                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                July 16, 2014
                                    TENTH CIRCUIT
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 CARL C. JACKSON,

        Plaintiff - Appellant,

 v.                                                            No. 13-6240
                                                             (W.D. Oklahoma)
 TERRY MARTIN, Warden,                                 (D.C. No. 5:12-CV-00702-W)

        Respondent - Appellee.



             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


       Carl Jackson, an Oklahoma state prisoner, filed a pro se application for relief

under 28 U.S.C. § 2254 in the United States District Court for the Western District of

Oklahoma. The district court denied his application. Mr. Jackson now seeks a certificate

of appealability (COA) from this court to pursue an appeal. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring a COA to appeal denial of § 2254 application). Liberally

construing his pleadings in this court, see Brace v. United States, 634 F.3d 1167, 1169

(10th Cir. 2011), we believe he is seeking relief on the following grounds: (1) that the

trial judge failed to give lesser-included-offense instructions, in violation of his due-

process rights; (2) that two searches, one of Mr. Jackson’s person and one of his

temporary residence, were unlawful; and his trial counsel was ineffective in failing to
move to suppress evidence from the searches; (3) that trial counsel was ineffective in

failing to impeach testimony with prior inconsistent statements; (4) that the trial judge

was biased; (5) that the trial judge improperly excluded evidence of gang involvement;

and (6) that accumulation of these errors denied Mr. Jackson a fair trial. We deny a COA

and dismiss the appeal.

I.     BACKGROUND

       Donnie Jeffers was fatally shot in Oklahoma City on May 18, 2006. Mr. Jackson

was arrested and admitted to shooting in the direction of the victim. In its opinion

affirming Mr. Jackson’s conviction and sentence, the Oklahoma Court of Criminal

Appeals (OCCA) summarized one of his statements to the police as follows:

       [Mr. Jackson stated] to Detective Miller that “Rab” Thompson had
       threatened and insulted his family earlier that day and he was fearful that
       “Rab” and his cohorts were going to cause his family trouble; and that later
       that evening, when fired upon by a man or group of individuals whom he
       thought included “Rab”, [Mr. Jackson] fired back leading to the death of
       the decedent, the unintended victim.

       ****

       [Mr. Jackson] said that as a result of “Rab’s” threats, he wanted to be armed
       and ready in case “Rab” showed up later, so he bought 2 guns and
       ammunition from “someone off the street”. Then, under the cover of
       darkness, he hid behind the Chrysler New Yorker waiting for “Rab”.
       Claiming he heard a gunshot, the armed [Mr. Jackson] said he ambushed
       the unidentified men from the car and “surprised” them, screaming at them
       to drop their weapons. When the unidentified men started shooting in his
       direction, Appellant admitted he just started shooting. The decedent was
       struck in the right side and in the buttock.




                                             2
R., Vol. I at 224–25. Mr. Jackson later claimed that his confession was false and

attempted to suppress it, but it was admitted at trial. His theory of defense at trial was

that “the evidence point[ed] to a gang-related fight involving drugs,” and that he was not

involved. Tr. of Jury Trial Proceedings, Vol. I at 3–4 (State v. Jackson, No. CF-06-3225

(D. Okla. Feb. 2, 2008). The jury convicted him on one count of first-degree murder and

he was sentenced to life imprisonment.

       Mr. Jackson appealed his conviction to the OCCA, which affirmed the jury

verdict. He also filed an application for postconviction relief in state court, which was

denied by both the trial court and the OCCA. He then filed his § 2254 application in

federal district court. The district court denied relief, and Mr. Jackson seeks to appeal.

II.    DISCUSSION

       A.     Standard of Review

       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 petition 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.


                                              3
       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides

that when a claim has been adjudicated on the merits in a 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,” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(1), (2). 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 issue a

habeas writ 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. Therefore, for those of

Mr. Jackson’s claims which the OCCA adjudicated on the merits, “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of [his]

request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). In

                                              4
reviewing the state-court decision under § 2254(d)(1), we are “limited to the record that

was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,

131 S. Ct. 1388, 1398 (2011).

       For the reasons that follow, we hold that no reasonable jurist could debate that the

district court’s resolution of Mr. Jackson’s claim was correct.

       B.     Lesser-included instructions

       Mr. Jackson argues that he was “denied due process of law and a fair trial”

because of the “failure to give lesser-included offense instructions to the jury.” Aplt. Br.

at 6. But due process requires a lesser-included-offense instruction only when the

defendant has been sentenced to death. See Johnson v. Keith, 726 F.3d 1134, 1135 n.2

(10th Cir. 2013). And insofar as Mr. Jackson is arguing that his counsel was ineffective

for not requesting a lesser-included instruction, we note that no prejudice resulted

because the OCCA held that such an instruction would have been unsupported by the

evidence.

       C.     Legality of Searches

       Mr. Jackson argues that two searches conducted the evening of the crime were

unlawful: (1) a search of his person near the scene of the crime and (2) a search of a

house shortly thereafter. He also argues that his counsel was ineffective in not moving to

suppress evidence from the searches. To prevail on a claim of ineffective assistance of

counsel, the “defendant must show [(1)] that counsel’s representation fell below an

objective standard of reasonableness” and (2) that he was prejudiced by the substandard
                                              5
representation. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The court “must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.” Id. at 689 (internal quotation marks omitted).

       On direct appeal, however, the OCCA upheld the lawfulness of both searches.

Therefore, the failure of trial counsel to file a motion to suppress could not have

prejudiced him. The motion would have been denied. To be sure, the OCCA’s view of

the legality of the searches might have been incorrect. But we cannot grant habeas relief

on that ground when, as here, the state court “has provided an opportunity for full and fair

litigation of a Fourth Amendment claim.” United States v. Lee Vang Lor, 706 F.3d 1252,

1257 (10th Cir. 2013) (internal quotation marks omitted).

       D.     Impeachment of Witness

       Mr. Jackson argues that counsel was ineffective in discrediting police testimony

about whether there had been crime-scene tape around the home where he was arrested.

He argues, “Trial counsel failed to confront Lt. Campbell as to why his testimony [that

there was no tape] conflicted with what the police originally reported to the State[.]”

Aplt. Br. at 4. But he points to no evidence (only the prosecutor’s opening statement) of

what the police had reported. And, more importantly, he does not explain how a focus on

the discrepancy would have helped him at trial. His counsel may have thought that the

absence of tape was favorable evidence, so there would be no reason to cast doubt on the
                                              6
lieutenant’s testimony in that regard. Also, contrary to Mr. Jackson’s assertion in his

brief, the presence of crime-scene tape was irrelevant to the legality of the officers’

search of his person and the home. On this issue he has failed to overcome the Strickland

presumption that counsel’s representation was reasonable. See Strickland, 466 U.S. at

689.

       E.     Judicial Bias

       Mr. Jackson argues that the trial judge was biased against him. To support his

claim, however, he relies only on rulings by the judge. Such evidence does not suffice.

See United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (“Unfavorable

judicial rulings do not in themselves call into question the impartiality of a judge.”).

       F.     Gang Evidence

       Mr. Jackson contends that his trial was so unfair as to deny due process because

the trial judge excluded evidence that the victim and his associates were involved with

gangs. The Supreme Court, however, has noted its “traditional reluctance to impose

constitutional constraints on ordinary evidentiary rulings by state trial courts.” Crane v.

Kentucky, 476 U.S. 683, 689 (1986). That reluctance has been overcome only when the

proffered evidence in itself, if believed, would establish the defendant’s innocence or the

evidence was not excluded on the ground of relevance, risk of undue confusion, or

similar traditional grounds. See Dodd v. Trammell, No. 11-6225, 2013 WL 7753714, at

*10–*11 (10th Cir. Oct. 16, 2013). Here, Mr. Jackson has not established a due-process

violation. He has failed to show what precise evidence was excluded, what purpose
                                              7
would have been served by admitting it, or why that purpose could not have been served

by other evidence at trial. In short, it is impossible to credit his claim on the record

before the court.

       G.     Accumulation of Error

       Mr. Jackson’s final claim is that an accumulation of errors “denied [him] a fair

trial and the due process of law.” Aplt. Br. at 6. “In the federal habeas context, a

cumulative-error analysis aggregates all constitutional errors found to be harmless and

analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” Lott v. Trammell, 705

F.3d 1167, 1223 (10th Cir. 2013) (internal quotation marks omitted), cert. denied, 134 S.

Ct. 176 (2013). “As the term cumulative suggests, we undertake a cumulative-error

analysis only if there are at least two errors.” Id. (brackets, ellipses, and internal

quotation marks omitted). Mr. Jackson has failed to show any constitutional error, so

there can be no cumulative error.

III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal. We GRANT Mr.

Jackson’s motion to proceed in forma pauperis (IFP).

                                            ENTERED FOR THE COURT


                                            Harris L Hartz
                                            Circuit Judge


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