FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS March 28, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

PRESTON R. DORITY,
Petitioner - Appellant,
v.
JIM FARRIS, Warden,

No. 14-6000
(D.C. No. 5:13-CV-00335-HE)
(W.D. Oklahoma)

Respondent - Appellee.

ORDER DENYING
CERTIFICATE OF APPEALABILITY *

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

Petitioner and Appellant, Preston R. Dority, seeks a certificate of

appealability (COA) in order to appeal the denial of his petition for habeas
corpus relief under 28 U.S.C. 2254. After concluding that Mr. Dority has not
established entitlement to the issuance of a COA, we deny him a COA and
dismiss this matter.

This order is not binding precedent, except under the doctrines of law of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
Following a jury trial, Mr. Dority was found guilty of Domestic Assault and
Battery by Strangulation, in violation of Okla. Stat. tit 21, 644(I), and he was
sentenced to seventeen years imprisonment. He appealed the conviction and
sentence. On February 20, 2013, the Oklahoma Court of Criminal Appeals
(OCCA) affirmed the conviction and sentence in Dority v. State, No. F-2011943 (Okla. Crim. App. Feb. 20, 2013) (unpublished). The claims presented to the
OCCA were: (1) the trial court committed reversible error and denied him due
process by failing to give his defense counsels requested jury instruction on a
lesser-included misdemeanor offense; (2) the trial court abused its discretion in
allowing the prosecution to present evidence of two prior felony convictions that
arose out of the same transaction; (3) his counsel was ineffective because (a) he
did not request a lesser-included offense instruction in writing, (b) he did not
object to the admission into evidence of the two prior convictions, and (c) he (Mr.
Doritys counsel) improperly waived Mr. Doritys right to testify in the first stage
of the trial; (4) his sentence was excessive; and (5) the cumulative impact of all
the trial errors denied Mr. Dority a fair trial. As indicated, the OCCA addressed
the merits of each issue and rejected them.
On April 5, 2013, Mr. Dority commenced the instant habeas petition. He
argued four of the issues he asserted in his direct appeal, omitting only the
challenge to his sentence as excessive. The district court applied the standard of
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review provided by the AntiTerrorism and Effective Death Penalty Act (AEDPA),
and denied the petition. The court also denied a COA and denied Mr. Dority his
request to proceed on appeal in forma pauperis. This request for a COA
followed.

DISCUSSION
We grant a COA only if an applicant makes a substantial showing of the
denial of a constitutional right. 28 U.S. 2253(c)(2). An applicant must show
that reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further. United States v. Taylor, 454 F.3d
1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
Furthermore, as the district court concluded, our review of this case is
governed by AEDPA. Under AEDPA, when a state court has reviewed a claim
on its merits, federal habeas relief may be granted only if the state courts
decision (1) was contrary to or involved an unreasonable application of clearly
established Federal law, or (2) was based upon an unreasonable determination of
the facts in light of the evidence presented at trial. Howell v. Trammell, 728
F.3d 1202, 1212 (10th Cir. 2013) (quoting 28 U.S.C. 2254(d)). [C]learly
established Federal law is limited to Supreme Court holdings, as opposed to the
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dicta, . . . as of the time of the relevant state-court decision. Id. (quoting Carey
v. Musladin, 549 U.S. 70, 74 (2006)).
In short, [a] state courts determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state courts decision. Id. at 1213 (quoting Harrington v.
Richter, 131 S. Ct. 770, 786 (2100)). Thus, [f]ederal habeas is not a substitute
for ordinary error correction through appeal; it only guards against extreme
malfunctions in the state criminal justice systems. Id. (quoting Harrington, 131
S. Ct. at 786).
Finally, we note that one of the issues under review in this particular case
is whether Mr. Doritys counsel provided effective assistance. To make out an
ineffective assistance of counsel claim under the applicable standard provided by
Strickland v Washington, 466 U.S. 668 (1984), Mr. Dority must show both (1)
that his counsel provided deficient assistance and (2) that there was prejudice as a
result. Howell, 728 F.3d at 1223. To establish deficient performance, [Mr.
Dority] must show . . . that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed . . . by the Sixth Amendment.
Harrington, 131 S. Ct. at 787 (internal quotation marks omitted). To establish
prejudice, Mr. Dority must demonstrate a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different. Id.
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Surmounting Stricklands high bar is never an easy task. Id. at 788; see
also Howell, 728 F.3d at 1223. Even under de novo review, the standard for
judging counsels representation is a most deferential one. Harrington, 131 S.
Ct. at 788. Establishing that a state courts application of Strickland was
unreasonable under 2254(d) is all the more difficult. The standards created by
Strickland and 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so. Id. (citations and internal quotation marks
omitted). Accordingly, because the OCCA resolved Mr. Doritys ineffective
assistance of counsel claims on their merits, our review of the [OCCAs]
decision is . . . doubly deferential. Heard v. Addison, 728 F.3d 1170, 1178
(10th Cir. 2013) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2010)).
The district court in this case applied the AEDPA standard to the OCCAs
analysis of the merits of Mr. Doritys claims. Mr. Doritys first claim is that the
trial court erred in failing to provide a jury instruction on the lesser-included
misdemeanor offense of domestic assault and battery. The OCCA held that the
[t]he proper test for instructions on a lesser included offense is whether prima
facie evidence of the lesser offense has been presented, . . i.e., evidence which
would allow a jury rationally to find the accused guilty of the lesser offense and
acquit him of the greater. Dority, slip op. at 2. Applying that test, the OCCA
found that the trial court had erred when it denied the requested lesser-included
offense instruction on the basis that the request was not in writing. Nonetheless,
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the court found that error did not prejudice Mr. Dority (and it therefore denied the
claim) because the evidence does not show that the jury rationally could find
[Mr. Dority] guilty of the lesser offense and acquit him of the greater. Id. at 3.
With respect to this first issue, the district court observed that our court
has establish[ed] a rule of automatic non-reviewability for claims based on a
state courts failure, in a non-capital case, to give a lesser included offense
instruction. Report & Recommendation at 6 (quoting Dockins v. Hines, 374
F.3d 935, 938 (10th Cir. 2004)). 1 The district court accordingly held Mr. Dority
was not entitled to habeas relief on this ground. 2
Mr. Doritys second claim before the OCCA was that the trial court had
abused its discretion in allowing the prosecution to present evidence of two prior
felony convictions that he alleges arose out of the same transaction. The OCCA
found that Mr. Dority had not objected to the evidence admitted at trial
concerning his prior felony convictions. It accordingly applied a plain error
1

The district court adopted the magistrate judges Report and

Recommendation, and it added its own brief analysis in its Order in which it
adopted that Report. We refer to and discuss both the Report and the Order as the
combined analysis of the district court.
2

It is well-established that violations of state law cannot form the basis for
federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ([I]t is
not the province of a federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.); Burleson v. Saffle, 278 F.3d 1136, 1140-41 (10th Cir. 2002)
(This state law ruling provides no grounds for the granting of habeas relief, and
we do not consider it in our habeas analysis.).
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analysis and found that Mr. Dority had admitted that he had three valid prior
convictions, and that the sentencing range was the same whether he had three or
four prior convictions, and so no plain error had occurred.
With respect to this argument, the district court noted that the OCCAs
findings that Mr. Dority admitted both having three valid prior convictions and
that the sentencing range was the same whether he had three or four prior
convictions are factual findings that are presumed correct, and [Mr. Dority] has
not overcome the presumption with clear and convincing evidence. Report at 7
(citing 28 U.S.C. 2254(e)(1)). The district court further observed, correctly,
that the OCCAs application or misapplication of the states sentence
enhancement statute is a matter of state law that is not cognizable in a habeas
proceeding. Report at 8; see Estelle, 502 U.S. at 67-68; Burleson, 278 F.3d at
1140-41. And, finally, the district court concluded that, because Mr. Dority is
arguing that the state court misapplied its own evidentiary rules, habeas relief is
only proper if the alleged error was so grossly prejudicial [that it] fatally infected
the trial and denied the fundamental fairness that is the essence of due process.
Order at 4 (quoting Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002)).
Mr. Doritys third claim is that his trial counsel was ineffective in several
respects (failure to request the lesser-included instruction in writing; failure to
object to the admission of two prior transactionally-related convictions; and the
waiver of Mr. Doritys right to testify in first stage of the trial). The OCCA
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applied the Supreme Courts two-part test established in Strickland, and

determined that it had previously concluded that Mr. Dority had suffered no
prejudice either from the denial of instructions or the admission of his prior
convictions, and that finding precludes any conclusion that counsels allegedly
deficient performance with respect to these claims has resulted in . . . prejudice
under Strickland. Dority, Slip op. at 4-5. With respect to the claimed
ineffectiveness in waiving Mr. Doritys right to testify, the OCCA found that the
record showed that defense counsel had advised Mr. Dority of his right to testify,
had consulted with him about the decision, and accurately stated Mr. Doritys
decision in open court that he had decided not to testify. The court accordingly
concluded that Mr. Dority had not overcome the strong presumption that counsel
rendered reasonably effective assistance. Id. at 5.
On this issue, the district court concluded that, with respect to the first two
instances of claimed ineffectiveness, Mr. Dority does not attempt to demonstrate
that the OCCAs decision in this respect was contrary to or unreasonably applied
the prevailing Strickland standard. Report at 10, 11-12. The court then
concluded that Mr. Dority failed to meet that AEDPA standard for showing
entitlement to habeas relief. Regarding the third claimed instance of
ineffectiveness (defense counsels waiver of Mr. Doritys right to testify in the
first stage of the trial), the district court noted that the OCCA had made
presumptively correct factual findings regarding trial counsels conduct during
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the first stage and that Mr. Dority had not overcome the strong presumption that
counsel rendered reasonably effective assistance. Report at 12. The court
concluded that Mr. Dority had failed to provided clear and convincing evidence
to overcome those presumptively correct factual findings, and that he had further
failed to show that the OCCAs decision rejecting the ineffective assistance
claims was contrary to or an unreasonable application of Strickland. Report at
12-13.
With regard to Mr. Doritys last claim (of cumulative error), the district
court observed that our court has recently explained the cumulative error doctrine
as meaning that prejudice can be accumulated disjunctively that all a defendant
needs to show is a strong likelihood that the several errors in his case, considered
additively, prejudiced him. Report at 13 (quoting Grant v. Trammell, 2013 WL
4105939, at *16 (10thCir. 2013)). We have also, previously, stated that,[t]he
crux [of cumulative error] review is whether the defendants substantial rights
were affected. Willingham v. Mullin, 296 F.3d 917, 935 (10th Cir. 2002)
(internal quotations and citation omitted). The district court then concluded:
In this case, the evidence of Petitioners guilt was, if not
overwhelming, substantial. Additionally, the state-law-based errors
found by the OCCAthe trial courts erroneous reasoning for failing
to give a requested jury instruction on a lesser-included misdemeanor
offense to the Domestic Abuse by Strangulation offense and the
potential error in admitting into evidence a fourth prior felony
conviction that may have violated state lawwere not significant.
Under these circumstances, the errors recognized by the OCCA do
not undermine the confidence of the Court in the result of
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Petitioners trial. Petitioner has not demonstrated that the OCCAs

rejection of his claim of cumulative error was contrary to or an
unreasonable application of controlling federal law.
Report at 14-15.
As indicated above, the district courts analysis under AEDPA is thorough
and correct. We cannot improve on its discussion, other than to note that our
doubly deferential review of claims of ineffective assistance of counsel makes it
even more difficult for Mr. Dority to prevail in his request for a COA to enable
habeas review of that claim. We accordingly deny Mr. Dority a COA for
substantially the reasons stated by the district court in its Order and in the Report
and Recommendation adopted by that Order.

CONCLUSION
For the foregoing reasons we DENY Mr. Dority a COA and DISMISS this
matter. We DENY his request for leave to appeal in forma pauperis.
ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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