FILED
United States Court of Appeals
Tenth Circuit
August 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RONALD LEE KING,
Petitioner - Appellant,
No. 09-5059
v. (N.D. Oklahoma)
(D.C. No. 4:06-CV-00152-CVE-TLW)
GREG PROVINCE, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Appellant, Ronald Lee King, seeks a certificate of appealability (“COA”)
from this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254
habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be
taken from a final order disposing of a § 2254 petition unless the petitioner first
obtains a COA). Because King has not “made a substantial showing of the denial
of a constitutional right,” this court denies his request for a COA and dismisses
this appeal. Id. § 2253(c)(2).
After an Oklahoma jury trial, King was convicted of unlawful distribution
of a controlled drug after former conviction of two or more felonies, in violation
of Okla. Stat. tit. 63, § 2-401. He was sentenced to twenty-five years’
imprisonment and fined $30,000. King filed a direct appeal with the Oklahoma
Court of Criminal Appeals (“OCCA”), challenging: (1) an evidentiary ruling
permitting the admission of the crack cocaine he sold to the undercover officer,
(2) the denial of his discovery request for the undercover officer’s notes, (3) the
length of his sentence, (4) statements made by the prosecutor during closing
argument, and (5) the imposition of the fine. The OCCA affirmed King’s
conviction but reduced the fine to $10,000. King then raised eleven grounds of
error in a post-conviction application he filed in Oklahoma state court. His post-
conviction claims included (1) allegations of ineffective assistance of appellate
and trial counsel, (2) a challenge to the jury instructions (3) an allegation the
process used to choose the jury violated his right to due process and equal
protection, (4) a Confrontation Clause claim, (5) an assertion the state presented
insufficient evidence to convict him, and (6) several state law claims. The
Oklahoma trial court denied the post-conviction application and that ruling was
affirmed by the OCCA.
King filed the instant § 2254 habeas petition on March 13, 2006. In his
petition, King reasserted two of the issues he previously raised on direct appeal:
the challenges to the evidentiary rulings and the allegation of prosecutorial
misconduct. He also reasserted issues raised in his state post-conviction
application: the allegations of ineffective assistance of trial and appellate counsel,
the claim his sentence violates Oklahoma state law, and the Confrontation Clause
-2-
issue. The district court denied habeas relief on King’s challenge to the trial
court’s evidentiary rulings and his prosecutorial misconduct claim, concluding he
failed to demonstrate that his trial was rendered fundamentally unfair. See
Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002); Cummings v. Evans, 161
F.3d 610, 618 (10th Cir. 1998). Applying the standard set forth in the
Antiterrorism and Effective Death Penalty Act, the district court concluded the
OCCA’s adjudication of King’s ineffective assistance of appellate counsel claim
was not contrary to, nor an unreasonable application of clearly established federal
law. 28 U.S.C. § 2254(d). Finally, the district court analyzed King’s remaining
claims, all of which were procedurally defaulted in Oklahoma state court because
he failed to raise them on direct appeal, and determined the state procedural bar
was independent and adequate. The court then concluded it was procedurally
barred from considering the claims because King failed to show cause for the
default and actual prejudice or that the failure to review his claims would result in
a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722,
750 (1991).
To be entitled to a COA, King must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate “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
-3-
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that
when a district court dismisses a habeas petition on procedural grounds, a
petitioner is entitled to a COA only if he shows both that reasonable jurists would
find it debatable whether he had stated a valid constitutional claim and debatable
whether the district court’s procedural ruling was correct). In evaluating whether
King has satisfied his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El at 338. Although King need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove something more than the absence
of frivolity or the existence of mere good faith.” Id. (quotations omitted).
In his appellate brief, King presents fifteen grounds for relief, many of
which were not included in his § 2254 application. This court does not consider
issues raised for the first time on appeal. Rhine v. Boone, 182 F.3d 1153, 1154
(10th Cir. 1999). As to the remaining claims which were presented to the district
court, this court has reviewed King’s application for a COA and appellate brief,
the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes King is not
entitled to a COA. The district court’s resolution of King’s claims is not
reasonably subject to debate and the claims are not adequate to deserve further
proceedings. Accordingly, King has not “made a substantial showing of the
-4-
denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.
§ 2253(c)(2).
This court denies King’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-5-