Filed: Jul. 31, 2012
Latest Update: Mar. 26, 2017
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 31, 2012 _ Elisabeth A. Shumaker Clerk of Court GREGORY POLITE, Petitioner - Appellant, No. 12-5066 v. (D.C. No. 4:08-CV-00330-JHP-FHM) (N. D. Okla.) DAVID MILLER, Warden, Respondent - Appellee. _ ORDER DENYING CERTIFICATE OF APPEALABILITY _ Before MURPHY, EBEL, and HARTZ, Circuit Judges. Petitioner-Appellant Gregory Polite, a pro se Oklahoma state prisoner convicted of first-degree rape
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 31, 2012 _ Elisabeth A. Shumaker Clerk of Court GREGORY POLITE, Petitioner - Appellant, No. 12-5066 v. (D.C. No. 4:08-CV-00330-JHP-FHM) (N. D. Okla.) DAVID MILLER, Warden, Respondent - Appellee. _ ORDER DENYING CERTIFICATE OF APPEALABILITY _ Before MURPHY, EBEL, and HARTZ, Circuit Judges. Petitioner-Appellant Gregory Polite, a pro se Oklahoma state prisoner convicted of first-degree rape ..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2012
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GREGORY POLITE,
Petitioner - Appellant,
No. 12-5066
v. (D.C. No. 4:08-CV-00330-JHP-FHM)
(N. D. Okla.)
DAVID MILLER, Warden,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
Petitioner-Appellant Gregory Polite, a pro se Oklahoma state prisoner convicted of
first-degree rape and sentenced to life in prison, seeks a Certificate of Appealability
(“COA”) to challenge the district court’s denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. We have reviewed the record and Mr. Polite’s arguments, and
conclude that Mr. Polite has failed to make a substantial showing of the denial of a
constitutional right. We therefore DENY Mr. Polite’s request for a COA and DISMISS
this appeal.
This order is not binding precedent, except under the doctrines of law of the case,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.
BACKGROUND
On the night of June 24, 2005, Mr. Polite went to the home of his former
girlfriend, Glenna Bridges.1 Ms. Bridges asked him to leave, but Mr. Polite refused,
threatening to “knock her teeth out.” Following a physical altercation that included Mr.
Polite striking Ms. Bridges in the eye with a closed fist and choking her, Mr. Polite
forced Ms. Bridges to engage in sexual intercourse. The next morning, after Mr. Polite
left, Ms. Bridges called her mother and was taken to the hospital, where she was
examined by a trained sexual assault nurse, who later testified at trial that Ms. Bridges
had suffered injuries consistent with nonconsensual intercourse. Upon his arrest in
connection with this incident, Mr. Polite admitted to police that he had gone to Ms.
Bridges’ home and argued and physically fought with her, and that the two had had
sexual intercourse, though Mr. Polite claimed it was consensual. A jury convicted Mr.
Polite of first-degree rape.
Mr. Polite appealed his conviction to the Oklahoma Court of Criminal Appeals
(“OCCA”), asserting seven propositions of error, several of which implicated his due
process right to a fair trial.2 The OCCA affirmed Mr. Polite’s conviction, denying each
1
The recitation of the facts is taken from the Oklahoma Court of Criminal
Appeals’s opinion in Mr. Polite’s direct appeal, and from excerpts of the trial transcript
contained in the record on appeal.
2
Those errors were: (1) that several continuances granted to the State were
procedurally irregular; (2) that the nurse who examined Ms. Bridges should not have
been permitted to testify that her findings were consistent with nonconsensual
Continued . . .
2
of his propositions of error. Mr. Polite then sought post-conviction relief in the federal
court, filing the pro se § 2254 petition that is the subject of the instant appeal, and
asserting the same seven grounds of error.3 The district court denied Mr. Polite’s
petition, finding that the OCCA’s determination warranted deference, and further denied
a COA.
DISCUSSION
I. Standard of Review
This Court lacks jurisdiction to consider the merits of a habeas appeal unless we
grant the applicant a COA. See 28 U.S.C. § 2253(c)(1)(A). We issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). “This standard requires an applicant to show 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.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citing Slack v.
(Cont. )
intercourse; (3) that the testimony of Ms. Bridges’ mother was prejudicial; (4) that the
admission of evidence regarding Mr. Polite’s prior crimes was prejudicial; (5) that
various comments by the prosecution amounted to reversible misconduct; (6) that the
district court should have defined “reasonable doubt” for the jury; and (7) that the errors
were not harmless.
3
To the extent that Mr. Polite, in his brief before this Court, attempts to assert new
grounds of error in connection with his underlying conviction, we do not consider
arguments raised for the first time on appeal. See United States v. Viera, 674 F.3d 1214,
1220 (10th Cir. 2012); see also 28 U.S.C. § 2244(b)(2), (3) (limiting review of second-or-
successive habeas petitions containing new claims); cf. Spitznas v. Boone,
464 F.3d
1213, 1215 (10th Cir. 2006) (treating any claim that “in substance or effect asserts or
reasserts a federal basis for relief from the petitioner’s underlying conviction” as a
second-or-successive habeas petition).
3
McDaniel, 529 U.S. 473, 484 (2000)). And where, as in this case, the state court
addressed the merits of the applicant’s claims, “the [Anti-Terrorism and Effective Death
Penalty Act’s (“AEDPA’s”)] deferential treatment of state court decisions must be
incorporated into our consideration of a . . . petitioner’s request for COA.” Dockins v.
Hines,
374 F.3d 935, 937-38 (10th Cir. 2004) (explaining that we will not grant a COA
for petitioners whose constitutional claims are merely “at least debatable”). Under
AEDPA, habeas relief is available if the state court’s 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).
Applying that standard here, we cannot say that the OCCA’s disposition of any of
Mr. Polite’s seven grounds for appeal was contrary to or involved an unreasonable
application of clearly established federal law. To the extent Mr. Polite points this Court
to legal authority in support of his arguments, we find that authority inapposite, and our
own research reveals no principle of clearly established federal law that was contradicted
by the OCCA’s decision. Having reviewed the record presented to us, we also cannot say
that the OCCA’s determination of the facts was unreasonable. Accordingly, for
substantially the same reasons as stated by the district court in denying § 2254 relief, we
DENY Mr. Polite’s request for a COA.
4
II. Counsel in the § 2254 proceeding below
Before this Court Mr. Polite also asserts that he should have had counsel in the
habeas proceeding in the district court. In the § 2254 proceeding below, Mr. Polite had
moved for appointment of counsel, or, in the alternative, an extension of time to reply to
the Respondent’s response to his petition. The district court denied the motion for
appointment of counsel, but granted Mr. Polite extra time to file his reply.
Where a defendant has already had a chance to appeal his conviction in the state
courts, there is no constitutional right to counsel in subsequent federal habeas
proceedings. See Coleman v. Thompson, 501 U.S. 722, 756 (1991); Swazo v. Wyo.
Dept. of Corr. State Penitentiary Warden,
23 F.3d 332, 333 (10th Cir. 1994).
“[G]enerally appointment of counsel in a § 2254 proceeding is left to the court’s
discretion.” Swazo, 23 F.3d at 333. Mr. Polite was represented by counsel in his appeal
before the OCCA. Our review of the record reveals no abuse of discretion in the district
court’s denial of Mr. Polite’s motion for appointment of counsel in the § 2254
proceeding.4
4
Intertwined with Mr. Polite’s argument with respect to appointment of counsel
are frequent references to the four-year delay between the filing of his § 2254 petition
and the district court’s eventual ruling on that petition. Mr. Polite does not actually assert
that the delay amounted to a due process violation, but to the extent his brief can be so
construed, we reject the argument. See United States v. Dago, 441 F.3d 1238, 1248 (10th
Cir. 2006) (“[A] delay in post-conviction proceedings does not give rise to an
independent due process claim that would justify granting a defendant habeas relief.”);
Montgomery v. Meloy,
90 F.3d 1200, 1206 (7th Cir. 1996) (“Delay in processing [a]
collateral claim does not make the continued imprisonment of the defendant unlawful,
and hence, does not warrant federal habeas corpus relief.”).
5
CONCLUSION
For substantially the same reasons as did the district court, we DENY Mr. Polite’s
application for a COA, and DISMISS this appeal.
Entered for the Court
DAVID M. EBEL, Circuit Judge
6
