                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            August 27, 2014
                                   TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 GREGORY JOHN BUSHYHEAD,

        Petitioner - Appellant,

 v.                                                          No. 14-5015
                                                 (D.C. No. 4:10-CV-00797-CVE-FHM)
 MICHAEL WADE, Warden,                                     (N.D. Oklahoma)

        Respondent - Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



       Applicant Gregory Bushyhead was driving a truck in Tulsa, Oklahoma, when he

was involved in an intersection collision that killed the passenger in the other vehicle. He

was convicted of driving-under-the-influence (DUI) manslaughter and leaving the scene

of an accident. His direct appeal to the Oklahoma Court of Criminal Appeals (OCCA)

was unsuccessful, as was his later appeal to the OCCA of the trial court’s denial of his

motion for postconviction relief. On December 14, 2010, he filed an application for

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

of Oklahoma. The district court denied relief and Applicant now seeks from us a
certificate of appealability (COA) to raise a number of challenges to his conviction.1 See

28 U.S.C. §2253(c)(1)(A) (requiring a COA to appeal denial of §2254 application). We

deny a COA and dismiss the appeal.

I.     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.

       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 the

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


1
 Applicant raised two issues in district court that he does not pursue here: that he was
convicted under a different statute from what he was charged under and cumulative error.
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dismissing the petition or that the petitioner should be allowed to proceed further.” Id.

One procedural ground for denying a § 2254 application is that the claim was

procedurally barred in state court. “Claims that are defaulted in state court on adequate

and independent state procedural grounds will not be considered by a habeas court, unless

the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of

justice.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008).

       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

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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

Defendant’s claims that 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).

       B.     Grounds Raised on Direct Appeal with the OCCA

       Two of Applicant’s claims were presented to and rejected by the OCCA on direct

appeal.

       We first address Applicant’s argument that the manslaughter instruction

incorrectly set forth the elements of driving while impaired (DWI), omitting the

requirement that he was driving “with impaired ability.” Aplt. Pet. at 10 (internal

quotation marks omitted). The OCCA rejected the claim, noting that a separate

instruction properly laid out the elements of DWI. No reasonable jurist could debate the

district court’s determination that the OCCA’s decision was not contrary to or an

unreasonable application of Supreme Court precedent. See United States v. Park, 421

U.S. 658, 674 (1975) (“[A] single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall charge.” (internal quotation

marks omitted)).

       Applicant’s other argument that was raised on direct appeal is that he was denied

due process because the trial court refused to give his theory-of-defense instructions on
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proximate cause. He argues that it was contested at trial whether he or the other driver

was responsible for the accident and that the jury should have been informed that even if

he was intoxicated, he still had to have caused the accident in order to be guilty of

manslaughter. The OCCA stated that a proximate-cause instruction was not supported by

the law or evidence. An instruction at trial “required the jury to find that the death of a

human occurred as the ‘direct result of an act or event which happened in the commission

of a misdemeanor.’” Bushyhead v. Wade, No. 10-CV-0797-CVE-FHM, 2014 WL

585355, at *7 (N. D. Okla. Feb. 13 2014). And another instruction stated that “‘no

person may be convicted of manslaughter in the first degree unless both the fact of the

death of the person allegedly killed and the fact that his death was caused by the conduct

of another person are established as independent facts and beyond a reasonable doubt.’”

Id. (brackets and internal quotation marks omitted). The district court concluded that the

instructions as a whole informed the jury that Applicant had to be the direct cause of the

victim’s death. No reasonable jurist could debate the district court’s conclusion that the

refusal to give Applicant’s requested proximate-cause instructions was not a deprivation

of his due-process rights.

       C.     The Remaining Claims

       The other grounds presented to this court were deemed waived by the OCCA

when it considered Applicant’s postconviction motion because they could have been

raised on direct appeal and were not. Applicant’s sole challenge to the OCCA’s waiver

ruling is that his counsel on direct appeal was ineffective in not raising the claims.
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Although the OCCA ruled in Applicant’s postconviction appeal that his counsel on direct

appeal was not ineffective, the district court did not defer to that ruling because, in its

view, the OCCA had applied an incorrect test for assessing ineffectiveness. But

addressing the issue de novo, it ruled that there was no ineffectiveness, upholding the

procedural bar. We agree with the district court’s analysis of ineffectiveness, so we need

not consider whether the OCCA applied the wrong test. We now turn to the merits of the

ineffectiveness claim.

       To establish ineffective assistance of appellate counsel, the applicant “must show

both (1) constitutionally deficient performance, by demonstrating that his appellate

counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by

demonstrating a reasonable probability that, but for counsel’s unprofessional error(s), the

result of the proceeding would have been different.” McGee v. Higgins, 568 F.3d 832,

838 (10th Cir. 2009) (ellipses and internal quotation marks omitted). Our analysis of

whether appellate counsel’s omission of an issue on appeal constituted ineffective

assistance of counsel ordinarily begins with an examination of the merits of the issue.

See Malicoat v. Mullin, 426 F.3d 1241, 1249 (10th Cir. 2005). “If the omitted issue is so

plainly meritorious that it would have been unreasonable to winnow it out even from an

otherwise strong appeal, its omission may directly establish deficient performance.” Id.

(internal quotation marks omitted). “On the other hand, if the omitted issue has merit but

is not so compelling, we must examine the issue in relation to the rest of the appeal.” Id.

“[O]f course, if the issue is meritless, its omission will not constitute deficient
                                               6
performance.” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2008) (footnote

omitted). And “[h]abeas relief is warranted only if the petitioner establishes a reasonable

probability of a favorable result had his appellate counsel raised the omitted issue.” Id.

       The district court determined that Applicant’s waived claims lack merit. We

summarize the district court’s responses to each claim.

       Applicant raises several challenges to the testimony by the state’s accident

reconstructionist. The district court ruled (1) that the testimony satisfied the standards of

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), did not invade the

province of the jury, and did not incorrectly instruct the jury on the law; and (2) that

Applicant was not denied materials necessary to cross-examine the expert.

       Applicant argues that the jury was inflamed against him when one of the jurors

told the rest of the jury that he had been involved in a traffic accident with a drunk driver.

The accident occurred on the evening before the last day of trial. The district court ruled

the claim meritless, noting that the juror involved in the accident was excused and that

the remaining jurors said that their knowledge of the accident would not impact their

ability to reach a fair verdict.

       Applicant argues that four of his statements at the scene of the accident and while

being booked were admitted into evidence in violation of Miranda v. Arizona, 384 U.S.

436 (1966). The district court ruled that three statements were properly admitted: one

statement was made during an exchange initiated by Applicant and two were responses to

questions meant to facilitate the completion of paperwork, not to elicit incriminating
                                              7
responses. The court did rule that the fourth statement—“Yeah, I had a couple of

drinks,” Bushyhead, 2014 WL 585355, at *19 (internal quotation marks omitted)—was

elicited in violation of Miranda. But it held that the error was harmless in light of

Applicant’s trial testimony, his blood-alcohol level of 0.24, and the testimony of

witnesses at the scene of the accident and in the hospital.

       Applicant argues that the test results on his blood-alcohol sample should not have

been admitted because they were unreliable due to flaws in testing and in the chain of

custody. The district court ruled that questions about the chain of custody and handling

of the sample went to the weight of the evidence, not its admissibility.

       Applicant argues that the test results also should be excluded because he was not

told about the results until three months after the test had been completed, when time for

the sample to be independently tested had expired. The district court ruled that there was

no impediment to his having arranged for a timely independent test: He did not have to

await the results of the state’s blood test, he knew that blood had been drawn the night of

the accident, and he had hired trial counsel within 46 days of the accident.

       Finally, Applicant argues that he was denied due process because the state failed

to provide him recordings of police interviews with himself and the other driver on the

night of the accident and the blood-alcohol test of the other driver. But the district court

found that Applicant received a copy of the police-interview recordings on the second

day of trial, that there is no evidence that the other driver’s blood was tested, and that

there is no evidence of police bad faith in the failure to conduct a blood-alcohol test on
                                              8
the other driver, see Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal

defendant can show bad faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of law.”).

       Perhaps another attorney would have raised one or more of these challenges on

direct appeal. But the challenges are, at best, quite weak. No reasonable jurist would

debate the district court’s conclusion that failure to present these arguments on direct

appeal was not ineffective assistance of counsel.

II.    CONCLUSION

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

                                           ENTERED FOR THE COURT


                                           Harris L Hartz
                                           Circuit Judge




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