Le v. Aldridge

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 19, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court VAN LE, Petitioner - Appellant, v. No. 17-6151 (D.C. No. 5:15-CV-01002-M) DEBBIE ALDRIDGE, Warden, (W.D. Okla.) Respondent - Appellee. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________ Before MORITZ, McKAY, and KELLY, Circuit Judges. _________________________________ Van Le, an Oklahoma state prisoner, seeks a certificate of appealability (COA) to challenge the denial of her habeas petition filed under 28 U.S.C. § 2254. See id. § 2253(c)(1)(A) (stating that no appeal may be taken from a final order denying a § 2254 petition unless the petitioner obtains a COA). We deny a COA and dismiss the appeal. I Ms. Le is serving a life sentence without the possibility of parole for the first degree murder of a child she was babysitting. She immigrated to the United States from Vietnam some seventeen years before the murder and claimed on direct appeal that she * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. was denied a fair trial because she was tried without a qualified Vietnamese interpreter. She also claimed her attorney rendered ineffective assistance of counsel by failing to investigate her ability to speak and understand English, using an unqualified interpreter, and failing to prepare and present an effective defense. Lastly, she claimed cumulative error required reversal of her conviction. The Oklahoma Court of Criminal Appeals (OCCA) rejected these claims and upheld her conviction. See Le v. Oklahoma, No. F-2013-630 (Okla. Crim. App. Sept. 16, 2014) (unpublished). Ms. Le pursued federal habeas relief on the same claims, but a magistrate judge recommended that her § 2254 petition be denied, and the district court adopted that recommendation. The district court subsequently denied a COA. Ms. Le now seeks a COA in this court. II A COA is a jurisdictional prerequisite to our review. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires an applicant to show “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). We have reviewed the magistrate judge’s report and recommendation, as adopted by the district court, and we conclude that reasonable jurists would not debate the district court’s denial of relief. Federal habeas relief is precluded for claims adjudicated on the 2 merits by a state court unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established ...

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