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

                             FOR THE TENTH CIRCUIT                              January 8, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
ANTHONY CASTILLO SANCHEZ,

      Petitioner - Appellant,

v.                                                            No. 15-6043
                                                      (D.C. No. 5:10-CV-01171-HE)
MAURICE WARRIOR,* Interim Warden,                             (W.D. Okla.)
Oklahoma State Penitentiary,

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY**
                    _________________________________

Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

                                   I. BACKGROUND

       Anthony Sanchez was convicted in Oklahoma state district court of first degree

murder, first degree rape, and forcible sodomy. App. at 44. His respective sentences for

those convictions were death, 40 years in prison, and 20 years in prison. App. at 45. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions and sentences on


       *
      Under Fed. R. App. P. 43(c)(2), Deputy Maurice Warrior is substituted for Anita
Trammell as Interim Warden of the Oklahoma State Penitentiary, effective October 28,
2015.
       **
          This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
direct appeal and denied his application for post-conviction relief. App. at 362. The

OCCA set forth the relevant underlying facts in its published opinion on direct appeal and

we do not repeat them here. See Sanchez v. State, 223 P.3d 980, 987-90 (Okla. Crim.

App. 2009).

       The federal district court denied Mr. Sanchez’s application for habeas relief under

28 U.S.C. § 2254 and denied a certificate of appealability (“COA”). App. at 418, 421.

He moved for a COA in this court on six issues. Doc. 10283244 (June 30, 2015).

Following a case management conference, Judge Murphy issued an order stating that no

COA “had been issued by the district court or this court.” Doc. 10297889, at 1 (Aug. 26,

2015). The order said that Mr. Sanchez may file a renewed request for a COA for

consideration by the merits panel. Id. He has done so, the state has responded, and he

has replied. Doc. 10302778 (Sept. 15, 2015); Doc. 10304244 (Sept. 22, 2015); Doc.

10306461 (Sept. 29, 2015).

       Having considered Mr. Sanchez’s renewed request for a COA and the arguments

presented, we concur with the judges who have previously considered this matter and do

not grant a COA.

                                    II. DISCUSSION

                                  A. Legal Standards

       Mr. Sanchez may not appeal the district court’s denial of his § 2254 application

without a COA. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 335-

36 (2003). To obtain a COA, he must make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists could debate


                                             -2-
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) (quotations omitted).

       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs

federal habeas review of state court decisions. See 28 U.S.C. § 2254. If state court

proceedings adjudicated the merits of a claim, a federal court may grant habeas relief

only if 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,” 28 U.S.C. § 2254(d)(1); or “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2);

see also Harrington v. Richter, 131 S. Ct. 770, 785 (2011). In addition, the state courts’

factual determinations “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).

       In deciding whether to grant a COA, we are required to “look to the District

Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that

resolution was debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.

       Because the district court denied one of Mr. Sanchez’s issues for which he seeks a

COA on procedural grounds “without reaching the prisoner’s underlying constitutional

claim,” we cannot grant a COA on that issue unless he shows both (1) “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right” and (2) “that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484; accord

Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007).


                                             -3-
       A state prisoner may not obtain federal habeas relief unless the petitioner “has

exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

“Generally, a federal court should dismiss unexhausted claims without prejudice so that

the petitioner can pursue available state-court remedies. However, if the court to which

Petitioner must present his claims in order to meet the exhaustion requirement would now

find those claims procedurally barred, there is a procedural default for the purposes of

federal habeas review.” Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006) (citation

and quotations omitted). “[W]e do not address issues that have been defaulted in state

court on an independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.” Cummings v.

Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007) (quotations omitted). The fundamental

miscarriage of justice exception to the procedural default rule “is a markedly narrow one,

implicated only in extraordinary cases where a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d

816, 820 (10th Cir. 2007) (quotations omitted).

                                        B. Analysis

       Mr. Sanchez seeks a COA on six issues.

1. Sufficiency of the evidence (Petition Ground I)

       In his habeas petition, Mr. Sanchez challenged the sufficiency of the evidence as

to all three convictions, arguing he was convicted in violation of due process under

Jackson v. Virginia, 443 U.S. 307 (1979). App. at 51-68. Reasonable jurists could not

debate the district court’s denial of this claim.


                                               -4-
       As to Mr. Sanchez’s first-degree murder and first-degree rape charges, the OCCA

did not unreasonably apply federal law in concluding the prosecution presented sufficient

evidence to support the convictions. Throughout this case, including now, Mr. Sanchez

cannot overcome the DNA evidence from sperm found on the victim’s clothing linking

him to the crimes. He has not impeached that evidence, including the expert’s testimony

that his DNA would have common alleles with his father, the only person Mr. Sanchez

points to as a possible alternative perpetrator in the case, but that their DNA would not be

the same. The corroborating evidence of Mr. Sanchez’s shoeprints at the murder scene

and the call from the victim’s cell phone to Mr. Sanchez’s ex-girlfriend the day following

the crimes undermines any suggestion, which is implausible in the first place, that his

DNA was planted on the victim. The OCCA’s determination that Mr. Sanchez has not

shown that no reasonable jury could have found him guilty of the crimes, see Sanchez,

223 P.3d at 1002-03, is subject to AEDPA deference. The district court concluded the

OCCA’s decision was reasonable. App. at 376. Mr. Sanchez has not shown otherwise.

Reasonable jurists could not debate the district court’s denial of this claim.

       As to Mr. Sanchez’s forcible sodomy claim, the district court found the challenge

to be unexhausted and procedurally barred. App. at 377-78. It also denied the claim on

the merits, as it may under 28 U.S.C. § 2254(b)(2). App. at 378. We will do the same.

When reviewing an unexhausted claim that was not decided on the merits by the state

courts, “we review the district court’s legal conclusions de novo and its factual findings,

if any, for clear error.” Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir. 2003). Mr.

Sanchez argues the evidence was insufficient to convict him of forcible sodomy for the


                                              -5-
same reasons he argued the evidence was insufficient to convict him of first-degree

murder and first-degree rape. App. at 33, 51-68. As described above, Mr. Sanchez has

failed to impeach the DNA evidence and circumstantial evidence used to obtain this

conviction. Reasonable jurists could not debate whether the district court correctly

denied Mr. Sanchez’s claim as to the forcible sodomy conviction.

       We therefore deny a COA on this claim as to all three convictions.

2. Examination of jurors regarding death penalty views (Petition Ground II)

       Mr. Sanchez raised this issue on direct appeal, and the OCCA decided it on the

merits. Sanchez, 223 P.3d at 995-97. He objected to questions drawn from the state

pattern jury instructions and argued the trial court did not take adequate steps to ensure

the jurors would not automatically impose the death penalty. See id. at 995, 997. The

OCCA determined that the jurors empaneled in this case indicated they could consider

the three possible punishments for first degree murder—life, life without the possibility

of parole, and death—and would not automatically sentence Mr. Sanchez to death. See

id. at 995, 997. It recognized the trial court conducted extensive voir dire to determine

the jurors understood the questions. Id. at 995. Mr. Sanchez also had the opportunity to

ask prospective jurors—including each of the jurors eventually empaneled—about their

death penalty views. Id. at 997. The OCCA concluded the court had thereby “cleared up

any of the confusion.” Id. Mr. Sanchez has not shown otherwise.

       The district court, applying AEDPA deference, concluded that the OCCA’s

decision was reasonable and not contrary to or an unreasonable application of Morgan v.




                                             -6-
Illinois, 504 U.S. 719, 729 (1992), and Wainwright v. Witt, 469 U.S. 412, 485 (1985), the

governing Supreme Court law. App. at 382-84.

       In light of the district court’s and counsel’s careful and extensive inquiries into the

jurors’ views on the death penalty, we conclude reasonable jurists could not debate the

district court’s conclusion. We therefore deny a COA.

3. Ineffective assistance of trial counsel (Petition Ground V)

       Mr. Sanchez seeks a COA on whether his trial counsel was ineffective in failing to

investigate and present evidence that another person—his father—committed the crimes.

Doc. 10302778, at 20-21. Mr. Sanchez raised this issue for the first time in his federal

habeas petition. The district court found he had not exhausted the claim in state court, it

was subject to anticipatory procedural bar, and Mr. Sanchez had not made an actual

innocence showing to excuse the procedural default. App. at 397-401.

       Mr. Sanchez has attempted to demonstrate actual innocence by theorizing that the

evidence might have shown his father committed the crimes. Doc. 10302778, at 20-21.

As addressed above, Mr. Sanchez’s argument fails because DNA evidence linked Mr.

Sanchez to the crime scene and although his DNA shares common alleles with his

father’s, their DNA is not the same. Mr. Sanchez has provided no basis on which

reasonable jurists could debate either the district court’s procedural ruling or whether Mr.

Sanchez has made a substantial showing of a constitutional violation. We therefore deny

a COA.




                                              -7-
4. Ineffective assistance of appellate counsel regarding absence from first day of
   voir dire (Petition Ground VI)

       Mr. Sanchez claimed in his state post-conviction proceeding that his appellate

counsel was ineffective for failing to complain on appeal that he was absent from a

portion of the first day of jury selection. See App. at 401-02, 405-07.

       The OCCA concluded there was no prejudicial error arising from his absence and

denied the claim. App. at 406. In the state trial court, Mr. Sanchez had declined to attend

the beginning of voir dire proceedings because he objected to wearing a shock sleeve for

security reasons. App. at 405; Sanchez, 223 P.3d at 995. During his absence, the court

provided a brief orientation to the jury pool about such matters such as punctuality,

logistics, courthouse personnel, and the basics of voir dire. App. at 405.

       The district court denied relief, concluding the OCCA had not unreasonably

applied Snyder v. Massachusetts, 291 U.S. 97 (1934), overruled in part on other grounds

by Malloy v. Hogan, 378 U.S. 1 (1964), and Strickland v. Washington, 466 U.S. 668

(1984). App. at 405-07.

       Mr. Sanchez’s presence during the orientation would not have contributed in any

substantial way to his opportunity to defend himself. See Snyder, 291 U.S. at 105-06.

Mr. Sanchez’s counsel’s failure to complain on this ground would consequently fail both

prongs of the Strickland standard. Reasonable jurists could not debate the district court’s

decision to deny relief on this issue, and a COA is not warranted.




                                             -8-
5. Trial while in restraints (Petition Ground III)

       Mr. Sanchez wore leg irons around his ankles during trial. Sanchez, 223 P.3d at

991. On direct appeal, the OCCA held the trial court erred by using leg irons without

making findings that Mr. Sanchez was a threat. Id. at 994. But the court concluded the

error did not have a substantial influence on the trial because no juror actually viewed

him in restrains. Id. at 994-95.

       The district court concluded that the OCCA’s resolution of this issue was not an

unreasonable application of Deck v. Missouri, 544 U.S. 622 (2005), which holds that the

Constitution forbids the use of visible shackles. App. at 386. The court noted that

evidence on juror perceptions had been received at an evidentiary hearing during his

direct appeal proceedings supporting the OCCA’s determination that the jurors never saw

Mr. Sanchez’s leg irons. App. at 386.

       Mr. Sanchez has not rebutted the presumption by clear and convincing evidence,

see 28 U.S.C. § 2254(e)(1), that the OCCA correctly found that the shackles were not

visible. Indeed, his brief states, “No jurors, according to testimony at [the] evidentiary

hearing, saw the shackles.” Doc. 10302778, at 24. Mr. Sanchez requests a COA because

one juror “said she assumed Mr. Sanchez was ‘somehow restrained.’” Id. at 23 (quoting

Evid. Hearing Tr. at 35-37). He does not show how the OCCA unreasonably applied

Deck, nor does he show any clearly established Supreme Court law holding that the use

of shackles that are not visible is a constitutional violation. Reasonable jurists could not

debate whether the district court correctly denied relief on this basis. We therefore deny

a COA.


                                             -9-
6. Federal district court’s denial of motions for investigator, discovery, and an
   evidentiary hearing

      These motions are inextricably linked to the sufficiency of the evidence, trial

counsel effectiveness, and shackling issues. Because we deny a COA on those issues,

and because Mr. Sanchez otherwise provides no more than speculative reasons for these

requests, we deny a COA to review the district court’s denial of these motions. See 28

U.S.C. § 2254(e)(2); Leske v. Brill, 236 F. App’x 391, 394 (10th Cir. 2007)

(unpublished).1

                                  III. CONCLUSION

      We deny a COA on each issue and dismiss this matter.


                                             ENTERED FOR THE COURT



                                             ELISABETH A. SHUMAKER, Clerk




      1
        Although not precedential, we find this unpublished opinion instructive. See
10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”); see also Fed. R. App. P. 32.1.



                                           - 10 -
