UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

CARL C. JACKSON,

 Plaintiff - Appellant,

v.

TERRY MARTIN, Warden,

 Respondent - Appellee.

No. 13-6240

(W.D. Oklahoma)

(D.C. No. 5:12-CV-00702-W)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges. 

 

Carl Jackson, an Oklahoma state prisoner, filed a pro se application for relief 

under 28 U.S.C. § 2254 in the United States District Court for the Western District of 

Oklahoma. The district court denied his application. Mr. Jackson now seeks a certificate 

of appealability (COA) from this court to pursue an appeal. See 28 U.S.C. 

§ 2253(c)(1)(A) (requiring a COA to appeal denial of § 2254 application). Liberally 

construing his pleadings in this court, see Brace v. United States, 634 F.3d 1167, 1169 

(10th Cir. 2011), we believe he is seeking relief on the following grounds: (1) that the 

trial judge failed to give lesser-included-offense instructions, in violation of his dueprocess rights; (2) that two searches, one of Mr. Jackson’s person and one of his 

temporary residence, were unlawful; and his trial counsel was ineffective in failing to 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 16, 2014

Elisabeth A. Shumaker 

Clerk of Court
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move to suppress evidence from the searches; (3) that trial counsel was ineffective in 

failing to impeach testimony with prior inconsistent statements; (4) that the trial judge 

was biased; (5) that the trial judge improperly excluded evidence of gang involvement; 

and (6) that accumulation of these errors denied Mr. Jackson a fair trial. We deny a COA 

and dismiss the appeal. 

I. BACKGROUND 

Donnie Jeffers was fatally shot in Oklahoma City on May 18, 2006. Mr. Jackson 

was arrested and admitted to shooting in the direction of the victim. In its opinion 

affirming Mr. Jackson’s conviction and sentence, the Oklahoma Court of Criminal 

Appeals (OCCA) summarized one of his statements to the police as follows: 

[Mr. Jackson stated] to Detective Miller that “Rab” Thompson had 

threatened and insulted his family earlier that day and he was fearful that 

“Rab” and his cohorts were going to cause his family trouble; and that later 

that evening, when fired upon by a man or group of individuals whom he 

thought included “Rab”, [Mr. Jackson] fired back leading to the death of 

the decedent, the unintended victim. 

**** 

[Mr. Jackson] said that as a result of “Rab’s” threats, he wanted to be armed 

and ready in case “Rab” showed up later, so he bought 2 guns and 

ammunition from “someone off the street”. Then, under the cover of 

darkness, he hid behind the Chrysler New Yorker waiting for “Rab”. 

Claiming he heard a gunshot, the armed [Mr. Jackson] said he ambushed 

the unidentified men from the car and “surprised” them, screaming at them 

to drop their weapons. When the unidentified men started shooting in his 

direction, Appellant admitted he just started shooting. The decedent was 

struck in the right side and in the buttock. 
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R., Vol. I at 224–25. Mr. Jackson later claimed that his confession was false and 

attempted to suppress it, but it was admitted at trial. His theory of defense at trial was 

that “the evidence point[ed] to a gang-related fight involving drugs,” and that he was not 

involved. Tr. of Jury Trial Proceedings, Vol. I at 3–4 (State v. Jackson, No. CF-06-3225 

(D. Okla. Feb. 2, 2008). The jury convicted him on one count of first-degree murder and 

he was sentenced to life imprisonment. 

Mr. Jackson appealed his conviction to the OCCA, which affirmed the jury 

verdict. He also filed an application for postconviction relief in state court, which was 

denied by both the trial court and the OCCA. He then filed his § 2254 application in 

federal district court. The district court denied relief, and Mr. Jackson seeks to appeal. 

II. 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.
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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 

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 

Mr. Jackson’s claims which 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). In 
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reviewing the state-court decision under § 2254(d)(1), we are “limited to the record that 

was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 

131 S. Ct. 1388, 1398 (2011). 

For the reasons that follow, we hold that no reasonable jurist could debate that the 

district court’s resolution of Mr. Jackson’s claim was correct. 

B. Lesser-included instructions

Mr. Jackson argues that he was “denied due process of law and a fair trial” 

because of the “failure to give lesser-included offense instructions to the jury.” Aplt. Br. 

at 6. But due process requires a lesser-included-offense instruction only when the 

defendant has been sentenced to death. See Johnson v. Keith, 726 F.3d 1134, 1135 n.2 

(10th Cir. 2013). And insofar as Mr. Jackson is arguing that his counsel was ineffective 

for not requesting a lesser-included instruction, we note that no prejudice resulted 

because the OCCA held that such an instruction would have been unsupported by the 

evidence. 

C. Legality of Searches 

Mr. Jackson argues that two searches conducted the evening of the crime were 

unlawful: (1) a search of his person near the scene of the crime and (2) a search of a 

house shortly thereafter. He also argues that his counsel was ineffective in not moving to 

suppress evidence from the searches. To prevail on a claim of ineffective assistance of 

counsel, the “defendant must show [(1)] that counsel’s representation fell below an 

objective standard of reasonableness” and (2) that he was prejudiced by the substandard 
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representation. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The court “must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action might be considered sound trial 

strategy.” Id. at 689 (internal quotation marks omitted). 

On direct appeal, however, the OCCA upheld the lawfulness of both searches. 

Therefore, the failure of trial counsel to file a motion to suppress could not have 

prejudiced him. The motion would have been denied. To be sure, the OCCA’s view of 

the legality of the searches might have been incorrect. But we cannot grant habeas relief 

on that ground when, as here, the state court “has provided an opportunity for full and fair 

litigation of a Fourth Amendment claim.” United States v. Lee Vang Lor, 706 F.3d 1252, 

1257 (10th Cir. 2013) (internal quotation marks omitted). 

D. Impeachment of Witness

Mr. Jackson argues that counsel was ineffective in discrediting police testimony 

about whether there had been crime-scene tape around the home where he was arrested. 

He argues, “Trial counsel failed to confront Lt. Campbell as to why his testimony [that 

there was no tape] conflicted with what the police originally reported to the State[.]” 

Aplt. Br. at 4. But he points to no evidence (only the prosecutor’s opening statement) of 

what the police had reported. And, more importantly, he does not explain how a focus on 

the discrepancy would have helped him at trial. His counsel may have thought that the 

absence of tape was favorable evidence, so there would be no reason to cast doubt on the 
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lieutenant’s testimony in that regard. Also, contrary to Mr. Jackson’s assertion in his 

brief, the presence of crime-scene tape was irrelevant to the legality of the officers’ 

search of his person and the home. On this issue he has failed to overcome the Strickland

presumption that counsel’s representation was reasonable. See Strickland, 466 U.S. at 

689. 

E. Judicial Bias 

Mr. Jackson argues that the trial judge was biased against him. To support his 

claim, however, he relies only on rulings by the judge. Such evidence does not suffice. 

See United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (“Unfavorable 

judicial rulings do not in themselves call into question the impartiality of a judge.”). 

F. Gang Evidence 

Mr. Jackson contends that his trial was so unfair as to deny due process because 

the trial judge excluded evidence that the victim and his associates were involved with 

gangs. The Supreme Court, however, has noted its “traditional reluctance to impose 

constitutional constraints on ordinary evidentiary rulings by state trial courts.” Crane v. 

Kentucky, 476 U.S. 683, 689 (1986). That reluctance has been overcome only when the 

proffered evidence in itself, if believed, would establish the defendant’s innocence or the 

evidence was not excluded on the ground of relevance, risk of undue confusion, or 

similar traditional grounds. See Dodd v. Trammell, No. 11-6225, 2013 WL 7753714, at 

*10–*11 (10th Cir. Oct. 16, 2013). Here, Mr. Jackson has not established a due-process 

violation. He has failed to show what precise evidence was excluded, what purpose 
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would have been served by admitting it, or why that purpose could not have been served 

by other evidence at trial. In short, it is impossible to credit his claim on the record 

before the court. 

G. Accumulation of Error

Mr. Jackson’s final claim is that an accumulation of errors “denied [him] a fair 

trial and the due process of law.” Aplt. Br. at 6. “In the federal habeas context, a 

cumulative-error analysis aggregates all constitutional errors found to be harmless and 

analyzes whether their cumulative effect on the outcome of the trial is such that 

collectively they can no longer be determined to be harmless.” Lott v. Trammell, 705 

F.3d 1167, 1223 (10th Cir. 2013) (internal quotation marks omitted), cert. denied, 134 S. 

Ct. 176 (2013). “As the term cumulative suggests, we undertake a cumulative-error 

analysis only if there are at least two errors.” Id. (brackets, ellipses, and internal 

quotation marks omitted). Mr. Jackson has failed to show any constitutional error, so 

there can be no cumulative error. 

III. CONCLUSION

We DENY the application for a COA and DISMISS the appeal. We GRANT Mr. 

Jackson’s motion to proceed in forma pauperis (IFP). 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge