                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       July 18, 2007
                          FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

 H ECTO R O M A R SA N TO Y O ,

              Petitioner-A ppellant,

 v.                                                     No. 06-6303
                                                 (D.C. No. CIV-05-1253-L)
 JUSTIN JONES, Director,                               (W .D. Okla.)

              Respondent-Appellee.



                            O RD ER DEN YIN G
                     CERTIFICATE O F APPEALABILITY


Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.


      Hector Omar Santoyo, an Oklahoma state prisoner proceeding pro se, seeks

a certificate of appealability (COA) that would allow him to challenge the district

court’s order denying his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that M r. Santoyo

has failed to make “a substantial showing of the denial of a constitutional right,”

we DENY his request for a COA and dismiss the appeal. Id. at § 2253(c)(2).

                                  I. Background

      In 2002, an Oklahoma jury convicted M r. Santoyo of trafficking in illegal

drugs. H e w as sentenced to life imprisonment and assessed a fine of $75,000. H e

filed a direct appeal (with different counsel representing him), contending that the
evidence presented at trial was insufficient to support his conviction,

prosecutorial misconduct denied him a fair trial, his sentence was excessive, and

the cumulative effect of these errors denied him a fair trial. In 2004, the

Oklahoma Court of Criminal Appeals (OCCA) rejected these four contentions and

affirmed M r. Santoyo’s conviction and sentence.

      M r. Santoyo then filed an application for post-conviction relief in state

court, asserting that the separate and cumulative effect of trial court errors and

prosecutorial misconduct deprived him of a fair trial and due process of law, he

was denied his Sixth Amendment right to effective assistance of trial and

appellate counsel, and his conviction and sentence should be vacated because he

is actually innocent. 1 In September 2005, the state court denied his application

for post-conviction relief, stating:

             W ith the exception of his claim of ineffective assistance of
      appellate counsel, Petitioner could have raised the arguments in the
      instant Application on direct appeal. Indeed, his claim of
      prosecutorial misconduct has been previously raised and rejected. As
      such it is barred by the doctrine of res judicata. Petitioner’s
      remaining claims are barred by the doctrine of w aiver.
             Even were this Court not to apply the procedural bar of waiver,
      Petitioner would not be entitled to the collateral relief he now seeks.

R. Doc. 26, Ex. D at 3; see Browning v. State, 144 P.3d 155, 156 (Okla. Crim.

App. 2006) (“W e will not treat the post-conviction process as a second appeal,



1
      W e note that the cumulative-error claim raised in M r. Santoyo’s application
for post-conviction relief relied upon some alleged trial court errors that he did
not present on direct appeal.

                                          -2-
and will apply the doctrines of res judicata and waiver where a claim either was,

or could have been, raised in the petitioner’s direct appeal.”), cert. denied,

127 S. Ct. 406 (2006). The state court also rejected M r. Santoyo’s

ineffective-assistance-of-appellate-counsel claim, noting that counsel was not

required to raise every conceivable argument for review on appeal and concluding

that M r. Santoyo had failed to establish that counsel’s performance was

“constitutionally deficient.” R. Doc. 26, Ex. D at 5 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

      In October 2005, while his appeal to the OCCA from the denial of his

application for post-conviction relief was pending, M r. Santoyo petitioned the

federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. In the

petition he sought relief on eight grounds. Specifically, he alleged that: (1) the

evidence was insufficient to support his conviction, (2) prosecutorial misconduct

deprived him of a fair trial and due process of law, (3) his sentence was

unconstitutionally excessive, (4) the separate and cumulative effect of trial court

errors and prosecutorial misconduct deprived him of a fair trial and due process of

law, (5 and 6) he was denied his Sixth Amendment right to effective assistance of

trial counsel, (7) he was denied his Sixth Amendment right to effective assistance

of appellate counsel, and (8) his conviction and sentence should be vacated




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because he is actually innocent. 2 In January 2006, the OCCA affirmed the denial

of M r. Santoyo’s application for post-conviction relief. In September 2006, the

federal district court, adopting the magistrate judge’s July 2006 thirty-nine page

report and recommendation, denied his habeas petition. In so doing, the district

court held that the OCCA’s on-the-merits rejection on direct appeal of grounds

one through three was not contrary to, or an unreasonable application of, clearly

established federal law. See id. at § 2254(d). Turning to grounds four, five, six,

and eight, the district court found that the OCCA’s reliance on its procedural bar

rule, in its post-conviction disposition, was an adequate and independent ground

for its decision such that the district court would only consider the merits of these

grounds if M r. Santoyo demonstrated cause for the default and actual prejudice,

or that a fundamental miscarriage of justice would result from the court’s failure

to consider them. See Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004)

(observing that habeas petitioner w ill not receive review of claims “defaulted in

state court on independent and adequate state procedural grounds unless

[petitioner] has demonstrated cause and prejudice or a fundamental miscarriage of

justice”); see also English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998) (stating

that Oklahoma’s procedural bar will preclude habeas review of ineffective

assistance claims only when “trial and appellate counsel differ” and the “claim



2
      Ground four mirrors the cumulative-error claim raised in his state court
application for post-conviction relief.

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can be resolved upon the trial record alone”). Next, the court construed ground

seven as asserting that ineffective assistance of appellate counsel was both cause

for M r. Santoyo’s procedural default and a separate ground for habeas relief. But

the court essentially held that the OCCA’s on-the-merits rejection of ground

seven was not contrary to, or an unreasonable application of, clearly established

federal law. See 28 U.S.C. § 2254(d). Thus, the district court concluded that

M r. Santoyo had not demonstrated cause for the default of grounds four, five, six,

and eight; that it was unnecessary to determine whether he had demonstrated

actual prejudice; and that a fundamental miscarriage of justice would not result

from the court’s failure to consider these grounds. The district court also denied

M r. Santoyo’s motion to supplement the record with a M ay 2006 letter from the

M exican Consulate because it did not, in accordance with Rule 7(b) of the Rules

Governing Section 2254 Cases, predate his October 2005 habeas corpus petition.

A nd, citing 28 U .S.C . § 2254(e)(2), the district court found that he had not show n

that he was entitled to an evidentiary hearing. See also R. Doc. 26, Ex. D (order

denying application for post-conviction relief) at 5 (stating that petitioner had not

demonstrated his entitlement to an evidentiary hearing).

      M r. Santoyo subsequently sought a COA from the district court and

requested leave to proceed in forma pauperis (IFP) on appeal. The district court

denied his request for a COA and denied his application to proceed IFP, ruling




                                          -5-
that he had “not presented a reasoned, nonfrivolous argument on appeal and that

the appeal [wa]s not taken in good faith.” Id. Doc. 47 at 3.

                                   II. Discussion

      In his application for a COA and his opening brief, M r. Santoyo repeats

grounds one, two, and seven (insufficient evidence, prosecutorial misconduct, and

ineffective assistance of appellate counsel), and, as far as w e can discern, objects

to the district court’s dismissal, on procedural grounds, of grounds four, five, six,

and eight (cumulative error, ineffective assistance of trial counsel, and actual

innocence). 3 He also asserts that the district court abused its discretion by not

holding an evidentiary hearing with appointed counsel, and by denying his motion

to supplement the record with a letter from the M exican Consulate. Finally, he

asserts that the district court erred by not addressing his argument that the “state’s

procedural rule requiring that all claims of ineffective assistance of trial counsel

be raised on direct appeal with supplementation of the record by evidentiary

hearing, and general failure of [public defenders] assigned to non-capital cases to

do so, renders the [procedural] rule inadequate to bar federal review.”

Application for a COA at 2e.




3
       M r. Santoyo withdrew ground three (excessive sentence). R. Doc. 39 at 7
(“Petitioner . . . voluntarily withdraws . . . claim [three].”); id. Doc. 41 at 3
(same).

                                         -6-
      A habeas petitioner like M r. Santoyo may appeal the denial of his petition

for relief under 28 U .S.C. § 2254 only if the district court or this Court first

issues a COA. Id. at § 2253(c)(1)(A). A COA will issue only if a petitioner

makes a “substantial showing of the denial of a constitutional right.” Id. at

§ 2253(c)(2). To make such a showing, a petitioner must demonstrate that

“reasonable jurists could debate whether . . . 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). To the extent that the district

court dismisses the petition on procedural grounds, a petitioner must also show

that “jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id. Further, we review for abuse of discretion

the district court’s decisions to deny a petitioner’s request for an evidentiary

hearing, and a petitioner’s motion to supplement the record. Schiriro v.

Landrigan, 127 S. Ct. 1933, 1937, 1939-40 (2007) (request for evidentiary

hearing); Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005)

(same); Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir. 1994) (motion to

supplement record).

      Even under the liberal standard by which w e judge a pro se litigant’s

pleadings, see Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003),

M r. Santoyo has failed to convince us that the district court should have resolved

                                           -7-
his petition differently. Specifically, reasonable jurists could not debate the

federal district court’s determination that the OCCA’s rejection of grounds one,

two, and seven was not contrary to, or an unreasonable application of, the

standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (insufficient

evidence), Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (prosecutorial

misconduct), and Strickland, 466 U.S. at 687 (ineffective assistance of counsel).

Likewise, because M r. Santoyo cannot demonstrate cause and prejudice for his

procedural default of grounds four, five, six, and eight, and because his claims of

a fundamental miscarriage of justice are unavailing, jurists of reason would not

find it debatable whether the district court was correct in its procedural rulings on

these grounds. See Smith, 379 F.3d at 925. M oreover, the district court did not

abuse its discretion in finding that M r. Santoyo had not shown entitlement to an

evidentiary hearing, or in denying his motion to supplement the record, and the

court did not err by failing to explicitly address his argument, as we understand it,

that federal review cannot be barred by Oklahoma’s procedural rule requiring that

ineffective-assistance-of-trial-counsel claims be raised on direct appeal.




                                         -8-
                               III. Conclusion

     M r. Santoyo’s application for a COA is D ENIED and the appeal is

DISM ISSED. His application to proceed IFP on appeal is GRANTED.


                                           Entered for the Court


                                           M ichael W . M cConnell
                                           Circuit Judge




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