                                                                                      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         This order is not binding precedent except under the doctrines of law of the case,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.
                                              2
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

                                              3
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,


                                              4
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


                                                5
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



                                            6
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

                                              7
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

                                              8
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,

                                             9
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”).
                                             10
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

                                             11
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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