Rickey Ray Wallgren, Jr. v. Rick Whitten

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
RICKEY RAY WALLGREN, JR.,
Petitioner - Appellant,
v.
RICK WHITTEN,
Respondent - Appellee.
No. 20-6098
(D.C. No. 5:18-CV-00824-F)
(W.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before TYMKOVICH, Chief Judge, KELLY and HOLMES, Circuit Judges.
_________________________________
Rickey Ray Wallgren, Jr., an Oklahoma state inmate proceeding pro se, 1 seeks a
certificate of appealability (COA) to contest the district court’s denial of his 28 U.S.C.
§ 2254 habeas application. Exercising jurisdiction under 28 U.S.C. § 1291, we deny a
COA and dismiss this matter.
BACKGROUND
In October 2014, Petitioner was convicted by a jury of two counts of sexual abuse
of a child under twelve years old and was sentenced to two consecutive terms of 25
 This order is not binding precedent except under the doctrines of law of the case,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.
1 We liberally construe Petitioner’s filings but will not serve as his advocate.
James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
FILED
United States Court of Appeals
Tenth Circuit
October 14, 2021
Christopher M. Wolpert
Clerk of Court
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years’ imprisonment. He appealed to the Oklahoma Court of Criminal Appeals (OCCA),
which affirmed the convictions. Petitioner then applied for post-conviction relief, raising
46 claims. The state district court denied relief, finding that the majority of the claims
were procedurally barred because they were or could have been raised on direct appeal
and the remainder of the claims lacked merit. The OCCA affirmed.
In August 2018, Petitioner filed a § 2254 habeas application, raising 50 claims for
relief. In a detailed order, the magistrate judge recommended, inter alia, that three of the
claims be dismissed as not cognizable on habeas review and that the remainder of the
claims be denied as procedurally defaulted or without merit. The district court adopted
the recommendation and dismissed Petitioner’s application in part, denied it in part, and
denied a COA. Petitioner filed a motion to reconsider, which the district court denied.
Petitioner now seeks a COA from this court.
DISCUSSION
We may issue a certificate of appealability only upon “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For claims denied on the
merits, Petitioner must show that reasonable jurists would regard the district court’s
rulings on his constitutional claims as debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484 (2000). And for claims that the court deemed defaulted or non-cognizable, he
must show reasonable jurists would find it debatable both that the habeas application
states a valid constitutional claim and that the court was correct in its procedural ruling.
Id. Moreover, the “deferential treatment of state court decisions” under 28 U.S.C. § 2254
“must be incorporated into our consideration of a habeas petitioner’s request for COA.”
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Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). As such, factual determinations
“by a State court shall be presumed to be correct,” which Petitioner can rebut only with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). And for claims adjudicated on
the merits in state court, Petitioner must show the state-court decision “was contrary to,
or involved an unreasonable application of, clearly established Federal law,” or “was
based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id. § 2254(d)(1), (2). If that “standard is difficult to meet,
that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Petitioner raises dozens of issues in his 69-page combined opening brief and COA
application, as amended and supplemented. But he largely repeats the arguments he
presented to the district court and does not address the court’s rationales for rejecting his
contentions, much less show that reasonable jurists could find those rationales debatable. 2
2 Because of the sheer number of arguments in Petitioner’s brief, we decline to
address each one individually. Nevertheless, by way of example, he contends the district
court erred in not granting a stay-and-abeyance so that he could exhaust a claim that the
state court lacked jurisdiction under 18 U.S.C. § 1153. But he fails to address the court’s
finding, which it repeated in several orders, that he did not show good cause. See Rhines
v. Weber, 544 U.S. 269, 277-78 (2005) (listing factors for a stay-and-abeyance).
Petitioner also re-argues the merits of his claims that the jury was exposed to extraneous
information, that his wife gave victim-impact statements at sentencing, that he was
denied a lesser-included offense instruction, that the DNA evidence was unreliable, and
that the trial court admitted evidence of prior bad acts. But he does not address the
court’s ruling that these claims, among many others, were procedurally defaulted.
Similarly, Petitioner re-argues his claim that the jury saw him wearing a leg monitor and
heard the monitor’s alarm. However, he does not address the court’s merits ruling,
including that any error was harmless. Lastly, Petitioner argues he should have been
allowed to amend his application to raise a due process claim alleging the destruction of
evidence. But he does not address the basis for the denial of his request—that the
amendment was unduly delayed and would be futile because the claim was unexhausted.
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“[W]e will not question the reasoning of a district court unless an appellant actually
argues against it.” Clark v. Colbert, 895 F.3d 1258, 1265 (10th Cir. 2018) (brackets and
internal quotation marks omitted); see also Nixon v. City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the
district court’s decision was wrong.”). In the rare instance where Petitioner addresses the
court’s reasoning, he either (1) presents conclusory and perfunctory arguments, which we
will not consider, see United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004);3 or
(2) raises arguments that were not in his habeas application and, thus, are not properly
before this court, see Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13 (10th Cir. 2013).4
3 For example, Petitioner contends the district court failed to consider various
psychiatric records pertaining to the victims and his wife as part of its actual-innocence
analysis. But he cites no evidence to support his characterization of the contents of these
records. Petitioner also contests the district court’s conclusion that social media posts
allegedly authored by his wife did not constitute newly discovered evidence. He relies on
affidavits from various individuals who claim to have not seen the posts until after
Petitioner’s trial. But he does not explain how the belated discovery by these individuals
shows that the posts could not have been timely discovered, particularly when, as the
district court observed, the posts were dated eight months before his trial.
4 For example, Petitioner devotes several pages of his brief to whether the state
court erred under Idaho v. Wright, 497 U.S. 805 (1990), when it admitted a video of a
forensic interview of one of the minor victims. But in his habeas application, Petitioner
argued the state court erred in admitting the video based on a state statute. He did not
cite Wright, a Confrontation Clause case, in connection with this claim, nor did he raise a
separate Confrontation Clause claim. Additionally, in the supplement to his brief,
Petitioner raises a claim that he describes as Oklahoma’s “exception to the rule doctrine.”
Suppl. to Aplt. Opening Br. at 68. Petitioner did not raise this in his habeas application,
and in any event, errors of state law are not cognizable in federal habeas review, Hawes
v. Pacheco, 7 F.4th 1252, 1265 n.10 (10th Cir. 2021). And although he eventually raised
his arguments regarding Wright and the “exception to the rule doctrine” in his objections
to the magistrate judge’s recommendation, “[i]ssues raised for the first time” at that stage
of the proceedings “are deemed waived.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310
(10th Cir. 2010) (internal quotation marks omitted).
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The lone exception appears to be Petitioner’s argument that the district court did
not explicitly address one item of evidence during its thorough review and rejection of his
claim of actual innocence. See Aplt. Opening Br. at 23. Specifically, Petitioner’s trial
counsel attempted to cross-examine one of the victims—then approximately fifteen years
old—with screenshots from her social media page depicting vulgar or sexual content.
The trial court sua sponte objected based on relevance and later sustained the State’s
objection when Petitioner’s counsel raised the matter during sentencing. Petitioner insists
such evidence would have bolstered his actual-innocence argument, both as a standalone
claim for relief and as a gateway for reviewing his procedurally defaulted claims, by
undermining the allegation that the victim’s behavior had changed due to sexual abuse
and by showing that she was an “overly sexualized child” capable of fabricating the
allegations against him. Id. at 26 (internal quotation marks omitted).
Even with this additional evidence, reasonable jurists would not debate the district
court’s actual-innocence determination. As with other evidence the court analyzed, such
as the younger victim’s preliminary hearing testimony, the social media posts are “merely
impeaching evidence that would not cause a rational person to doubt [Petitioner’s] guilt.”
Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999). The posts also were dated
several years after the abuse of this particular victim ceased and, thus, offer little support
for his argument regarding their timing. And to the extent her posts indicate she was
“overly sexualized,” such a characteristic appears more attributable to sexual abuse than
Petitioner’s speculation that she was otherwise exposed to “sexually explicit photos,
material and conversations.” Aplt. Opening Br. at 26.
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Ultimately, we have thoroughly reviewed the record and Petitioner’s filings and
conclude that reasonable jurists would not debate the district court’s order denying in part
and dismissing in part his § 2254 habeas application. Accordingly, we deny a COA.
CONCLUSION
We deny Petitioner’s request for a COA and dismiss the matter. We grant his
motion to proceed in forma pauperis and deny his remaining motions.5
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
5 Petitioner filed a motion for an evidentiary hearing that included an affidavit he
executed after he gave notice of appeal. That affidavit is not properly before this court.
See Utah v. U.S. Dep’t of Interior, 535 F.3d 1184, 1195 n.7 (10th Cir. 2008) (“[N]ew
evidence not submitted to the district court is not properly part of the record on appeal.”).
In any event, we deny the motion for an evidentiary hearing. See Johnson v. Carpenter,
918 F.3d 895, 909 (10th Cir. 2019) (denying evidentiary hearing for the same reasons the
court affirmed the denial of habeas relief). Petitioner also moved to supplement the
record and his COA application. To the extent the motions seek to add materials already
in the record, such as state court filings and transcripts, the motions are denied as moot.
And to the extent the motions seek to add materials that Petitioner never presented to the
district court, such as his newly executed affidavit, the motions are denied. See U.S.
Dep’t of Interior, 535 F.3d at 1195 n.7. Finally, Petitioner filed a motion for
stay-and-abeyance and a motion for an administrative closing order, both seeking to have
this matter stayed pending exhaustion in state court of a claim under McGirt v.
Oklahoma, 140 S. Ct. 2452 (2020). McGirt held that territory in Oklahoma reserved for
the Creek Nation since the 19th century remains “‘Indian country’” for purposes of
exclusive federal jurisdiction over certain offenses committed “within ‘the Indian
country’” by an “‘Indian.’” 140 S. Ct. at 2459 (quoting 18 U.S.C. § 1153(a)). McGirt
has no bearing on a resolution of Petitioner’s current habeas claims, and he has not
contested the district court’s denial of his motion to amend his petition to add such a
claim. And as noted above, Petitioner also has not challenged the district court’s repeated
finding that he failed to show good cause for a stay-and-abeyance. See Rhines, 544 U.S.
at 277-78. We therefore deny his motions for a stay-and-abeyance and an administrative
closing order.
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