                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  August 5, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 APRIL ROSE WILKENS,

              Petitioner - Appellant,                   No. 07-5172
       v.                                             (N.D. Oklahoma)
 MILLICENT NEWTON-EMBRY,                   (D.C. No. 4:02-CV-00244-TCK-SAJ)
 Warden,

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      On April 28, 1998, April Rose Wilkens killed her former fiancé, Terry

Carlton. At her jury trial for first-degree murder in Oklahoma state court,

Ms. Wilkens admitted to shooting and killing Carlton but claimed that she had

done so in self-defense. She testified that she had shot him only as he was

coming toward her, after he had beaten, raped, and handcuffed her. In support of

her defense she put on evidence that she had suffered from battered-woman-

syndrome (BWS), introducing evidence of physical abuse throughout her three-

year relationship with Carlton and presenting expert testimony.

      The jury convicted Ms. Wilkens and she was sentenced on July 7, 1999, to

life in prison. The Oklahoma Court of Criminal Appeals (OCCA) affirmed her
conviction. On April 2, 2002, she filed in the United States District Court for the

Northern District of Oklahoma an application for relief under 28 U.S.C. § 2254.

The district court stayed proceedings to give her an opportunity to exhaust some

of her claims. When the OCCA denied her postconviction claims, the district

court considered the § 2254 application and denied relief. Ms. Wilkens now

seeks a certificate of appealability (COA) to appeal that decision. See id.

§ 2253(c) (requiring COA to appeal denial of application). We deny her request

for a COA and dismiss this appeal.

      Ms. Wilkens’s § 2254 application raised claims of ineffective assistance by

both her trial and appellate counsel. She claimed that her trial counsel was

ineffective because he failed (1) to conduct a proper investigation to support her

BWS defense, (2) to present testimony from a qualified BWS expert, (3) to

request a jury instruction for manslaughter, (4) to present evidence to the trial

court that she had been coerced into making a statement, (5) to object to the

introduction of a statement made before she received Miranda warnings, (6) to

offer into evidence an unexecuted bench warrant for Carlton’s arrest, (7) to

present the results of a urinalysis showing that she was free of drugs when

arrested for the killing, and (8) to impeach Officer Laura Fadem with a transcript

of her in camera testimony. Ms. Wilkens claimed that appellate counsel was

ineffective in not raising on appeal her ineffectiveness-of-trial-counsel claims 1,

2, 6, 7, and 8. In this court Ms. Wilkens challenges only the denial of her claims

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1, 2, and 3, and the claims of ineffective assistance of appellate counsel

associated with claims 1 and 2.

      “A certificate of appealability may 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, an applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id. If the application was

denied on procedural grounds, the applicant faces a double hurdle. Not only must

the applicant make a substantial showing of the denial of a constitutional right,

but he must also show “that jurists of reason would find it debatable . . . whether

the district court was correct in its procedural ruling.” Id. “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

a case, a reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. In determining whether to issue a COA, a “full consideration of the

factual or legal bases adduced in support of the claims” is not required. Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003). Instead, the decision must be based on “an

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overview of the claims in the habeas petition and a general assessment of their

merits.” Id.

      The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes

deferential standards of review for state-court factual findings and legal

conclusions. “AEDPA . . . mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing

evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting

28 U.S.C. § 2254(e)(1)). If the federal claim was adjudicated on the merits in the

state court,

      we may only grant federal habeas relief if the habeas petitioner can
      establish 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.”

Id. (quoting 28 U.S.C. 2254(d)(1) and (2)). As we have stated:

      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. Under the “unreasonable application” clause, relief is provided
      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. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.




                                         -4-
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations and

internal quotation marks omitted). When claims are adjudicated on the merits in

the state court, “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).

      With respect to her first claim, Ms. Wilkens contends that her trial counsel

was ineffective for failing to contact her former attorneys and obtaining various

evidence that Carlton had abused her, including an audiotape in which Carlton

admits to beating and raping her. The OCCA ruled this claim procedurally barred

because she had not raised it on direct appeal. See Okla. Stat. tit. 22, § 1089(C)

(“[t]he only issues that may be raised in an application for post-conviction relief

are those that . . . [w]ere not and could not have been raised in a direct appeal.”).

It also rejected her claim of ineffective appellate counsel, which could be a basis

for overcoming the procedural bar. See Coleman v. Thompson, 501 U.S. 722, 750

(1991) (applicant can overcome procedural bar if she can demonstrate cause and

prejudice, or a fundamental miscarriage of justice). The district court liberally

construed Ms. Wilkens’s § 2254 application as raising a claim of ineffective

assistance of appellate counsel to overcome the procedural bar. After a thorough

analysis of the evidence presented at trial, the court concluded:

      The jury was presented with ample evidence of battering by
      Mr. Carlton and police testimony regarding domestic abuse calls
      concerning [Ms. Wilkens] and Mr. Carlton. Because trial counsel’s

                                         -5-
      performance was not deficient, appellate counsel was not ineffective
      for omitting these claims of ineffective assistance of trial counsel on
      direct appeal.

Wilkens v. Newton-Embry, No. 02-CV-244-TCK-SAJ, slip op. at 26 (N.D. Okla.

Nov. 5, 2007). No reasonable jurist could debate that the district court was

correct in this ruling.

      Next, Ms. Wilkens contends that trial counsel was ineffective for failing to

present adequate testimony from a qualified BWS expert and that appellate

counsel was ineffective for failing to raise this ineffectiveness issue on direct

appeal. In both her application for postconviction relief before the OCCA and her

§ 2254 application in federal district court, Ms. Wilkens challenged only the

qualifications of defense expert Dr. John Call. Both courts found the claim

unfounded. See Wilkens v. State, No. PC-2003-1002, slip op. at 5 (Okla. Crim.

App. Aug. 2, 2004) (post-conviction order); Wilkens, No. 02-CV-244-TCK-SAJ,

slip op. at 12–13. Ms. Wilkens now acknowledges in her brief to us that Dr. Call

was qualified to present BWS testimony. She maintains, however, that trial

counsel was ineffective in putting on an expert who “failed to opine that my

belief that I had to use deadly force to protect myself from Terry Carlton could be

considered reasonable based on my circumstances and viewed from my

perspective.” Aplt. Br. at 33–34. And, she adds, appellate counsel was

ineffective in not raising this issue on direct appeal. We doubt that this claim has

been exhausted (in state court) or preserved (in federal district court). But in any

                                         -6-
event, it has no merit. We have reviewed Dr. Call’s testimony. If credited by the

jury, it would have strongly supported Ms. Wilkens’s BWS theory. The problem

was that the facts of the case enabled the prosecution to conduct an effective

cross-examination of Dr. Call. Trial counsel for Ms. Wilkens was not ineffective

in this respect, and appellate counsel had no basis to claim ineffective assistance.

No reasonable jurist could debate that the district court’s decision regarding the

use of Dr. Call was an unreasonable application of clearly established federal law.

      Finally, Ms. Wilkens contends that trial counsel was ineffective for failing

to request a manslaughter jury instruction. On direct appeal the OCCA held that

“trial counsel was not ineffective for failing to request a jury instruction on first

degree manslaughter as such an instruction was not warranted by the evidence.”

Wilkens v. State, No. F-99-927, slip op. at 2 (Okla. Crim. App. April 3, 2001).

We have no ground for rejecting the OCCA’s determination that the proposed

instruction was not supported by the evidence. The OCCA is the final arbiter of

what Oklahoma law requires. And Ms. Wilkens has not rebutted the factual basis

for the OCCA’s determination by clear and convincing evidence. See

§ 2254(e)(1). We therefore accept the determination that Ms. Wilkens was not

entitled to a manslaughter instruction. Failure of counsel to request that

instruction therefore could not be ineffective assistance of counsel. See United

States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (appellate counsel’s failure to

raise meritless issue on appeal does not constitute ineffective assistance).

                                          -7-
     We DENY a COA and DISMISS the appeal. We DENY all pending

motions.

                               ENTERED FOR THE COURT


                               Harris L Hartz
                               Circuit Judge




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