Sells v. Allbaugh
702 F. App'x 785
| 10th Cir. | 2017Background
- Petitioner Reco Sells, a state prisoner, was convicted of Lewd or Indecent Proposal to a Child and Facilitating Sexual Conduct with a Minor by Use of a Computer; he filed a 28 U.S.C. § 2254 habeas petition challenging his convictions.
- The district court denied relief; Sells sought a certificate of appealability (COA) to appeal that denial to the Tenth Circuit.
- Some habeas claims were dismissed as procedurally barred (including anticipatory procedural bar and state-law procedural defaults); other claims were adjudicated on the merits by the Oklahoma Court of Criminal Appeals (OCCA).
- The district court applied AEDPA deference to the OCCA’s merits rulings and concluded they were not contrary to or unreasonable applications of clearly established Supreme Court law.
- The Tenth Circuit reviewed whether reasonable jurists could debate the district court’s procedural rulings and AEDPA conclusions and ultimately denied a COA and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy as to multiple counts (Counts 2 & 3) | Sells: multiple punishments for same offense violate Double Jeopardy | State/OCCA: counts involved separate acts on separate days with different charged conduct and instructions | OCCA reasonable; not contrary to Supreme Court; COA denied |
| Claim that convictions used general rather than specific statute | Sells: convicted under improper/general statute | State: claim not presented to state courts (unexhausted) → procedurally barred | Anticipatory procedural bar applies; no COA |
| Procedural defaults (fair trial, hearsay, Fourth Amendment) | Sells: these constitutional errors warrant relief | State/OCCA: not raised on direct appeal; OCCA denied post-conviction relief on independent and adequate state grounds; Sells cannot show cause/prejudice or actual innocence | Court agreed with procedural default; no COA |
| Sufficiency of evidence on entrapment | Sells: state failed to disprove entrapment beyond a reasonable doubt | State/OCCA: evidence supports finding of no entrapment by a rational trier of fact | OCCA’s resolution reasonable under AEDPA; no COA |
| Jury instruction: sentence entrapment | Sells: trial court should have given a sentence-entrapment instruction | State/OCCA: evidence did not warrant that instruction | OCCA reasonable; no COA |
| Jury instruction: Instruction No. 26 (law enforcement involvement) | Sells: instruction confusing and reversed burden of proof; violated due process | State/OCCA: instruction was clear and valid | OCCA reasonable; no COA |
Key Cases Cited
- Miller-El v. Cockrell, 537 U.S. 322 (COA standard; whether reasonable jurists would debate district court’s resolution)
- Erickson v. Pardus, 551 U.S. 89 (liberal construction of pro se filings)
- Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008) (court will not assume role of advocate for pro se litigant)
- Coleman v. Thompson, 501 U.S. 722 (procedural default and anticipatory procedural bar principles)
- Slack v. McDaniel, 529 U.S. 473 (standards for granting a COA where procedural rulings are involved)
- Jones v. Thomas, 491 U.S. 376 (protection against multiple punishments in single proceeding)
- Estelle v. McGuire, 502 U.S. 62 (federal habeas relief not available for pure state-law errors)