FILED
United States Court of Appeals
Tenth Circuit
November 29, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CHARLES HERBERT HALEY,
Petitioner - Appellant,
No. 17-6111
v. (W.D. Okla.)
(D.C. No. 5:16-CV-00331-D)
JOE ALBAUGH,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
This matter is before the court on Charles Haley’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis
(“IFP”). Haley seeks a COA so he can appeal the district court’s denial of his
28 U.S.C. § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). Because Haley has not
“made a substantial showing of the denial of a constitutional right,” id.
§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
Additionally, as Haley has failed to present a “reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal,” we deny his
request to proceed IFP. Caravalho v. Pugh, 177 F.3d 1177, 1177 (10th Cir.
1999).
Haley pleaded guilty in Oklahoma state court to second-degree robbery, in
violation of Okla. Stat. tit. 21, § 792, after two or more former felony convictions.
In his plea, Haley acknowledged his conviction carried a potential sentence of
twenty-years to life and agreed to a sentence of twenty-five years’ imprisonment.
Haley thereafter brought a state petition for post-conviction relief asserting, inter
alia, (1) his sentence was improperly enhanced based on stale prior convictions
and (2) his attorney was ineffective for failing to recognize the habitual offender
enhancement was improper. The Oklahoma Court of Criminal Appeals (“OCCA”)
concluded the merits issue (whether the sentence was, in fact, improperly
enhanced based on stale prior convictions) was waived because it was not asserted
on direct appeal. The OCCA, nevertheless, reached the merits of Haley’s claim
of ineffective assistance, concluding Haley failed to demonstrate either deficient
performance or prejudice.
Haley then filed the instant § 2254 habeas petition reasserting these two
claims. In an exceedingly thorough Report and Recommendation, a magistrate
judge recommended that Haley’s habeas petition be denied. Choosing to bypass
messy issues surrounding applicability of a procedural bar, the magistrate judge
concluded on the merits that Haley’s habitual offender sentence was supported by
more than two non-stale former felony convictions. See Cannon v. Mullin, 383
F.3d 1152, 1160 (10th Cir. 2004) (“When questions of procedural bar are
problematic, however, and the substantive claim can be disposed of readily, a
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federal court may exercise its discretion to bypass the procedural issues and reject
a habeas claim on the merits.”). Given that determination, the magistrate judge
further concluded the OCCA’s rejection of Haley’s ineffective assistance claim
was neither contrary to nor an unreasonable application of clearly established
Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Upon de novo review, the
district court adopted the magistrate judge’s Report and Recommendation and
denied Haley’s petition.
The granting of a COA is a jurisdictional prerequisite to Haley’s appeal
from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, he 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 “reasonable jurists could debate whether (or, for
that matter, agree that) the [motion] should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating
whether Haley has satisfied his burden, this court undertakes “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
of his claims. Id. at 338. Although he 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.
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Having undertaken a review of Haley’s appellate filings, the magistrate
judge’s comprehensive Report and Recommendation, the district court’s order,
and the entire record before this court pursuant to the framework set out by the
Supreme Court in Miller-El, we conclude Haley is not entitled to a COA. The
district court’s resolution of Haley’s § 2254 petition is not reasonably subject to
debate and the issues he seeks to raise on appeal are not adequate to deserve
further proceedings. Instead, the arguments set out in Haley’s brief on appeal are
clearly at odds with the facts and governing law. Accordingly, this court
DENIES Haley’s request for a COA and DISMISSES this appeal. Haley’s
motion to supplement the record with materials that were not before the district
court is DENIED. See United States v. Kennedy, 225 F.3d 1187, 1191-92 (10th
Cir. 2000) (holding that consideration of material outside of the record before the
district court is generally impermissible). Furthermore, given that this court has
denied his motion to proceed on appeal IFP, we direct Haley to remit forthwith
the full amount of the appellate filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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