                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                February 18, 2014
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 ARLUS EUGENE MORRISON, JR.,

              Petitioner - Appellant,

 v.                                                     No. 13-7067
                                           (D.C. No. 6:10-CV-00119-RAW-KEW)
 MIKE ADDISON, Warden,                                  (E.D. Okla.)

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      Proceeding pro se, Arlus Eugene Morrison, Jr. 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 no appeal may be taken from a final order disposing of a § 2254

petition unless the petitioner first obtains a COA). Because Morrison has not

“made a substantial showing of the denial of a constitutional right,” this court

denies his request for a COA and dismisses this appeal. Id. § 2253(c)(2).


      *
       This order is not binding precedent, except under the doctrines of law of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.
      In 2008, an Oklahoma judge found Morrison guilty of rape by

instrumentation, first degree rape, child sexual abuse, and lewd molestation of a

child under the age of sixteen. He was sentenced to twenty years’ imprisonment

on the lewd molestation conviction and thirty years’ imprisonment on the

remaining convictions, with the sentences ordered to run concurrent to each other.

      Morrison filed a direct appeal with the Oklahoma Court of Criminal

Appeals (“OCCA”), arguing the record did not show that the waiver of his right to

a jury trial was made knowingly, intelligently, and voluntarily. T he OCCA

disagreed. It concluded the supplemental record, which included affidavits from

trial counsel, the prosecutor, and the trial judge, established that Morrison

knowingly and voluntarily waived his right to a jury trial.

      Morrison filed the instant § 2254 habeas petition with the United States

District Court for the Eastern District of Oklahoma. In his petition, Morrison

reasserted the claim he raised before the OCCA in his direct appeal. The district

court assigned the matter to a United States magistrate judge who made findings

and recommended Morrison’s habeas petition be dismissed. Applying the

standard set forth in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), the magistrate judge concluded Morrison failed to demonstrate the

OCCA’s adjudication of his claim was contrary to, or an unreasonable application

of, clearly established federal law, or resulted in a decision based on an

unreasonable determination of the facts in light of the evidence. 28 U.S.C.

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§ 2254(d). In support of this recommendation, the magistrate judge noted

Morrison did not deny the facts in the affidavits which were part of the state

appellate record. After reviewing Morrison’s objections, the district court

adopted the magistrate judge’s findings and recommendation and dismissed

Morrison’s petition. 1

      This court cannot grant Morrison a COA unless he can demonstrate that

“reasonable jurists could debate whether (or, for that matter, agree that) 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) (quotations omitted). In evaluating whether

Morrison has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Morrison 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.” Id. (quotations omitted).

      The AEDPA governs the review of Morrison’s claim. Under the standards

set out in 28 U.S.C. § 2254(d), this court cannot grant a writ of habeas corpus


      1
       The district court also refused to grant Morrison a COA and denied his
motion to proceed in forma pauperis on appeal. Morrison thereafter paid the
appellate filing fee in full. Accordingly, his renewed request to proceed in forma
pauperis is denied as moot.
                                         -3-
unless the OCCA’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,” 28 U.S.C. § 2254(d)(1), or “was based on an

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

trial.” Id. § 2254(d)(2); see also Williams v. Taylor, 529 U.S. 362, 412-13 (2000)

(interpreting 28 U.S.C. § 2254(d)(1)). This court has thoroughly reviewed the

entire record, including the affidavits. Morrison has failed to meet his burden of

establishing the OCCA’s finding that his waiver of a jury trial was made

knowingly and voluntarily is “an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Accordingly, Morrison has not “made a substantial showing of the denial of a

constitutional right,” and he is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Morrison’s request for a COA and dismisses this appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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