FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 15, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANTIONE DIRAY JOHNSON,
Petitioner - Appellant,
v. No. 15-6173
(D.C. 5:14-CV-01263-C)
ROBERT PATTON, Director, (W.D. Oklahoma.)
Respondent - Appellee.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
_________________________________
Before KELLY, LUCERO and McHUGH, Circuit Judges.
_________________________________
Petitioner-Appellant Antione Diray Johnson, an Oklahoma state prisoner
proceeding pro se, seeks a certificate of appealability (COA) under 28 U.S.C.
§ 2253(c)(1)(A) to appeal the district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Because he is proceeding pro se, we construe Mr.
Johnson’s filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991),
but “our role is not to act as his advocate,” Gallagher v. Shelton, 587 F.3d 1063, 1067
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* This order is not binding precedent, except under the doctrines of law of the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.
(10th Cir. 2009).1 Before filing his § 2254 petition, Mr. Johnson unsuccessfully appealed
his convictions and sentences for armed robbery to the Oklahoma Court of Criminal
Appeals (OCCA). He also filed two subsequent applications for post conviction relief in
the state courts, both of which were denied by the state trial court and the OCCA.
In denying Mr. Johnson’s § 2254 petition, the district court adopted in its entirety
and over Mr. Johnson’s objections the magistrate judge’s thorough, well-reasoned
Supplemental Report and Recommendation (the Report). The district court then
construed Mr. Johnson’s notice of appeal as a request for a COA, which it denied.
Exercising our jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a), we now also deny
Mr. Johnson’s application for a COA and dismiss his appeal.
I. BACKGROUND
After Mr. Johnson waived his right to a jury, the state court held a bench trial and
found Mr. Johnson guilty of five counts of Robbery with a Dangerous Weapon. Noting
that Mr. Johnson had two prior felony convictions, the state trial court sentenced him to
five consecutively running sentences of imprisonment, the longest of which was for
thirty-five years. In his Report, the magistrate judge provides a detailed description of the
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1
In his pro se Opening Brief, Mr. Johnson argues that the magistrate judge failed
to construe his § 2254 petition liberally and that it was therefore dismissed contrary to
Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). Our review of the Report and
Recommendation, however, convinces us that even though the magistrate judge did not
cite Hall or specifically state that he was construing the § 2254 petition liberally, he
nevertheless afforded Mr. Johnson the liberal construction required of pro se litigants’
filings. For example, the magistrate judge referred to Mr. Johnson’s pro se status in
solicitously interpreting his opaque arguments. See, e.g., Johnson v. Patton, No. CIV-14-
1263-C, 2015 U.S. Dist. LEXIS 112323, at *14–*16 (W.D. Okla. Aug. 11, 2015).
2
trial proceedings and the evidence supporting Mr. Johnson’s conviction. See Johnson v.
Patton, No. CIV-14-1263-C, 2015 U.S. Dist. LEXIS 112323, at *2–*14 (W.D. Okla.
Aug. 11, 2015). We do not repeat those details here.
A. Direct Appeal
With new counsel, Mr. Johnson appealed his convictions and sentences to the
OCCA, arguing (1) his confessions to police about the five robberies—which the trial
court had admitted over Mr. Johnson’s motion to suppress—were obtained in violation of
his constitutional rights, (2) the trial evidence was legally insufficient to convict him as to
one of the robberies, (3) the trial court had allowed improper bolstering by admitting
police testimony describing victims’ identifications of him, despite those victims’ own
trial testimony to that effect, (4) he was denied effective assistance of counsel at trial on
multiple grounds, and (5) cumulative error.
As to his claim that his confessions were obtained in violation of his constitutional
rights, Mr. Johnson argued for the first time on direct appeal that his confessions were the
fruit of an unlawful, warrantless arrest at his home and were induced by improper
promises and thus not voluntary. The OCCA dismissed these and two other constitutional
claims relating to his confessions on their merits, finding on plain error review that Mr.
Johnson had not been arrested but rather had accompanied police to the station
voluntarily, and that the trial court had not abused its discretion in determining that the
confessions were voluntary.
As to his claim on direct appeal of ineffective assistance, Mr. Johnson argued trial
counsel should have challenged the admission of his confessions on the grounds that his
3
warrantless arrest was unconstitutional, his statements were not voluntary because they
were coerced by improper promises of leniency, and trial counsel should have objected to
the improper bolstering of witnesses’ identifications. The OCCA addressed these claims
on their merits, analyzing them under the standard mandated in Strickland v. Washington,
466 U.S. 668, 687 (1984). The OCCA held Mr. Johnson could not show prejudice from
trial counsel’s failure to raise the first two issues because the record did not show a
warrantless arrest and because Mr. Johnson’s will was not overborne by any tempered
promises of leniency. As to the bolstering claim, the OCCA found that although the trial
court had erred in allowing the officers’ testimony, “because [the two witnesses] made
unwa[]vering and unchallenged in-court identifications that were based on ample
opportunity to view [Mr.] Johnson, the bolstering was harmless.” Accordingly, the
OCCA affirmed the convictions and sentences.
B. First Application for Post Conviction Relief
Mr. Johnson then filed an application in state court for post conviction relief under
state procedural rules. He raised eleven grounds for post conviction relief. The state trial
court thoroughly analyzed Mr. Johnson’s claims, which primarily alleged appellate
counsel had been ineffective, and found Mr. Johnson had failed to show he had been
prejudiced by appellate counsel’s allegedly deficient performance, as required by
Strickland. The OCCA affirmed in a detailed opinion.
C. Second Application for Post Conviction Relief
Mr. Johnson filed a second application for post conviction relief, claiming
procedural defects had deprived the state trial court of jurisdiction over his criminal trial.
4
He also alleged ineffective assistance of appellate counsel for failing to raise these issues
on direct appeal. The state trial court found these claims had been procedurally defaulted
because Mr. Johnson had not shown sufficient reason for failing to raise them on direct
appeal or in his first post conviction application. The OCCA affirmed based on both res
judicata and procedural default.
D. Habeas Appeal
In his § 2254 petition and brief, Mr. Johnson reasserted claims he had previously
raised on direct appeal and in the applications for post conviction relief. Specifically, Mr.
Johnson alleged that (1) the OCCA’s resolution of his Fourteenth Amendment claims was
contrary to clearly established law, (2) his confessions should have been suppressed, (3)
the trial evidence was insufficient to convict him for one of the robberies, (4) the trial
court improperly allowed bolstering testimony by prosecution witnesses, and (5) he was
denied effective assistance of trial and appellate counsel. Mr. Johnson also sought an
evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2).
The magistrate judge carefully reviewed the procedural posture of each of
Mr. Johnson’s claims and concluded the state trial court and OCCA had considered each
claim on the merits or had appropriately determined that the claims were procedurally
defaulted on independent and adequate state law grounds. As a result, the magistrate
judge recommended that Mr. Johnson’s petition for habeas relief be denied on all claims
previously raised on direct appeal and in the first application for post conviction relief
because Mr. Johnson had not shown that the state courts’ denial of these claims on the
merits was contrary to or unreasonably applied controlling Supreme Court precedent. The
5
magistrate judge also recommended that the federal habeas proceedings not consider
claims raised for the first time in Mr. Johnson’s second application for post conviction
relief, which the state trial court and the OCCA had found were procedurally defaulted,
because Mr. Johnson had not shown sufficient cause for the procedural default or
prejudice arising therefrom, or that a fundamental miscarriage of justice would occur if
these claims were not addressed. Johnson, 2015 U.S. Dist. LEXIS 112323, at *42–*45.
But the magistrate judge did not expressly address Mr. Johnson’s motion for an
evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2).
Mr. Johnson filed an Objection to the magistrate judge’s Report, which simply
reiterated arguments he had previously asserted. The district court adopted the magistrate
judge’s Report in its entirety, denying Mr. Johnson’s § 2254 petition and, subsequently,
his request for a COA.
In his combined Opening Brief and Application for a Certificate of Appealability,
Mr. Johnson raises many of the same issues he has raised at the various previous stages
of this litigation. Mr. Johnson first argues the magistrate judge misconstrued his
Fourteenth Amendment claim for illegal arrest by treating it as a Fourth Amendment
claim and dismissing it based on Stone v. Powell, 428 U.S. 465, 494 n.37 (1976) (holding
that a state prisoner may not obtain federal habeas review of a Fourth Amendment claim
where a state court has provided “an opportunity for a full and fair litigation of that
claim”). Aplt. Br. 10–11. Even if the bar adopted in Stone applies, he argues the state trial
court did not afford him a full and fair hearing. Id. at 12. Mr. Johnson next renews his
various ineffective assistance of appellate counsel claims, arguing the OCCA applied the
6
wrong standard in affirming the denial of these claims, id. at 11, 15, ineffective assistance
of counsel claims cannot be procedurally defaulted or “waived” (as phrased by Mr.
Johnson), id. at 5, 8–9, and that most of his claims have never been considered on the
merits, id. at 10–11. Mr. Johnson also continues to argue that the “jurisdictional issues”
he raised in his second application for post conviction relief could not be procedurally
defaulted. Id. at 9, 16. Finally, he again seeks an evidentiary hearing pursuant to 28
U.S.C. § 2254(e)(2).
II. DISCUSSION
A state prisoner must obtain a COA as a jurisdictional prerequisite to challenge a
federal district court’s denial of habeas corpus relief. 28 U.S.C. § 2253(c)(1)(A); Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003). And 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). To meet this burden as to claims decided on their merits in state court, the
petitioner must 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). For claims
found to be barred by procedural default in state court, “a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. But
we limit our review of an application for a COA to “an overview of the claims in the
7
habeas petition and a general assessment of their merits” rather than “full consideration
of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
A. Claims in the Habeas Petition and Appeal
Mr. Johnson need not show his appeal will succeed to be entitled to a COA, but he
must “prove something more than the absence of frivolity or the existence of mere good
faith.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (internal quotation marks
omitted)). We hold that he cannot meet this standard.
The magistrate judge found that all of Mr. Johnson’s claims except those raised for
the first time in his second application for post conviction relief had been analyzed on
their merits by the OCCA and therefore evaluated them under the deferential framework
required by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Harrington
v. Richter, 562 U.S. 86, 98 (2011) (“By its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1)
and (2).”). Under AEDPA, Mr. Johnson is entitled to federal habeas relief only if he can
show that the state court decisions on the merits of his claims were “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or were “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). “Subsection (d)(1) governs claims of legal error
while subsection (d)(2) governs claims of factual error.” House v. Hatch, 527 F.3d 1010,
1015 (10th Cir. 2008). In applying AEDPA, federal courts must “ensure a level of
deference to the determinations of state courts, provided those determinations did not
8
conflict with federal law or apply federal law in an unreasonable way.” Williams v.
Taylor, 529 U.S. 362, 386 (2000). And state-court findings of fact are presumed correct
and entitled to deference. 28 U.S.C. § 2254(e)(1).
1. Fourteenth Amendment claim for unlawful arrest
In consideration of Mr. Johnson’s pro se status, the magistrate judge construed his
Fourteenth Amendment claim for unlawful arrest as a Fourth Amendment claim arising
from Mr. Johnson’s allegations that he was unlawfully arrested in his home without a
warrant. Aplt. Br. 10; see Johnson v. Patton, No. CIV-14-1263-C, 2015 U.S. Dist. LEXIS
112323, at *14 (W.D. Okla. Aug. 11, 2015) (“Because Petitioner is proceeding pro se,
the undersigned has assumed that Petitioner is presenting the same Fourth Amendment
claim here that he presented in subproposition A of ground one in his direct appeal.”). As
a result, Mr. Johnson argues his Fourteenth Amendment claim has never been addressed
on the merits. He further contends that when properly considered under the Fourteenth
Amendment, his claim that his confession should have been suppressed due to his
unlawful arrest is not barred by Stone v. Powell, 428 U.S. 465, 492–94 (1976) (holding
that the purpose of the exclusionary rule would not be furthered if a state prisoner could
obtain federal habeas review of a Fourth Amendment claim that had been fully and fairly
litigated in state court).
But “[t]he period of time between an unlawful arrest and the institution of legal
process forms one constitutional claim, arising under the Fourth Amendment” and cannot
be brought under the Fourteenth Amendment, which only applies to “[t]he period of time
between the institution of [formal legal] process and its favorable termination—through
9
acquittal, habeas corpus, voluntary dismissal, etc.” Mondragón v. Thompson, 519 F.3d
1078, 1083 (10th Cir. 2008). Mr. Johnson claims he was arrested without probable cause
before he was transported to the station and that his confession was obtained as a result of
this unlawful arrest. The OCCA’s consideration of this claim under the Fourth
Amendment analysis is consistent with this circuit’s precedent because all of the actions
of which he complains occurred before the institution of formal legal process. See id. And
because the OCCA decided this claim on the merits, the magistrate judge properly
applied AEDPA deference, finding Mr. Johnson had not shown the state courts’ merits
decisions were contrary to or an unreasonable application of Supreme Court precedent,
particularly Stone, or were based on an unreasonable determination of the facts in light of
the evidence in the trial record. Johnson, 2015 U.S. Dist. LEXIS 112323, at *22; cf. 28
U.S.C. § 2254(d)(1)–(2).
The magistrate judge similarly recommended denying habeas review of Mr.
Johnson’s claims that the evidence was insufficient to convict him of one of the five
robberies and that the trial court erred in allowing the State to bolster eye-witness
testimony. Like the Fourth Amendment claim, the OCCA had rejected both of these
claims on the merits. Thus, Mr. Johnson can succeed in obtaining a COA only by
showing that the state courts’ decisions on their merits failed under AEDPA’s highly
deferential standard. For substantially the same reasons stated by the magistrate judge, id.
at *17–*34, we hold the state courts’ merits review of these claims was not “contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “based on an unreasonable
10
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). “If this standard is difficult to meet, that is
because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a
complete bar on federal-court relitigation of claims already rejected in state proceedings.”
Richter, 562 U.S. at 102 (reversing the Ninth Circuit for failing to accord required
deference to the decision of a state court). Mr. Johnson’s repeated conclusory statements
that the state courts’ analysis was clearly contrary to Supreme Court precedent fail to
make this showing.
2. Ineffective assistance of counsel
Mr. Johnson also seeks a COA on his ineffective assistance of appellate counsel
claims. To prevail on an ineffective assistance of counsel claim, a petitioner must show
that “counsel’s performance was deficient” and “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Although the Strickland
test addresses both deficient performance2 and prejudice, the Tenth Circuit permits
“proceed[ing] directly to the issue of prejudice” where that will dispose of the issue.
Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998).3 “Moreover, when evaluating an
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2
Appellate counsel’s performance may be found constitutionally deficient if it can
be shown that “counsel’s performance fell below an objective standard of reasonableness
as measured against prevailing professional norms, and . . . that there is a reasonable
probability that the outcome would have been different but for counsel’s inadequate
performance.” Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008).
3
See also Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995) (“The
Supreme Court has observed that often it may be easier to dispose of an ineffectiveness
claim for lack of prejudice than to determine whether the alleged errors were legally
deficient.” (internal quotation marks omitted)); Strickland v. Washington, 466 U.S. 668,
11
ineffective assistance of counsel claim under § 2254(d)(1), our review is ‘doubly
deferential.’ We defer to the state court’s determination that counsel’s performance was
not deficient and, further, defer to the attorney’s decision in how best to represent a
client.” Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009) (internal citation
omitted) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “The question is
not whether a federal court believes the state court’s determination under the Strickland
standard was incorrect but whether that determination was unreasonable—a substantially
higher threshold.” Knowles, 556 U.S. at 123 (internal quotation marks omitted).
a. Claims considered by the state courts on the merits
The magistrate judge concluded the OCCA had reviewed Mr. Johnson’s
ineffective assistance of trial and appellate counsel claims on the merits under the
Strickland test and found neither constitutionally deficient representation nor prejudice
resulting from counsels’ assistance. Johnson, 2015 U.S. Dist. LEXIS 112323, at *34–
*41. Relying on Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003), Mr. Johnson argues
the OCCA applied the wrong standard in its merits review of his ineffective assistance of
counsel claims. Aplt. Br. 11, 15. In Cargle, we held the OCCA had impermissibly added
a third element to a Sixth Amendment claim of ineffective assistance of appellate counsel
by requiring proof of an improper motive for counsel’s deficient performance. Id. at
1202–05. But the OCCA did not do that here. Instead, as the magistrate judge noted, the
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697 (1984) (“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”).
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OCCA properly applied the Strickland two-part test in affirming the state trial court’s
own application of Strickland in finding that counsel’s performance did not prejudice Mr.
Johnson. And Mr. Johnson does not make any showing that the OCCA’s determination
that counsels’ performance was not constitutionally deficient and did not prejudice him
was an unreasonable application of that Strickland standard. See Knowles, 556 U.S. at
123. Accordingly, we deny Mr. Johnson a COA as to these claims.
b. Ineffective assistance claim not considered on its merits
Despite Mr. Johnson’s insistence that virtually none of his ineffective assistance
claims were considered on the merits below, Aplt. Br. 10–11, we have identified only one
that seems to have been overlooked. In considering Mr. Johnson’s first application for
post conviction relief, the state trial court identified Mr. Johnson’s propositions II, V, VII,
VIII, X, and XI as having been raised and reviewed on the merits in his direct appeal. But
our review of the record reveals that Mr. Johnson’s proposition X, a claim for ineffective
assistance of trial counsel for failing to procure a transcript of the preliminary hearing for
use at trial, was not in fact raised on direct appeal. Instead, Mr. Johnson raised this claim
initially in his first application for post conviction relief, arguing that appellate counsel
was ineffective by not raising on direct appeal a claim that trial counsel had been
constitutionally ineffective by not having the transcript of the preliminary hearing
available. This ineffective assistance of appellate counsel, argued Mr. Johnson, was cause
excusing a procedural default that would otherwise occur as a result of failing to raise the
ineffective assistance of trial counsel claim on direct appeal. And because the state trial
court inadvertently grouped this particular claim with those that had been addressed on
13
their merits in the direct appeal, neither the trial court nor the OCCA addressed this claim
for ineffective assistance of appellate counsel on its merits in reviewing the first
application for post conviction relief.
“When state courts have not adjudicated a petitioner’s claim on the merits, the
AEDPA standards do not apply; instead, we review questions of law de novo and
questions of fact for clear error.” Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003).
Because Mr. Johnson alleges that appellate counsel mishandled an issue on direct appeal
by failing to raise trial counsel’s ineffectiveness in failing to obtain a transcript of the
preliminary hearing for use at trial, we must perform the following analysis in applying
Strickland:
When a habeas petitioner alleges that his appellate counsel rendered
ineffective assistance by failing to raise an issue on direct appeal, we first
examine the merits of the omitted issue. If the omitted issue is meritless,
then counsel’s failure to raise it does not amount to constitutionally
ineffective assistance. If the issue has merit, we then must determine
whether counsel’s failure to raise the claim on direct appeal was deficient
and prejudicial.
Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999) (citation omitted).
Nevertheless, although “[a] claim of appellate ineffectiveness can be based on counsel’s
failure to raise a particular issue on appeal,” we note that “it is difficult to show deficient
performance under those circumstances because counsel ‘need not (and should not) raise
every nonfrivolous claim, but rather may select from among them in order to maximize
the likelihood of success on appeal.’” Cargle, 317 F.3d at 1202 (quoting Smith v.
Robbins, 528 U.S. 259, 288 (2000)).
14
We think it is likely that “the issue is meritless” and thus “its omission will not
constitute deficient performance,” id., particularly in light of the scant explanation in any
of Mr. Johnson’s filings of how the absence of a transcript prejudiced him. This is true
even construing Mr. Johnson’s pro se filings liberally and assessing “the issue relative to
the rest of the appeal” giving “deferential consideration . . . to any professional judgment
involved in its omission” as required under Strickland and its progeny. Id. Mr. Johnson
fails to offer any explanation of how a preliminary hearing transcript might have rebutted
the compelling evidence of guilt, including Mr. Johnson’s own confessions and the
witnesses’ testimony at trial identifying Mr. Johnson as one of the robbers. See Johnson,
2015 U.S. Dist. LEXIS 112323, at *2–*10 (reviewing the extensive evidence of guilt).
Accordingly, because he cannot show prejudice, Mr. Johnson’s single claim for
ineffective assistance of counsel that was not reviewed on the merits in the state courts
also fails under Strickland.
3. Procedurally defaulted claims
“We will not consider issues on habeas review that have been defaulted in state
court on an independent and adequate state procedural ground, unless the petitioner can
demonstrate cause and prejudice or a fundamental miscarriage of justice.” Smallwood v.
Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999) (internal quotation marks omitted).
Nevertheless, Mr. Johnson argues the “jurisdictional issues”4 he raised for the first time
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4
Mr. Johnson claims the state trial court lost jurisdiction (1) by operation of Rules
4(E) and 9(b) in the Civil Procedure Rules for District Courts of Oklahoma, (2) by failing
to conduct a probable cause hearing within forty-eight hours of the alleged arrest, and (3)
15
in his second application for post conviction relief cannot be procedurally defaulted. Aplt.
Br. 9, 16.5
In making this argument, Mr. Johnson first equates an alleged failure of the State
to comply with two Oklahoma rules of civil procedure with the expiration of a statute of
limitations.6 Id. Mr. Johnson alleges the State filed an opposition brief out of time (Rule
4(E)) and failed to prosecute diligently (former Rule 9(b)), and that these alleged
violations divested the state trial court of jurisdiction over Mr. Johnson’s criminal trial.
He also claims a probable cause hearing was impermissibly delayed and the state court
committed constitutional violations. But even if all of these allegations were true, it
would not deprive the state court of jurisdiction over Mr. Johnson’s criminal trial.
________________
by virtue of the state trial court’s alleged violations of Mr. Johnson’s constitutional and
fundamental rights.
5
Contrary to Mr. Johnson’s arguments, Cargle v. Mullin, 317 F.3d 1196, 1202–05
(10th Cir. 2003), did not hold that ineffective assistance of appellate counsel claims
cannot ever be procedurally defaulted or “waived.” In fact, the Supreme Court has
explicitly held that “an ineffective-assistance-of-[appellate] counsel claim asserted as
cause for the procedural default of another claim can itself be procedurally defaulted.”
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Edwards explained that, based on the
“the interplay between exhaustion and procedural default,” the purposes of the exhaustion
requirement would be frustrated “were we to allow federal review to a prisoner who had
presented his claim to the state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it.” Id. This is exactly what Mr.
Johnson did here—he admitted in his second application for post-conviction relief and
several subsequent filings, including in federal court, that he raised issues in his second
post-conviction application that had not been included in his first application for post-
conviction relief in the hope they would be considered exhausted in state court as a
prerequisite for seeking federal habeas relief.
6
Even if these procedural rules did carry the force of a statute of limitations, “a
state’s misapplication of its own statute of limitations does not violate federal due process
per se.” Belvin v. Addison, 561 F. App’x 684, 686 (10th Cir. 2014).
16
Accordingly, the claims do not implicate the trial court’s subject matter jurisdiction and
can be procedurally barred.
As the magistrate judge noted, AEDPA “strictly limits a federal court’s ability to
consider issues on habeas review that the state court deemed procedurally barred.”
Johnson, 2015 U.S. Dist. LEXIS 112323, at *42 (quoting Hammon v. Ward, 466 F.3d
919, 925 (10th Cir. 2006)). “It is well established that federal courts will not review
questions of federal law presented in a habeas petition when the state court’s decision
rests upon a state-law ground that is independent of the federal question and adequate to
support the judgment.” Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotation marks
omitted). “A state ground will be considered adequate only if it is strictly or regularly
followed and applied evenhandedly to all similar claims.” Smallwood, 191 F.3d at 1268
(internal quotation marks omitted). This ensures “the States’ interest in correcting their
own mistakes is respected in all federal habeas cases.” Coleman v. Thompson, 501 U.S.
722, 732 (1991).
Because Mr. Johnson first raised these claims in his second application for post
conviction relief, they are not properly exhausted and are procedurally barred. See Cone,
556 U.S. at 465 (“[C]onsistent with the longstanding requirement that habeas petitioners
must exhaust available state remedies before seeking relief in federal court, we have held
that when a petitioner fails to raise his federal claims in compliance with relevant state
procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.”). We have previously
held that under Oklahoma law “the waiver rule for claims not previously raised” is
17
“regularly and even-handedly applied by the state courts.” Smallwood, 191 F.3d at 1269
n.8. Therefore we agree with the magistrate judge that the OCCA “relied on an
independent and adequate state ground” in finding the claims Mr. Edwards raised for the
first time in his second post conviction application procedurally defaulted, “including his
claim of a due process deprivation due to the state court’s failure to conduct a probable
cause hearing within [forty-eight] hours of his alleged warrantless arrest.” Johnson, 2015
U.S. Dist. LEXIS 112323, at *42–*43.
Mr. Johnson has not coherently argued cause for his procedural default or
prejudice arising therefrom (in light of the evidence on which he was convicted at trial),
or shown a fundamental miscarriage of justice arising from any of his procedurally
defaulted claims. Accordingly, for substantially the same reasons stated by the magistrate
judge and adopted by the district court, we deny Mr. Johnson a COA on these claims.
B. Request for 28 U.S.C. § 2254(e)(2) Evidentiary Hearing
Finally, Mr. Johnson again seeks an evidentiary hearing pursuant to 28 U.S.C.
§ 2254(e)(2). The magistrate judge did not directly address this aspect of Mr. Johnson’s
§ 2254 petition and brief.
AEDPA does not allow us to grant Mr. Johnson an evidentiary hearing where he
“has failed to develop the factual basis of a claim in State court proceedings” unless his
claims rely on either “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” or “a factual
predicate that could not have been previously discovered through the exercise of due
diligence.” 28 U.S.C. § 2254(e)(2)(A)(i)–(ii). Additionally, Mr. Johnson must show that
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“the facts underlying the claim[s] would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” Id. § 2254(e)(2)(B). As the Supreme Court
has noted, “a failure to develop the factual basis of a claim is not established unless there
is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s
counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000).
Mr. Johnson’s § 2254 petition and brief and his combined appellate brief and
application for a COA are replete with conclusory allegations that the state trial court
interfered with his opportunity for a full and fair hearing on his case. However, he fails to
identify the facts he believes a § 2254(e)(2) evidentiary hearing would prove or how that
evidence could establish by clear and convincing evidence that, but for a constitutional
error, no reasonable factfinder would have convicted him of the five robberies to which
he confessed. We therefore deny Mr. Johnson’s application for a COA on the issue of his
request for an evidentiary hearing under 28 U.S.C. § 2254(e)(2).
III. CONCLUSION
Because Mr. Johnson has not “made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss
this appeal.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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Johnson v. Patton
Court: Court of Appeals for the Tenth Circuit
Date filed: 2015-12-15
Citations: 634 F. App'x 653
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