West v. Bryant

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT February 7, 2019

Elisabeth A. Shumaker
Clerk of Court
GARRY RANDALL WEST,

Petitioner - Appellant,
No. 18-6059
v. (D.C. No. 5:16-CV-00931-C)
(W.D. Okla.)
JASON BRYANT,

Respondent - Appellee.

ORDER DENYING
CERTIFICATE OF APPEALABILITY *

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.

Petitioner Garry Randall West, an Oklahoma state prisoner proceeding pro se,1

seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal

of his habeas petition brought under 28 U.S.C. § 2254. The district court dismissed

Mr. West’s petition on the merits and declined to grant him a COA. We deny

Mr. West’s COA request and dismiss the appeal.

*
This order is not binding precedent except under the doctrines of law of the case,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. West is proceeding pro se, “we liberally construe his filings, but we
will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
 I. BACKGROUND

A. Factual History

In late 2011, a Stillwater, Oklahoma, police investigator searched an online

filesharing site looking for internet protocol (“IP”) addresses in the local area that might

be involved in downloading child pornography. The investigator connected a video

depicting sexually explicit conduct between a preadolescent male and an adult male with

an IP address associated with Mr. West’s residence in Perkins, Oklahoma.2 Because

Perkins was outside of the investigator’s jurisdiction, the investigator passed along the

information and assisted in writing a search warrant affidavit for Mr. West’s residence. In

January 2012, the investigator joined the Perkins police department to execute the search

warrant at Mr. West’s residence, where the police found several disassembled computers

and one laptop that appeared operable. Finding evidence that an additional computer had

been removed from the home, the officers decided to meet with Mr. West at his

workplace.

Four police officers—two uniformed, two plainclothes—arrived at Mr. West’s

workplace in three marked police vehicles. The two plainclothes officers entered the

building and the business’s co-owner, Paula Fitch, directed them to Mr. West. The

officers told Mr. West they were not going to arrest him at that time but were only

gathering information and looking for another computer.

2
While the investigator was unable to download the video directly from
Mr. West’s IP address, he was able to download the file from another user. The
investigator then matched the downloaded video with an identical file Mr. West was
sharing.
2
 The officers then asked Mr. West for identification, which Mr. West said was in

his truck in the parking lot. Mr. West and the two officers went to his truck, Mr. West

handed them his identification, and the officers returned it after copying the information

from his license. One of the officers then returned to the building and explained to

Ms. Fitch that the police were looking for a computer belonging to Mr. West that may

contain child pornography. Ms. Fitch told the officer Mr. West often brought a red laptop

to the office. When the officer requested Ms. Fitch’s consent to search the building, she

expressed concern about the disruption a search would cause.

The officer exited the building and returned to Mr. West, reiterating that Mr. West

was not under arrest but also stating that it was “time to be honest” and tell the officers

where the red laptop was. Preliminary Hearing Tr. (July 31, 2012) at 22–23. Mr. West

asked whether the officers had a search warrant; they admitted they did not. After

thinking for a few minutes, Mr. West told the officers his red laptop was in the business’s

server room. At no point did the officers advise Mr. West of his Miranda rights.3

Mr. West alleged that during this questioning, he was enclosed in a circle of

officers, his own vehicle, and patrol cars, making him feel like he could not leave. Ms.

Fitch corroborated these factual circumstances.

The officer returned to Ms. Fitch and told her the red laptop was in the server

room. She led the officer into the server room, where the officer saw a black bag with

3
See Miranda v. Arizona, 384 U.S. 436 (1966).

3
Mr. West’s red laptop sticking out.4 The officer seized the red laptop and an external hard

drive (which was also in the bag), along with Mr. West’s smartphone from his office. The

officer then told Mr. West he was free to leave.

The police subsequently obtained a warrant to search the contents of the red laptop

and the external hard drive, and an investigator identified over three hundred images and

videos of child pornography on the external hard drive. The police also found child

pornography on a separate laptop seized from Mr. West’s home as well as on various

floppy disks and hard drives from his home.

B. Procedural History

1. Mr. West’s Trial and Sentencing

Oklahoma indicted Mr. West on one count of aggravated possession of child

pornography (“Count One”), Okla. Stat. tit. 21, § 1040.12(A), and one count of unlawful

access to a computer to violate Oklahoma statutes, Okla. Stat. tit. 21, § 1958 (“Count

Two”). Mr. West moved to suppress the evidence from his red laptop and the external

hard drive as fruits of a warrantless search, arguing his statement about the location of the

red laptop should be suppressed along with all evidence obtained from the red laptop and

external hard drive. Mr. West also argued that prosecution under both counts of the

indictment constituted double jeopardy. The trial court denied his motions.

4
Although worried about the potential disruption of her business if the police
searched the entire building, Ms. Fitch testified she “wasn’t forced to do anything.”
Preliminary Hearing Tr. (July 31, 2012) at 80.
4
 After the preliminary hearing, Mr. West renewed his suppression motion, which

the district court again denied. Mr. West proceeded to a bench trial on July 29, 2013. The

court found Mr. West guilty on both counts and imposed concurrent sentences of

twenty-three years’ imprisonment for Count One and five years’ imprisonment for Count

Two.

2. Mr. West’s Direct Appeal

Mr. West appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), again

arguing for suppression of the evidence from his red laptop and hard drive. In addition,

he argued the two convictions violated state law prohibitions on double punishment and

the conviction was not for a crime that required him to serve eighty-five percent of his

sentence (“eighty-five percent crime”).5 The OCCA affirmed Mr. West’s convictions in

an unpublished opinion.

3. Mr. West’s State Post-Conviction Proceedings

Mr. West then filed an application for post-conviction relief in the state trial court,

raising thirteen propositions of error.6 The trial court denied relief, rejecting his

ineffective assistance of counsel claims on the merits because Mr. West failed to show

5
Under Oklahoma law, a defendant convicted of certain designated crimes must
serve at least eighty-five percent of the imposed sentence before he can be eligible for
parole or a sentence reduction based on earned credits. Okla. Stat. tit. 21, § 13.1.
6
These claims can be summarized as ineffective assistance of trial and appellate
counsel, a defective search warrant, lack of justification for a warrantless search,
violation of state prohibitions on double punishment, Miranda violations, fabrication of
evidence, the need for a defense expert, and that his convictions were not eighty-five
percent crimes.

5
prejudice, and dismissing his other claims as procedurally barred. Mr. West appealed the

denial of his post-conviction application, but the OCCA affirmed.

4. Mr. West’s § 2254 proceedings

Next, Mr. West filed a motion under § 2254 for habeas relief in the Western

District of Oklahoma, raising eight separate claims.7 A magistrate judge recommended

denying Mr. West’s petition. West v. Bryant, No. CIV-16-931-C, 2018 WL 1442976

(W.D. Okla. Feb. 28, 2018), report and recommendation adopted, No. CIV-16-931-C,

2018 WL 1440984 (W.D. Okla. Mar. 22, 2018). The magistrate judge determined “the

majority of [Mr. West]’s federal claims were either unexhausted and/or procedurally

barred.” Id. at *3. However, “in the interest of efficiency,” the magistrate judge addressed

each of the claims on the merits. Id. The district court adopted the report and

recommendation in its entirety over Mr. West’s objection and denied Mr. West § 2254

relief. West, 2018 WL 1440984, at *1. But the district court did not address whether to

grant Mr. West a COA. Id. Mr. West timely appealed and, after a limited remand, the

district court also denied Mr. West’s request for a COA. On May 11, 2018, Mr. West

filed an application for a COA with this court.

7
Mr. West’s claimed grounds for relief were (1) ineffective assistance of appellate
counsel; (2) ineffective assistance of trial counsel; (3) the evidence seized at his
workplace should have been suppressed as fruit of the poisonous tree; (4) the search
warrant in the original record had no relation to his residence; (5) a Miranda violation;
(6) a due process challenge to his conviction’s classification as an eighty-five percent
crime; (7) he was improperly convicted under the aggravated possession of child
pornography statute as it existed at the time of sentencing rather than at the time of the
alleged conduct; and (8) his convictions violated the Double Jeopardy Clause of the Fifth
Amendment.
6
 II. ANALYSIS

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) conditions a state

prisoner’s right to appeal a denial of habeas relief on the grant of a COA, which is

unavailable unless the applicant demonstrates a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(1)(A), (c)(2). Where, as here, a district court

has rejected the constitutional claims on the merits, “the petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. West does not

make the required showing, so we deny his request.

We address Mr. West’s arguments below in the same order as the district court:

(1) Fourth Amendment challenge to the search and seizure; (2) Miranda claim; (3)

applicability of the eighty-five percent rule; (4) challenge to the definition of child

pornography; (5) double jeopardy claim; and (6) ineffective assistance of counsel.8 In

reviewing these claims, we provide additional factual and procedural background as

necessary to perform the AEDPA analysis.

A. Grounds III and IV—Challenges to the Search and Seizure

In Ground III, Mr. West argues the red laptop and hard drive, seized during a

warrantless search of his workplace, should have been suppressed as fruits of an

unconstitutional search. He also argues, in Ground IV, that the search warrant

8
In addition to his application for a COA and accompanying brief, Mr. West filed
a second motion for a COA and a second opening brief. We construe his second motion
as a motion to supplement his initial application for a COA. We GRANT the motion to
supplement and consider both briefs together.
7
included in the original record was fatally defective because it listed an incorrect

address, date, and items to be seized. Mr. West raised these claims in his application

for post-conviction relief in the state court. See ROA at 286–303. The state trial court

concluded these issues were procedurally barred and did not consider them on the

merits. Id. at 42. But in the “interest of efficiency” the federal district court

“avoid[ed] deciding [the] procedural bar questions [because the] claims can be

readily dismissed on the merits.” West, 2018 WL 1442976, at *3.

Under Stone v. Powell, “where the State has provided an opportunity for full

and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” 428 U.S. 465, 494

(1976) (footnote omitted). This court has held that a state provides “full and fair

litigation” when:

trial counsel inform[s] the trial court of the factual basis for a Fourth
Amendment claim, appellate counsel present[s] the issue to the state
appellate court on direct appeal, and the state courts thoughtfully
consider[] the facts underlying petitioner’s Fourth Amendment claim
but reject[] it on the merits by applying appropriate Supreme Court
precedents.

Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009) (internal quotation

marks omitted).

The district court concluded that Mr. West’s Fourth Amendment challenges

were fully and fairly litigated in the state courts. West, 2018 WL 1442976, at *4–5.

Our review of the record confirms that conclusion. Mr. West’s trial attorneys made

8
an oral motion to suppress during the preliminary hearings and followed up with a

written motion. Later, Mr. West’s trial attorneys renewed the motion, and the state

trial court held a hearing on it. After the trial court denied the motion to suppress and

Mr. West was convicted at a bench trial, appellate counsel raised the suppression

claims to the OCCA. But the OCCA determined the trial court correctly denied the

motions. And in his pro se post-conviction application, Mr. West again asserted his

Fourth Amendment claims, which the state courts denied. Indeed, even Mr. West

acknowledges that “[t]he method employed . . . in . . . seizing computer equipment

and other items, all without a warrant or consent, was heavily litigated by written and

oral Motions to Suppress” and included an “extended hearing on the Suppression

Motion.” Accordingly, challenges to the search and seizure were fully and fairly

litigated during Mr. West’s trial, direct appeal, and post-conviction application.

Mr. West argues, however, that he did not receive “full and fair litigation” in

the state court proceedings because the OCCA never addressed his Fourth

Amendment challenge to the warrantless search of his workplace, instead

determining the search was consensual. But “[v]oluntary consent to search” is an

exception to the Fourth Amendment prohibition on warrantless searches, United

States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (quotation marks omitted), and

“[a] warrantless consent search is reasonable and thus consistent with the Fourth

Amendment irrespective of the availability of a warrant,” Fernandez v. California,

571 U.S. 292, 306 (2014). Accordingly, the state courts rejected Mr. West’s Fourth

Amendment claim on the merits “by applying appropriate Supreme Court

9
precedents.” Matthews, 577 F.3d at 1194 (internal quotation marks omitted). As a

result, the state courts were not required to address whether the officers had probable

cause to procure a warrant for Mr. West’s place of employment or whether exigent

circumstances justified the warrantless search. The state courts reasonably concluded

that Ms. Fitch’s consent to the search of the server room is an exception to the Fourth

Amendment warrant requirements.

Mr. West had a full and fair opportunity to litigate his claims. See Smallwood

v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (affirming denial of habeas relief

pursuant to Stone where petitioner moved to suppress evidence, objected at trial, and

raised the issue to the OCCA on direct appeal).9 Thus, reasonable jurists would not

find the district court’s determination that it was precluded from considering Mr.

West’s claims in Grounds III and IV under Stone debatable or wrong. See Slack, 529

U.S. at 484.

9
Mr. West also argues that he could not have received “full and fair litigation”
because the correct search warrant was not included in the original record on appeal. But
the record indicates otherwise. It is true that the original record included a search warrant
for an unrelated criminal investigation. But that error was corrected and Mr. West’s
attorneys had access to the correct search warrant, which was made part of the state court
record in response to Mr. West’s post-conviction application. Compare O.R. at 50
(Motion to Suppress Warrantless Search and Seizure of Defendant’s Laptop Computer)
(“The search warrant described a specific address of a single family residence in the city
of Perkins, Oklahoma and specific items to be searched for and seized including
computer equipment or any medium that would contain alleged images of child
pornography.”), with ROA at 478–81 (correct search warrant) (listing residence as an
address in Perkins and the items to be seized as computers and computer hardware that
may contain child pornography). Furthermore, the state trial court referred to the correct
warrant in its denial of Mr. West’s application for post-conviction relief.

10
 B. Ground V—Alleged Miranda Violation

In Ground V, Mr. West alleges the police officers never read him his Miranda

rights despite detaining and interrogating him outside his office. Mr. West raised this

argument in his state post-conviction application, but the state trial court mistakenly

determined the claim had been raised on direct appeal, and it therefore declined to

consider it. See West, 2018 WL 1442976, at *6. Because Oklahoma courts had not

addressed the claim on the merits, the district court properly exercised independent

review over the claim, Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir. 1999), presuming

any relevant “determination of a factual issue made by a State court . . . to be correct”

unless rebutted “by clear and convincing evidence,” 28 U.S.C. § 2254(e)(1).

The district court determined Mr. West’s statement that the red laptop was in the

server room did not implicate his Miranda rights. West, 2018 WL 1442976, at *7. “The

Miranda rule protects against violations of the Self-Incrimination Clause, which . . . is

not implicated by the introduction at trial of physical evidence resulting from voluntary

statements.” United States v. Patane, 542 U.S. 630, 634 (2004) (plurality opinion).

“[P]hysical evidence obtained as fruit of a voluntary statement by a defendant to a law-

enforcement officer is admissible at trial regardless of whether the officer gave the

defendant Miranda warnings.” United States v. Phillips, 468 F.3d 1264, 1265 (10th Cir.

2006).

“[T]he ultimate issue of voluntariness . . . is a question of law,” United States v.

McNeal, 862 F.3d 1057, 1061 (10th Cir. 2017), but the analysis involves “the totality of

all the surrounding circumstances—both the characteristics of the accused and the details

11
of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Accepting,

as it must, the state court’s findings of fact, the district court determined that Mr. West’s

statements about the laptop’s location were voluntary and uncoerced. The state court

found:

From the evidence it appears to this Court that at the time the statements in
question were made by [Mr. West] to the Stillwater Police Department
detective that [Mr. West] was not deprived of his freedom of action to the
degree associated with a formal arrest and that said statements were the
product of free and deliberate choice of [Mr. West]. Said statements were
given by [Mr. West] in a familiar or neutral location, i.e. the parking lot of
[Mr. West]’s place of employment in view of other persons besides law
enforcement officers; [Mr. West] at no time was placed in handcuffs or
placed on the ground or any other compromising posture; the police
followed or accompanied [Mr. West] from the building of his employer to
the parking lot without obvious control or restraint by the police as opposed
to being ordered by the police to accompany them; the police did not
forcibly enter the premises of [Mr. West]’s place of employment;
[Mr. West] was told by the police officer he was not under arrest and would
not be arrested that day; [Mr. West] was not subjected to physical abuse or
intimidation by the police; and [Mr. West] is 52 years old, and appears to
possess at a minimum a reasonable level of intelligence.

O.R. at 96–97. Mr. West adduces some evidence to challenge the conclusion that his

statement was voluntary,10 but this evidence falls outside the state trial court’s factual

findings, and Mr. West has not shown by clear and convincing evidence that those

10
Specifically, Mr. West points to Ms. Fitch’s testimony that he was between two
cars and there was an officer on either side of the exit. However, this evidence cannot
overcome the presumption in favor of the state court’s finding that he “was not deprived
of his freedom of action to the degree associated with a formal arrest and that said
statements were the product of free and deliberate choice.” See O.R. 96–97; see also
Stansbury v. California, 511 U.S. 318, 322 (1994) (“[A] court must examine all of the
circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether
there was a formal arrest or restraining on freedom of movement of the degree associated
with a formal arrest.” (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)
(quotation marks omitted)).
12
findings were incorrect. See Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (“[A]ny

state-court findings of fact that bear upon the claim are entitled to a presumption of

correctness rebuttable only by clear and convincing evidence.” (quotation marks

omitted)). Thus, reasonable jurists would not find the district court’s conclusion that Mr.

West’s statement to the police was voluntary, and therefore did not implicate Miranda,

debatable or wrong.

C. Ground VI—Challenge to the Eighty-Five Percent Rule

Mr. West argues that aggravated child pornography was not an enumerated

felony to which the eighty-five percent rule applied until 2015—several years after

he committed the crime. Thus, he contends it is an ex post facto law that has

increased his sentence by denying him earned time credits in violation of the Fifth

and Fourteenth Amendments to the federal Constitution. Although Mr. West objected

to the classification of his crime of conviction as an eighty-five percent crime in the

state court, he did not couch the argument in federal constitutional terms. As a result,

the OCCA ruled only on the state law question of whether the crime of conviction

qualified as an eighty-five percent crime, holding that it did. Thus, the district court

was free to independently consider Mr. West’s federal constitutional claim. Littlejohn

v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013). And we can grant a COA on that

claim only if the district court’s decision is fairly debatable. Slack, 529 U.S. at 484.

Oklahoma law provides a person convicted of a felony enumerated in

Oklahoma Statute title 21, § 13.1 “shall not be eligible for parole consideration prior

to serving eighty-five percent (85%) of the sentence imposed.” Okla. Stat. tit. 21,

13
§ 12.1. The statute also prevents inmates convicted of the enumerated offenses from

being “eligible for earned credits or any other type of credits which have the effect of

reducing the length of the sentence to less than eighty-five percent (85%) of the

sentence imposed.” Id. Mr. West argues that aggravated child pornography was not

an enumerated felony to which the eighty-five percent rule applied until 2015—

several years after he committed the crime.

Mr. West argued in the district court that because aggravated child

pornography was not enumerated in the statute when he was convicted, it is an ex

post facto law that has unconstitutionally increased his sentence by denying him

earned time credits. The district court rejected his argument, reasoning that

“application of the 85% Rule . . . does not extend the duration of incarceration

beyond the term of years initially imposed[.] [I]t merely postpones the date on which

an inmate is initially eligible to be considered for parole.” West, 2018 WL 1442976,

at *7. Reasoning that Mr. West “lacks any federal due process rights in the parole

process,” the district court concluded he also lacked a liberty interest protected by the

federal Due Process Clause. Id. As we now explain, the district court’s decision is not

fairly debatable.

To establish a due process violation, Mr. West “must first demonstrate that he

has been deprived of a constitutionally-protected liberty or property interest.”

Boutwell v. Keating, 399 F.3d 1203, 1211 (10th Cir. 2005). As a general matter, there

is no federal constitutional right to parole. Greenholtz v. Inmates of Neb. Penal and

Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of

14
a convicted person to be conditionally released before the expiration of a valid

sentence.”). Moreover, this court has repeatedly held that where a state’s “parole

scheme is discretionary, [a prisoner] has no constitutionally protected due process

liberty interest in parole.” Griffith v. Bryant, 625 F. App’x 914, 917 (10th Cir. 2015)

(unpublished); see Boutwell, 399 F.3d at 1213–15; Shirley v. Chestnut, 603 F.2d 805,

807 (10th Cir. 1979). Because the eighty-five percent rule does not implicate a

constitutionally protected interest, Mr. West cannot successfully allege a due process

violation based on its application to his sentence. Therefore, the district court’s

rejection of Mr. West’s due process challenge was neither debatable nor wrong.

D. Ground VII—Challenge to the Definition of Child Pornography

Mr. West next asserts an ex post facto challenge, observing that after he

committed the crime but before his conviction, Oklahoma modified the definition of

“child pornography” to provide that “[e]ach visual depiction or individual image

shall constitute a separate item and multiple copies of the same identical material

shall be counted as a separate item.” Okla. Stat. tit. 21, § 1024.1(A) (eff. Nov. 1,

2012). Mr. West did not raise this claim on direct appeal or post-conviction in the

state court, but the district court exercised its discretion to avoid the procedural bar

issue and to instead dismiss the claim on the merits. See Brown, 515 F.3d at 1092–93.

Mr. West does not elaborate on his argument beyond a mere assertion that the

definition was misapplied, thereby somehow depriving the state court of jurisdiction

to enter sentence. Construing his argument liberally, James v. Wadas, 724 F.3d 1312,

1315 (10th Cir. 2013), the district court interpreted Mr. West’s argument as: prior to

15
inclusion of this definition, all the images on his single external hard drive would

have been lumped together as one “material,” and thus would not have constituted

“aggravated” possession of child pornography under § 1040.12a. West, 2018 WL

1442976, at *8. The district court rejected this argument, reasoning that the same

definition of child pornography “is used throughout multiple statutes,” including the

criminal statute operative at the time he committed the crime. Id.

Mr. West is correct that the specific language he highlights was added to

§ 1024.1(a) after he committed the crime of conviction. Nonetheless, his argument

fails because the aggravated possession of child pornography statute already included

similar language. See Okla. Stat. tit. 21 § 1040.12a (2011) (describing the offense as

the “possess[ion of] one hundred (100) or more separate materials depicting child

pornography” and defining “material” as “all digital and computerized images and

depictions”). And that language had been interpreted consistent with the subsequent

amendment. See Hamilton v. State, 387 P.3d 903, 906 (Okla. Crim. App. 2016)

(rejecting appellant’s claim that “multiple obscene images on a single computer hard

drive should be considered a single item of contraband,” because Oklahoma Statute

title 21, § 1040.12a “punishes the possession of 100 or more ‘separate materials’”

and “[t]he Legislature clearly intended that each visual image of child pornography

should constitute a separate ‘material’ for purposes of [Okla. Stat. tit. 21,

§ 1040.12a].”). Because the prevailing definition under Oklahoma’s aggravated

possession of child pornography statute at the time Mr. West committed the crime

defined each image as a “separate material,” the district court’s rejection of Mr.

16
West’s ex post facto challenge to Oklahoma’s statutory definition of child

pornography was neither debatable nor wrong.

E. Ground VIII—Alleged Double Jeopardy Clause Violation

The state court convicted Mr. West of two felonies: (1) aggravated possession

of child pornography and (2) unlawful use of a computer network to violate an

Oklahoma statute, in this case the possession of child pornography. Mr. West

contends both offenses punish the same action and so his convictions violate the

Double Jeopardy Clause of the Fifth Amendment. See Benton v. Maryland, 395 U.S.

784, 787 (1969) (holding “the Double Jeopardy Clause of the Fifth Amendment is

applicable to the States through the Fourteenth Amendment”).

On direct appeal in state court, Mr. West raised only a state law claim,

challenging the two convictions as double punishment in violation of Oklahoma law.

Consequently, the OCCA ruled only on the state law issue. Mr. West raised his

federal double jeopardy argument for the first time in state post-conviction

proceedings, and the state courts rejected the argument as procedurally barred.11

The district court rejected Mr. West’s constitutional claim, exercising its

discretion to consider the issue on the merits. See Slack, 529 U.S. at 485 (holding that

where the claim was dismissed on procedural grounds without reaching the merits, the

11
Mr. West raised this argument in his state post-conviction petition as part of
“Ground VIII” for relief. ROA at 28–29. The state trial court rejected this argument as
procedurally barred, mistakenly concluding it was “addressed by the direct appeal and
summary opinion and res judicata bars Petitioner from further relief.” Id. at 42. The
OCCA affirmed. Id. at 45–46.
17
court of appeals may dispose of it on the merits or procedural bar, depending on which

“answer is more apparent from the record and arguments”). The district court evaluated

the double jeopardy claim under Blockburger v. United States. West, 2018 WL

1442976, at *9. In Blockburger, the Supreme Court held “where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.” 284 U.S. 299, 304

(1932). And since Blockburger, the Supreme Court has expressly rejected the

argument that criminal prosecution for multiple felonies stemming from the same

single act violates the Double Jeopardy Clause if the offenses have distinct elements.

United States v. Dixon, 509 U.S. 688, 704 (1993).

Aggravated possession of child pornography requires the state to prove the

defendant: (1) knowingly, (2) possessed, (3) one hundred or more separate images of

(4) child pornography. Okla. Stat. tit. 21, § 1040.12a. In comparison, unlawful access

to a computer to violate an Oklahoma statute requires the state to prove the

defendant: (1) communicated with or retrieved data from, (2) a computer system or

network, (3) for the purpose of using the access to violate an Oklahoma statute. Okla.

Stat. tit. 21, § 1958.

As illustrated above, Mr. West’s two offenses contain different elements.

Where the convictions required proof of different facts, Blockburger dictates that no

double jeopardy violation occurred. 284 U.S. at 304. Thus, the district court’s

18
conclusion rejecting Mr. West’s double jeopardy claim was neither debatable nor

wrong.

F. Grounds I & II—Ineffective Assistance of Trial Counsel and Appellate
Counsel

Mr. West claims he received ineffective assistance of trial and appellate counsel.

With respect to ineffective assistance of trial counsel, the state trial court concluded these

claims “could or should have been raised on direct appeal and Petitioner has therefore

waived consideration of those issues as grounds for relief through the Post-Conviction

process.” The OCCA affirmed that ruling. The federal district court agreed that “the

majority of Petitioner’s federal claims are either unexhausted and/or potentially

procedurally barred,” but it considered and rejected each of these claims on the merits.

West, 2018 WL 1442976, at *3.

As to the claims of ineffective assistance of appellate counsel, the state trial court

considered each ground asserted and rejected it on the merits. The OCCA affirmed,

concluding, “Petitioner has not established that any of the alleged errors for which he

claims his appellate counsel was ineffective would provide a reasonable probability that

the result of his appeal would have been different.”

Applying the framework of Strickland v. Washington, 466 U.S. 668 (1984), the

district court found the OCCA had reasonably denied all of Mr. Strickland’s ineffective

assistance claims. West, 2018 WL 1442976, at *10. The first prong of Strickland

mandates that the defendant “must show that counsel’s performance was deficient”; the

second prong requires the defendant to show “that the deficient performance prejudiced

19
the defense” by “depriv[ing] the defendant of a fair trial.” 466 U.S. at 687. Counsel’s

performance is “deficient” if it is “outside the wide range of professionally competent

assistance.” Id. at 690. “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Id. As we now explain, based on this standard, no reasonable jurist would

find the district court’s conclusion debatable or wrong. See Slack, 529 U.S. at 484.

1. Ineffective Assistance of Trial Counsel

a. Failure to adequately examine the original record

In Ground II(1)(a), Mr. West argues that his trial counsel was ineffective because

counsel did not adequately examine the original record for errors—in particular, the

absence of the search warrant authorizing a search of Mr. West’s residence. As the

district court observed, however, trial counsel had access to the correct search warrant

and referred to it in his submissions to the state trial court. See West, 2018 WL 1442976,

at *10; O.R. at 50 (Motion to Suppress Warrantless Search and Seizure of Defendant’s

Laptop Computer); see also supra note 9. Although the original record did not include

the correct search warrant, the warrant existed and was promptly provided by the State

when notified of the error. Accordingly, no prejudice could have arisen from counsel’s

failure to identify this error in the original record sooner, and no reasonable jurist would

find the district court’s denial of this claim debatable or wrong.

b. Failure to adequately investigate surrounding circumstances

In Ground II(1)(b), Mr. West asserts that trial counsel failed to adequately:

(i) investigate other individuals who lived at Mr. West’s residence and had access to his

20
computer equipment and internet; (ii) prepare for preliminary hearings; (iii) review the

search warrant; (iv) ascertain whether Mr. West was given a Miranda warning; and

(v) ascertain whether a search warrant was actually issued for Mr. West’s residence. But

Mr. West has not explained how any of the above alleged inadequacies have prejudiced

him. Furthermore, as discussed above, the correct warrant was produced, and trial

counsel did argue (albeit unsuccessfully) that Mr. West was not given a Miranda

warning. Therefore, no reasonable jurist would dispute the district court’s denial of this

ineffective assistance of counsel claim

c. Failure to secure an expert witness and sufficiently examine State’s expert

In Grounds II(1)(c) and (e), Mr. West argues that his trial attorneys provided

ineffective assistance by not calling an expert witness to refute the State’s expert witness

and for not sufficiently examining the State’s forensic expert regarding the methods used

to search Mr. West’s computer.

Mr. West argues that the State’s expert witness testimony regarding how the child

pornography was discovered and linked to Mr. West was “so technical that all attorneys

and even the Trial Court itself were somewhat ‘at sea.’” ROA at 10. Because of the

expert’s purportedly nebulous explanation, Mr. West asserts his counsel should have

cross-examined the expert or, in the alternative, called an expert witness for the defense.

But Mr. West does not explain how cross-examination of the State’s expert would have

affected the outcome of trial or what his own expert would have testified. See Strickland,

466 U.S. at 687 (requiring a showing “that [counsel’s] deficient performance prejudiced

the defense”).

21
 Absent any theory of how Mr. West was prejudiced, no reasonable jurist could

dispute the district court’s denial of this ineffective assistance of counsel claim. See

James, 724 F.3d at 1315 (holding we will not act as the appellant’s advocate).

d. Failure to properly communicate with Mr. West

Mr. West claims in Ground II(1)(d) that his counsel did not properly communicate

with him because they failed to: (i) request in-depth consultation with him to ascertain

specific facts; (ii) relay that they were unknowledgeable about the technical facts in the

case and were unable to adequately communicate with him regarding those technical

facts; (iii) acknowledge correspondence sent from Mr. West in jail; (iv) discuss trial

strategy with him; and, (v) prepare him to testify for hearings and trial.

Despite accusing his attorneys of these inadequacies, Mr. West again omits any

argument as to how this prejudiced him at trial. Without any showing of prejudice, no

reasonable jurist could dispute the district court’s finding that the OCCA reasonably

denied Mr. West’s ineffective assistance claims based on failure of trial counsel to

communicate.

e. Failure to argue that Mr. West was being charged under a statute
inapplicable to the crimes he was charged with

In Ground II(1)(f), Mr. West alleges his counsel failed to argue that his crime did

not fit the statutory requirement of Oklahoma Statute title 21, § 1040.12a requiring

possession of over 100 materials of child pornography. For the reasons explained above,

Mr. West was properly charged and convicted under this statute. See supra Section II.C.

Therefore, if Mr. West’s counsel objected to the charges, his objection would have been

22
meritless. Counsel is not ineffective for failing to raise a meritless objection. Sperry v.

McKune, 445 F.3d 1268, 1275 (10th Cir. 2006).

Thus, the district court’s conclusion that the Oklahoma courts reasonably denied

Mr. West’s ineffective assistance of trial counsel claims is not debatable or wrong.

2. Ineffective Assistance of Appellate Counsel

Mr. West argues his appellate counsel was ineffective for failing to raise an

ineffective assistance of trial counsel claim related to the claims discussed in Section

II.F.1 and for failing to: (1) adequately challenge the warrantless search of Mr. West’s

workplace; (2) adequately argue the double jeopardy violations; (3) argue that Mr. West’s

statements should have been suppressed; and (4) argue on direct appeal that trial counsel

was ineffective for failing to immediately appeal the trial court’s suppression decision.

As discussed, Mr. West has not shown any constitutional violations resulting from

ineffective assistance of trial counsel. See supra Section II.F.1. Thus, Mr. West cannot

show prejudice from his appellate counsel’s failure to argue ineffective assistance of trial

counsel. See Smith v. Robbins, 528 U.S. 259, 289 (2000) (holding that defendant “must

satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective

assistance of appellate counsel”). We now consider the claims unique to appellate

counsel.

Regarding Mr. West’s first and second challenges, appellate counsel did make

arguments based on the warrantless search and alleged double jeopardy. See ROA at

150–57. Mr. West does not explain how his counsel’s performance fell short of the

Strickland standard, but instead, only restates the facts that occurred on the date of the

23
seizure of his red laptop. We give deference to the OCCA’s merits ruling affirming the

trial court’s denial of post-conviction relief, see Smith v. Duckworth, 824 F.3d 1233, 1242

n.6 (10th Cir. 2016) (“[B]ecause the OCCA considered the merits of [the underlying]

claim in considering whether ineffective assistance excused his procedural default, we

must apply AEDPA deference to the OCCA’s evaluation of that [underlying] claim.”),

and Mr. West has not shown the OCCA unreasonably applied federal law in rejecting his

post-conviction application. Thus, the district court’s rejection of these arguments is not

debatable or wrong.

Mr. West’s next challenge is that appellate counsel should have argued for

suppression of Mr. West’s statements about the red laptop’s location because Mr. West

was under an interrogative atmosphere and received no Miranda warning. Mr. West

cannot show prejudice from appellate counsel’s failure to raise this argument because, as

the district court concluded based on the OCCA’s factual findings, Mr. West’s statements

were voluntary. See supra Section II.B. Moreover, regardless of whether he was entitled

to a Miranda warning, the physical evidence police found based on Mr. West’s

statements did not merit suppression. Id.

Mr. West’s last challenge is that appellate counsel performed ineffectively by not

immediately appealing the trial court’s suppression decision. Because Mr. West’s

appellate counsel had not yet been appointed at that stage of the proceedings, we

construe his argument as faulting trial counsel for not immediately appealing. In any

event, his argument fails because an “order overruling [a] motion to suppress . . . [is] not

a final order in the case and hence not appealable.” Hughes v. State, 172 P.2d 435, 438

24
(Okla. Crim. App. 1946); see also Di Bella v. United States, 369 U.S. 121, 131 (1962)

(“Orders granting or denying suppression . . . are truly interlocutory, for the criminal trial

is then fairly in train.”). Because counsel could not have immediately appealed the

adverse suppression decision, counsel could not have been ineffective for failing to do so,

nor could appellate counsel be ineffective for failing to argue trial counsel should have

done so. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (“[I]f the issue is

meritless, its omission will not constitute deficient performance.”).

In sum, Mr. West has failed to plausibly allege that his counsels’ performance was

deficient or prejudicial at either the trial or appellate stage. Accordingly, the district

court’s conclusion that the OCCA reasonably found no ineffective assistance of counsel

is neither debatable nor wrong.

III. CONCLUSION

Mr. West has not demonstrated that the district court's assessment of any of his

constitutional claims is debatable or wrong. See Slack, 529 U.S. at 484. Therefore, we

DENY his request for a COA and DISMISS this appeal.12

12
Mr. West has also filed a motion requesting this court “declare the Oklahoma
Aggravated Pornography Statute, Procedure, Conviction and Sentence . . .
Unconstitutional” because it violates the First Amendment and the Double Jeopardy
Clause of the Fifth Amendment and arguing he was denied his constitutional right to a
trial by jury. Mr. West also filed a motion “to review and grant relief on . . . grounds for
relief non-exhausted [sic],” “to declare exhaustion futile,” and “to grant plain error
review and relief.” He is not entitled to a COA on these issues. At no point prior to these
proceedings has Mr. West raised any of these arguments. As such, they are unexhausted
in state court and furthermore we generally “do not address arguments presented for the
first time on appeal.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012). “A
district court cannot be debatably wrong on issues that are not fairly presented to or

25
 Entered for the Court

Carolyn B. McHugh
Circuit Judge

decided by it.” United States v. Clifton, 728 F. App’x 880, 882 (10th Cir. 2018)
(unpublished) (citation and quotation marks omitted). We therefore DENY these motions.
Mr. West has also filed a motion to submit transcript excerpts. Because
Respondent Jason Bryant has filed the complete transcripts along with the original state
court record, we DENY Mr. West’s motion as moot.
Finally, Mr. West has filed a motion to proceed in forma pauperis. “An appeal
may not be taken in forma pauperis if the trial court certifies in writing that it is not taken
in good faith.” 28 U.S.C. § 1915(a)(3). Although the trial court so certified in this case,
Mr. West “may nonetheless move this court for leave to proceed on appeal in forma
pauperis pursuant to the mechanism set forth in” Federal Rule of Appellate Procedure
24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007).
As in the district court, “to succeed on his motion, an appellant must show a financial
inability to pay the required filing fees and the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). After careful consideration of Mr. West’s
application, we agree with the district court that he has not shown the existence of such a
reasoned, nonfrivolous argument. His motion for leave to proceed in forma pauperis is
accordingly DENIED.

26