Robert Joseph Stillwagon v. Jimmy Martin

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ROBERT JOSEPH STILLWAGON,
Petitioner - Appellant,
v.
JIMMY MARTIN,
Respondent - Appellee.
No. 20-6165
(D.C. No. 5:19-CV-00352-R)
(W.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH,
Circuit Judges.
_________________________________
This case grew out of Mr. Robert Joseph Stillwagon’s conviction in
Oklahoma for crimes committed against two stepdaughters. The crimes
included indecent or lewd acts with a child under the age of 16 (Okla. Stat.
tit. 21, § 1123) and attempted rape (Okla. Stat. tit. 21, §§ 1111, 1114). Mr.
Stillwagon unsuccessfully appealed in state court and sought habeas relief
in federal district court. He seeks to appeal the denial of habeas relief. To
appeal, however, he needs a certificate of appealability; so he has asked us
for one. See 28 U.S.C. § 2253(c)(1)(A). We deny this request and dismiss
the appeal.
FILED
United States Court of Appeals
Tenth Circuit
August 27, 2021
Christopher M. Wolpert
Clerk of Court
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1. Standard for a Certificate of Appealability
In itself, the standard for a certificate of appealability is light,
requiring only a showing that (1) reasonable jurists could debate the
correctness of the district court’s ruling or (2) the issues are “adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). But we must apply this light standard against the rigorous
requirements for habeas relief.
When a state appeals court has rejected the same claims on the
merits, federal law prevents relief unless the state court has
 ruled contrary to a Supreme Court precedent or
 unreasonably applied Supreme Court precedent.
28 U.S.C. § 2254(d)(1)–(2). So when deciding whether to grant a
certificate of appealability, we must consider federal law’s deference to the
pertinent state appellate opinion. Dockins v. Hines, 374 F.3d 935, 938
(10th Cir. 2004).
2. Mr. Stillwagon’s Four Appellate Arguments
In the desired appeal, Mr. Stillwagon states that he would raise four
arguments: (1) the evidence was insufficient to convict, (2) the prosecutor
committed misconduct, (3) trial counsel was ineffective, and (4)
cumulative errors prevented a fair trial. None of these arguments are
reasonably debatable or adequate to proceed under the deferential review
accorded to the state appellate opinion.
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A. Sufficiency of the Evidence
The convictions stemmed largely from testimony by the two
stepdaughters. The state appellate court pointed out that the two
stepdaughters had described conduct constituting (1) lewd and indecent
conduct and (2) attempted rape. Mr. Stillwagon does not argue to the
contrary.
He instead argues that no reasonable juror could have credited the
stepdaughters’ testimony because it was not believable or corroborated.
The state appellate court concluded that (1) Mr. Stillwagon had waived the
issue through inadequate briefing, (2) the stepdaughters’ testimony had not
been incredible or inherently improbable, and (3) corroboration was
unnecessary.
On habeas review, a federal district court cannot “reject[] a
sufficiency of the evidence challenge simply because the federal court
disagrees with the state court.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per
curiam). The federal district court can reject the challenge only if the state
court’s assessment of the evidence was “objectively unreasonable.” Id.
(quoting Renico v. Lett, 559 U.S. 766, 773 (2010)). The court considers
objective reasonableness based on the underlying test for sufficiency of the
evidence. Under this test, we view the evidence in the light most favorable
to the prosecution, considering whether any rational factfinder could have
found guilt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
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Viewing the evidence favorably to the prosecution, a reasonable jury
could have found guilt notwithstanding the purported discrepancies in the
stepdaughters’ testimony.
We rejected a virtually identical challenge in Parker v. Scott:
[I]t is axiomatic that the responsibility of adjudging the
child’s credibility belonged to the trier of fact, not to us.
We do not have the benefit of observing the witnesses in
the crucible of the courtroom during direct and cross-
examination and thus are not in a position to second-guess
the jury’s credibility determinations. To the extent
[Petitioner] claims that the child gave inconsistent
statements at trial and in the other interviews, his counsel
had the opportunity to cross-examine the child and the
other witnesses to expose the alleged inconsistencies . . . .
The jury was in a position to credit or discount the child’s
testimony and weigh the inconsistencies in light of her age
and the passage of time.
394 F.3d 1302, 1315 (10th Cir. 2005).
Here too, Mr. Stillwagon is asking us to second-guess the jury’s
assessment of the children’s credibility. But we must consider the
stepdaughters’ testimony in the light most favorable to the prosecution. See
Part 2(A), above. And we must consider whether the state court rejection
of Mr. Stillwagon’s sufficiency-of-the-evidence challenge was objectively
unreasonable. In this light, no reasonable jurist could conclude the state
appellate court’s conclusions regarding the sufficiency of the evidence
based on the stepdaughters’ testimony were objectively unreasonable.
Despite that testimony, Mr. Stillwagon argues that Oklahoma law
required corroboration. This argument fails legally because a violation of
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state law would not justify habeas relief. Estelle v. McGuire, 502 U.S. 62,
67–68 (1991). We instead consider only federal law as determined by the
Supreme Court. 28 U.S.C. § 2254(d)(1). And the Supreme Court has never
required corroboration of child witnesses. See Parker, 394 F.3d at 1314
(“No direct Supreme Court precedent requires corroboration of child
witness testimony.”). Given the absence of a Supreme Court opinion
requiring corroboration, any reasonable jurist would reject Mr.
Stillwagon’s habeas challenge on sufficiency of the evidence.
B. Prosecutorial Misconduct
Mr. Stillwagon also argues that the prosecutor committed misconduct
in closing argument and in questioning the stepdaughters. The state appeals
court rejected this argument, reasoning in part that the trial had ultimately
been fair. (The court also concluded that Mr. Stillwagon had failed to
adequately brief prosecutorial misconduct or to show plain error.) In our
view, Mr. Stillwagon’s arguments are not reasonably debatable.
1. Closing Argument
Mr. Stillwagon contends in part that the prosecutor improperly asked
the jury to compare the reactions by Mr. Stillwagon and his stepdaughters.
This characterization is inaccurate. The prosecutor simply commented on
the strength of the evidence and challenged defense counsel’s gloss on the
evidence.
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Mr. Stillwagon also complains that the prosecutor vouched for the
stepdaughters’ credibility. This characterization is inaccurate. The
prosecutor said:
And I would submit to you that, if they were going to make
up stories, they could have made up a lot better story and
that right there tells you they’re telling the truth. They are
telling the truth. They have been consistent . . . since they
were interviewed, since they made their disclosure. They
have been consistent. They haven’t changed what they
have said has happened to them.
R., vol. 3 at 553. The state appellate court could reasonably decline to
characterize this argument as vouching, so no jurist could question the
state court’s decision under the rigorous test for habeas relief.
Vouching typically “occurs when the jury could reasonably believe
that the prosecutor is indicating a personal belief in the witness’
credibility, either through explicit personal assurances of the witness’
veracity or by implicitly indicating that information not presented to the
jury supports the witness’ testimony.” Hanson v. Sherrod, 797 F.3d 810,
837 (10th Cir. 2015) (internal quotation marks omitted).
The prosecutor here did not say that she believed that the
stepdaughters were telling the truth. She instead argued that their
testimony was believable. The state appellate court thus acted reasonably
in rejecting Mr. Stillwagon’s claim of vouching. Given the reasonableness
of this conclusion, no jurist could legitimately question the correctness of
the district court’s ruling under the test for habeas relief.
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2. Questioning the Stepdaughters
Mr. Stillwagon also complains of the prosecutor’s appeals to
emotions when asking the stepdaughters “whether or not they missed
Robert Stillwagon, whether they were worried if other witnesses were
upset, whether or not they simply tolerated the alleged abuse as a part of
being Stillwagon’s stepchild, and whether or not they loved him.” Def.’s
Mot. for Certificate of Appealability at 27. These questions related to the
witnesses’ credibility, the timing of their disclosure of the abuse
allegations, and their potential motivations to lie. The state appellate court
thus acted reasonably in concluding that Mr. Stillwagon had “fail[ed] to
show the prosecutor’s alleged misconduct, individually or cumulatively,
deprived him of a fair trial or sentencing.” Appellant’s App’x at 11. As a
result, Mr. Stillwagon’s habeas challenge is not reasonably debatable under
the test for habeas relief.
3. Ineffective Assistance of Counsel
Mr. Stillwagon contends that trial counsel was constitutionally
ineffective for (1) failing to object based on prosecutorial misconduct, (2)
failing to impeach the stepdaughters with inconsistencies in their
statements, and (3) presenting a bizarre and prejudicial closing argument.
To establish ineffective assistance, Mr. Stillwagon must show
deficient performance and prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). In determining whether counsel’s performance was
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deficient, we engage in two forms of deference. We of course defer to the
state appellate court’s disposition. See Part 1, above. But we also consider
“whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington v Richter, 562 U.S. 86, 105
(2011) (internal quotation marks omitted).
In our view, the state appellate court’s reasoning is unassailable. We
have elsewhere rejected the claim of prosecutorial misconduct, so an
objection would have proven futile. He has not reasonably developed any
of his other theories of ineffective assistance. See Moore v. Gibson, 195
F.3d 1152, 1180 (10th Cir. 1999) (“We do not consider unsupported and
undeveloped issues.”).
C. Cumulative Error
Mr. Stillwagon also challenges the fundamental fairness of his trial
based on the cumulative effect of the evidentiary insufficiency,
prosecutorial misconduct, and ineffective assistance of counsel. But we
have rejected these claims of error, and “[c]umulative error cannot be
predicated on non-errors.” United States v. Oldbear, 568 F.3d 814, 825
(10th Cir. 2009). So no jurist could reasonably question the district court’s
rejection of this claim.
* * *
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We conclude that Mr. Stillwagon has not justified a certificate of
appealability on any of his four proposed arguments. We thus decline to
issue a certificate; and with no certificate, we dismiss this matter.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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