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

                             FOR THE TENTH CIRCUIT                                May 1, 2018
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
GLEN HUGHIE LOVIN, JR.,

      Petitioner - Appellant,

v.                                                            No. 17-7064
                                                 (D.C. No. 6:14-CV-00384-RAW-KEW)
JOE M. ALLBAUGH,                                              (E.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

       Glen Hughie Lovin, Jr. was convicted by an Oklahoma jury of endeavoring to

manufacture methamphetamine after two or more felony convictions. In accordance with

the jury’s recommendation, the trial court imposed a sentence of life in prison with the

possibility of parole. On direct appeal to the Oklahoma Court of Criminal Appeals

(OCCA), Mr. Lovin asserted four errors: (1) insufficient evidence to support the

conviction; (2) the prosecution’s use of a video to demonstrate how methamphetamine

can be made in a single vessel; (3) improper disclosure to the jury of certain details of his

criminal history during the sentencing phase of the trial; and (4) an excessive sentence.

The OCCA considered the merits of these claims and denied them.

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       Next, Mr. Lovin filed a motion for post-conviction relief in the trial court asserting

three errors: (1) violation of due process because the magistrate judge who conducted the

preliminary hearing also conducted the trial; (2) ineffective assistance of trial counsel in

failing to inform him that he could object to the magistrate judge also presiding at trial;

and (3) ineffective assistance of appellate counsel for failing to raise the due process

violation and ineffective assistance of trial counsel claims on appeal. The court denied

the motion. On appeal, the OCCA affirmed the denial of post-conviction relief.

       Mr. Lovin then filed a pro se federal habeas application under 28 U.S.C. § 2254 in

the United States District Court for the Eastern District of Oklahoma asserting the seven

claims noted above. The court denied the claims on the merits and also denied

Mr. Lovin’s request for a COA. Mr. Lovin now seeks a COA to appeal the denial of his

habeas application.1 We deny his application for a COA and dismiss this matter.

                               STANDARD OF REVIEW

       Mr. Lovin must obtain a COA before he can appeal the district court’s denial of

his § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (requiring a state prisoner appealing

denial of § 2254 application to obtain a COA). We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2). Where, as here, the district court rejected Mr. Lovin’s constitutional claims

on the merits, we will issue a COA only if he shows “that reasonable jurists would find



       1
        We issued an order to show cause why the appeal should not be dismissed as
untimely. Mr. Lovin’s response demonstrates that the notice of appeal was timely filed
under the prison mailbox rule. See Fed. R. App. P. 4(c)(1)(A)(ii).
                                              2
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

       We do not consider the merits of Mr. Lovin’s claims de novo; instead, our review

is limited to “an overview of the claims in the habeas petition and a general assessment of

their merits.” Miller El v. Cockrell, 537 U.S. 322, 336 (2003). And because Mr. Lovin’s

claims were adjudicated on the merits in state court, we incorporate into our COA

analysis the deference for state court decisions demanded by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). See Davis v. McCollum, 798 F.3d 1317,

1319 (10th Cir. 2015) (where a state court has ruled on the merits of the claims, we

incorporate AEDPA’s deferential treatment of state court decisions into our consideration

of a habeas petitioner’s request for COA (alterations and internal quotation marks

omitted)). Under AEDPA, a federal court may grant habeas relief only if the state court’s

merits decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

§ 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).

       In sum, we make a general assessment of the merits of Mr. Lovin’s claims to

determine whether reasonable jurists could debate the district court’s conclusion that the

state court’s decision was “unreasonable, either as a determination of fact or as an

application of clearly established federal law.” Dockins v. Hines, 374 F.3d 935, 940

(10th Cir. 2004). Stated otherwise, “[w]e look to the District Court’s application of



                                             3
AEDPA to [Mr. Lovin’s] constitutional claims and ask whether that resolution was

debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336 (emphasis added).2

                                          ANALYSIS

Sufficiency of the Evidence

       According to Mr. Lovin, the state failed to present sufficient evidence to prove

beyond a reasonable doubt that he was guilty of the crime of endeavoring to manufacture

methamphetamine. In particular, Mr. Lovin argued on direct appeal that the trial court

erred when it allowed the prosecution to introduce evidence of his recent purchase of

items commonly used to manufacture methamphetamine and his admission to

investigators that he used those items to manufacture methamphetamine shortly after he

bought them. Without this evidence, Mr. Lovin argued the remaining evidence was

insufficient to support the conviction.

       Using the standard announced in Jackson v. Virginia, 443 U.S. 307, 319 (1979),

the OCCA determined the evidence was constitutionally sufficient to sustain the

conviction. See R., Vol. 1 at 121 (“This Court addresses a challenge to the sufficiency of

the evidence by viewing the evidence in the light most favorable to the State, accepting

all inferences that support the verdict, and asking whether any rational trier of fact could


       2
         In his Combined Opening Brief and Application for a Certificate of
Appealabililty, Mr. Lovin raises an eighth claim for relief—a miscarriage of justice
arising from the alleged perjured testimony of a prosecution witness. Because he did not
raise this claim in his habeas application in the district court, the claim is waived.
See Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999) (refusing to consider an issue
not raised in the district court habeas proceeding “[b]ecause we will generally not
consider issues raised on appeal that were not first presented to the district court.”)

                                              4
have found guilt beyond a reasonable doubt.”). The district court concluded the OCCA’s

merits decision was not contrary to clearly established federal law, nor was it based on an

unreasonable determination of the facts in light of the evidence presented at trial.

       For the first time in this court, Mr. Lovin advances a new argument why the

evidence is insufficient to support the conviction. Specifically, he argues there was no

evidence of the fourth element of the crime3—the manufacture of methamphetamine—

because “there was NO methamphetamine found at the scene, on the coffee bean grinder,

the one . . . glass vase, the one . . . glass jar, and of the numerous coffee filter nor on [his

person].” Aplt. Combined Opening Br. at 4a. But we will not consider this argument

because Mr. Lovin failed to raise it in the district court. See Rhine v. Boone, 182 F.3d

1153, 1154 (10th Cir. 1999) (refusing to consider an issue not raised in the district court

habeas proceeding “[b]ecause we will generally not consider issues raised on appeal that

were not first presented to the district court”).

The Video on Manufacturing Methamphetamine

       Next, Mr. Lovin maintains the trial court abused its discretion when it overruled

his objection to the prosecution’s use of a video to demonstrate how methamphetamine

can be made in a single vessel, otherwise known as the “single pot” method of

manufacture. In particular, he argued the video was prejudicial and irrelevant. The

OCCA rejected this claim because it found the video demonstration helped the jury


       3
        The elements of endeavoring to manufacture methamphetamine are:
(1) knowingly; (2) endeavoring; (3) to manufacture; and (4) the controlled dangerous
substance of methamphetamine. See R., Vol. 1 at 121.

                                                5
understand how the items could be used to make methamphetamine, which in turned

helped demonstrate the element of intent, see R., Vol. 1 at 123-24, citing Harris v. State,

13 P.3d 489, 495-96 (Okla. Crim. App. 2000). Harris holds that the probative value of a

video depicting the state’s theory of the case and making testimony easier to understand

was not substantially outweighed by the danger of unfair prejudice. In other words, the

OCCA determined that the video demonstration was proper under Oklahoma law.

       On habeas review, we have no authority to review a state court interpretation or

application of its own law. 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.”); see also Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012)

(“Federal habeas review is not available to correct state law evidentiary errors.”). In light

of this obstacle, Mr. Lovin attempts to recast his claim of state-law error as the denial of a

fundamentally fair trial.

       Even if there was state-law error, Mr. Lovin can obtain relief only if the error “was

so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness

that is the essence of due process.” Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000)

(internal quotation marks omitted). The district court concluded the video demonstration

did not deny Mr. Lovin a fundamentally fair trial, and the correctness of this decision is

not debatable among jurists of reason.

The Failure to Redact Improper Details of Mr. Lovin’s Criminal History

       On appeal to the OCCA, Mr. Lovin framed this issue as whether the trial court

committed plain error when, in the sentencing phase of the trial, it failed to sua sponte

                                              6
redact several judgment and sentencing documents that revealed his history of probation

and parole violations. According to Mr. Lovin, the information that should have been

redacted led the jury to inflate his sentence. He raised the same issue in his habeas

application. See R., Vol. 1 at 7, 12.

       In this court, however, Mr. Lovin raises a different argument about the sentencing

proceeding. He now claims the prosecutor was engaged in a “malicious and vindictive

prosecution.” Aplt. Combined Opening Br. at 4b. More specifically, he argues the

prosecutor “abused his power under color of State law . . . to inflame the conscience of

the Jurors in order to further punish me for asserting my legal right to a trial by jury.” Id.

According to Mr. Lovin, the alleged abuses included: (1) overstating his criminal

history; (2) overcharging him with a felony; and (3) failing to include a lesser included

offense. But we will not consider this argument because Mr. Lovin failed to raise it in

the district court. See Rhine, 182 F.3d at 1154.

Excessive Sentence

       In the OCCA Mr. Lovin alleged that he received an excessive sentence. The

OCCA disagreed. It held that because the sentence was within the statutory range, it

could be modified only “if, considering all the facts and circumstances, it shocks the

conscience.” R., Vol. 1 at 125 (internal quotation marks omitted). The OCCA found that

“[u]nder the facts and circumstances of this case, including [Mr.] Lovin’s nine prior

felony convictions, [the] life sentence is not excessive.” Id. at 125-26. The district court

determined that Mr. Lovin failed to identify a federal constitutional violation and found

the claim lacked merit, citing Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000)

                                              7
(“We afford wide discretion to the state trial court’s sentencing decision, and challenges

to that decision are not generally constitutionally cognizable, unless it is shown the

sentence imposed is outside the statutory limits or unauthorized by law.”). Jurists of

reason would not debate the correctness of the district court’s decision.

Denial of Due Process and Ineffective Assistance of Trial and Appellate Counsel

         In his motion for post-conviction relief, Mr. Lovin raised three claims: (1) an

alleged violation of due process because the same judge who conducted the preliminary

hearing also conducted the trial; (2) ineffective assistance of trial counsel in failing to

inform him that he could object to the same judge presiding at both the preliminary

hearing and trial; and (3) ineffective assistance of appellate counsel for failing to raise the

alleged due process violation on appeal. We address these claims together because they

depend on Mr. Lovin’s first proposition of error—his due process rights were violated

because the magistrate judge who conducted the preliminary hearing also conducted the

trial.

         The trial court found that Mr. Lovin’s claim that the same judge conducted both

the preliminary hearing and trial was “false.” R., Vol. 1 at 136. Further, it found that

claims one and two could have been raised on direct appeal. On appeal, the OCCA

agreed with the trial court that Mr. Lovin’s due process and ineffective assistance of trial

counsel claims could have—but were not—raised on direct appeal, and were therefore

procedurally barred: “[A]ny issues . . . which could have been raised [in his direct

appeal], but were not, were waived.” Id. at 143. As for Mr. Lovin’s claim of ineffective

assistance of appellate counsel, the OCCA found its underlying premise was untrue:

                                               8
“There is more than sufficient evidence establishing that different judges presided over

[Mr. Lovin’s] preliminary hearing and jury trial.” Id. at 145. As such, the OCCA

concluded Mr. Lovin could not meet the test for ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires both deficient

performance and resulting prejudice.

       The district court decided to rule on the merits of two claims that the OCCA

determined were procedurally barred because it “‘[could] easily find [they] fail[] on the

merits,’” R., Vol. 1 at 212, quoting Fields v. Gibson, 277 F.3d 1203, 1217 (10th Cir.

2002). It found that “[t]he record supports the OCCA’s conclusion that [Mr. Lovin’s]

preliminary hearing and his jury trial were not conducted by the same judge.” R., Vol. 1

at 212. Therefore, because the underlying claim failed on the merits, the related claim of

ineffective assistance of trial counsel also failed. With regard to ineffective assistance of

appellate counsel, the court found the OCCA’s decision on this claim was neither

contrary to, or an unreasonable application of Strickland, nor based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceeding.

It therefore denied a COA on these claims.

       Viewing the evidence through the AEDPA’s deferential standard or review, we

conclude no reasonable jurist would debate the district court’s denial of habeas relief with

respect to Mr. Lovin’s due process and ineffective assistance of counsel claims.

Motion to Amend/Supplement

       Mr. Lovin has filed a motion to amend/supplement his application for a COA.

Although we grant the motion, it does not change the outcome. First, Mr. Lovin appears

                                              9
to argue that the items taken from his vehicle should have been suppressed as having

been seized in violation of the Fourth Amendment. He failed to raise this issue on appeal

or in the district court, and we will not consider it. Similarly, he acknowledges that the

police officers gave him a Miranda warning when he was taken into custody, but argues

that because he did not waive his rights, any statements he made to the authorities should

have been suppressed. Again, this argument comes too late. Last, we have addressed his

argument about the video demonstration and his further argument about the alleged

perjured testimony of a prosecution has been waived because he did not raise it in the

district court.

       Mr. Lovin has not shown that reasonable jurists could debate the correctness

of the district court’s denial of his § 2254 habeas application. Thus, we deny his

request for a COA and dismiss this matter. We grant Mr. Lovin’s motion to proceed

in forma pauperis on appeal.

                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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