                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 3, 2012
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



 ANTHONY R. BRANCH,

          Petitioner-Appellant,
 v.                                                      No. 11-6220
 BRUCE HOWARD, Warden,                          (D.C. No. 5:10-CV-00054-W)
                                                       (W. D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


      Anthony R. Branch, an Oklahoma state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to challenge the district court’s denial of his 28

U.S.C. § 2254 application for federal habeas relief. See 28 U.S.C. §

2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application).

Because Branch has failed to satisfy the standards for the issuance of a COA, we

deny his request and dismiss the matter.

I. Background

      In 2007, Branch was convicted on one count of burglary in the second



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
degree—in violation of Okla. Stat. tit. 21, § 1435—following a jury trial in the

District Court of Garfield County, Oklahoma. He was represented by counsel.

During opening arguments to the jury in the sentencing phase, the government

referred to the length of Branch’s previous sentences for other crimes. The court

declared a mistrial and dismissed the jury. Branch then waived his right to be

sentenced by a jury. The trial court sentenced Branch to a twenty-year term of

imprisonment.

       Branch filed a direct appeal with the Oklahoma Court of Criminal Appeals

(OCCA), where he was represented by different counsel. His sole argument on

appeal was that the trial court erred in overruling his demurrer on sufficiency-of-

the-evidence grounds. The OCCA affirmed Branch’s conviction and sentence.

After reviewing the evidence in the light most favorable to the government, the

OCCA held that “a rational trier of fact could have found the essential elements

of the crime of second degree burglary beyond a reasonable doubt.” ROA, Vol.

1, Pt. 1, at 64.

       Branch initiated federal court proceedings on January 19, 2010, by filing a

pro se petition for writ of habeas corpus and a motion for leave to proceed in

forma pauperis. The district court referred the case to a magistrate judge, who

concluded that Branch’s petition raised claims for relief that he had not exhausted

in state court. The magistrate judge recommended that the case be

administratively closed rather than dismissed so that Branch could move to

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reopen the proceedings once he had exhausted the claims in state court. The

district court adopted the magistrate judge’s recommendation and stayed the case.

      In the meantime, Branch had returned to state court to seek postconviction

relief in the Garfield County District Court. The state court denied relief on July

22, 2010, and Branch filed a notice of intent to appeal the order. Branch thought

he timely filed an appeal with the OCCA on August 19, 2010. But the OCCA did

not receive his appellate briefs because he mistakenly addressed them to the

Oklahoma Attorney General. Branch filed a “Motion to Forward” with the OCCA

in an attempt to compel the attorney general’s office to forward his appeal papers

to the court. The OCCA construed Branch’s motion as a request for leave to

pursue a postconviction appeal out of time. Relying on Rule 5.2(C) of the Rules

of the Oklahoma Court of Criminal Appeals, the OCCA denied the motion. The

court explained that if Branch wanted “to appeal the District Court’s order

denying him post-conviction relief, the proper procedure is to file an application

in the District Court requesting a post-conviction appeal out of time.” Id., Vol. 1,

Pt. 2, at 218-19. Rather than proceeding as the OCCA had advised, Branch filed a

second postconviction appeal with the OCCA. The OCCA dismissed the appeal,

again relying on Rule 5.2(C), this time because Branch did not include an appeal

record or a copy of the order denying him postconviction relief. Branch then

returned to federal court and filed a motion to reopen habeas proceedings.

      Branch’s habeas petition included five grounds for relief: (1) Branch’s trial

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counsel was ineffective when she failed to obtain an expert witness on “forensic

DNA testing” and made prejudicial statements to the jury, and Branch’s appellate

counsel was ineffective when she only raised one argument on appeal (sufficiency

of the evidence) and failed to send him a copy of the trial transcript; (2) Branch

was prejudiced by the state court’s delay in bringing him to trial; (3) the

prosecutors engaged in misconduct by failing to lay a proper foundation for the

blood evidence and disclosing the length of Branch’s prior sentences to the jury,

causing a mistrial; (4) the state court imposed an excessive sentence and the jail

fines were excessive in light of the delayed trial date; and (5) there was

insufficient evidence to find Branch guilty of second-degree burglary.

      The magistrate judge issued a report and recommendation that Branch’s

petition be denied. The report concluded that Branch had procedurally defaulted

on his claims for ineffective assistance of counsel, lack of a speedy trial,

prosecutorial misconduct, introduction of evidence without proper foundation,

and imposition of an excessive sentence and fine. The magistrate judge

concluded that the OCCA’s dismissal of Branch’s postconviction appeal on

timeliness grounds foreclosed these claims. That dismissal “constitute[d] an

independent and adequate state procedural ground barring federal habeas review.”

Id., Vol. 1, Pt. 2, at 346. The sufficiency-of-the-evidence claim, on the other

hand, was adjudicated by the OCCA on the merits. The magistrate judge

concluded that the OCCA’s determination that the evidence was sufficient was a


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reasonable application of the standard from Jackson v. Virginia, 443 U.S. 307

(1979).

      On August 12, 2011, the district court adopted the report and

recommendation of the magistrate judge and denied Branch’s petition. The court

entered judgment the same day. Branch requested a COA from the district court,

which the court denied.

      Branch filed a timely notice of appeal and a request for COA with this

court. He also filed a motion to proceed in forma pauperis on appeal.

II. Discussion

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). Under 28 U.S.C. § 2253(c)(1)(A), a state prisoner may appeal from

the denial of federal habeas relief under 28 U.S.C. § 2254 only if the district court

or this court first issues a COA. A COA may be issued “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2).

      When the district court ruled on the merits of a constitutional habeas claim,

the petitioner must show 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). Where the district court ruled on procedural grounds, a

COA may be granted when the petitioner shows that “jurists of reason would find

it debatable whether the petition states a valid claim of the denial of a


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constitutional right and . . . whether the district court was correct in its procedural

ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.

A. Procedurally Barred Grounds for Relief

      Branch’s first four claims for relief were dismissed by the district court

because they were barred by independent and adequate state procedural grounds.

The district court recognized that Branch raised these claims in his postconviction

appeal, which the OCCA concluded was untimely.

      We agree with the district court that Branch’s first four grounds for relief

are procedurally barred. “If a particular claim was ‘defaulted in state court on an

independent and adequate state procedural ground,’ we recognize the state courts’

procedural bar ruling and do not address the claim on the merits ‘unless cause and

prejudice or a fundamental miscarriage of justice is shown.’” Johnson v.

Champion, 288 F.3d 1215, 1223 (10th Cir. 2002) (quoting Maes v. Thomas, 46

F.3d 979, 985 (10th Cir. 1995)); see also Coleman v. Thompson, 501 U.S. 722,

750 (1991). We have previously held that “the OCCA’s declination of

jurisdiction” under Rule 5.2(C) of the Rules of the Court of Criminal Appeals is

an independent and adequate state procedural ground that will ordinarily preclude

federal habeas review. Johnson, 288 F.3d at 1226-27 n.3. While Branch’s


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procedural default may have been a product of confusion about the proper method

for perfecting an appeal from the denial of postconviction relief, we note that the

OCCA went out of its way to explain to Branch how he could potentially remedy

the oversight, but Branch did not take the OCCA’s suggested route. See ROA,

Vol. 1, Pt. 2, at 218-19 (“Petitioner’s right to appeal is dependent upon his ability

to prove he was denied an appeal through no fault of his own.”). We conclude

that jurists of reason would not find it debatable whether the district court

properly invoked this procedural bar to dispose of these claims.

B. Sufficiency of the Evidence

      Next, Branch contends that there was insufficient evidence to support his

conviction for second-degree burglary.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), when a state court has “adjudicated a claim on the merits,” we may

grant relief only if the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d); see also Matthews v.

Workman, 577 F.3d 1175, 1180 (10th Cir. 2009), cert. denied, 130 S. Ct. 1900

(2010). In this context, the pertinent “clearly established Federal law” requires

courts to determine whether, “after viewing the evidence in the light most


                                          7
favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” See Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

      The OCCA concluded on direct appeal that “a rational trier of fact could

have found the essential elements of the crime of second degree burglary beyond

a reasonable doubt.” ROA, Vol. 1, Pt. 1, at 64. The court considered the

evidence introduced at trial, which included

             [e]vidence that [Branch’s] blood was found on the cash
             register drawer, and at the time he was apprehended,
             [Branch] had a bleeding cut on his wrist; that he was
             seen a block away from the burglarized restaurant at
             1:00 a.m., crouched down and doing “something with his
             hands”; that upon seeing the passing police car, [Branch]
             fled into a nearby field and attempted to hide; that no
             wet spot was found on the ground where he claimed he
             had gone to the bathroom; and that no other individuals
             were seen in the area at the time and [Branch] refused to
             divulge any further information about “another guy[”],
             supports the jury’s finding that [Branch] broke and
             entered the Café and unlawfully removed the cash
             register drawer.

Id. Because the OCCA applied the Jackson standard in deciding Branch’s

sufficiency claim on direct review, “our task is limited by AEDPA to inquiring

whether the OCCA’s application of Jackson was unreasonable.” Matthews, 577

F.3d at 1183.

      The district court concluded that OCCA’s resolution of this issue was

consistent with the Supreme Court’s standard. ROA, Vol. 1, Pt. 2, at 365. We



                                          8
agree that the OCCA applied a state-law standard analogous to the one articulated

in Jackson, and this was not an unreasonable application of clearly established

federal law. We cannot conclude that the OCCA’s determination was

unreasonable in light of the evidence at trial. See Turrentine v. Mullin, 390 F.3d

1181, 1188 (10th Cir. 2004) (denying habeas relief on sufficiency-of-the-evidence

grounds where “[t]he OCCA’s decision . . . was neither contrary to nor an

unreasonable application of Jackson; nor was it based on an unreasonable

determination of the facts in light of the evidence presented.”). The AEDPA

“imposes a highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.” Felkner v.

Jackson, 131 S. Ct. 1305, 1307 (2011) (per curiam) (quoting Renico v. Lett, 130

S. Ct. 1855, 1862 (2010)) (internal quotation marks omitted). The OCCA’s ruling

meets this standard.

      We have reviewed Branch’s application for a COA, his opening brief, the

magistrate judge’s report and recommendation, the district court’s order, and the

entire record on appeal. And we have construed Branch’s filings liberally

because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3

(10th Cir. 1991). But because Branch 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). Jurists of reason would not debate the district court’s resolution of

his claims.

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      Finally, we also deny Branch leave to proceed in forma pauperis because he

has failed to identify “the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812-13 (10th Cir. 1997) (quoting DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)) (internal quotation marks omitted).

IV. Conclusion

      We DENY Branch’s motion to proceed in forma pauperis, DENY his

application for a COA, and DISMISS the matter.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




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