Alston v. Harvanek ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
January 18, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MARSHALL DEAN ALSTON,
Petitioner - Appellant,
No. 17-6104
v.
(D.C. No. 5:16-CV-00534-D)
(W.D. Okla.)
KAMERON HARVANEK, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Proceeding pro se, Marshall Dean Alston seeks a certificate of appealability
(“COA”) from this court so he can appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Alston’s request to proceed in forma pauperis in
this matter is granted.
Alston filed a § 2254 petition challenging two Oklahoma state convictions:
No. CF-2014-22, a conviction for unlawful possession of a controlled dangerous
substance with intent to distribute; and No. CD-2014-21, a conviction for
unlawful distribution of a controlled dangerous substance. Both convictions
resulted from guilty pleas. In response to Respondent’s motion to dismiss, the
matter was referred to a magistrate judge who addressed the timeliness of the
habeas petition in a Supplemental Report and Recommendation. The district
court adopted the Supplemental Report and Recommendation, granting
Respondent’s motion in part and denying it in part. As to Alston’s challenge to
his conviction in case No. CF-2014-21, the district court concluded his federal
habeas claims were time barred. Specifically, Alston’s conviction became final
on September 19, 2014. The one-year limitations period set out in 28 U.S.C.
§ 2244(d)(1)(A) expired on September 21, 2015, but Alston’s § 2254 petition was
not filed until May 23, 2016. The district court rejected Alston’s argument that
the one-year limitations period was tolled because he sought relief from
conviction No. CF-2014-21 in a state post-conviction application he filed on July
17, 2015. 1 The district court concluded that resolution of the issue was controlled
by the decision of the Oklahoma Court of Criminal Appeals (“OCCA”) which
ruled that Alston’s July 2015 state post-conviction application did not contain a
challenge to his conviction in case No. CF-2014-21. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”). After considering
and rejecting the arguments Alston presented in his objections to the
1
A second state post-conviction application that Alston filed after the one-
year limitations period had already expired did not toll the limitations period.
Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
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Supplemental Report and Recommendation, the district court dismissed Alston’s
§ 2254 challenge to his conviction in case No. CF-2014-21 as untimely. As to
Alston’s challenge to his conviction in case No. CF-2014-22, the district court
concluded Alston’s § 2254 habeas petition was timely filed and ordered
Respondent to respond to Alston’s amended habeas petition.
After Respondent filed its brief, the magistrate judge prepared a Second
Supplemental Report and Recommendation addressing the bases on which Alston
sought habeas relief with respect to his conviction in case No. CF-2014-22.
After reviewing the Second Supplemental Report and Recommendation and
considering Alston’s written objections, the district court adopted the
recommended ruling and denied Alston’s § 2254 petition. As to Alston’s claims
that (1) the OCCA erred by failing to permit him to file a direct appeal out of
time, (2) his double jeopardy rights under the Oklahoma Constitution and
Oklahoma law were violated, and (3) he was denied a right under Oklahoma law
to a preliminary hearing, the district court concluded the claims were not
cognizable in a § 2254 proceeding because they only implicated errors of state
law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010). The district court addressed
Alston’s claims of ineffective assistance of counsel by applying the standard set
forth in the Antiterrorism and Effective Death Penalty Act. The court concluded
Alston failed to demonstrate the OCCA’s adjudication of his Sixth Amendment
claims was contrary to, or an unreasonable application of, clearly established
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federal law, or resulted in a decision based on an unreasonable determination of
the facts in light of the evidence. 28 U.S.C. § 2254(d). As to Alston’s double
jeopardy claim arising under the United States Constitution, the district court
concluded the claim was procedurally defaulted in Oklahoma state court on an
independent and adequate state procedural ground. See Hickman v. Spears, 160
F.3d 1269, 1271 (10th Cir. 1998) (“A state procedural ground is independent if it
relies on state law, rather than federal law, as the basis for the decision.”
(quotation omitted”)); see also Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.
2008) (“[T]his court has found Oklahoma’s bar of claims not raised on direct
appeal to be independent and adequate.”). The district court refused to address
the claim because Alston failed to show cause for the default and actual prejudice,
or demonstrate that the failure to review the claim would result in a fundamental
miscarriage of justice. See Coleman v. Thompson, 501 U.S. 772, 750 (1991);
English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998).
As to the claims addressed on the merits by the district court, this court
cannot grant Alston a COA unless he can “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quotation omitted). As
to the claims dismissed as untimely, Alston is not entitled to a COA unless he
shows both “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason
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would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Alston is not required to
demonstrate that his appeal will succeed to be entitled to a COA. He must,
however, “prove something more than the absence of frivolity or the existence of
mere good faith.” Miller-El, 537 U.S. at 338 (quotations omitted).
This court has reviewed Alston’s application for a COA and appellate brief,
the Supplemental Report and Recommendation, the Second Supplemental Report
and Recommendation, the district court’s orders, and the entire record on appeal
pursuant to the framework set out by the Supreme Court and concludes Alston is
not entitled to a COA. The district court’s resolution of Alston’s claims is not
debatable. Because Alston has not “made a substantial showing of the denial of a
constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This
court denies Alston’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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