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

                                   TENTH CIRCUIT                                June 17, 2015

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 GARY PATRICK CIANCIO, JR.,

               Petitioner - Appellant,

 v.                                                             No. 15-7016
                                                 (D.C. No. 6:13-CV-00478-JHP-KEW)
 ROBERT PATTON,                                               (E.D. Oklahoma)

               Respondent - Appellee.


                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY *


Before KELLY, LUCERO and McHUGH, Circuit Judges.




       Gary Ciancio, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. For the reasons explained below, we deny Mr. Ciancio a COA and dismiss the

matter.




       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
        Because Mr. Ciancio appears pro se, we liberally construe his filings. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008); Hall v. Scott, 292 F.3d 1264, 1266
(10th Cir. 2002).
                                     I.   BACKGROUND

       Mr. Ciancio is currently incarcerated in Oklahoma pursuant to a state conviction

for child abuse stemming from two specific acts of abuse toward a three-year-old child.

At Mr. Ciancio’s trial, the prosecution introduced evidence unrelated to these specific

acts of abuse, including evidence of violence and other abusive conduct towards Mr.

Ciancio’s girlfriend, the victim, and another child. Counsel for Mr. Ciancio did not object

to the admission of any of this evidence. In addition, without objection from defense

counsel, a witness was permitted to testify about her concerns that the victim may have

been sexually abused, despite the fact that there was no evidence, or even an allegation,

that Mr. Ciancio had engaged in such conduct. Similarly, both the prosecution and

defense counsel developed evidence that the victim may have been sexually abused by

another individual.

       At the close of trial, the jury convicted Mr. Ciancio of one count of child abuse in

violation of 21 O.S. Supp. 2010, § 843.5(A), and recommended a sentence of

imprisonment for 25 years and a fine of $5,000. The trial court accepted the verdict and

entered judgment accordingly. See Luker v. State, 552 P.2d 715 (Okla. Crim. App. 1976)

(holding that where the jury declares a punishment in its verdict that is within the

limitations fixed by law, the district court must impose a sentence in accordance with the

verdict). Mr. Ciancio appealed his conviction to the Oklahoma Court of Criminal Appeals

(OCCA), claiming the admission of improper character and bad acts evidence deprived

him of the right to a fair trial and that trial counsel was ineffective for failing to object to

the introduction of this evidence. According to Mr. Ciancio, he was prejudiced by trial

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counsel’s defective performance both in terms of the jury’s finding of guilt and with

respect to its recommended sentence.

       On direct appeal, the OCCA agreed with Mr. Ciancio that a large amount of

improper evidence was admitted at trial, was not objected to, and was sometimes further

developed by Mr. Ciancio’s own counsel. Thus, employing the framework of Strickland

v. Washington, 466 U.S. 668, 687–88 (1984), the OCCA held that Mr. Ciancio’s

counsel’s performance was deficient. But given the overwhelming evidence to support

the jury’s finding of guilt, the OCCA determined that counsel’s deficiencies only affected

the jury’s determination of the appropriate sentence and did not impact the conviction.

See id. at 694 (requiring that “there [be] a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different”). As a

result, the OCCA affirmed Mr. Ciancio’s conviction for child abuse but modified his

sentence from twenty-five years to fifteen years in prison.

       Mr. Ciancio then filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 in the United States District Court for the Eastern District of Oklahoma,

challenging the OCCA’s resolution of his direct appeal and claiming that counsel’s

deficient performance entitled him to a new trial rather than resentencing by the appellate

court. The district court denied Mr. Ciancio’s petition, concluding that the OCCA’s

resolution of his claims was not “contrary to” and did not “involve an unreasonable

application of . . . clearly established Federal law, as determined by the Supreme Court,”

nor was it “based on an unreasonable determination of the facts in the light of the



                                                  3
evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(1), (2).

Mr. Ciancio now seeks permission to appeal this decision.

                                     II.   ANALYSIS

       To appeal the district court’s denial of habeas relief, Mr. Ciancio must first obtain

a COA, which requires he make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(recognizing that issuance of a COA is a jurisdictional prerequisite); Montez v. McKinna,

208 F.3d 862, 867 (10th Cir. 2000) (holding “that a state prisoner must obtain a COA to

appeal the denial of a habeas petition, whether such petition was filed pursuant to § 2254

or § 2241”). Because the district court rejected Mr. Ciancio’s constitutional claims on the

merits, the showing required to satisfy § 2253(c) is straightforward: Mr. Ciancio must

demonstrate 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).

Mr. Ciancio has not made this showing.

       The OCCA’s conclusion that the erroneous admission of evidence did not affect

the jury’s guilt determination was not contrary to clearly established law or an

unreasonable determination of the facts. Indeed, there was strong evidence supporting

Mr. Ciancio’s conviction for child abuse. Likewise, the OCCA’s decision to remedy the

prejudicial impact of this evidence at sentencing by decreasing Mr. Ciancio’s sentence of

imprisonment from twenty-five to fifteen years in prison is not contrary to clearly

established federal law.



                                                 4
       The Oklahoma Legislature has provided the OCCA statutory authority to modify a

sentence on appeal. Okla. Stat. tit. 22, § 1066 (“The appellate court may reverse, affirm

or modify the judgment or sentence appealed from, and may, if necessary or proper, order

a new trial or resentencing.”). The Supreme Court has held, in an analogous context, that

there is no due process violation where a state appellate court exercises its discretion to

modify a jury sentence in order to remedy a constitutional violation. See, e.g., Clemons v.

Mississippi, 494 U.S. 738, 746 (1990) (recognizing that it was constitutionally

permissible for the Mississippi Supreme Court to reweigh aggravating and mitigating

factors to uphold a death sentence originally imposed by an improperly-instructed jury

because “appellate sentencing, if properly conducted, would not violate due process”);

see also, e.g., Carbray v. Champion, 905 F.2d 314, 318–19 (10th Cir. 1990) (recognizing

that “where a state court has the authority to exercise its own discretion . . . to modify a

jury sentence on appeal[,] . . . no due process violation occurs” and affirming the

OCCA’s modification of a defendant’s sentence from 199 years’ imprisonment to 75

years’ imprisonment to remedy the prejudicial impact at sentencing of remarks made by

the prosecutor); Shaw v. Johnson, 786 F.2d 993, 998 (10th Cir. 1986) (holding there was

no constitutional violation where the OCCA exercised its authority to reduce a

defendant’s sentence from life in prison to twenty years’ imprisonment to correct an

erroneous jury instruction regarding the minimum sentence). Thus, contrary to

Mr. Ciancio’s position, there is no clearly established constitutional right that the errors

affecting his sentence be remedied by a new sentence imposed by a jury, rather than by

the OCCA.

                                                  5
       Nevertheless, Mr. Ciancio claims his due process rights were violated because the

OCCA’s decision to modify his sentence, rather than remanding for resentencing by a

jury, is not “narrowly tailored” to the constitutional injury here: the right to effective

assistance of counsel at sentencing. See United States v. Morrison, 449 U.S. 361, 364

(1981) (holding that “[c]ases involving Sixth Amendment deprivations are subject to the

general rule that remedies should be tailored to the injury suffered from the constitutional

violation”). In support of this argument, Mr. Ciancio relies on Williams v. Jones, 571

F.3d 1086 (10th Cir. 2009) (per curiam).

       In Williams, defense counsel used threats and intimidation to convince the

defendant to reject a plea offer that would have limited the defendant’s potential

imprisonment to ten years. Id. at 1088. The defendant rejected the plea agreement, the

case went to trial, and the jury found him guilty and imposed a sentence of life without

the possibility of parole. The defendant appealed, claiming ineffective assistance of

counsel during the plea negotiations. The OCCA held that defense counsel had acted

deficiently and that the defendant had suffered prejudice as a result. It therefore reduced

the defendant’s sentence to life with the possibility of parole, which was the lowest

possible sentence for the crime of conviction. The defendant then sought habeas relief

from this court. We reversed and remanded because the OCCA had failed to fashion a

constitutionally permissible remedy for the ineffective assistance rendered during the plea

negotiation process. Although we acknowledged that “no remedy may restore completely

the parties’ original positions,” we remanded to the district court with instructions to



                                                  6
impose a remedy that “comes as close as possible to remedying the constitutional

violation.” Id. at 1093.

       Our decision in Williams is not controlling here. There, defense counsel’s

ineffectiveness deprived the defendant of the benefit of a favorable plea bargain, and the

OCCA’s modification of the jury’s sentence after conviction could not fairly remedy the

resulting harm. See Lafler v. Cooper, 132 S. Ct. 1376, 1389 (2012) (recognizing that “if a

mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing

based on the conviction at trial may not suffice. In these circumstances, the proper

exercise of discretion to remedy the constitutional injury may be to require the

prosecution to reoffer the plea proposal.” (internal citations omitted)). Unlike the

defendant in Williams, however, the ineffective assistance prejudiced the jury’s initial

imposition of Mr. Ciancio’s sentence and, therefore, resentencing is the appropriate

remedy. See Titsworth v. Mullin, 415 F. App’x 28, 34 (10th Cir. 2011) (unpublished)

(holding that the OCCA’s sentence modification corrected the prejudice from ineffective

assistance at sentencing); United States v. Sims, 218 F. App’x 751, 753 (10th Cir. 2007)

(unpublished) (remanding for resentencing to cure defense counsel’s deficient

performance in failing to object to district court’s erroneous calculations under the

sentencing guidelines).2 As explained, Mr. Ciancio has no clearly established federal

right to be resentenced by a jury as opposed to the OCCA. Thus, the OCCA’s



       2
        Although not binding, we find unpublished decisions from this court to be
persuasive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”).
                                                 7
modification of Mr. Ciancio’s sentence was sufficiently tailored to address the injury

here.

        For these reasons, reasonable jurists could not debate the correctness of the district

court’s determination that the OCCA’s resolution of Mr. Ciancio’s claims was not

contrary to or an unreasonable application of federal law or based on an unreasonable

determination of the facts presented at trial.

                                   III.   CONCLUSION

        We deny Mr. Ciancio’s application for a COA and dismiss the matter.

                                            ENTERED FOR THE COURT



                                            Carolyn B. McHugh
                                            Circuit Judge




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