmarish childhood”; (2) counsel failed to introduce available evidence
that Williams was borderline mentally retarded, did not advance beyond sixth grade,
received commendations from prison officials for helping crack a prison drug ring and
returning a guard’s wallet, and was among inmates least likely to act violently or
dangerously; and (3) counsel failed to return a phone call of an individual who had
offered to testify about Williams’s character post-incarceration. Id. at 395-96. The
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Supreme Court concluded that although some of the additional, undiscovered evidence
was unfavorable to Williams, “the failure to introduce the comparatively voluminous
amount of evidence that did speak in Williams’ favor was not justified by a tactical
decision to focus on Williams’ voluntary confession.” Id. at 396.
The facts of White’s case are much different, involving only a relatively small
amount of evidence with not only admissibility problems and little probative value in
exonerating White, but also, with respect to the photos of the gun on the bed, a risk of
further incriminating him. Because the facts here are not “materially indistinguishable”
from those in Williams, White cannot show that the OCCA should have arrived at the
same result as Williams regarding Strickland’s performance prong.2 See House, 527 F.3d
at 1018 (explaining that a state court’s decision is an unreasonable application of
Supreme Court precedent if “the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
result different from that precedent” (brackets and internal quotation marks omitted)).
White also contends trial counsel was ineffective by not subpoenaing the DNA of
Crowley or the alternative suspect, particularly given that Witnesses #2 and #3 said the
alternative suspect shot Brewer. But White did not raise this theory before the district
court, so we do not consider it. See Goode v. Carpenter, 922 F.3d 1136, 1149 (10th Cir.
2019) (“[W]e do not consider an issue that was not adequately raised in the federal
district court.”).
2 The OCCA’s analysis involved only whether trial counsel’s performance was
deficient. We therefore need not consider or discuss Williams’s prejudice analysis.
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E. Cumulative error
Finally, White seeks a COA on ground seven of his habeas petition, cumulative
error. The OCCA and the district court denied relief on cumulative error because there
were no errors to cumulate. Similarly, our disposition of the grounds on which White
seeks a COA makes clear that there are no constitutional errors to cumulate. We
therefore deny a COA on ground seven. See Hanson v. Sherrod, 797 F.3d 810, 852
(10th Cir. 2015) (“We cumulate error only upon a showing of at least two actual errors.”).
IV. Conclusion
We deny a COA and dismiss this matter. White’s motion for appointment of
counsel as a matter of right under the Sixth and Fourteenth Amendments is denied. See
Tapia v. Lemaster, 172 F.3d 1193, 1196 (10th Cir. 1999) (“There is no constitutional
right to counsel in [federal] habeas proceedings.”); see also Pennsylvania v. Finley,
481 U.S. 551, 555 (1987) “[T]he right to appointed counsel extends to the first appeal of
right, and no further.”).
Entered for the Court
Allison H. Eid
Circuit Judge
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