FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 6, 2014
Elisabeth A. Shumaker
Clerk of Court
RONALD E. HARDING, JR.,
Petitioner - Appellant,
No. 13-5154
v. (D.C. No. 4:10-CV-00679-GKF-PJC)
(N.D. Okla.)
TRACY McCOLLUM, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Ronald Harding, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate
of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to
appeal “the final order in a habeas corpus proceeding in which the detention complained
*This order is not binding precedent, except under the doctrines of law of the case,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
Because Mr. Harding is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
of arises out of process issued by a State court”). We deny his request for a COA and
dismiss this matter.
I. BACKGROUND
A. Factual Background
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the
Oklahoma state courts’ factual determinations in this case “shall be presumed to be
correct.” 28 U.S.C. § 2254(e)(1). Mr. Harding asserts the state courts clearly erred in
making several factual findings regarding his consent to search. After careful review of
the record, however, we conclude he has not satisfied his “burden of rebutting the
presumption of correctness by clear and convincing evidence.” Id. We therefore recite
the facts as summarized by the OCCA:
On September 25, 2007, two Tulsa County drug task force officers went to
Harding’s Tulsa home around 8:30 a.m. to execute an arrest warrant for
David Gilliam for a drug crime. Deputy Ramsey knocked on the door, and
Leon Alford, Harding’s cousin and roommate, answered. Ramsey’s
partner, Officer Rhames, joined him to talk with Alford after making
certain that no one was trying to escape. Alford told the officers that
Gilliam had left the night before and was not there. Deputy Ramsey asked
Alford if they could check inside the home for Gilliam, and Alford
consented. The officers did not find Gilliam but found a 17-year-old girl
named Star Cates hiding in one of the bedrooms. A records check revealed
that she had an outstanding warrant. The officers met Harding coming out
of the bathroom.
The officers saw in plain view a large amount of cash on the coffee table,
prompting them to ask Harding for permission to search his home. Harding
replied “I have nothing to hide, go ahead and look.” The officers
handcuffed the three occupants for safety reasons before searching.
Ramsey testified that he went into the southeast bedroom, opened a coffee
can, and found money and hundreds of small plastic baggies that he
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associated with the distribution of drugs. It was then that Harding told
Ramsey that he did not want him to search anymore and Ramsey stopped
searching. Ramsey read Harding his rights and Harding told Ramsey that
he understood them. Ramsey then informed Harding that he was going to
get a search warrant and asked if he had “any more drugs in the house.”
Harding volunteered that he had some for personal use and showed Ramsey
a small tray under a table in a bedroom with rocks of crack cocaine on it.
Ramsey arrested Harding.
Officer Rhames testified that he watched Alford, Cates, and Harding in the
living room while Ramsey was searching. At some point, Harding, who
was wearing only shorts, asked Rhames to get his work jeans on his hamper
in the bedroom. Rhames complied with the request. Harding then asked
for his work shirt on the same hamper. When Rhames picked up the shirt a
plastic bag containing 24.78 grams of crack cocaine fell onto the floor.
Rhames returned and asked Harding if that was the shirt he wanted.
Harding replied, “Yeah I just wanted to get it over with.”
ROA, Vol. I at 74-76.
B. Procedural Background
1. State Proceedings
On October 1, 2007, Mr. Harding was charged with (1) Trafficking in Illegal
Drugs (cocaine base) after two or more previous convictions, in violation of Okla. Stat.
tit. 63, § 2-415 (2001), and (2) Possession of Drug Paraphernalia in violation of Okla.
Stat. tit. 63, § 2-405 (2001). On October 26, 2007, Mr. Harding moved to suppress the
drug evidence as the fruit of an unlawful search and seizure and to dismiss the case,
arguing that he never consented to the search. At a preliminary hearing conducted later
that day, the state court heard officer testimony concerning the search and overruled
defense counsel’s chain-of-custody demurrer without explicitly ruling on his motion to
suppress. Mr. Harding moved to suppress on two additional occasions before trial,
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December 18, 2007, and May 19, 2008. The state trial court deferred its evidentiary
hearing until trial, which began on May 20, 2008.
At trial, the State introduced (over Mr. Harding’s objection) the drug and money
evidence seized during the search of Mr. Harding’s home. Officers Ramsey and Rhames
testified that Mr. Alford allowed their initial entry, Mr. Harding consented at each stage
of the subsequent search, and their search was otherwise limited to items in plain view.
Mr. Harding, by contrast, elicited testimony from Mr. Alford and his sister,
Farmina Williams, who was on the phone with Mr. Harding during the beginning of the
search and overheard part of the encounter. Their testimony conflicted with the officers’
accounts—particularly with respect to whether Mr. Harding consented to search. After
their testimony, Mr. Harding renewed his suppression motion along with a motion for
directed verdict. Although defense counsel acknowledged “[t]here is a conflict somewhat
as to the facts of this search,” ROA, Vol. I at 93, he argued the undisputed facts showed
the officers searched Mr. Harding’s home “with no probable cause, no search warrant,
acting with intimidation, and under this evidence without permission, and therefore all of
[the] State’s Exhibits 1, 2, and 3 should be suppressed and this case dismissed,” id. at 94.
The state trial court denied Mr. Harding’s motion based on its assessment of
witness credibility:
The testimony of the witnesses, Mr. Alford and Mrs. Williams, is in
conflict with what the police officers said. And after examining their
testimony and the circumstances of their testimony, I choose not to accept
their account of what happened. And have—as I did before, when that was
the only evidence that we had, was that there was consent to search initially
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by Mr. Alford and then a consent, a general consent by Mr. Harding.
Further, that when that was going on, the drugs in question here were ones
that really weren’t found as a result of a search. They were found as a
result of at least from the testimony of Mr. Harding asked to be given
clothing and when he did that, that’s when that particular set of drugs was
found.
ROA, Vol. I at 94-95.
On May 20, 2008, the jury convicted Mr. Harding on both charges. He received a
life sentence without parole and a $50,000 fine on the first count, and a $500 fine on the
second count.
Mr. Harding timely appealed to the Oklahoma Court of Criminal Appeals (the
“OCCA”), arguing that the officers’ initial entry into his home, subsequent search, and
seizures violated the Fourth Amendment.
On October 20, 2009, the OCCA affirmed Mr. Harding’s conviction. See ROA,
Vol. I at 74. Citing Georgia v. Randolph, 547 U.S. 103, 106 (2006), the OCCA first
concluded the officers’ initial entry was reasonable under the Fourth Amendment because
Mr. Alford, who shared authority over the premises with Mr. Harding, consented to the
initial search. See ROA, Vol. I at 77-78. The OCCA next determined the search of Mr.
Harding’s bedroom—which discovered the coffee can filled with money and plastic
baggies—was reasonable under Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973),
because Mr. Harding consented when he said “I have nothing to hide, go ahead and
look,” ROA, Vol. I at 78.
When Mr. Harding revoked his consent to search, the OCCA observed, Officer
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Ramsey stopped searching and read Mr. Harding his Miranda rights. After
acknowledging these rights, Mr. Harding showed Officer Ramsey a tray containing crack
cocaine. Accordingly, the OCCA concluded these “drugs were not discovered as a result
of a search but because [Mr.] Harding confessed and led [Officer] Ramsey to the drugs.”
Id. at 79.
Finally, the OCCA determined the bag of crack cocaine that fell out of Mr.
Harding’s shirt was not seized in violation of the Fourth Amendment because Mr.
Harding “specifically asked Officer Rhames” for that shirt and the bag fell to the floor
when Officer Rhames picked up the shirt. Id. Once the plastic bag containing “a white
crystalline powder consistent with drugs” was in plain view, the OCCA reasoned, Officer
Rhames had probable cause to seize it. Id.; see also Gomez v. State, 168 P.3d 1139, 1143
(Okla. Ct. Crim. App. 2007). Accordingly, the OCCA concluded, none of the evidence
admitted against Mr. Harding was obtained in violation of his Fourth Amendment rights.2
2. Federal Proceedings
On November 29, 2010, Mr. Harding timely filed a writ of habeas corpus under 28
U.S.C. § 2254, alleging the state courts erred in denying his motions to suppress. The
State responded that Mr. Harding’s petition was barred under Stone v. Powell, 428 U.S.
465 (1976), which prohibits federal courts from considering Fourth Amendment claims in
habeas proceedings if “the State has provided an opportunity for full and fair litigation”
2
Mr. Harding did not seek certiorari from the United States Supreme Court.
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of those claims. Id. at 482.
On December 17, 2013, the federal district court denied relief under Stone. The
district court concluded Mr. Harding had a “full and fair opportunity” to litigate his
Fourth Amendment claims in state court for several reasons. ROA, Vol. I at 108. First,
Mr. Harding filed three pretrial suppression motions and, after a preliminary hearing on
the first motion, the state trial court overruled Mr. Harding’s demurrer. Second, when
Mr. Harding objected to the introduction of evidence during the officers’ testimony and
renewed his motion to suppress, the state trial court overruled his objection “on all
counts.” Id. at 109. Third, at the close of evidence, Mr. Harding renewed his motion to
suppress, and the state trial court again rejected his claim, explaining it credited the
officers’ testimony that Mr. Harding consented to search and the other evidence was
found in plain view. Finally, Mr. Harding raised his Fourth Amendment claims on direct
appeal, and the OCCA affirmed.
Accordingly, the district court denied Mr. Harding’s petition for habeas relief. It
also refused to grant a COA. See 28 U.S.C. § 2253(c)(1)(A). The district court did,
however, grant Mr. Harding’s motion to proceed in forma pauperis (“ifp”) on appeal.
Mr. Harding now requests a COA and relief on the merits.
II. DISCUSSION
On appeal, Mr. Harding argues he was denied a full and fair opportunity to litigate
his Fourth Amendment claim. He asserts he never consented to the warrantless search
and the evidence against him should have been suppressed.
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A. Jurisdiction and Standard of Review
A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition.
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To
receive a COA, a petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied Mr.
Harding’s habeas petition on procedural grounds “without reaching the prisoner’s
underlying constitutional claim,” a COA cannot issue unless Mr. Harding shows both (1)
“that jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right” and (2) “that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000); accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007).
Because we may “resolve the issue whose answer is more apparent from the record and
arguments,” Slack, 529 U.S. at 485, we start and end our discussion with the second
ground concerning the district court’s procedural ruling.
B. Applicable Law
As noted above, the district court concluded Mr. Harding’s Fourth Amendment
claims were barred from federal habeas review under Stone v. Powell, 428 U.S. 465
(1976). In Stone, the Supreme Court held that “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution
does not require that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at
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his trial.” Id. at 494. The opportunity for full and fair litigation “includes, but is not
limited to, the procedural opportunity to raise or otherwise present a Fourth Amendment
claim,” a “full and fair evidentiary hearing,” and “recognition and at least colorable
application of the correct Fourth Amendment constitutional standards.” Gamble v.
Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978); accord United States v. Lee Vang Lor,
706 F.3d 1252, 1258 (10th Cir. 2013).
C. Analysis
Mr. Harding argues the state courts deprived him of a full and fair opportunity to
litigate his Fourth Amendment claim for two reasons. First, Mr. Harding contends he
received only “one opportunity” to litigate his claim “subject to various procedural
deficiencies, including disinterested ineffective counsel, over zealous [sic] officers, and
prosecutorial entities and rubber stamp judges.”3 Aplt. Br. at 28. Second, Mr. Harding
asserts the state courts “did not apply the correct Supreme Court cases and the correct
Constitutional Standards set forth in Brown [v. Illinois, 422 U.S. 590 (1975)] and Wong
Sun [v. United States, 371 U.S. 471 (1963)].” Aplt. Br. at 28; see also Gamble v.
Oklahoma, 583 F.2d 1161, 1165 (1978) (holding petitioner did not receive full and fair
opportunity to litigate his Fourth Amendment claim because in denying relief, the state
court ignored Brown’s holding that giving Miranda warnings does not dispel the taint of
a preexisting Fourth Amendment violation).
3
Despite this assertion, Mr. Harding did not press an ineffective assistance claim
in the district court, nor does he raise one now on appeal.
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We disagree and deny COA because reasonable jurists would not debate the
district court’s procedural ruling.
First, Mr. Harding had adequate procedural opportunity to present his Fourth
Amendment claims and received a full and fair evidentiary hearing at the preliminary and
trial suppression hearings. Mr. Harding moved to suppress on three separate occasions,
and the state trial court heard testimony concerning the search during both the
preliminary hearing and the trial suppression hearing. After considering defense
counsel’s arguments and witness testimony, the trial court denied Mr. Harding’s renewed
motion to suppress because it found the officers’ testimony—which established that Mr.
Harding consented to all of the searches—more credible than the testimony offered by
Mr. Harding’s witnesses. Mr. Harding’s counsel “adequately apprised the court of the
factual basis” for Mr. Harding’s Fourth Amendment claim, Smallwood v. Gibson, 191
F.3d 1257, 1265 (10th Cir. 1999), but the court chose to credit a different version of the
facts. What is more, Mr. Harding’s “appellate counsel presented the issue to the OCCA
on direct appeal,” which “thoughtfully considered the facts underlying [Mr. Harding’s]
Fourth Amendment claim and rejected the claim on its merits.” Id.
Second, the state courts engaged in “at least [a] colorable application of the correct
Fourth Amendment constitutional standards.” Gamble, 583 F.2d at 1165. Because the
state trial court credited the officers’ accounts that Mr. Harding’s roommate consented to
the initial search and Mr. Harding consented to the remaining portions of the search that
led to the discovery of the incriminating evidence, the court appropriately concluded
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there was no Fourth Amendment violation. See Bustamonte, 412 U.S. at 222 (“[A]
search authorized by consent is wholly valid.”). The court therefore had no need to
consider Brown and Wong Sun, which are relevant to dispelling the taint of a Fourth
Amendment violation only if a Fourth Amendment violation occurs in the first place. See
Brown, 422 U.S. at 603 (“Miranda warnings, alone and per se, cannot always make the
act sufficiently a product of free will [to] break, for Fourth Amendment purposes, the
causal connection between the illegality and the confession.” (emphasis added)); Wong
Sun, 371 U.S. at 488 (“[T]he more apt question in such a case is whether, granting
establishment of the primary illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” (emphasis added) (quotations
omitted)); see also Gamble, 583 F.2d at 1165 (state court’s failure to consider Brown
deprived petitioner of a full and fair opportunity to litigate his Fourth Amendment claim
where the “search and seizure of petitioner’s statements and the other evidence followed
the admittedly illegal arrest by less than an hour” (emphasis added)).
The OCCA’s analysis on appeal likewise displayed “recognition and at least
colorable application of the correct Fourth Amendment constitutional standards.”
Gamble, 583 F.2d at 1165. After concluding that the state trial court’s credibility
determinations were supported by substantial evidence and not clearly erroneous, the
OCCA applied prevailing Supreme Court law on consensual searches and the plain view
doctrine to conclude Mr. Harding’s Fourth Amendment rights were not violated. See
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Georgia v. Randolph, 547 U.S. 103, 106 (2006) (authority to consent); Bustamonte, 412
U.S. at 219 (consent); Gomez v. State, 168 P.3d 1139, 1143 (Okla. Ct. Crim. App. 2007)
(citing Harris v. United States, 390 U.S. 234, 236 (1968), to support seizure of “drug-
related items” found “in plain view during a valid warrantless search”). Because the
OCCA agreed with the state trial court that no Fourth Amendment violation occurred, it
also had no reason to consider Brown or Wong Sun.
Given the multiple motions to suppress, the testimony adduced during the
preliminary hearing and at trial, and the state courts’ recognition and colorable
application of prevailing Fourth Amendment law, we conclude reasonable jurists would
not debate the district court’s conclusion that Mr. Harding had a “full and fair
opportunity” to litigate his Fourth Amendment claim in Oklahoma state court.
III. CONCLUSION
Mr. Harding has failed to demonstrate that “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling” that his § 2254
motion is precluded by Stone. Slack, 529 U.S. at 484. We therefore deny Mr. Harding’s
application for a COA and dismiss this matter.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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