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    Clark v. Province, 10th Cir. (2009)

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    The court denied Roger Clark's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition. Clark was convicted of manufacturing and trafficking methamphetamine based on evidence found during a search of his home. He argued his confession was involuntary due to his mental retardation and implied threats against his wife. However, the district court denied the petition on procedural grounds because Clark failed to raise this argument during his initial state appeals. The court also denied Clark's claim of cumulative trial errors because he did not sufficiently identify any specific errors and did not raise this claim in his original petition.

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    Clark v. Province, 10th Cir. (2009)

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    The court denied Roger Clark's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition. Clark was convicted of manufacturing and trafficking methamphetamine based on evidence found during a search of his home. He argued his confession was involuntary due to his mental retardation and implied threats against his wife. However, the district court denied the petition on procedural grounds because Clark failed to raise this argument during his initial state appeals. The court also denied Clark's claim of cumulative trial errors because he did not sufficiently identify any specific errors and did not raise this claim in his original petition.

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    Filed: 2009-01-07 Precedential Status: Non-Precedential Docket: 08-7056

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    The court denied Roger Clark's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition. Clark was convicted of manufacturing and trafficking methamphetamine based on evidence found during a search of his home. He argued his confession was involuntary due to his mental retardation and implied threats against his wife. However, the district court denied the petition on procedural grounds because Clark failed to raise this argument during his initial state appeals. The court also denied Clark's claim of cumulative trial errors because he did not sufficiently identify any specific errors and did not raise this claim in his original petition.

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    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    20 views7 pages

    Clark v. Province, 10th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    The court denied Roger Clark's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition. Clark was convicted of manufacturing and trafficking methamphetamine based on evidence found during a search of his home. He argued his confession was involuntary due to his mental retardation and implied threats against his wife. However, the district court denied the petition on procedural grounds because Clark failed to raise this argument during his initial state appeals. The court also denied Clark's claim of cumulative trial errors because he did not sufficiently identify any specific errors and did not raise this claim in his original petition.

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    of 7

    FILED

    United States Court of Appeals


    Tenth Circuit

    January 7, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    ROGER CLARK,
    Petitioner-Appellant,

    No. 08-7056

    v.

    Eastern District of Oklahoma

    GREG PROVINCE, Warden,

    (D.C. No. CIV-06-165-RAW-KEW)

    Respondent-Appellee.

    ORDER DENYING CERTIFICATE OF APPEALABILITY *

    Before TACHA, KELLY and McCONNELL, Circuit Judges.

    Roger Clark, a state prisoner in Oklahoma, seeks a certificate of


    appealability (COA) that would allow him to appeal from the district courts order
    denying his habeas corpus petition under 28 U.S.C. 2254. See 28 U.S.C.
    2253(c)(1)(A). Because we conclude that Mr. Clark has failed to make a
    substantial showing of the denial of a constitutional right, we deny his request
    for a COA, and dismiss the appeal. 28 U.S.C. 2253(c)(2).
    Background
    On July 2, 2003, a task force of Oklahoma police executed a search warrant
    on Mr. Clarks home. After announcing themselves and waiting about twenty-

    This order is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel.

    five seconds, the officers made a forced entry, secured the master bedroom, and
    then, after opening the adjoining door to the master bathroom, found Mr. Clark
    with his hands in the toilet. Inside the toilet was a clear plastic bag filled with a
    liquid, and also a white rag wrapped around a rock. Lab tests later confirmed that
    this rock was made of methamphetamine. A search of the apartment also
    uncovered digital scales, clear plastic baggies, a discolored brass fitting, a police
    radio and scanner, more methamphetamine in a nightstand drawer and in a shoe
    box at the side of the bed, and over $10,000 cash. After the police searched the
    house, Mr. Clarks wife, Sharon Clark, led them to a second location in a wooded
    area that contained empty cans of camp fuel, battery casings with the insides
    stripped out, plastic gas cans, muriatic acid, and other items used to manufacture
    methamphetamine.
    The state charged Mr. Clark with Manufacture of Controlled Dangerous
    Substance (Methamphetamine) in violation of 63 Okla. Stat. 2-401; Trafficking
    in Illegal Drugs (Methamphetamine) in violation of 63 Okla. Stat. 2-415; and
    Unlawful Use of a Police Radio in violation of 21 Okla. Stat. 1214. A jury trial
    was held on October 67, 2003, after which Mr. Clark was found guilty of all
    three charges. After retaining different counsel, Mr. Clark filed a motion for a
    new trial on November 13, 2003, which the trial court granted. Mr. Clarks
    second trial was held on January 1214, 2004, and he was again found guilty on
    all three counts. The court sentenced him to fifty years and a $100,000 fine on
    -2-

    count one; life and a $200,000 fine on count two, and three years and a $5,000
    fine on count three.
    With the assistance of court-appointed counsel, Mr. Clark appealed his
    conviction to the Oklahoma Court of Criminal Appeals, which affirmed. He then
    filed an application for post-conviction relief. That application was denied on
    August 10, 2005. He appealed that denial to the Oklahoma Court of Criminal
    Appeals, which affirmed the denial of post-conviction relief on October 27, 2005.
    After pursuing these state remedies, Mr. Clark, pro se, filed a petition for writ of
    habeas corpus with the United States District Court for the Eastern District of
    Oklahoma. A magistrate judge issued a Report and Recommendation
    recommending that Mr. Clarks petition be denied. Mr. Clark filed timely
    objections to the reportat that point with the assistance of counselbut the
    district court adopted the Report and Recommendation and denied Mr. Clarks
    petition on April 29, 2008.
    Discussion
    The denial of a motion for relief under 28 U.S.C. 2254 may be appealed
    only if the district court or this Court first issues a COA. 28 U.S.C.
    2253(c)(1)(A). 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). In order
    to make such a showing, a petitioner must demonstrate that reasonable jurists
    could debate whether . . . the petition should have been resolved in a different
    -3-

    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). When a habeas petition is denied on procedural
    grounds, the petitioner must demonstrate that jurists of reason would find it
    debatable whether the petition states a valid claim of the denial of a constitutional
    right and that jurists of reason would find it debatable whether the district court
    was correct in its procedural ruling. Id. (emphasis added). Mr. Clark contends
    that the trial court violated his constitutional rights in two ways: by failing to
    suppress his confession and by the cumulative effect of trial irregularities.
    A. Failure to Suppress Confession
    Mr. Clark argues that the trial court violated his constitutional rights by
    allowing the state to admit an involuntary confession into evidence. See Jackson
    v. Denno, 378 U.S. 368, 376 (1964) (a defendant in a criminal case is deprived
    of due process of law if his conviction is founded, in whole or in part, upon an
    involuntary confession). Although he was read his Miranda warnings, Mr. Clark
    contends that his confession could not be voluntary because he is mentally
    retarded, because he was coerced by implied threats against his wife, and because
    he was improperly promised that his wife would not be charged if he gave a
    statement. Nowhere in his brief, however, does Mr. Clark challenge or even
    acknowledge the actual ground for the district courts rejection of this claim:
    procedural default.
    -4-

    According to the Report and Recommendation adopted by the district court,


    Mr. Clark failed to raise his present claim on direct appeal to the OCCA. The
    argument on appeal was that petitioners confession should have been suppressed
    because of his mental retardation and that any implied threat occurred after
    Miranda warnings were administered to petitioner, whereas his current habeas
    claim is that the alleged threat was made prior to the Miranda warnings, placing
    the claim in a different legal posture. Rep. & Rec. 12. Mr. Clark had admitted
    in his habeas petition that he did not raise this voluntariness claim on direct
    appeal, and the court found that he had failed to demonstrate cause for that
    failure. Id. at 13.
    Because the district court denied Mr. Clarks habeas petition on procedural
    grounds, he must show not only that jurists of reason would find it debatable
    whether the petition states a valid claim of the denial of a constitutional right,
    but also that jurists of reason would find it debatable whether the district court
    was correct in its procedural ruling. Slack, 529 U.S. at 484. Mr. Clark has
    offered no reason for us to doubt the district courts finding of procedural default,
    and we are not required to manufacture a partys argument on appeal when it has
    failed in its burden to draw our attention to the error below. Natl. Commodity
    & Barter Assn v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989). Federal Rule of
    Appellate Procedure 28(a)(9)(A) requires that the appellants opening brief
    contain appellants contentions and the reasons for them, with citations to the
    -5-

    authorities and parts of the record on which the appellant relies. An appellants
    failure to raise the issue in the opening brief generally waives that issue on
    appeal. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1093); State
    Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
    It might be that Mr. Clark now abandons the argument he made before the
    district court and instead renews the argument he made on direct appeal. This
    would explain why he does not challenge the determination that the argument
    made in his habeas petition was procedurally defaulted, as well as the fact that his
    current brief repeats, word for word, the argument he made on direct appeal. If
    that is the case, then Mr. Clarks failure to raise this issue before the district court
    waives the argument on appeal. The well-settled law of this circuit is that issues
    not raised in district court may not be raised for the first time on appeal. United
    States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004); see also United States v.
    Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005). To the extent that Mr. Clark is
    making a new argument in this appeal, we will not review it.
    We deny Mr. Clarks request for COA on the issue of his confession
    because he has given no reason to doubt the district courts determination that the
    claim raised in his habeas petition is procedurally defaulted.
    B. Cumulative Error
    Mr. Clark also requests a COA on whether the cumulative effect of trial
    errors that might individually have been found harmless collectively denied him
    -6-

    his right to a fair trial. He never, however, draws our attention to any specific
    error. The closest he comes to identifying any individual error is to say that his
    fundamental right to a fair trial was denied through the repeated improper
    admission of evidence in this case. Aplt. 15. Just what evidence Mr. Clark
    believes was improperly admitted and why such admission might be improper
    remains a mystery. This deficient briefing makes it impossible for us to address
    the issue. Moreover, Mr. Clark did not raise his cumulative error claim in his
    petition before the district court. Mr. Clark has therefore failed to make a
    substantial showing of the denial of a constitutional right as to this issue, and we
    deny his request for COA.
    Conclusion
    Accordingly, we DENY Mr. Clarks request for a COA and DISMISS this
    appeal.
    Entered for the Court,

    Michael W. McConnell
    Circuit Judge

    -7-

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