Porter v. Allbaugh

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 6, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

TEROME LEVI PORTER,

Petitioner - Appellant,
Nos. 16-6211 & 16-6246
v. (D.C. Nos. 5:15-CV-01165-W and
5:14-CV-01007-W)
JOE M. ALLBAUGH,
(W.D. Okla.)

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY, HOLMES, and MORITZ, Circuit Judges.

In these related appeals, pro se 1 Petitioner-Appellant Terome Levi Porter,

an Oklahoma state prisoner, seeks certificates of appealability (“COAs”) and

permission to proceed in forma pauperis, in order to challenge the district court’s

*
This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Mr. Porter appears pro se, we afford his filings liberal
construction, but do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008).
denial of his habeas petitions under 28 U.S.C. § 2254 relative to two separate

state court convictions. 2

In his first habeas petition, Porter v. Allbaugh, No. 16-6211 (“Porter I”),

Mr. Porter argues (1) that the Oklahoma state court violated his due-process rights

by conducting accelerated sentencing hearings, and (2) that he received

ineffective assistance of counsel during his guilty plea and sentencing hearings.

In his second habeas petition, Porter v. Allbaugh, No. 16-6246 (“Porter II”), Mr.

Porter contends that the Oklahoma state court violated his due-process rights by

(1) misinterpreting the Oklahoma statute under which he had been charged, and

by (2) improperly instructing the jury on the applicable sentencing range. The

district court denied Mr. Porter’s petitions (and declined to issue COAs), finding

the claims raised in Porter I untimely and the claims asserted in Porter II

meritless.

Exercising jurisdiction under 28 U.S.C. § 1291, we DENY Mr. Porter’s

request for COAs, DENY his applications to proceed in forma pauperis, and

DISMISS these matters.

I

Mr. Porter’s petitions concern, as explained infra, two separate criminal

convictions, and we discuss the background of each matter in turn.

2
We have consolidated these two separate appeals on our own motion.
See Fed. R. App. P. 3(b)(2).

2
 A

In April 2008, Mr. Porter pleaded guilty to possession of a controlled

substance with intent to distribute in the District Court of Kay County, Oklahoma.

The state trial court deferred Mr. Porter’s sentencing for four years, but ultimately

granted the State of Oklahoma’s (“State”) motion to accelerate judgment, and

sentenced Mr. Porter to twenty-five years’ imprisonment on May 3, 2012.

Following sentencing, Mr. Porter moved to withdraw his guilty plea. The state

trial court, however, denied the motion on May 29, 2012, and the Oklahoma Court

of Criminal Appeals (“OCCA”) affirmed the acceleration of the deferred

judgment, Mr. Porter’s sentence, and the denial of his motion to withdraw on

October 29, 2013.

Following his direct appeal to the OCCA, Mr. Porter filed an application

for post-conviction relief in the Oklahoma state trial court on September 22,

2014. On November 3, 2014, however, the state court denied his application

because it raised issues that Mr. Porter previously had failed to pursue on direct

appeal—and, therefore, had waived. The OCCA then declined jurisdiction over

Mr. Porter’s appeal because he failed to perfect the appeal within the thirty-day

window that the OCCA’s procedural rules specify. Nevertheless, the OCCA

stated that Mr. Porter could make a request with the trial court for leave to file an

untimely appeal. On February 4, 2015, Mr. Porter did so but the state trial court

3
denied the application to file an appeal out of time on February 6, 2015, and Mr.

Porter did not appeal that denial to the OCCA.

Instead, on October 15, 2015, he filed his Porter I habeas petition, arguing

that certain aspects of his plea and accelerated sentencing hearings violated his

constitutional rights. On May 26, 2016, however, the magistrate judge to whom

the Porter I petition had been referred recommended that the petition be

dismissed as time-barred. More specifically, the magistrate judge concluded that

Mr. Porter’s conviction became final on January 27, 2014 (ninety days after the

OCCA affirmed his conviction and the accelerated proceedings), which meant that

Mr. Porter’s habeas petition had to be filed—absent tolling—by no later than

January 28, 2015.

Turning to tolling, the magistrate judge then found Mr. Porter was entitled

to 106 total days of statutory tolling, consisting of (1) the forty-three days his

post-conviction petition remained pending in the state trial court and an additional

thirty days until that decision became final, and (2) the three days his application

to file an appeal out of time remained pending in the state trial court, together

with an additional thirty days before that decision became final. 3 Given those

conclusions, the magistrate judge determined that the limitations period for Mr.

3
Because the OCCA declined jurisdiction over Mr. Porter’s appeal on
timeliness grounds, the magistrate judge found that his untimely appeal did not
statutorily toll the federal limitations period. Similarly, the magistrate judge
found no basis to equitably toll the limitations period.

4
Porter’s habeas petition expired on May 14, 2015, and recommended that his

petition—filed October 15, 2015—be dismissed on timeliness grounds.

After reviewing Mr. Porter’s objections to the magistrate judge’s

recommendation, the district judge adopted the recommendation and dismissed

Mr. Porter’s petition with prejudice. 4 Following Mr. Porter’s timely filing of a

notice of appeal, the district court declined to issue a COA, denied his application

to proceed in forma pauperis on appeal, and stated that the appeal was not taken

in good faith.

B

In December 2011, the State charged Mr. Porter with possession of a cell

phone in jail, following a prior felony conviction, in violation of Okla. Stat. Ann.

tit. 57, § 21(B) (“Section 21(B)”). 5 Over Mr. Porter’s objection, the Oklahoma

state court instructed the jury that the possession charge required proof beyond a

reasonable doubt that an inmate knowingly, willfully, and without authority had

possession of any cellular phone within the secure confines of the jail. In

4
In adopting every aspect of the magistrate judge’s recommendation,
the district judge identified May 24, 2015 (rather than May 14, 2015), as the
filing deadline. Nevertheless, because the district court accepted the magistrate
judge’s recommendation in full, context suggests that the date constitutes a
typographical error. Apart from that circumstance, the Porter I petition remains
untimely even with the benefit of the later date.
5
In advance of trial, the parties stipulated to Mr. Porter’s prior felony
conviction.

5
addition, the state court advised the jury that the charge carried “a term of

imprisonment [of] not less than ten (10) years or up to Life in the penitentiary.” 6

Porter II R. at 77 (Instr. No. 15, filed Jan. 9, 2015). The jury found Mr. Porter

guilty and fixed punishment at ten years’ imprisonment.

Mr. Porter appealed the conviction, arguing that he should have been

charged and convicted under Okla. Stat. Ann. tit. 57, § 21(E) (“Section 21(E)”); it

applies when a “person” possesses a cellular phone in jail, as opposed to Section

21(B), which applies to an “inmate[’s]” possession of such a device. Notably,

Section 21(E) carries a term of imprisonment not exceeding two years, while

Section 21(B) provides for an imprisonment range of not less than five years nor

more than twenty years and triggers the sentence-enhancement provisions of

Okla. Stat. Ann. tit. 21, § 51.1(A) (“Section 51.1(A)”). The OCCA, however,

affirmed the sentence, concluding that the state trial court correctly interpreted

the relevant statutes and therefore did not violate Mr. Porter’s due-process or

jury-sentencing rights.

In the aftermath of the OCCA’s affirmance, Mr. Porter filed his Porter II

habeas petition, reasserting his position that the state court proceedings violated

6
Standing alone, Section 21(B) provides for a term of imprisonment
“of not less than five (5) years nor more than twenty (20) years in the custody of
the Department of Corrections.” Okla. Stat. Ann. tit. 57, § 21(B). Pursuant to
Section 51.1(A), however, Mr. Porter’s stipulated prior felony conviction resulted
in an enhanced sentencing range of ten years to life imprisonment. See Okla.
Stat. Ann. tit. 21, § 51.1(A).

6
his constitutional rights by charging and convicting him under Section 21(B)

rather than Section 21(E). Given the OCCA’s resolution of this claim on the

merits and the substantial deference owed to the state court’s interpretation of

state law, the magistrate judge to whom the Porter II petition had been referred

recommended that the petition be denied.

After reviewing Mr. Porter’s objections to the magistrate judge’s

recommendation, the district judge adopted the recommendation and denied Mr.

Porter’s petition and his subsequent motion for reconsideration. Following Mr.

Porter’s timely filing of a notice of appeal, the district court declined to issue a

COA, denied his application to proceed in forma pauperis on appeal, and stated

that his appeal was not taken in good faith.

II

Because the district court denied Mr. Porter’s requests for COAs, he may

not appeal the district court’s decisions unless we grant COAs. See 28 U.S.C. §

2253(c)(1)(A); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005); see also

Gonzalez v. Thaler, --- U.S. ----, 132 S. Ct. 641, 649 (2012) (citing the “‘clear’

jurisdictional language . . . in § 2253(c)(1)”). In order to obtain a COA, Mr.

Porter must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). “This standard requires ‘a demonstration

that . . . includes showing that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

7
manner or that the issues presented were adequate to deserve encouragement to

proceed further.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

When a federal district court denies a § 2254 petition on procedural

grounds—as happened in Porter I—the applicant faces a “double hurdle.” Id.

“Not only must the applicant make a substantial showing of the denial of a

constitutional right, but he must also show ‘that jurists of reason would find it

debatable . . . whether the district court’” reached a correct procedural ruling. Id.

(quoting Slack, 529 U.S. at 484). In applying that rubric, we may “dispose of the

application” by resolving whichever issue (i.e., substantive merits or procedural)

presents the “more apparent” answer. Slack, 529 U.S. at 485.

Where the state court adjudicated the merits of the claim—as happened in

Porter II—the “deferential treatment of state court decisions” under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “must be

incorporated into our consideration of a habeas petitioner’s request for COA.”

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004); see Smith v. Duckworth,

824 F.3d 1233, 1240 (10th Cir. 2016); Hooks v. Workman, 689 F.3d 1148, 1163

(10th Cir. 2012). More specifically, we may not grant habeas relief unless the

state court’s decision was “‘contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States’ or ‘was based on an unreasonable determination of the facts in

8
light of the evidence presented in the State court proceeding.’” Smith, 824 F.3d at

1241 (quoting Hooks, 689 F.3d at 1163); see also 28 U.S.C. § 2254(d)(1), (2)

(source of the second-level internal quotation). In other words, AEDPA erects a

formidable and “‘highly deferential standard for evaluating state-court rulings,’

which demands that state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting Lindh v. Murphy, 521 U.S.

320, 333 n.7 (1997)); see also Harrington v. Richter, 562 U.S. 86, 103 (2011)

(“As a condition for obtaining habeas corpus from a federal court, a state prisoner

must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.”).

III

Mr. Porter seeks COAs to challenge the district court’s denial of his Porter

I and Porter II habeas petitions. We review each separate matter in turn, and for

the reasons that follow, decline to issue a COA in either action.

A

In requesting a COA regarding the district court’s denial of his Porter I

petition, Mr. Porter raises no specific challenge to the district court’s disposition.

Indeed, apart from retracing the chronology of the underlying proceedings, Mr.

Porter makes no mention of the district court’s calculation of AEDPA’s one-year

9
limitations period (nor the conclusions relative to statutory and equitable tolling),

nor does he explain how reasonable jurists could debate the correctness of the

district court’s decision. Rather, he focuses—exclusively—on the claimed

constitutional infirmities in the underlying state court proceedings. This will not

do. The plain inadequacy of Mr. Porter’s appellate briefing would permit us to

conclude that he waived any argument concerning the propriety of the district

court’s procedural disposition. See United States v. Springfield, 337 F.3d 1175,

1178 (10th Cir. 2003) (concluding that the appellant waived his claim on appeal

by failing to “address [it] in either his application for a COA or his brief on

appeal”); see also Patterson v. Jones, 419 F. App’x 857, 859 (10th Cir. 2011)

(holding that the appellant “waived his claims on appeal,” because he “fail[ed] to

discuss the district court’s resolution of any of his habeas claims, much less

explain how reasonable jurists could debate the correctness of the court’s

decision”). And bereft of a viable procedural challenge to the district court’s

order, Mr. Porter could not possibly overcome the “double hurdle” required to

secure a COA. Coppage, 534 F.3d at 1281.

Nevertheless, even if we reached—in our discretion—the merits of the

district court’s ruling, we would conclude that reasonable jurists could not debate

the correctness of its dismissal. AEDPA’s one-year limitations period for filing a

§ 2254 petition began to run when Mr. Porter’s judgment of conviction “became

final by the conclusion of direct review or the expiration of the time for seeking

10
such review.” 28 U.S.C. § 2244(d)(1)(A). In other words, the filing deadline

began to run on January 27, 2014, when the ninety-day deadline to file a certiorari

petition following the OCCA’s affirmance expired. The one-year limitations

period then ran uninterrupted for 238 days until September 22, 2014, when Mr.

Porter filed his first application for post-conviction relief. See 28 U.S.C. §

2244(d)(2) (providing that the pendency of a properly filed application for post-

conviction relief tolls the one-year limitations period). After the Oklahoma state

trial court denied his application on November 3, 2014, Mr. Porter had thirty days

to seek review before the OCCA. 7 See Okla. Stat. Ann. tit. 22, ch. 18, app. R.

5.2(C)(2). After the expiration of that period, on December 4, 2014, the

limitations clock began to run again, and it did so for an additional sixty-two

days—until February 4, 2015—when Mr. Porter filed his second application for

post-conviction relief. Following resolution of that application on February 6,

2016, and the expiration of the time in which to seek review before the OCCA,

the limitations period began again on March 10, 2015, and ran another sixty-five

days (for a total of 365 days) until May 14, 2015, at which point it expired. Mr.

7
Because the OCCA deemed Mr. Porter’s appeal of the trial court’s
denial of his application for post-conviction relief untimely (i.e., not “properly”
filed) as a matter of state law, the district court correctly concluded that this
appeal did not statutorily toll the federal limitations period. See Loftis v.
Chrisman, 812 F.3d 1268, 1272 (10th Cir. 2016) (concluding that a post-
conviction appeal deemed untimely by the OCCA “did not statutorily toll the
federal limitations period”). Nevertheless, Mr. Porter receives the benefit of the
thirty-day period in which “he could have timely filed” an appeal with the OCCA.
Jones v. Oklahoma, 191 F. App’x 752, 754–55 (10th Cir. 2006) (emphasis added).

11
Porter, however, did not file his Porter I petition until October 15, 2015, almost

five months after the expiration of the statutory limitations period. Mr. Porter’s

petition was therefore untimely, absent application of equitable tolling.

In order to receive the benefit of equitable tolling, an applicant must show

“‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way’ and prevented timely filing.”

Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)). On this point, Mr. Porter mounts no challenge to the

district court’s rejection of equitable tolling, nor does he identify any

circumstance (much less an extraordinary one) that impeded his timely pursuit of

habeas relief. Accordingly, on this basis alone, we could eschew an equitable-

tolling inquiry and deem any such tolling argument by Mr. Porter to be waived.

However, even if we gave Mr. Porter the benefit of the equitable-tolling

arguments that he advanced before the district court—viz., general difficulties in

obtaining trial transcripts and in accessing the prison law library—we would

conclude that reasonable jurists would not find debatable the district court’s

determination that Mr. Porter’s general grievances fail to constitute extraordinary

circumstances. See, e.g., Parker v. Jones, 260 F. App’x 81, 85 (10th Cir. 2008)

(holding that lack of access to legal materials or assistance and the law library

was insufficient to justify equitable tolling of the limitations period); United

States v. Williams, 219 F. App’x 778, 779 (10th Cir. 2007) (concluding that

12
difficulties in obtaining trial transcripts was insufficient to constitute

extraordinary circumstances). Consequently, Mr. Porter cannot satisfy the

standard for equitable tolling.

For these reasons, reasonable jurists could not debate the correctness of the

district court’s dismissal of the Porter I petition on timeliness grounds. We

therefore DENY Mr. Porter’s request for a COA on his Porter I petition and

DISMISS the matter.

B

In requesting a COA regarding the district court’s denial of his Porter II

petition, Mr. Porter restates his position that the Oklahoma state courts violated

his constitutional rights by misinterpreting and misapplying Section 21 and

improperly instructing the jury on the applicable sentencing range. 8

8
In addition, Mr. Porter’s raises a factual challenge to the district
court’s recitation of the events underlying the Porter II petition, because the
district court ostensibly ignored a subtle typographical discrepancy in the
Judgment entered by the clerk of the Oklahoma trial court. See Aplt.’s Br. at 4.
More specifically, Mr. Porter points to the fact that the Judgment erroneously
reflects a conviction under Section 21(E), rather than Section 21(B). See id.; see
also Porter II R. at 95. However, even if we disagreed with the particulars of the
district court’s factual recitation, that would not necessarily benefit Mr. Porter.
Our focus here is on the district court’s ultimate resolution of Mr. Porter’s habeas
petition. See Whitmore v. Parker, 484 F. App’x 227, 236 (10th Cir. 2012)
(“adopting a different rationale, [but] agree[ing] with the district court’s ultimate
rejection of [the habeas] claim”); see also Sue v. Kline, --- F. App’x ----, 2016
WL 5944984, at *6 n.9 (10th Cir. Oct. 13, 2016) (declining to follow “the
particulars” of the district court’s analysis, but agreeing with “the district court’s
ultimate resolution of [the] habeas petition”). More specifically, the substance of
(continued...)

13
More specifically, he argues—as a matter of law—that he should have been

charged and convicted under the “any person” provision of Section 21(E), 9 rather

than the “inmate” provision of Section 21(B). 10 Based on that premise, Mr. Porter

8
(...continued)
his habeas petition relates to whether the rulings of the Oklahoma state court
deprived him of his constitutional rights. Consequently, so long as reasonable
jurists could not debate the district court’s ultimate judgment on that
constitutional question, the technical accuracy of the court’s factual recitation of
the events underlying Porter II is immaterial. And, as explicated infra, we
conclude that there would be no such debate here; therefore, irrespective of any
factual-history error by the district court, no COA should issue. See Self v.
Milyard, 522 F. App’x 435, 437 n.2 (10th Cir. 2013) (noting that we can deny a
COA “so long as we are confident in the correctness of the district court’s
ultimate resolution of his habeas claims”); see also Brown v. Roberts, 501 F.
App’x. 825, 830 (10th Cir. 2012) (“While we arrive at that conclusion through a
somewhat different path than that employed by the district court, we find that
reasonable jurists could not disagree with the district court’s ultimate resolution
in dismissing the petition.”).
9
Section 21(E) provides that,

[a]ny person who knowingly, willfully and without authority
brings into or has in his or her possession in any secure area of
a jail or state penal institution or other secure place where
prisoners are located any cellular phone or electronic device
capable of sending or receiving any electronic communication
shall, upon conviction, be guilty of a felony punishable by
imprisonment in the custody of the Department of Corrections for
a term not exceeding two (2) years, or by a fine not exceeding
Two Thousand Five Hundred Dollars ($2,500.00), or by both
such fine and imprisonment.

Okla. Stat. Ann. tit. 57, § 21(E) (emphases added).
10
Section 21(B) provides that,

[i]f an inmate is found to be in possession of any item prohibited
(continued...)

14
submits that his sentence should have been no more than two years’ imprisonment

(without the prior-conviction enhancement), and claims that the Oklahoma trial

court violated his due-process rights by erroneously advising the jury that his

offense would carry a term of imprisonment of between ten years and life.

During his direct appeal, however, the OCCA squarely addressed—and

rejected—this very position. Indeed, in interpreting Section 21, the OCCA

explained that,

[d]espite Porter’s argument to the contrary, because he was an
“inmate” in possession of a cell phone, the sentencing provisions
of [Section] 21(B), providing for a term of imprisonment of not
less than five years nor more than twenty years, governed his
sentence. Any other construction of [Section] 21 would lead to
absurd results that certainly could not have been intended by the
Legislature (i.e., the inmate sentencing provisions specified in
[Section] 21(B) could never be applied, thereby rendering the
language useless). When the sentencing range for an inmate in
possession of a cell phone set out in [Section] 21(B) is enhanced
under [Section] 51.1(A)(3) with Porter’s prior felony conviction,
the range of punishment for Porter’s offense is ten years to life.

Porter II R. at 71–72 (emphasis added) (citations omitted). Given that

interpretation, the OCCA concluded that the Oklahoma trial court appropriately

construed the sentencing statutes, and found no violations in Mr. Porter’s “due

10
(...continued)
by this section, upon conviction, such inmate shall be guilty of
a felony and shall be punished by imprisonment for a term of not
less than five (5) years nor more than twenty (20) years in the
custody of the Department of Corrections.

Okla. Stat. Ann. tit. 57, § 21(B) (emphases added).

15
process and jury sentencing rights.” Id. at 72. More succinctly, the OCCA

determined (1) that Section 21(B) governed Mr. Porter’s offense, (2) that the

Oklahoma trial court rightly advised the jury of the sentencing range for that

offense, and (3) that the overall state trial court proceedings did not violate Mr.

Porter’s constitutional rights.

Mr. Porter’s challenge to the OCCA’s interpretation of Section 21

implicates two related doctrines. First, although Mr. Porter disputes the state

court’s interpretation, we must “accept the [state] court’s construction of that

State’s statutes.” Missouri v. Hunter, 459 U.S. 359, 368 (1983); see also

Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002) (explaining that “the

[state] courts’ interpretation of the state . . . statute is a matter of state law

binding on this court”); Hawkins v. Mullin, 291 F.3d 658, 662 (10th Cir. 2002)

(“Although [the petitioner] challenges the state court’s interpretation of

Oklahoma’s first-degree felony murder statute, this court is bound by the state

court’s interpretation of its own law.”). Second, and relatedly, “[w]e may set

aside a state conviction on the basis of [an] erroneous jury instruction[]” only

“when the ‘ailing instruction by itself so infected the entire trial that the resulting

conviction violates due process.’” Parker v. Scott, 394 F.3d 1302, 1319 (10th

Cir. 2005) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). On habeas

review, however, the “allegedly incorrect” nature of an instruction “under state

16
law [provides no] basis for habeas relief.” Id. (quoting Estelle, 502 U.S. at

71–72).

Application of those principles here leads us to conclude that reasonable

jurists could not debate the correctness of the district court’s denial of Mr.

Porter’s habeas petition. Importantly, the OCCA interpreted Oklahoma law and

found no error in the application of Section 21(B) to Mr. Porter’s offense, nor in

the Oklahoma trial court’s instruction on the applicable sentencing range. And, in

reviewing Mr. Porter’s challenge to this decision on habeas review, we must

accept the OCCA’s construction of Oklahoma statutes. As a result, Mr. Porter’s

challenge to the OCCA’s interpretation fails to warrant habeas relief because

Section 21(B), as interpreted by the Oklahoma state courts, plainly applies to his

offense. See Estelle, 502 U.S. at 67–68 (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions. In

conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.”).

Similarly, to the extent Mr. Porter contends that the “erroneous” jury instruction

violated his due-process and jury-sentencing rights, he cannot demonstrate that

the OCCA’s decision proved contrary to or a misapplication of clearly established

Supreme Court law, because the Oklahoma trial court correctly advised the jury

of the sentencing range applicable to Mr. Porter’s Section 21(B) offense, and Mr.

Porter received a sentence well within the statutory range. See Parker, 394 F.3d

17
at 1319 (rejecting a habeas claim involving allegedly erroneous jury instructions,

because federal courts “must accept [the OCCA’s] interpretation of state law”);

Schulze v. Addison, 494 F. App’x 922, 926 (10th Cir. 2012) (same).

For these reasons, reasonable jurists could not debate the correctness of the

district court’s denial of the claims raised in the Porter II petition. We therefore

DENY Mr. Porter’s request for a COA on his Porter II petition and DISMISS the

matter.

IV

Finally, we address Mr. Porter’s request to proceed in forma pauperis in his

appeals. The district court denied Mr. Porter’s requests for in forma pauperis

status, finding that he did not press his appeals in good faith. Mr. Porter now

renews his requests before this court, but because he has not shown “a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)

(quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)), we

DENY his applications to proceed in forma pauperis and direct him to make full

and immediate payment of the outstanding appellate filing fees.

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 V

Based on the foregoing, we DENY Mr. Porter’s request for COAs, DENY

his applications to proceed in forma pauperis, and DISMISS these matters.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

19