FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 9, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL RAY HARRIS,
Petitioner - Appellant,
v. No. 18-5046
(D.C. No. 4:15-CV-00141-JHP-FHM)
JOE ALLBAUGH, Director, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before McHUGH, MORITZ, and EID, Circuit Judges.
_________________________________
Michael Ray Harris, a pro se state prisoner, seeks a certificate of appealability
(COA) to challenge a district court order that denied his 28 U.S.C. § 2254 petition for
habeas relief. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny
Harris’s application and dismiss this appeal.
BACKGROUND
One evening in November 2011, A.T. went hitchhiking near her home in Tulsa,
Oklahoma. She soon accepted a ride from a man in “a green like Ford Explorer Jeep.”
This order is not binding precedent except under the doctrines of law of the case,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.
R., Vol. II at 356.1 Instead of driving to her destination, the man drove her to a field near
a water treatment facility and raped her. Afterward, he drove off. A.T. managed to
contact her boyfriend and others, who brought her home and then summoned an
ambulance. She was taken to a hospital, where she underwent a rape exam and provided
a description of her attacker and the vehicle he drove.
Police investigated, but they soon “exhausted all [their] leads.” Id. at 629.
Consequently, they “inactivate[d] [A.T.’s case].” Id.
Not long thereafter, in January 2012, police arrested Harris on rape charges in
another case. They then began comparing the circumstances in that case to those in some
of their inactivated cases, including A.T.’s case, and they found “similar[ities] in the
[attacker’s] physical description[,] . . . in how the attacker first made contact with the
victim, . . . [in] where the attacker took the victim,” id. at 630-31, and in “the method of
the attack[s],” id. at 631. Further, the vehicle used in the attacks was similarly described
as “[a] red Jeep and a dark green Jeep.” Id. Police obtained documents indicating that
Harris had driven both a red Jeep and a green Jeep.
In February 2012, Detective Liz Eagan interviewed A.T., and showed her a photo
lineup of six men, including Harris, as “possibilities.” Id. at 383. A.T. “immediately”
could tell that four of the men were not her attacker. Id. at 384. She ultimately identified
Harris, circling his photo and writing that she was “95 percent” sure he was her attacker.
Id. at 384. She was not completely sure, however, because her attacker “was missing
1
In citing the record, we will use the page designations created by this court’s
CM/ECF system.
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teeth,” and she “couldn’t see the side of the guy’s mouth” in the photo. Id. at 385; see
also id. at 641-42.
Afterward, Detective Eagan obtained a search warrant to photograph Harris’s
mouth. The resulting photos showed that Harris was “missing his two front top teeth.”
Id. at 645.
Harris was charged with first-degree rape, with two or more prior felony
convictions. His trial was bifurcated into guilt and penalty phases. During the guilt
phase, A.T. identified Harris as her attacker, with “[o]ne hundred percent” certainty. Id.
at 395. Three other women, “H.W., D.C. and S.G.,” testified that Harris had sexually
assaulted them “within three months of” A.T.’s rape. Id., Vol. I at 32-33. “Each assault
bore similarities to the attack on A.T., and each of the three women identified Harris as
her attacker.” Id. at 33. The jury found Harris guilty, and the case proceeded to the
penalty phase.
There, based on evidence that Harris had prior felony convictions for sexual
assault and aggravated robbery, the prosecutor asked the jury to return a sentence of life
without parole. Specifically, the prosecutor urged the jury to consider that A.T. would
never be able to forget being raped by Harris. The jury recommended life without parole
and the trial court imposed that sentence.
Harris appealed to the Oklahoma Court of Criminal Appeals (OCCA), arguing that
(1) the trial court erred by admitting the testimony of Harris’s three other victims; (2) the
prosecutor committed misconduct during penalty-phase closing arguments; (3) defense
counsel rendered ineffective assistance by not objecting to the testimony from the other
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victims, not contesting A.T.’s photo lineup and in-court identifications, and not objecting
to the prosecutor’s penalty-phase arguments; and (4) insufficient evidence supported his
conviction. The OCCA affirmed.
Harris then sought federal habeas relief. Unsuccessful, he now requests a COA to
appeal.
DISCUSSION
I. Standards of Review
The issuance of a COA is a jurisdictional prerequisite to an appeal from the denial
of a § 2254 habeas petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To obtain a
COA, Harris must make “a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), such “that reasonable jurists could debate whether . . . 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). And where the district court has denied a
habeas claim on procedural grounds, Harris must show not only the denial of a
constitutional right, but also “that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In determining whether to issue a COA, we must incorporate the deference for
state court decisions required by the Antiterrorism and Effective Death Penalty Act
(AEDPA). See Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015). Under
AEDPA, a federal court may grant habeas relief only if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law,
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as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2).
Finally, we construe Harris’s pro se filings liberally. See Hall v. Scott, 292 F.3d
1264, 1266 (10th Cir. 2002).
II. Propensity Evidence
On direct appeal, Harris argued that the trial court erred by admitting the
testimonies of H.W., D.C., and S.G. without balancing the probative value of the
evidence against its prejudicial effect, in violation of Oklahoma law and federal
due-process law. The OCCA reviewed Harris’s argument for plain error because he had
not objected at trial, and it found no error at all:
Whether [Harris] was in fact the man who raped A.T. was perhaps
the most important factual issue at trial, and there were clearly significant
similarities between the rape of A.T. and the rapes of the other three
victims. . . .
. . . The [trial] court was conscientious and issued proper instructions
concerning the propensity evidence to limit its prejudicial impact. The
evidence was offered generally to provide a link to the identity of A.T.’s
attacker rather than as distinctive or signature evidence. The evidence was
undoubtedly relevant and the purpose for introducing the evidence was
proper.
R., Vol. I at 35-36 (footnote omitted). The district court concluded that the OCCA did
not unreasonably apply federal due-process law.
Initially, we point out that “federal habeas review is not available to correct state
law evidentiary errors. . . . [A habeas petitioner] is entitled to relief only if an alleged
state-law error was so grossly prejudicial that it fatally infected the trial and denied the
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fundamental fairness that is the essence of due process.” Hooks v. Workman, 689 F.3d
1148, 1180 (10th Cir. 2012) (brackets and internal quotation marks omitted). Thus, we
proceed to the due-process component of Harris’s evidentiary claim.
As the OCCA pointed out, testimony from H.W., D.C., and S.G. was necessary to
provide a link to the identity of A.T.’s attacker and the evidence was confined by proper
instructions. Thus, the evidence was not grossly prejudicial. The district court found no
unreasonable application of federal law, and Harris offers no cogent argument as to the
debatability of that determination.
III. Prosecutorial Misconduct
On direct appeal, Harris claimed that during penalty-phase closing arguments, the
prosecutor “inappropriately appealed for a verdict and punishment based on sympathy”
by asking the jury to consider the rape’s ongoing effect on A.T. R., Vol. I at 218. The
OCCA reviewed Harris’s claim for plain error, given the lack of an objection, and it
found no error. Specifically, the OCCA framed the claim as whether Harris was denied a
fair and reliable sentencing, and then concluded he was not, because the prosecutor’s
comments were acceptable.
In the federal habeas proceedings, Harris repeated that claim and sought to add
that the prosecutor submitted evidence in the penalty phase that confused the issues and
did not support a crime. The district court first found that Harris’s new claims were
procedurally barred. Then, the district court found it was not unreasonable for the OCCA
to reject Harris’s sympathy argument, given that the prosecutor’s comments “spoke to a
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topic within the realm of common knowledge and did not render [Harris’s] trial
fundamentally unfair.” Id. at 396.
Harris has not demonstrated that a COA is warranted. In regard to the
prosecutor’s comment that the rape would continue to affect A.T., that comment neither
“infringe[s] o[n] a specific constitutional right,” Underwood v. Royal, 894 F.3d 1154,
1167 (10th Cir. 2018) (internal quotation marks omitted), nor rises to a level of
“egregious[ness] that . . . renders [Harris’s sentencing] fundamentally unfair” in violation
of due process, Cummings v. Evans, 161 F.3d 610, 618 (10th Cir. 1998). Indeed, it was
clear from A.T.’s own testimony, incorporated into the penalty phase from the guilt
phase, that the rape was continuing to affect her. See R., Vol. II at 395-96 (A.T.’s
testimony that she was “[o]ne hundred percent” confident in her identification of Harris
because “[t]here is a connection that doesn’t ever go away[,]” and “[i]t’s a bond you
don’t ever want to have with somebody”).
As for Harris’s misconduct claims that were not exhausted in the OCCA, the
district court aptly noted that the resulting procedural bar could be overcome only by a
showing of cause and prejudice or a fundamental miscarriage of justice. See Frost v.
Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014) (observing that an anticipatory procedural
bar arises against unexhausted claims “that would be procedurally barred under state law
if the petitioner returned to state court to exhaust [them],” and that a federal court may
consider such claims only “if the prisoner has alleged sufficient cause for failing to raise
the claim and resulting prejudice,” or “if denying review would result in a fundamental
miscarriage of justice because the petitioner has made a credible showing of actual
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innocence” (internal quotation marks omitted)). Although Harris sought to overcome the
bar by claiming that he received ineffective assistance of appellate counsel and that he is
innocent, the district court’s rejection of those grounds is not debatable.
First, in order for ineffective appellate assistance to overcome a procedural bar,
such a claim must itself be exhausted, see Edwards v. Carpenter, 529 U.S. 446, 453
(2000), and here, it was not. Second, Harris failed to make “a credible showing of actual
innocence,” Frost, 749 F.3d 1231-32, by relying on documents indicating: (1) he
possessed blue and red Jeeps, whereas A.T. described a green Jeep; and (2) he was
excluded as a DNA contributor in a sexual-assault case not involving any of the four
women who identified him in this case. These documents do not show actual innocence.
See id. at 1232 (stating that the petitioner’s “new evidence must be sufficient to show that
it is more likely than not that no reasonable juror would have convicted [him]” (internal
quotation marks omitted)). Specifically, the four women victims in this case similarly
described Harris’s Jeep as either red or green, and the prosecutor introduced evidence
connecting Harris to Jeeps of both colors. And most significantly, A.T. confidently
identified Harris as her attacker, both in the photo lineup and at trial, and the three other
victims bolstered A.T.’s identification.
IV. Ineffective Assistance of Trial Counsel
On direct appeal, Harris argued that trial counsel was ineffective by (1) not
objecting to prosecutorial misconduct and the admission of testimony from H.W., D.C.,
and S.G.; and (2) not arguing that the photo lineup was so “impermissibly suggestive” as
to require the exclusion of A.T’s pre-trial and in-court identifications of Harris as her
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attacker. R., Vol. I at 220-21. The OCCA rejected the first component of Harris’s
ineffectiveness claim on the ground that it had found no prosecutorial misconduct and no
error in the admission of testimony. As to the second component of ineffectiveness, the
OCCA again focused on the merits of the underlying claim. Specifically, it reviewed the
photo lineup and found it was not impermissibly suggestive because “[t]he men depicted
each have many of the characteristics fitting the description provided by A.T.” Id. at 40.
And even if it was impermissibly suggestive, the OCCA stated, the photo lineup did not
taint A.T.’s in-court identification, which the OCCA found “reliable under the totality of
the circumstances.” Id. Accordingly, the OCCA rejected Harris’s ineffective-assistance
claims, citing Strickland v. Washington, 466 U.S. 668, 687 (1984) (explaining that for a
claim of ineffective assistance to succeed, “the defendant must show that counsel’s
performance was deficient” and “that the deficient performance prejudiced the defense”).
In his federal habeas petition, Harris repeated these claims and attempted to
advance new claims concerning defense counsel’s investigation and presentation of
evidence. The district court confined its habeas review to the ineffective-assistance
claims presented to the OCCA. That decision is not debatable for the same reasons we
identified above regarding Harris’s attempt to advance unexhausted prosecutorial-
misconduct arguments.
Turning to Harris’s exhausted claims, the district court determined that the OCCA
did not unreasonably apply Strickland insofar as defense counsel failed to object to the
prosecutor’s penalty-phase statement and the admission of testimony from H.W., D.C.,
and S.G. This determination is not debatable. See Cannon v. Mullin, 383 F.3d 1152,
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1162 (10th Cir. 2004) (finding no deficient performance in defense counsel’s failure to
object when there was “no meritorious state-law objection available”).
As for defense counsel’s failure to challenge A.T.’s identifications of Harris, the
district court’s rejection of that claim is also not debatable. Specifically, the OCCA
concluded that the photo lineup was not impermissibly suggestive, given the shared
physical characteristics of the possible suspects.2 Harris has not demonstrated that the
OCCA’s conclusion resulted from an unreasonable application of federal law or an
unreasonable determination of the facts. Thus, without a basis for defense counsel to
object, it was not unreasonable for the OCCA to reject Harris’s ineffective-assistance
claim. Further, the OCCA determined that if the photo lineup was impermissibly
suggestive and required a defense objection, Harris suffered no prejudice because A.T.’s
in-court identification was independently reliable. In assessing that reliability, the OCCA
applied the factors from Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (identifying
factors to be considered when determining whether an in-court identification was tainted
by a pre-trial confrontation: “the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation”). Specifically, the OCCA referenced “A.T.’s
opportunity to observe her attacker, the degree of her attention, the accuracy of her prior
2
In analyzing this issue, the OCCA applied the correct Supreme Court precedent.
See Simmons v. United States, 390 U.S. 377, 383 (1968) (indicating that the suggestive
nature of a photo lineup “must be evaluated in light of the totality of surrounding
circumstances”).
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identification and her certainty.” R., Vol. I at 40. Harris has not demonstrated that the
OCCA either unreasonably applied Manson or unreasonably determined the facts
governing the reliability of A.T.’s in-court identification. Thus, it was not unreasonable
for the OCCA to conclude that Harris was not prejudiced by defense counsel’s failure to
contest A.T.’s in-court identification as tainted by the photo lineup. See Harrington v.
Richter, 562 U.S. 86, 111 (2011) (“In assessing prejudice under Strickland, the question
is not whether a court can be certain counsel’s performance had no effect on the outcome
or whether it is possible a reasonable doubt might have been established if counsel acted
differently,” but rather, “whether it is reasonably likely the result would have been
different.” (internal quotation marks and citations omitted)).
V. Sufficiency of the Evidence
In response to Harris’s claim that there was insufficient evidence to convict him,
the OCCA concluded that “any rational trier of fact could have found beyond a
reasonable doubt that Harris committed first degree rape based on the evidence
presented.” R., Vol. I at 41-42. The federal district court determined that Harris “ha[d]
failed to make the requisite showings under § 2254(d) to obtain habeas relief on this
claim.” Id. at 402.
Given the strength of the prosecution’s case against Harris, the district court’s
determination is not debatable. See Coleman v. Johnson, 566 U.S. 650, 651 (2012)
(explaining that insufficient-evidence claims “face a high bar in federal habeas
proceedings because they are subject to two layers of judicial deference[:]” (1) “A
reviewing [state] court may set aside the jury’s verdict on the ground of insufficient
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evidence only if no rational trier of fact could have agreed with the jury[;]” and (2) “a
federal [habeas] court may not overturn a state court decision rejecting a sufficiency of
the evidence challenge . . . [unless] the state court decision was objectively unreasonable”
(internal quotation marks omitted)).
CONCLUSION
We dismiss this appeal.
Entered for the Court
Allison H. Eid
Circuit Judge
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