                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 26, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 TIMIE DEWAYNE WILLIAMS,

       Petitioner - Appellant,
                                                         No. 14-6095
 v.                                              (D.C. No. 5:13-CV-00558-W)
                                                        (W.D. Okla.)
 ROBERT PATTON, Director,
 Oklahoma Department of Corrections,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


      Petitioner-Appellant Timie DeWayne Williams, an Oklahoma state inmate,

appeals the district court’s denial of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Williams v. Patton, No. CIV–13–558–W, 2014 WL

1276583 (W.D. Okla. Mar. 27, 2014). Mr. Williams’ appeal is treated as a

request for a certificate of appealability (COA). See Fed. R. App. P. 22(b)(2).

Mr. Williams contends that he is factually innocent of first-degree murder and

that the State denied him due process when it failed to disclose a deal it made

with a key prosecution witness, Isaac Hutchinson. We deny his request and

dismiss the appeal.
                                    Background

      Mr. Williams was charged with the first-degree murder of Ralph Roe under

Okla. Stat. tit. 21, § 701.7(B). Mr. Williams’ first trial ended in a mistrial when

the jury could not reach a unanimous verdict, but he was subsequently retried,

convicted, and sentenced to life in prison. State v. Williams, Case No. CF-2006-

365 (Comanche Cnty. Dist. Ct. July 28, 2008). At trial, Mr. Hutchinson testified

that he loaned Mr. Williams the gun and that he saw Mr. Williams shoot Mr. Roe.

Trial Tr. (CF-2006-365) 267–70 (May 6, 2008).

      Mr. Hutchinson testified he struck no deal with prosecutors and that they

had only directed him to “[t]ell the truth.” Id. at 275. He further testified that he

had been charged as an accessory. Id. at 282. Upon Mr. Williams’ conviction at

the second trial, the State dismissed the accessory-to-a-felony charge against Mr.

Hutchinson. State v. Hutchinson, Case No. CF-2006-369.

      On appeal to the Oklahoma Court of Criminal Appeals (OCCA), Case No.

F-2009-1136, Mr. Williams requested an evidentiary hearing based on newly

discovered evidence of an undisclosed deal between the prosecutor and Mr.

Hutchinson. The State agreed an evidentiary hearing was necessary, and the

OCCA remanded the case to the trial court for an evidentiary hearing. The trial

court heard testimony from the assistant district attorney who prosecuted Mr.

Williams, the district attorney who dismissed the charges, and Mr. Hutchinson’s

attorney. See Evidentiary Hearing Transcript, CF-2006-365 (Sept. 17, 2010).

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The trial court found “no evidence of any agreement between the state and

witness Isaac Hutchinson at the time of trial to provide him with some benefit in

exchange for his testimony against Williams.” Aplt. App. 54 (citing Williams v.

State, Case No. CF-2006-365, Findings of Fact and Conclusions of Law, at 2

(Comanche Cnty. Dist. Ct. Sept. 30, 2010)). The OCCA, relying on these

findings of fact, determined that Mr. Williams failed to make the “threshold

showing” that the State made an agreement with Mr. Hutchinson for favorable

treatment in exchange for testimony against Mr. Williams. Aplt. App. 56

(Williams v. State, Case No. F-2009-1136 (Okla. Ct. Crim. App. Mar. 2, 2012)).

The court explained that though Mr. Hutchinson “may have been expecting or

hoping for some benefit from his testimony,” the evidentiary hearing provided no

evidence of a “corresponding promise from the prosecutors.” Id. at 57. The

OCCA thus affirmed Williams’ conviction. Id. at 59.

      Mr. Williams filed his federal petition on May 30, 2013. He argues that the

State violated his Fourteenth Amendment right to due process by concealing a

deal between Mr. Hutchinson and the prosecutor whereby Mr. Hutchinson would

receive leniency for his testimony against Mr. Williams. Aplt. App. 11. The

magistrate judge issued a Report and Recommendation and recommended that the

petition be denied. Williams v. Patton, No. CIV–13–558–W, 2014 WL 1276237

(W.D. Okla. Mar. 7, 2014). The district court adopted the Report and

Recommendation and denied the petition, finding that Mr. Williams’ conviction

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“was not contrary to, and did not involve an unreasonable application of, clearly-

established Supreme Court precedent,” nor was it “‘based on an unreasonable

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

proceeding.’” See Williams v. Patton, No. CIV–13–558–W, 2014 WL 1276583,

at *1–2 (W.D. Okla Mar. 27, 2014) (quoting 28 U.S.C. § 2254(d)(2)). Mr.

Williams raises the same grounds for relief on appeal. Aplt. Br. at 14.



                                     Discussion

      For this court to grant a COA, Mr. Williams must make a “substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such 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. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). Thus, Mr. Williams must

demonstrate that “reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Id.

      We have reviewed Mr. Williams’ opening petition and application for a

COA, the district court’s analysis as well as that of the assigned magistrate judge,

the appendix, and the state-court transcripts. We must conclude that Mr.

Williams has failed to make a substantial showing of the denial of a constitutional

right given the deferential standards of review in 28 U.S.C. §§ 2254(d) & (e)(1).

                                         -4-
      Mr. Williams argues that the State’s failure to disclose its agreement with

Mr. Hutchinson amounted to a denial of his rights under Brady v. Maryland, 373

U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny.

Aplt. Br. at 17–26. In Brady the Supreme Court held that the suppression of

favorable, material evidence by the government violates the Due Process Clause.

373 U.S. at 87. Giglio expanded upon Brady and held the government’s failure to

disclose its leniency promise to a witness also violated the Due Process Clause.

405 U.S. at 152–53. Thus, an agreement or promise from the prosecutor to a

witness in exchange for testimony must be disclosed. The agreement need not be

express—“less formal, unwritten or tacit agreement[s]” must be disclosed as well.

Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008); see also Douglas v. Workman,

560 F.3d 1156, 1186 (10th Cir. 2009). However, here the state court found no

agreement at all between Mr. Hutchinson and the State.

      Mr. Williams argues the state court’s finding that there was no agreement

between Mr. Hutchinson and the State is “utterly unbelievable” in light of the

facts and circumstances of the case. Aplt. Br. at 30. However, this state court

finding is presumed correct and Mr. Williams has not overcome this presumption

with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). He presents nothing

beyond the circumstantial evidence of the State dropping its charges against Mr.

Hutchinson after he testified against Mr. Williams to support his contention that

the state court’s determination was mistaken. Given the state court’s finding that

                                        -5-
no agreement existed, its rejection of the claim was not contrary to or an

unreasonable application of Supreme Court precedent, nor an unreasonable

determination of the facts given the evidence. 28 U.S.C. § 2254(d)(1)–(2).

      Accordingly, we DENY a COA and DISMISS this appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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