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

                                    TENTH CIRCUIT                                 June 26, 2014

                                                                              Elisabeth A. Shumaker
CORNELL JOE PARKER,                                                               Clerk of Court
       Petitioner - Appellant,

v.                                                            No. 14-5005
                                               (D. Ct. No. 4:10-CV-00757-TCK-PJC)
EDWARD EVANS, Interim Director,                               (N.D. Okla.)
Oklahoma Department of Corrections,

       Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Cornell Joe Parker, proceeding pro se,1 and having unsuccessfully moved in

federal district court for habeas relief under 28 U.S.C. § 2254, seeks a certificate of

appealability (“COA”) for this court to review four issues. See 28 U.S.C.

§ 2253(c)(1)(A). We deny COA as to all four issues and dismiss this matter.



       * This order is not binding precedent, except under the doctrines of law of the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.
       1
        Because Mr. Parker is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
                                   I. BACKGROUND

                           A. State Trial Court Proceedings

        Alleging that in August 2007, Mr. Parker and two other individuals robbed, beat,

and shot a man they met at a bar, the State of Oklahoma charged him with Shooting with

Intent to Kill, Robbery with a Firearm, Kidnapping, Larceny of an Automobile, Arson,

and Felon in Possession of a Firearm. On the morning of trial, Mr. Parker moved to

change his plea. Defense counsel advised Mr. Parker about the range of years he would

face for the six counts, but he misstated the statutory minimums for three of the counts.2

At the change of plea hearing, the trial judge, after reading out loud the plea form

prepared by defense counsel containing the misstatements, corrected the range on

        2
       This table summarizes the misstated and correct ranges, and the actual sentence
imposed:

        Count            Misstated Range          Correct Range         Sentence Imposed
Shooting with Intent
                                N/A               20 years to life           25 years
to Kill
Robbery with a
                                N/A               20 years to life           25 years
Firearm
Kidnapping                      N/A               20 years to life           10 years†
Larceny of an
                           6 years to life         9 years to life           5 years†
Automobile
Arson                      6 years to life         4 years to life           10 years
Felon in Possession
                           4 years to life         2 years to life          5 years
of a Firearm
  † The record does not reflect why the district court imposed two sentences below their
    respective statutory minimums.

      Because some sentences run concurrently while others run consecutively, Mr.
Parker’s sentences total 40 years of imprisonment.


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Larceny of an Automobile upon prompting from the prosecutor. Mr. Parker pled no

contest to Shooting with Intent to Kill, and guilty to the other five counts.

       Mr. Parker later moved to withdraw his pleas, arguing they had not been knowing

and voluntary. After hearing testimony from Mr. Parker and his defense attorney, the

court denied the motion, finding defense counsel’s misstatements were either cured or

harmless because they were “not outcome determinative.” Change of Plea Hr’g Tr.,

ROA, Vol. II at 147-48. It said “the defendant knowingly entered into the plea, and that

his final decision to accept a -- the blind plea sentence of the Court was not in any

material way based upon the errors in the Court’s recitation or in the [plea] form.” Id. at

148.

                                    B. OCCA Appeal

       Mr. Parker filed a petition for a writ of certiorari with the Oklahoma Court of

Criminal Appeals (“OCCA”) on four issues: “(1) whether he received effective

assistance of counsel; (2) whether his plea was knowingly and voluntarily entered; (3)

whether his sentence is excessive; and (4) whether cumulative error deprived him of a

fair proceeding.” OCCA Op. Denying Certiorari, ROA, Vol. I at 109.

       First, Mr. Parker argued his lawyer violated Strickland v. Washington, 466 U.S.

668 (1984) by (a) failing to prepare a defense and instead advising Mr. Parker to plead

guilty even though Mr. Parker wished to go to trial and insisted he had an alibi, and (b)

failing to advise him properly about the effect of pleading guilty, in particular misstating

the three statutory minimum ranges. The OCCA rejected the trial preparation argument

because “defense counsel researched [Mr.] Parker’s alibi, subpoenaed witnesses, and


                                               3
attempted to get a continuance to further research [Mr.] Parker’s potential alibi.” OCCA

Op. Denying Certiorari, ROA, Vol. I at 109. The OCCA rejected the failure-to-advise

argument because Mr. Parker “met with his attorney multiple times about the case and

spent sufficient time reviewing the plea form.” ROA, Vol. I at 109. 3

      Second, the OCCA acknowledged the state trial court erred by overstating the

minimum sentences for two counts, but concluded Mr. Parker’s pleas were not

involuntary or unknowing because any misunderstanding did not affect the outcome.

      Third, Mr. Parker claimed his sentence was excessive because he received a

harsher sentence than some of his more-culpable co-defendants. Mr. Parker quoted

Oklahoma statutory and case law stating that when a guilty plea “shocks the conscience

of the court or an injustice has been done” the OCCA “has the power to modify that

sentence.” OCCA Br., ROA, Vol. I at 99-100 (citing Okla. Stat. tit. 22, §1066 and

Livingston v. State, 795 P.2d 1055, 1058 (Okla. Crim. App. 1990) (addressing state law

only)). The OCCA concluded Mr. Parker’s sentence was within the statutory range and

“does not shock the conscience of [the] Court.” OCCA Op., ROA, Vol. I at 111.

      Fourth, the OCCA rejected Mr. Parker’s cumulative error claim.




      3
         Although the OCCA determined Mr. Parker’s counsel was not deficient, the
OCCA’s opinion does not discuss defense counsel’s misstatements of the statutory
minimums. Under AEDPA, we must presume the OCCA decided that issue on the
merits. Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013) reh’g denied, 133 S. Ct. 1858
(2013); Harrington v. Richter, 131 S. Ct. 770, 785 (2011). Mr. Parker does not attempt
to rebut this presumption.



                                             4
       The OCCA affirmed the trial court in a summary opinion on the merits and denied

his petition. Mr. Parker neither petitioned the United States Supreme Court for certiorari

nor sought post-conviction relief in the state courts.

                                C. Federal District Court

       On November 24, 2010, Mr. Parker timely applied for habeas corpus relief under

28 U.S.C. § 2254, raising the same four issues.

       First, applying the deferential standards required by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), the district court determined that Mr.

Parker had failed to show an unreasonable application of Strickland. On the trial

preparation argument, it noted defense counsel had prepared by interviewing witnesses

and investigating the alleged alibi. Nothing suggested defense counsel’s

recommendation to plead guilty was unreasonable “based on [defense counsel’s]

investigation and known facts.” Parker v. Evans, 2013 WL 6800138, at *5 (N.D. Okla.

Dec. 20, 2013). On the failure-to-advise argument, the district court noted that defense

counsel met with Mr. Parker for 20-25 minutes to go over the pleas and that Mr. Parker

indicated he had understood the pleas. The district court further noted Mr. Parker had not

demonstrated that counsel’s misstating the statutory minimums would have affected his

decision to not go to trial.

       Second, the district court concluded the OCCA’s decision was not contrary to or

an unreasonable application of Supreme Court precedent on the voluntariness of a guilty

plea. It said the state trial court’s factual finding that the misstatements of the statutory

minimums did not affect Mr. Parker’s decision to plead guilty was based on “a careful


                                                5
review of the errors alleged by Petitioner” and that the trial court “determined them to be

either cured or harmless.” Parker, 2013 WL 6800138, at *7. It noted that under

AEDPA, federal courts presume that state court factual findings are correct unless

rebutted by clear and convincing evidence, which Mr. Parker failed to do. Id. at *8; see

28 U.S.C. § 2254(e)(1).

       Third, the district court observed that “[a] habeas court affords ‘wide discretion to

the state trial court’s sentencing decision, and challenges to the decision are not generally

constitutionally cognizable, unless it is shown [that] the sentence imposed is outside the

statutory limits or unauthorized by law,’” Parker, 2013 WL 6800138, at *9 (quoting

Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000)). The district court concluded

“[t]here is no basis for habeas relief” because all of Mr. Parker’s challenged sentences

were within statutory limits. Id.

       Fourth, the district court concluded the OCCA did not unreasonably apply the

cumulative error doctrine.

       The district court therefore denied habeas relief and declined to issue a COA. Mr.

Parker timely filed a notice of appeal and request for a COA.

                                     II. DISCUSSION

                          A. COA Standard and AEDPA Review

       Mr. Parker may not appeal the district court’s denial of his § 2254 application

without a COA. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 335-

36 (2003). To obtain a COA, he must make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), by demonstrating “that jurists of reason


                                               6
could disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude that the issues presented are adequate to deserve encouragement to

proceed further,” Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007) (quotations

omitted).

       The AEDPA standard governs federal habeas review of state court decisions. See

28 U.S.C. § 2254. If state court proceedings adjudicated the merits of a claim, a federal

court may grant habeas relief only if the state court 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 in the State

court proceeding.” Id. § 2254(d)(2); see also Richter, 131 S. Ct. at 785.

       In deciding whether to grant a COA, we are required to “look to the District

Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that

resolution was debatable among jurists of reason.” Miller-El, 537 U.S. at 336.

                                       B. Analysis

       Mr. Parker seeks a COA on the same four issues he raised in the OCCA and in the

district court: (1) ineffective assistance of counsel; (2) unknowing and involuntary pleas;

(3) excessive sentence; and (4) cumulative error. See Aplt. Br. at 3-4. Because the

OCCA rejected these claims on the merits, the district court correctly reviewed them

under AEDPA’s deferential standard.




                                               7
1. Ineffective Assistance of Counsel

       a. Strickland

       Mr. Parker claims he was denied effective assistance of counsel. Under

Strickland, a defendant’s Sixth Amendment right to effective counsel is violated when

(1) counsel’s performance was deficient, and (2) the defendant suffered prejudice as a

result. Strickland, 466 U.S. at 687. As to (1), a defendant must show counsel’s

performance “fell below an objective standard of reasonableness.” Id. at 688. The

defendant must overcome a “strong presumption that counsel’s conduct [fell] within the

wide range of reasonable professional assistance . . . [and] might be considered sound

trial strategy.” Id. at 689 (quotations omitted). As to (2), a defendant must show “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability” is one

“sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different

result must be substantial, not just conceivable.” Richter, 131 S. Ct. at 792.

       Under AEDPA, a “state court must be granted a deference and latitude that are not

in operation when the case involves review under the Strickland standard itself.” Id. at

785. When evaluating the state court’s resolution of Strickland’s performance

requirement, federal courts must “use a ‘doubly deferential’ standard of review that gives

both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 134

S. Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).




                                               8
       b. Mr. Parker’s claims

       Mr. Parker posits two ineffective assistance of counsel claims. First, he alleges his

counsel was not prepared for trial and instead recommended a guilty plea. As the OCCA

and the district court concluded, the record shows he was prepared, and reasonable jurists

would not debate otherwise.

       Second, he alleges his counsel’s misstatement of sentencing ranges for three of his

six charges caused him to plead guilty rather than go to trial. To show prejudice, Mr.

Parker must demonstrate he would not have pled guilty but for counsel’s errors. Hill v.

Lockhart, 474 U.S. 52, 59 (1985). A mere assertion is not enough. Miller v. Champion,

262 F.3d 1066, 1072 (10th Cir. 2001). Instead, “we look to the factual circumstances

surrounding the plea to determine whether the petitioner would have proceeded to trial.”

Id.

       Of the three misstated ranges, the trial court corrected one. Defense counsel

overstated the other two- and four-year-minimums by two years each. These

misstatements must be considered in the context of the three correctly stated 20-to-life

sentence ranges. See supra note 2. Moreover, after holding a hearing on this issue, the

state trial court found Mr. Parker would have pled guilty notwithstanding the two

misstatements. Federal courts must accept this finding unless Mr. Parker contradicts it

with clear and convincing evidence, 28 U.S.C. § 2254(e)(1), which he has not.

Reasonable jurists would not debate the district court’s denial of this claim. We therefore

deny COA on ineffective assistance of counsel.




                                              9
2. Unknowing and Involuntary Pleas

       Mr. Parker claims his guilty plea was not knowing and voluntary because counsel

misstated the sentence range for three charges. The district court corrected one of the

misstatements, and our case law holds this claim can succeed as to counsel’s

misstatements only when counsel is held to have been constitutionally ineffective.

Bush v. Neet, 400 F.3d 849, 853 (10th Cir. 2005). Our disposition of the ineffective

assistance claim therefore resolves this claim. We deny COA.

3. Excessive Sentence

       Mr. Parker claims his sentence was excessive under Oklahoma law but fails to

identify any federal constitutional violation, which is the core predicate for habeas relief.

See 28 U.S.C. § 2254(a). He has not even shown that his sentence falls outside the state

statutory limits. See Dennis, 222 F.3d at 1258 (stating challenges to state sentencing

decisions “are not generally constitutionally cognizable, unless it is shown the sentence

imposed is outside the statutory limits or unauthorized by law”). The district court was

indisputably correct in denying habeas relief on this claim, and we again deny COA.

4. Cumulative Error

       Based on the foregoing, Mr. Parker’s request for COA on the issue of cumulative

error has no basis.




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                                  III. CONCLUSION

       For the foregoing reasons, we conclude Mr. Parker has not made a substantial

showing of the denial of a constitutional right. We deny COA as to all issues and dismiss

this matter.

                                         ENTERED FOR THE COURT




                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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