Pearson v. Wyo. Attorney Gen.

JAMES E. PEARSON, Petitioner - Appellant, v. WYOMING ATTORNEY GENERAL, Respondent - Appellee.

No. 20-8051

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

May 18, 2021

(D.C. No. 1:19-CV-00168-ABJ)

(D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY^*

Before MORITZ, BALDOCK, and KELLY, Circuit Judges.

Pro se prisoner James E. Pearson is serving a life sentence for aggravated arson and attempted first-degree murder. He seeks a certificate of appealability (COA) to appeal from the district court's order denying his 28 U.S.C. § 2254 habeas petition. As explained below, we deny a COA and dismiss this matter.

BACKGROUND

On September 6, 2014, Pearson drove to Gillette, Wyoming in "an uncommon automobile" to see Autumn Evans, a woman with whom he had a relationship. Pearsonv. State, 389 P.3d 794, 795 (Wyo. 2017). He picked her up from her third-floor room at the Rodeway Inn, took her to another motel, and gave her some methamphetamine to sell.

Later, when Pearson could not find Evans, he went to her room at the Rodeway Inn. Evans was in the room, but she hid behind the bed and "instructed a man who was in the room with her, Cameron Means, to tell . . . Pearson that she was not there." Id. When Means answered the door, Pearson said he was looking for Evans "because she needed to pay for the methamphetamine." Id. at 796. According to Means, Pearson seemed "agitated and tried to look . . . into the room." Id. at 800. Means said Evans was not there.

Shortly after 1:00 a.m. on September 7, Pearson bought gasoline. About fifteen minutes later, video cameras captured a car resembling Pearson's car near the Rodeway Inn.

Jolene Boos was outside the Rodeway Inn when Pearson drove up in his car and got out. She recognized him in part because of his above-average height. He was carrying a "reddish orange object" and looking for Evans. Id. at 800 (internal quotation marks omitted). Pearson went inside. Boos saw him look down at her from the third-floor stairwell window. Not long afterward, a fire erupted, badly damaging the third floor and injuring some of the motel's occupants.

Investigators "recovered a burnt metal fuel can from the hallway outside of . . . Evans' room," id., and they "determined that the fire had been set deliberately outside of [her room] using gasoline as an accelerant," id. at 796. "A patrol car video camera and cell phone location records indicated that . . . Pearson left town just before the fire wasreported." Id. When interviewed by police, Pearson said "he was angry because . . . Evans had stolen methamphetamine from him." Id. at 800.

Prosecutors charged Pearson with aggravated arson and attempted first-degree murder (of Evans). At trial, Means testified for the State, describing his encounter with Pearson in Evans' doorway. On cross-examination, defense counsel pursued a theory of alternative suspects by eliciting from Means that Evans had "scamm[ed]" other people for drugs or money, not just Pearson, id. at 802, and that a man named Christopher Phillips was at the motel the night of the fire and had been angry at Means. Pearson did not testify.¹ A jury found Pearson guilty as charged.

Pearson appealed to the Wyoming Supreme Court, arguing (1) there was insufficient evidence that he intended to kill Evans; and (2) the prosecutor failed to timely disclose immunity and plea agreements with Means. The court rejected his arguments and affirmed his convictions.

Pearson then sought postconviction relief, claiming that appellate counsel was ineffective for not arguing that (1) insufficient evidence supported his arson conviction; (2) the trial court's directive to stand violated the Fifth Amendment; and (3) trial counsel was ineffective. The postconviction court denied relief and the Wyoming Supreme Court summarily denied review.

Next, Pearson filed the instant habeas petition, advancing many of the claims he brought in state court. The federal district court determined that Pearson's habeas claims lacked merit and it dismissed his petition. The court declined to issue a COA.

DISCUSSION

I. Standards of Review

To appeal the denial of a § 2254 petition, Pearson must obtain a COA by "showing 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). Our consideration of a COA request incorporates the Antiterrorism and Effective Death Penalty Act's (AEDPA's) "deferential treatment of state court decisions." Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

Under AEDPA, when a state court has adjudicated the merits of a claim, a federal court may grant habeas relief only if that state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

Because Pearson is pro se, we liberally construe his habeas petition, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), but to the extent he seeks a COA on claims not present in that petition, those claims are waived, see Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015).

II. Sufficiency of the Evidence

In resolving a sufficiency-of-the-evidence claim, a court asks "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In other words, "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 1, 2 (2011).

On direct appeal, the Wyoming Supreme Court "conclude[d] that the trial evidence, when viewed in the light most favorable to the jury's verdict, establishe[d] that Mr. Pearson intended to kill . . . Evans when he set the fire." Pearson, 389 P.3d at 800.² The court explained that "Pearson was looking for . . . Evans right before the fire started," "[h]e set the fire with an accelerant in the middle of the night directly outside of her third floor motel room, from which she had no clear means of escape," and "he was angry at [her] and left town immediately after starting the fire." Id. at 801.

The district court found no unreasonable application of Jackson and observed that Pearson merely offered his own account of the events at issue, while complaining that the Wyoming Supreme Court credited the prosecution's evidence.

We conclude that the district court's determination is not debatable. "[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge" unless the "decision was objectively unreasonable." Cavazos, 565 U.S. at 2(internal quotation marks omitted). The Wyoming Supreme Court's decision was not objectively unreasonable in regard to the intent-to-kill element, as it cited evidence that Pearson was angry at Evans over a drug debt and that he set a fire using a gasoline accelerant outside her third-floor room. See Johnson v. State, 356 P.3d 767, 773 (Wyo. 2015) (stating that an attempt to commit first-degree murder requires that the defendant "purposely and with premeditated malice took action strongly corroborative of the intent to kill a human being").

Although Pearson contends he "knew (or believed)" Evans was not in her room when he set the fire, he identifies no evidence from which the jury could have reached that conclusion. Combined Opening Br. and Appl. for COA at 17. Moreover, "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326.

We conclude a COA is not warranted regarding sufficiency of the evidence of attempted murder.

III. Ineffective Assistance of Appellate Counsel

A. Sufficiency of the Evidence as to the Arsonist's Identity

In the state postconviction proceedings, Pearson complained that appellate counsel should have argued he was not the arsonist. Although the postconviction court denied Pearson's petition without commenting on the claim, "we presume the court reached a decision on the merits." Simpson v. Carpenter, 912 F.3d 542, 583 (10th Cir. 2018)(brackets and internal quotation marks omitted). The district court apparently rejected this claim for the same reason it rejected his sufficiency-of-the-evidence challenge to his attempted-murder conviction—it was based on his own factual narrative.

"To succeed on an [ineffective-assistance] claim premised on the failure to raise an issue on appeal, a petitioner must show both that (1) appellate counsel performed deficiently in failing to raise the particular issue on appeal and (2) but for appellate counsel's deficient performance, there exists a reasonable probability the petitioner would have prevailed on appeal." Davis v. Sharp, 943 F.3d 1290, 1299 (10th Cir. 2019), cert. denied, 141 S. Ct. 452 (2020); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (formulating the deficient-performance/prejudice test for ineffective-assistance claims). "[I]n evaluating an argument that appellate counsel performed deficiently in failing to raise an issue on appeal, this court typically examines the merits of the omitted issue," and "[i]f the omitted issue is meritless, its omission will not constitute deficient performance." Davis, 943 F.3d at 1299 (brackets and internal quotation marks omitted).

In his request for a COA, Pearson argues that the state's case against him was an "evidentiary pyramid scheme" built by "piling inference upon...