                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            June 28, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
BOBBY MANESS,

      Petitioner - Appellant,

v.                                                           No. 18-6011
                                                      (D.C. No. 5:15-CV-01108-D)
JOE M. ALLBAUGH, Director, Oklahoma                          (W.D. Okla.)
Department of Corrections,

      Respondent - Appellee.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY
                   _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                    _________________________________

       Applicant Bobby Maness is serving a 15-year sentence in Oklahoma for second-

degree rape. The Oklahoma Court of Criminal Appeals affirmed his conviction. He then

applied for relief under 28 U.S.C. § 2254 in the United States District Court for the

Western District of Oklahoma, which rejected his claims. Now he seeks a certificate of

appealability (COA) to appeal the denial of relief by the district court. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring COA to appeal final order in habeas proceeding challenging

state-court detention). We decline to grant a COA and dismiss the appeal.

       I. 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.

       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 [Supreme]
       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.

(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



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decision applied clearly established federal law erroneously or incorrectly. See id.

Rather, that application must have been unreasonable. Of course, “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of a habeas

petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

       II. ANALYSIS

              A. Sufficiency of the Evidence

       Applicant challenges the sufficiency of the evidence to support his conviction on

two grounds. First, he claims that the acts at issue were consensual and the State failed to

prove otherwise. Second, he argues that the “testimony was inconsistent and

contradictory and uncorroborated, and therefore unreliable, under the beyond a

reasonable doubt standard.” Aplt. Br. at 4

       The victim was a woman living in a nursing home. She testified at trial that she

awoke one day to find Applicant, with whom she was friendly but not romantic, standing

over her and touching her private areas beneath the covers. She told him no. Applicant

then directed her to stand and remove her clothing, whereupon he continued to touch her

sexually. She testified that he grabbed her and she repeatedly told him to stop. Applicant

recounted nearly identical details under police questioning and in a written statement but

claimed the encounter had been consensual. At trial, however, Applicant denied even

touching the victim. Nurses at the home described seeing redness on the victim’s chest

afterwards, a bruise on her arm that the victim said was related to the incident, and

behavior indicating a traumatic experience.




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       On appeal the Oklahoma Court of Criminal Appeals (OCCA) ruled that “there was

ample evidence to establish beyond a reasonable doubt that [Applicant] forced himself on

the victim without her consent and that he committed Second-Degree Rape by

Instrumentation.” Maness v. State, No. F-2014-568 at 2. Applicant has not shown that a

reasonable jurist could debate that the OCCA’s resolution of these issues was contrary to

or an unreasonable application of Supreme Court precedent.

              B. Impartial Tribunal

       Applicant argues that “[t]he judge [at the state trial] overstepped his bounds by

questioning witnesses, in the method and manner he did, constitute judicial participation,

effecting the outcome of the trial.” Aplt. Br. at 4. The OCCA rejected the claim of bias,

observing: “The questions propounded by the trial court to both State and defense

witnesses was an effort to clarify testimony for its own benefit. The questions were not

designed to establish facts in favor of the State’s case but rather to elicit the truth, and

they did not indicate the court’s views one way or the other.” Maness v. State, No.

F-2014-568 at 3 (citation omitted). Applicant has failed to show that a reasonable jurist

could debate that this disposition can be set aside under AEDPA.

              C. Excessive Sentence

       Applicant claims his 15-year sentence is excessive and asks this court to reduce it

by five years “in the interest of justice.” Aplt. Br. at 4. He does not dispute that the

sentence is within statutory limits. The OCCA followed its precedent stating that it

would “not disturb a sentence within statutory limits unless, under the facts and

circumstances of the case, it is so excessive as to shock the conscience of the Court.”


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Maness v. State, No. F-2014-568 at 3. In a federal habeas proceeding, “[w]e afford wide

discretion to the state trial court’s sentencing decision, and challenges to that decision are

not generally constitutionally cognizable, unless it is shown the sentence imposed is

outside the statutory limits or unauthorized by law.” Dennis v. Poppel, 222 F.3d 1245,

1258 (10th Cir. 2000). No reasonable jurist could debate that the district court erred in

dismissing this claim.

              D. Cumulative Error

       Finally, Applicant claims that he is entitled to relief arising from the cumulative

effect of the above alleged errors. Having discerned no error despite the challenges

raised by Applicant in this court, we decline to issue a COA to consider this claim.

       III. CONCLUSION

       We DENY a COA and DISMISS the appeal.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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