UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

GREGORY JOHN BUSHYHEAD,

 Petitioner - Appellant,

v.

MICHAEL WADE, Warden,

 Respondent - Appellee.

No. 14-5015 

 (D.C. No. 4:10-CV-00797-CVE-FHM) 

(N.D. Oklahoma)

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 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 27, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
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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 
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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 
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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